Advice Please

[rainmaker]

I have recently started a web business wereby I provide an online resouce for the community I live it. We encourage membership to the site which is free. We make money through web advertising and by providing businesses in the area with a detailed listing on our site and access to a content management system, where they are able to manage their own content as well as post sales and promotions and participate in email marketing to our members. I have over 15 years of Marketing experience but very little experience in website development.

We have sourced a very talent web developer who so far has done a fantastic job with the site. My problem is my developer is begining to miss deadlines and has become aloof and difficult to pin down. To date the project is over 50% complete and I have paid my developer a substantial amount of money for his efforts so far, however, I don't have the source or FTP access to the site, which by the way is currently residing on his dedicated server. Since starting this venture I have learned a lot about web development, however I remain unsure about the process. I feel as if my developer has too much control over my property at this time and I am trying to discern what I should be asking for, hence my post for advice. I have asked him for both the source code as well as FTP access. He will only provide either one or the other, but not both as he says keeping one is his "insurance". However to date I have paid him for all work completed so far.

Can someone tell me, is this a common position that developers take? What actions should I take to protect my business?

Many Thanks,
rainmaker

[JPnyc]

Developers (and people in general) behave that way when they feel they can get away with it. I hesitate to make a hasty judgement, but it appears you have chosen a disreputable developer. You should have FTP access to the files. You do not OWN the source, in that you cannot resell it, but one generally purchases the files for YOUR use only. If you can get FTP access to the site, copy all the files you have paid for to your server or local machine. You paid for them. Then I would hire another developer.

[rainmaker]

Thank you for your reply. It's very helpful.

rainmaker

[Gary Harrison]

Is your web developer covered under a work for hire agreement? If so, does it say who owns the source code?

Without a transfer in writing your programmer owns the code and you own nothing. Legally, he could then sell the code to anyone else if he wants and even sue you later for copyright infringement - even if you paid for the code to be written.

Typically, programmers don't give up the rights to their code. Instead they give you a license to use it. Without at least that you are just asking for trouble.

[MrPerrel]

funny this was brought up, I'm in the same boat and it stinks. Is there anything else that can be added to this thread to get me out of this situation.

We have a verbal agreement that we own the source code, will that hold up? or did we just get false hope?

our deadline for the site going live was 6/1/05 and it didnt go live until mid September, so that hurt our relationship off the bat, it is now 11/22 and the site is still not up to what we agreed on. We kind of gave up on the idea now because they wouldn't get anything done on time. I dont want to stir up my emotions and get on a rant so I will stop here.

Please Advise...

[JPnyc]

Is there a written contract involved in any of the above cases? You own the source outright? Because I think that would be an important point. Software is generally licensed as opposed to "sold". You are licensed to use it for the purpose of the original agreement but not authorized to resell it unless specified.

The legal aspects and recourse are outside my knowledge so I won't presume to pontificate about them. Our site editor dmuse might have more insight. I'll ask.

[MrPerrel]

I personally did not get to read the contract, my manager did if there even was one. The developers are friends with our CFO, so that really stirred up the pot because me and my manager were upset with them because they were not getting anything done and the CFO was backing them up which created the butting of the heads between us. I do not believe that we have a written contract for us owning the code, I think it was all just a verbal agreement between us.

We have no intention of selling the code, I just want to be sure that we are free to keep it for any sercumstance under our verbal agreement so we can possibly take it to a different developer.

I hope I gave you enough info so you can help me out

[JPnyc]

Well your situation is a little different in that you have an internal struggle compounding it. I've asked the site editor here to drop in and reply to this thread. I'm a developer myself, not a lawyer, and a lawyer is what's really needed here.

[rainmaker]

Yes, we have a signed contract with our developer. The exact wording regarding ownership of work is as follows:
1.6 Ownership
1.6.1 The Service Provider agrees that the copyright, ownership and proprietary rights in any documentation, software, designs or other material artefacts resulting from the provision of the agreed Services belong to the Client.

I'm no lawyer, but I understand this to mean that we own the source code. Am I mistaken?

[JPnyc]

That would mean that to me, yes.

[rainmaker]

Sorry JPnyc, Can you provide a clarification of your reply - do you mean Yes we own the source code or Yes I'm mistaken?

And one last question. Can you or anyone else recommend how to find another developer? I've heard of this site www.rentacoder.com. Is this a good place to start?

Many Thanks

[JPnyc]

Yes, I interpret that as you do, that you would own the source code and files for your purposes. See, with web software they're one and the same. These aren't compiled programs but scripts. All you need do is open them in a text editor and you can see the code.

Try dice.com for a coder.

[rainmaker]

Thanks for the clarification.

[rainmaker]

Hello again,
I have a new dilemma. Now my developer refuses to provide me with ftp access to my website. He is based in the UK. Can anyone provide me with advice on what to do next? Is there a watchdog organization I can turn to or some other authoritative body that can assist with a situation like this, or is my only action Legal...

[dmscs]

Dear Rainmaker

I am sorry about this so called idiot of a developer. I hate it when people get the dirty end of the stick, especially when you have paid for your goods. Whats this mans telephone number? Perhaps a polite call would sort him out.

If he lived close to me I would knock on his door and represent you.

I do hope you get this sorted. If you need any assistance then please do not hesitate in contacting me.

Good Luck

David
dmscs

[rainmaker]

Dear David,
Thank you for the kind offer. I may just have to take you up on it - hopefully not.

Cheers,
Rainmaker