Hi John,

There was an original "paper" contract, but the end product and services provided had almost zero similarity to what I originally agreed to on paper (because of a long history of miscommunication issues on their end).

When I finally released the end product to them, I included a "terms of use" statement, which they were required to accept before using the application. The statement indicated that I owned all intellectual property to the application, including source code and design concepts.

Considering the complexity of this, you are right in that I will need a lawyer if they continue to request the source code. I'm not really sure if the "terms of use" legally replaces the original paper contract. Furthermore, I'm not even sure if the original paper contract was invalidated through all the changes. Also, I never indicated that they had any right to anything but the end product.

Anyway, this is definitely a complex issue. Thanks for your advice.

Dave

>>Here are my questions: Can I ethically charge them a fee for my source code, even though it was a custom system I built for them? If so, is there a standard method for determining what to charge for source code? I want to do the right thing here.
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>Hi David,
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>This issue has nothing to do with ethics (at least not yet). Rather, it has to do with whether you or your client owns the copyright to the work. If there is a contract and it states it is work for hire - that ends the issue. In that case, your client owns the work and ethcically - as well as legally -you should turn over the code. In this case, you and your client gets what was bargained for (although you may not have realized it). FYI - the contracts in these cases must be in writing as that is what the statute contemplates. Based on what you have told us - this application does not look to be an addition to an existing piece of work - which is good for you.
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>On the other hand - if there is not a contract - then in order for the client to own the work - you must fit within the legal definition of an employee. The Supreme Court of the United States several years ago decided a case called Reid vs. The Creative Community for Non-violence. That case outlined 9 factors to consider when determining whether this is a client/contractor relationship or an employer/employee relationship. Among the factors to consider is the amount of control retained by the client as opposed to you, where the work was done, whose equipment was used, etc. Based on what you have told us here, it looks to me like you were an independent contractor. And, since there does not appear to be a contract, this cannot be work for hire. The end result - you own the work. While the client can excercise control over thier copy of the work (the EXE they have) - you have rights in the source code, distribution, derivative works, etc.
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>The proper question here is not whether it is ethical for you to charge them for the source code? Rather, the proper question is how much should the client pay for a LICENSE to your source code. When and if you turn source code over to the client - it should done conditioned on a license agreement. And with that said - you should seek the counsel of an IP lawyer licensed to practice in your jurisdiction.
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>HTH...
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>< JVP >