Hi David..

Putting ethics aside for the moment, lets talk about contracts...

First off, what is a contract? A legally enforceable promise

What is the primary requirement for a contract? Consideration

What is consideration? A bargain that entails an exchange of a promise for a promise or an exchange of a promise for some performance.

The issue is not whether you are ethically allowed to sell the software to other Doctors. The issue is whether you would be in breach of contract with your existing client if you do such a thing.

Was there consideration? My guess is that the answer is yes. In consideration of your promise to build and deliver software for your client, your client gave in consideration, his promise to pay you X amount of dollars. The question of fact of course is what precisely did your consideration consist of. If there is nothing in writing, you would be left with the objective standard. What would a reasonable and objective person think if presented with the facts. FWIW, the folks I am describing are the triers of fact - more commonly known as juries..

Whatever you promised, and perhaps more importantly, what did your client rely on for his promise? Simply put, you need to have a clear picture of this before you can go forward...


For one thing, you may not own the software, and as such, you may not be able to license or convey title to anyone else. What governs this situation, most likely, is the work for hire doctrine.

If on the other hand, you did not make provisions to retain the ownership rights, you may have given the ownership rights to your client as consideration for payment. This happens all of the time. It just so happens that many folks in this business don't realize what it is they are doing...

Whether you won out or lost on the deal, the courts don't really care. The issue is not the adaquacy of the bargain. Rather, the issue is how you conducted the bargain. Was it done in good faith? Etc. Heck, I could offer to sell you my $40,000 for $5,000 - so long as we had an effective offer and acceptance - that's it...

Lastly, if you go ahead, and effectively take adverse possession of the software and sell it and your client does nothing, you effectively will have possession. In this country, you need to enforse and assert your rights. The courts are not going to automatically do that for you.

Your ethics will lead you to the conclusion of what you promised. Once you have that in place, contract law should then dictate what you do...

FWIW, it is always best to be a straight shooter. Play by the rules. If you have some pangs in your gut over this, that tells me you know what the real deal is. That is your ethics kicking in.

The light shines favorably on those who keep their word - whether given expressly or implied through their respective actions.

< JVP >




>Hi everyone,
>
>I've recently completed a medical application, which took more than a year to complete (on and off kind of work). All of the conceptual design, planning, and development was done by myself. The client's contribution was to provide me with knowledge about his particular specialty, the specific types of data to be included, and the types of studies that he wanted to perform with the completed application. Although, it took about a year for me to find out exactly what I needed to know. A lot of trial and error was involved, which lost me quite a bit of money. The client was extremely difficult to work with, and it was like pulling teeth to get information from him. I admit that I have not been in this business for too long, so it's taken a few bad experiences for me to learn how to design a contract that doesn't lose me money.
>
>Anyway, now that I've completed the contract, I've been considering selling copies of this application to other doctors in the same field as my former client. The application opens with a legal statement, which specifies that I own all rights to the application, and that the doctor has only purchased a license to use the application. The statement also states that by using the application, the user agrees to everything in the legal statement (which states that I own all rights).
>
>Here are my questions: Is it unethical for me to sell this application to others, since I was specifically contracted to build this application for this particular doctor(client)? Should I ask the client's permission before doing this? Is there any way that I could be sued for selling this without his permission?
>
>To the best of my knowledge, I own all legal rights to my code and designs. I'm assuming that it would be a different case if the client gave me specific blue prints as to how he wanted the software to specifically appear and function. However, I performed about 98 percent of the conceptual design for this application. The client basically had no idea what the end product would look like, and how most of it would function. He only provided me with the most basic information, and left everything else to me. The complexity was tremendous, since I had to design a user interface and structure to capture and manage many sources of medical data. I lost a lot of money on this project, and I would like to try and recover some of it. However, I don't want to do anything unethical.
>
>Has anyone else sold copies of their custom applications? Any comments as to whether this is ethical or unethical??
>
>Thanks for any comments and advice
>
>Dave