Copyright question

[Geoff Hart <ghart -at- netcom -dot- ca>]

Jean Jordaan reports: <<Our firm has resellers. They bundle our software
with services and
sell it in their market.  They also use our documentation. At the moment,
they're cutting and pasting and generally hacking it about, sometimes
misrepresenting our software or misinforming their customers. They also do
not acknowledge their use of our documentation as source, or mention our
product, as a component of theirs, by name.>>

The first thing I'd do is find out whether the license you grant them
covers the documentation. If it doesn't, they're clearly violating your
copyright and you can take legal measures to stop them. (If you've formally
registered copyright, you can both stop them from doing this and sue them
for statutory damages (which include both actual losses and a fine). If you
haven't registered the copyright, but have included a copyright notice, you
can also stop them from proceeding, and you can conceivably claim "losses
or damages" from them; given that these losses are next to impossible to
quantify, the practical effect is that you can't really claim any money
unless your lawyer is skilled enough to make the point in court, and
unregistered copyright usually doesn't let you do much more than stop them
from using your material.)

Your question raises two much larger issues, though: "moral rights" and
"liability". Moral rights involves the notion that even when you grant
someone the right to use your material, you do not grant them the right to
misrepresent you in such a way as to make you look bad. In addition to the
fact that they're violating this aspect of copyright even if you did
license them to use your documentation, this doesn't relieve them of the
right to acknowledge the source of the docs. In terms of liability, letting
this practice continue is a really bad idea because if someone gets hurt or
loses money as a result of their misunderstanding of your product or its
docs, there's a very good chance that your company could be legally liable;
even though you didn't create the errors, you took no steps to prevent the
errors from arising, and that makes you an accessory to the crime (pardon
my misuse of legal jargon). Producing inferior documentation from what
you've written and done quality control upon also makes you look bad, and
could conceivably undermine customer confidence in your product and thus
future sales.

So forget about what the "industry standard" is, because there isn't any
such thing. (Remember, we're dealing with legal issues here, and although
lawyers all start from the same body of law, each one interprets that law
differently and introduces their own variants on the way they write
contracts.) Instead, think about the issues I've raised and see how you can
address them in your company's unique context. It's quite likely that
you're bound by the terms of an existing licence, but you still need to
take steps to solve the problems I've raised. For example, get your lawyers
to send a clear letter indicating that the right to use the docs doesn't
constitute the right to use them without acknowledging their source;
neither does it let them make changes without having someone at your
company approve the changes, or without explicitly signing a waiver that
absolves your company of any responsibility for the changes. And make sure
that future licenses acknowledge these problems explicitly.

One thing I've recommended in the past is that if you clients need to
customize the software, you should offer this as a value-added service.
This could both generate enough income to pay for an additional technical
writer (which would eventually become necessary to keep up with the
additional work) and would address the thorny legal issues I've raised.
Worth a thought? Just don't price yourselves out of the market if you do
this: do it on the basis of cost recovery, or of a small profit.

--Geoff Hart @8^{)}   ghart -at- netcom -dot- ca

"Most business books are written by consultants and professors who haven't
spent much time in a cubicle. That's like writing a firsthand account of
the Donner party based on the fact that you've eaten beef jerky."--Scott
Adams, The Dilbert Principle