[asterisk-biz] Fascinating conversation with a prospective customer

[Paul]

Trixter aka Bret McDanel wrote:

>
>
> On 1/7/07, *Paul* <ast2005 at 9ux.com <mailto:ast2005 at 9ux.com>> wrote:
>
>     That is exactly right if the customer is not looking for something to
>     resell as a shrinkwrap binary. However, you still need to write a
>     realistic contract. Even if I destroy all copies of source, notes and
>     docs I have a good memory for concepts used. I want the contract to
>     clearly specify the restrictions placed on my future work and the
>     duration of those restrictions.
>
>
>
> since we have already gone into a bit of a tangent, lets go a little
> further, but still relevant.  There have been cases heard in courts
> recently (ok over the last several years) in a couple different
> countries regarding webpages for hire.  When a work is commissioned by
> default in *some* countries the person who paid for it owns all rights
> unless a contract specifically states otherwise.  The cases largely
> were about webpages created for a customer, then the  web artist takes
> that same layout, tweaks it a little and sells it to someone else. 
> The original customer sues the web developer for copyright infringement.
>
> How this applies to asterisk stuff, and why contracts should always be
> used, is if you develop a system for someone, then use that same
> layout for someone else in theory you could be sued.  Now there is a
> burden of proof that must be met, but stranger things have happened in
> courts, and you could end up losing your business over it.  This would
> especially include code written (AGIs for example) but given the GPL
> it would be hard to enforce it on code that is covered by the GPL
> (without getting into the conversation again about how the FSF feels
> that modules do not have to be GPL with asterisk specifically). 
>
> The customer however would have to sign a disclaimer if they own the
> code however, so if you dont have a contract that specifically allows
> introducing it into GPL trees, and for resale by another, then you
> could actually see damages shown.  Any code that was written for hire
> in one of these countries (the US is one, which is where digium is so
> its unclear but probably a requirement for digium to have a disclaimer
> from the real copyright holder) would not be allowed to be included
> without a contract clearly giving the one that disclaims permission to
> do so, or the person who paid for the code to sign a disclaimer.
>
> Remember, lawyers write the laws, typically in a fashion to ensure
> they continue to get business.

I was thinking more about unreasonable restrictions placed on the future
livelihood of the worker. Let's assume he does nothing unfair or
underhanded. He has proper respect and regard for IP rights. The
customer wants a non-compete clause that prevents him from doing any
development work for competitors of the customer.

Lawyers have told me that the courts will not enforce such non-compete
clauses if they do not see proper consideration(compensation). If you
want to prevent the contractor from doing anything in the car wash
industry for the next 5 years, you are expected to pay for that
privilege. More than one lawyer has told me this. The broadness of scope
and duration of a non-compete clause should line up with the
consideration offered. If you are putting the guy in a position where it
takes a year to transfer his skills to another market area then you
should be compensating him for the income reduction during that time.

I tend to believe these lawyers because the courts continue to go more
in the "big brother" direction. They will take the attitude that the
clause is overly oppressive and tantamount to slavery(If I quit what
will I do for the next 5 years?).

I went through this once. I was wrongfully terminated. I found some
contract work and soon  got a "we are concerned" letter from the law
firm of  the former employer. Up until then, I was inclined to let
things go and just move on with my life. Getting the letter helped me
make up my mind to sue them for terminating me.  Almost a year later, I
agreed to a fair settlement(about 20% of what my lawyer advised to
accept). My lawyer told me the warning letter regarding the non-compete
clause would have been the turning point in a trial of the case.

My understanding is that the courts apply this policy to people, not
companies. You can contract with a corporation and impose all kinds of
one-sided non-compete restrictions. The owners, officers and employees
of that corporation could wind up ignoring those restrictions. You can
go after the corporation for breach of contract if it still exists and
has assets.