[kictanet] Software ownership dispute

Wed Feb 18 17:06:09 EAT 2015

Ms. Dorcas,

Some question based on your views

My understanding is copyright is automatically bestowed on the person that creates the work UNLESS that person has transferred it to someone else OR unless it’s a WORK for Hire in the first place. 

If this gentleman created the concept and wrote code to realize the solution, at what point was the copyright transferred to the client – of course assuming he wasn’t commissioned/hired to do this in the first place.

Regards

From: kictanet [mailto:kictanet-bounces+bkioko=bernsoft.com at lists.kictanet.or.ke] On Behalf Of S.M. Muraya via kictanet
Sent: Wednesday, February 18, 2015 4:34 PM
To: bkioko at bernsoft.com
Subject: Re: [kictanet] Software ownership dispute

Ms.Dorcas,

Erasmus should also note, in Kenya, deals with go.ke owned or NSE listed organizations almost always involve insider connections. 

In this case the deal involved an NSE listed firm in which go.ke holds shares. 

Good (working) code will rarely get a software developer a lucrative deal with such an organization, if insiders are not somehow involved in revenue/profit sharing ):

On Feb 18, 2015 3:21 PM, "Dorcas Muthoni via kictanet" <kictanet at lists.kictanet.or.ke> wrote:

Erastus,

Here is what i can get from this dispute:

Business Mind vs Tech Mind

Although you are in business, you handled this engagement with a tech mind. For this, you missed on several critical business points that your client was paying keen attention to. After reviewing your documentation, all indications are that the PataPawa engine was indeed documentally owned by the client. There is lots of lines in these documents that easily mean that you were a hired developer than a partner to provide the technology platform.

Although you were hoping that the revenue share line is most important because it made you a partner, it is in many way contradicted by other clauses. You conceived a smart business model when you thought about revenue share but you did not secure it in this documents effectively.

Kenyan Courts

Let me warn you that the Kenyan courts easily fair as corridors of injustice. Take up this process with an open mind and be even prepared to loose more. I talk from experience. Many interpretations of the law and proceedings will baffle you. Don't forget the parallel process called corruption in the judiciary. If you have been watching a few interesting movies or series, there nothing like it in our courts. And this after the famous new chief justice reforms. So, don't go there very hopeful but be prepared for anything.

Take the Lesson

If your client is willing to resolve this dispute out of court, perhaps by completing the BOT agreement that was still in draft, give it a thought. It may give you a chance to go on with your business. This is a civil matter and i don't see any jail issues. You can apologise to the court and judge and you can be heard about the contempt of court issue too. Don't be afraid to defend your freedom to go back to your work. But if you are ready to go full throttle, knock yourself out.

To answer your question on who we think owns the software, most of what you have shared indicate you were a consultant software developer. I did not see anything indicating that the copyright was to reside with you. In fact, clause 6 of the contract has every indication that the software belongs to the client. 

With this, i doubt you will be able to release this under GPL or MIT licence any time soon.

I really hope that this case teaches many software devs to be more proactive on the business side. It easy to take up a contract and begin work but it is very painful when the ending turns out this upsetting.

Best wishes Erastus!

On Wed, Feb 11, 2015 at 12:24 AM, gisho via kictanet <kictanet at lists.kictanet.or.ke> wrote:

Dear listers, 

(Sorry for cross posting)

I have an ongoing case against me on regards to a software i developed for a client called Ceven ltd on year 2013. 

After I resigned from employment at March 2013, I stated doing my own projects and thats when the then general manager of Ceven pointed out to me that they were in need of a better and more efficient system for vending prepaid electricity tokens.  Working at home, i worked for a month and a half and presented my demo on April 2013. The demo was received well and they gave me the go ahead to finalize the bits that were still rough. The demo included interfaces for vendor management, virtual float management, billing and a J2ME app for Nokia phones that would dispense a receipt via a bluetooth printer.  On April 15th 2013 I installed the application to their hardware for a live test. After a thorough test we decided to host the server at Access Kenya data center at Baclys Plaza on mid May 2013 and continued to push live transactions via the app. 

I used a publicly available Ipay API that was then available here: https://gforge.bizswitch.net/docman/view.php/9/34/Ipay-prepaidElecTransactionSpec.pdf the API is no longer available form that site but can still be found by just googling for it. The API enabled me to create a client to connect to KPLC prepaid systems. 

We discussed on payments that i was to take 20% of the net revenue share less all technological related expenses which includes the hosting charges for the server.

I got my first pay on September 2013 after settling all expenses that were to be billed on me over that time.

All this time I was still upgrading the app to accommodate new requests from the client and the vendors.

On June 2014, the client sent me the attached draft contract with a 2013 date and claimed that Ceven ltd owned my application.As at this time the business had grown big and was known far and wide. The contract was contrary to what i expected and I began to seek legal help and thats when I registered a company and also obtained a copyright certificate from Kenya Copyright Board. I did not sign the contract as I felt it was unfair on my side.

On August 2014 I moved my application from the client's hardware to a cloud server and then to my server on October 2014 which was co-located at the same place - Access Kenya data center at Baclays plaza.

On October 2014 the client indicated that they were interested in acquiring the application and we started negotiations for the same. We all agreed that we were to find a party that would do a fair market valuation of the software application independently. Attached was our draft MOU that would see us through the process of this sale.

>From August 2014 the client started failing to pay the agreed amounts up to November 2014 and whenever I would demand for payments they would urge me to sign the contract. On start of December 2014, my lawyer went ahead and wrote a negotiation agreement that required them to pay the arrears and payment terms for the negotiation period which they never signed. At all this time I would pay for the service expenses with my money and it was inevitable that if the client did not pay for the service i would shutdown the server. 

On December 16th 2014, the client was issued a court order that barred me from accesing my server or the clients server at Access Kenya either physically or remotely. It also said that I should surrender administrative passwords to them. They went ahead and shutdown my server where the application was running and that was it... business closed! Later on the faithful monit would send me emails of attempted power cycles on the server. I still don't know what was happening at the server during those times but thats a story for another day. 

I was out of Nairobi on December 2014 and I came back on January 2015 when I was served with the court order. I declined to give out any passwords as that would get my software copied. Upon reading the court application document, the client now says that they fully owns the software despite them not providing any prove of ownership. They also claim that I acquired my copyright certificate fraudulently. The software was running under brand "Pata Pawa" which is owned by the client.

We are now in court and hearing is on February 11 2015 (which is today) at High Court of Kenya Nairobi - Commercial and Admiralty Division.

In this case, who legally owns the software? 

In case of any clarifications feel free to contact me. 

If I win this case, I will release the code under GPL or MIT license. Maybe someone will learn something from it. If I don't, I'll likely rot in Jail for contempt of court which the judge said might be higher for me.

Regards,

Erastus

+254716165716 <tel:%2B254716165716> 

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