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  1. #1
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    Who owns the CMS

    I have been approached by a client who wished me to take over maintenance of their site because the existing developer can take months before responding to change requests.

    Despite the client having perfectly adequate hosting & domain name, the other developer bought a new domain name, registered to himself and hosted that on his own hosting and simply redirected from their old hosting to his own.

    He also developed his own limited CMS system which serves the site.

    So now he has transferred me the files and they are all simply the static output from the CMS, not the actuall PHP code.

    No contract was drafted between the client and developer. So what is the default legal situation here?

    Since the developer created the site in the employ of the client, doesn't that imply a perpetual non-exclusive license to use the dynamic code that produces the pages?

    Personally I would never do that to a client. In fact I always provide full documentation for how the site was developed. Even if I have created custom plugins or php code. In case they do want to switch.

    On the other hand I've never had a client want to switch yet!

    Can anyone with any legal experience point me to any resources which might shed some light on this?

    Thanks in advance.
    Janimal

  2. #2
    SitePoint Wizard bronze trophy
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    Sounds like this developer basically offers a hosted CMS service. He designs the site, hosts it and the client uses the developer's CMS to update the site - I assume that the client did not pay for the development of the CMS, only the design and integration of that design into the pre-existing CMS. The CMS belongs to the developer. He is not an employee, he is a contractor, so employment rules are irrelevant.

    Providing a hosted CMS service is a great business model, one I've run myself over the years. Of course one of the key issues is that you don't ever provide the source code to the CMS, and clients can't take it away with them. On the flip side, it means the client have significantly lower start up costs, as they are not paying for the development of a CMS.

    If the client decides to use a different developer, then they cannot take the CMS with them, it's not theirs to take. So the developer provides a static output of the site to the new developer, who in turn would use that to set up the new site.

    Obviously this would be easier if there was a contract and a CMS licensing agreement that made everything clear. In that respect the developer definitely needs to rethink the way he goes about his business - you cannot provide this kind of business model without providing appropriate licensing and contractual documentation. The domain name issue is also odd. As for not providing timely updates - what kind of updates were they? Outside of the scope of the CMS? That's really the point of the CMS, i.e. the client no longer relies on the developer for site updates.

    As for the client, I sympathise as it seems they were not made fully aware of the situation. Basically (it seems) they were simply licensed use of the CMS for as long as they pay their hosting fees and use that developer for updates. I hope the price they paid reflects that restriction. The downside is that to move away, they effectually have to start all over again, although at least the design and content is already available. Although they might want to check that they own the design....

  3. #3
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    That's tricky without a contract.

    On the one sense you could argue that the CMS was developed by the developer on their own and they provided to the client for their use, not necessarily giving them ownership of the CMS itself.

    On the other hand, you could argue that the CMS was developed by the developer for the client, and thus the CMS is their property.

    In this case... I think the client is pretty much screwed. =/ It could be argued and argued by really it'd come down to a judge's call. It's all about the exact specifies.

    Letting him host it on his own domain was a huge mistake on the client's part.

    Depending how large this CMS is, if it's small, it may be better for them to just cut their loses and have you build them a new CMS (or use an existing CMS if there is one well-suited to their purposes). If the CMS is small, this could be the best way.

    One thing I will note is that the data of their site is their property, so he'd have to provide you with a database dump at the bare minimum, which you could then convert to suit a new CMS.

  4. #4
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    Thanks for your reply.

    Apparently the customer was under the impression they would be able to add / remove pages through the cms. But it turned out that they could only add remove products to lists and so had to ask if they wanted anything more than adding a product to a pre-existing page of products in a list.

    Personally I don't think the CMS developer needs to fear anyone stealing his code - certianly wouldn't want to use it and have already suggested they move to a single product per page model and a different CMS system.

    We would only use his existing code until it could be replaced to be honest.

    I just wondered if there was any de-facto statuatory (under UK law) judgement when no licensing or contract has been specified.

    The clients are actually extended family so I want to make sure they aren't ripped off and don't have to incur greater costs than necessary.

    To me developers like this are simply taking advantage of their clients ignorance if they fail to make clear what the client does and does not own.

  5. #5
    SitePoint Wizard
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    I agree.

    I just started with a company as their only in-house programmer. They have been working with a third-party company for a while which I think has been ripping them off in a number of ways. And if you stop and think about it, it does make sense. When you go to someone and ask for their expert opinion on something, and that opinion directly corresponds to how much money you will be giving them... what do you think that opinion is going to involve.

  6. #6
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    at excatly the same time I have another new client (a small adult flim company) who wants me to take over maintenance of their site and e-shop which is built again on a totally bespoke CMS but in this case they have provided the full code and an overview document as well.

    It's so incredibly variable this business isn't it?

  7. #7
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    It is. A lot of it comes down to the developers ethics.

  8. #8
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    Quote Originally Posted by janimal View Post
    I just wondered if there was any de-facto statuatory (under UK law) judgement when no licensing or contract has been specified.
    In the UK - Without a contract or something in writing (email etc) that says otherwise, ownership remains with the creator. Your clients needed something that effectively stated it was a 'work for hire' arrangement.

    Realistically, there is nothing practical they can do about this. I disagree that this is an ethical issue, because if the client didn't pay for the development of the CMS, then the developer doesn't have to hand it over to them. If he does, then that's wonderful, but you can't blame the developer for wanting to keep hold of the core of his business model. He just needs to sort out the lack of info he's giving the clients before they sign up. However, clients should also be a bit more savvy about these things before signing up.

    Why not keep them on his system while you quickly knock up something in a free open source CMS - you can always tweak it later.

    at excatly the same time I have another new client (a small adult flim company) who wants me to take over maintenance of their site and e-shop which is built again on a totally bespoke CMS but in this case they have provided the full code and an overview document as well.

    It's so incredibly variable this business isn't it?
    Variable yes, but I suspect that in this example, the client had most likely covered the ownership issues before beginning the project, and I also assume that they paid for the CMS development under a full work for hire arrangement. I also suspect that the project costs were significantly higher than those associated with using a ready-made hosted CMS solution.

  9. #9
    Life is short. Be happy today! silver trophybronze trophy Sagewing's Avatar
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    Seems like a great chance to help a client rescue themselves from bring captive to a crappy CMS
    The fewer our wants, the nearer we resemble the gods. Socrates

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  10. #10
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    Quote Originally Posted by janimal View Post

    Personally I would never do that to a client. In fact I always provide full documentation for how the site was developed.


    Janimal
    So you say you don't want to reap off your clients, take the money for a site and money from that site?
    That is good for you. Your client must be proud working with you.
    Suggestion: try to take as much content as possible and start the site from zero. This would be the fasted way for your client to have a working site that he OWNS.

  11. #11
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    Quote Originally Posted by janimal
    To me developers like this are simply taking advantage of their clients ignorance if they fail to make clear what the client does and does not own.
    Perhaps its your client who is the ignorant one. A fair share of people don't really care about the technical side of things until it prevents them from achieving their business goals. So perhaps the client was told they didn't own the CMS and either didn't understand it or were off in their own little world. To say anything further I would have to see the site in question. I mean… the price in combination with features would be a good indicator of whether the client owns the cms.

    Quote Originally Posted by janimal
    Apparently the customer was under the impression they would be able to add / remove pages through the cms. But it turned out that they could only add remove products to lists and so had to ask if they wanted anything more than adding a product to a pre-existing page of products in a list.
    What probably happened there is that is was discussed that they would be able to add products and the client assumed that meant all pages due to a lack of understanding anything technical at all. its partially the fault of the client and developer it would seem. The client probably saw a product as a page and just thought they could add any page based on the relationship.
    The only code I hate more than my own is everyone else's.

  12. #12
    SitePoint Wizard bronze trophy
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    Quote Originally Posted by Sagewing View Post
    Seems like a great chance to help a client rescue themselves from bring captive to a crappy CMS
    Absolutely! You can rescue your new prospective client and add some value to the idea of having a CMS driven site.

    I was approached last year by a company that had two fairly large websites running on a proprietary CMS that they wanted me to "take over" because of poor service from the existing host. After assessing the situation and realizing that they were hosted on an ancient and limited ASP (Classic) CMS, I gave them the straight goods; the site was hosted on a limited CMS and the code did not belong to them but I could port the sites over exactly as they looked onto a modern community driven CMS system for $x.xx. We ended up porting one exactly as it looked and then did a full on redesign and redevelopment of the other. Everyone was happy and they ended up with a full featured CMS to boot

    Forget about the legalities of the code base, it's probably garbage so just move on.
    Andrew Wasson | www.lunadesign.org
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    I can see his business model as valid. If the developer manages the web servers, then he'll be able to monitor all CMS sites. The client only need to call him once and he'll fix the problem.

    If you hire a in-house developer where you build CMS Server and Content, then quit down the road.. then he'll have much less support. Of course, if the client is smart enough he maybe able to maintain on his own.

    Anyways, you got to do w/ what you can get. Based on the resources you were to get from that developer, you charge appropriate money. Nothing more you can do.

  14. #14
    SitePoint Zealot Roar's Avatar
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    This is an opportunity for you to make money. Why worry about this other developer?

    As long as you can recover the original content that was in your clients' website - make them a quote on building a brand new site; perhaps on an open source CMS - to give them confidence & ensure they never run into this problem again.
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  15. #15
    SitePoint Addict bimalpoudel's Avatar
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    The client might be ignorant, and the developer is providing a service only. But since the client paid for the development, s/he has the rights to own the system. If the CMS application is not generic and just fits for the client's need, there is no worth of keeping the source code away from the client.

    It is still unclear, why the client was convinced to host on a different server than the one s/he had currently.

    It is always likely that a developer keeps a private copy of the application for various legitimate reasons. Even if the source code is delivered to the client, the developer being the creator can keep a copy for further references, analysis, extracting the reusable portions of the applications. The developer may not however sell or clone the application to affect the original client's business in any way. Ethics of the developer is more important here.

    The developer may not use any proprietary materials of the client.

    But client should receive the entire source codes without any hassles. s/he should know well how the application is functioning. It does not sound good to the client if s/he has to pay for the source code again.

    Or, think of revising your contract, for safety.
    Bimal Poudel @ Sanjaal Framework over Smarty Template Engine
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  16. #16
    SitePoint Wizard bronze trophy
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    Quote Originally Posted by bimalpoudel View Post
    The client might be ignorant, and the developer is providing a service only. But since the client paid for the development, s/he has the rights to own the system. If the CMS application is not generic and just fits for the client's need, there is no worth of keeping the source code away from the client.
    If the client paid for a service and they are ignorant of that fact why should they be entitled to something that they have not paid for?

    I developed my own CMS years ago and provided it as part of the design/development package. I released the code with the limitation that the right to use it was limited to the specific website I was contracted for (not to be used on multiple websites without explicit permission). That was my decision just as it is the decision of the owner/creator of the CMS in question to keep their code base.

    * I no longer support my old system because it became clear the best solution for my clients is to use an Open Source, community driven CMS like Drupal, Joomla or Wordpress. That way they aren't locked in to me or anyone else for that matter.

    Quote Originally Posted by bimalpoudel View Post
    But client should receive the entire source codes without any hassles. s/he should know well how the application is functioning. It does not sound good to the client if s/he has to pay for the source code again.

    Or, think of revising your contract, for safety.
    Again, based on what? Because they think they should get the source? Besides, it's been established that the CMS is limited. My advice would be to cut their losses and as has been stated before, move the site to an open source CMS where there will never be the problem of vendor lock-in.
    Andrew Wasson | www.lunadesign.org
    Principal / Internet Development

  17. #17
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    I much have to agree with @bimalpoudel, if the source code was company specific it would not be worth keeping. I don't think you have to overly concerned yourself with the legalities. Everybody uses source code that desired from somewhere else, whether being books, tutorials or just website's.

    Personally I would never do that to a client. In fact I always provide full documentation for how the site was developed. Even if I have created custom plugins or php code. In case they do want to switch.
    There are many things I would not do to clients, but in the world of business people cut corners alongside with quality.
    follow me on ayyelo, Easy WordPress; specializing in setting up themes!

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    what is CMS please tell?


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