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so the situation I want to ask you about is as follows:

The Client Company has a project that is made of three parts:

  • A front-end web app
  • A back-office
  • An API (back-end)

The front/back parts were developed by a contracted company, we can call them Bad Contractor, and the API was developed by a few contracted IT students. The result for the Client is a late, non-functional, mess of spaghetti code with severe security problems.

This is where we come in: Client wants us to quickly hack a few fixes/functionalities on the existing codebase, the bare minimum that they could continue working with, after which we will redo their project cleanly from scratch.

The front/back parts have NO license mentions, the API part has a license mention that specifies that the code belongs to the authors until Client has paid the authors in full - which has been done, so there shouldn't be an issue with that part of the codebase.

All the fees for Bad Contractor were paid in full as well - however their relationship ended on bad terms because of the quality of their work (they wanted to keep 'maintaining' their mess), and to our knowledge, the source code probably still belongs to them (in France, AFAIK, if there is no explicit mention of giving away source code, a license is only for use).

So my questions are: who is liable if Bad Contractor learns of this reuse of their code? Is our Client liable for giving us the code and telling us to work on it? Are we liable for accepting to work on code the client gave us? Or both?

Heck, can I be made personally liable if it can be proven that I worked on it with this knowledge, even just as an employee?

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  • While copyright transfers aren't a thing in France, it is likely that the Client Company got a license for all relevant rights, in particular the right to make modifications. Copyright notices in the source code are more of an US and open source thing, their absence is of no consequence. I'd be happy to work on the code as long as the client assures that they have the necessary rights.
    – amon
    Commented Aug 13, 2019 at 21:10
  • @amon "copyright transfers aren't a thing in France" do you really mean that an author can't sell or otherwise transfer a copyright under French law? I find that very surprising, if true. But I am not highly knowledgeable about French law.
    – David Siegel
    Commented Aug 13, 2019 at 21:18
  • @DavidSiegel Copyright can be subdivided into economic vs moral rights (like a right to attribution). Their recognition is weak in common law countries, more common in civil law countries, and very strong in French copyright law where they are perpetual and inalienable. While economic rights can be licensed, the moral rights can at most be waived. Here in Germany the situation is similar, with copyright being explicitly non-transferable by normal means. But an exclusive license mostly has the same effect to a transfer.
    – amon
    Commented Aug 13, 2019 at 21:44
  • @amon That is interesting. US Copyright law does recognoize moral rights to a degree, and makes those rights non-transferable, unlike copyright per se.But in the US (and the UK) copyright is largely about economic rights, yes. Indeed the original English copyright laws (dating from before the US was a country) were for the benefit of publishers, not authors.
    – David Siegel
    Commented Aug 13, 2019 at 22:06

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If Client was foolish enough to pay Bad Contractor (BC) without obtaining a proper assignment of copyright in the source, or at least a sufficient license to allow Client to use the code and create modified versions, then BC owns the copyright to the source, and anyone who creates a modified version without permission from BC is a copyright infringer. The contract under which BC was hired should spell out what rights Client is to acquire, and when they will pass to client's ownership, but it might be that Client didn't get such terms into the contract. Or perhaps BC disputes that Client has fulfilled all its obligations.

Yes, an infringement claim could be brought against an individual employee, although it is more likely that it would be brought against the employer, or against Client. It could be brought jointly against all three: programmer, new contractor (NC), and Client.

Of course, BC's IP rights only matter if BC files an infringement suit. And it might be that a court would find an implied contract, in line with industry practice and the fees that BC was paid, and toss out such a suit. But courts are often reluctant to create contracts that the parties never agreed to. It would be risky for NC to depend on such an outcome of a possible suit.

If you or NC are to work on this, you might want to have a contract in which Client explicitly indemnifies you for any copyright claims by BC, saying that they will take on and pay for the defense of any copyright suit BC may bring, and pay any damages that may be awarded to BC. That would largely remove the risk for NC and for NC's employees.

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  • I can confirm that, to my knowledge, Client and BC signed a contract full of holes as far as rights are concerned, so BC almost certainly still officially owns the code. We like the indemnification contract idea, I'll wait a day to see if any other good answers pop up and accept yours ;)
    – Efulefu
    Commented Aug 13, 2019 at 14:47

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