Posts Tagged ‘software rights’

Software Life Cycle, Source Code and Intellectual Property

An important but often neglected consideration when contracting for the custom development of your web site or software application are the long term issues such as who owns the source code, is it updated, who maintains the code and do you have the right to change vendors down the line and under what circumstances. While this has been an issue for a long time with custom software development, it is becoming much more common now with custom web sites as they become much more powerful through the use of content management tools and e-commerce components. In the past, with a simple brochure site, you could throw away the old one and develop something new to replace it. With today’s powerful tools, a sites appearance can change but the background code can last for many years.

In most cases, a web design or software development company will have some standard code libraries that they utilize for each project. This is a good thing in that it allows you to get more function usually at a lower cost and faster than developing everything just for you. These libraries could have been developed over a long time across a large number of customers. To replicate them from scratch could cost more than your entire project. The potential issue that you need to resolve in your contract is how do those common libraries affect your ability to upgrade long term. Web server platforms, operating systems and technologies are constantly changing. Are those libraries continually updated to the latest versions? What happens if the vendor goes out of business or decides to no longer support those libraries? What happens if you want to change vendors? At a minimum, you should consider software escrow with a trusted third party from whom you will be able to get the source code if your current vendor goes out of business or no longer supports the software.

Also, you should consult your lawyer about the ownership of the code and content being developed for your site. If you are having work done overseas, then you should understand that any enforcement of your intellectual property rights or ownership of the source code is going to be difficult at best. Trying to prevent a foreign entity from divulging or reusing your proprietary information would be an expensive and difficult effort.

If you are have enhancements or modifications done to your software, make sure you have the very latest source code when it is complete. The software developer may or may not keep good track of small modifications made to your programs. It is critical that you or your vendor have the ability to rebuild your site at any time from scratch and that you have some legal recourse to obtain all of the source code if the vendor ceases business. I would also try to get the source code if the business unit you worked with is sold. The new owner may have different ideas about how/if you are supported.

In summary, you need to really understand exactly what you are buying and consider what options you have going forward. Without source code (and/or the legal right to it), you will have limited options if your vendor goes out of business, he decides to abandon the software, you have a falling out with the vendor or you wish to change vendors.