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December 17, 2019

Does orphaned source code belong to you?

Orphan with bike
Not many application vendors still have shingles hung out for business in the MPE market. It's also been awhile since any vendors made an exit from the MPE marketplace. Now that Infor, makers of MANMAN, will depart this coming June, its ERP customers are talking about what source code is rightfully theirs.

During a conference call, about a dozen customers and another dozen independent support vendors kicked around the idea. Every customer on the call had signed a MANMAN license agreement, way back in the 1980s or 1990s. It was generally accepted that you never own a piece of software unless your organization wrote it.

To put it more plainly, the use of a vendor's product is always governed by an agreement. Everybody agrees on the rules for ownership and use.

Then conditions change.

The vendor folds up a product line, or goes out of business altogether. It happened with MPE/iX, to note one instance of the former fate. 3000 users can scarcely take a few steps before they stumble on a software vendor who's closed down all business. That's what happens over time after a vendor has built the bulk of its business around a server that's no longer sold or supported by the manufacturer.

The new condition gets managers asking about why any license should apply to an orphaned product. Permission to own the code that's only been licensed — that's a matter for the courts, or at least lawyers represening both sides.

The hard place the managers encounter is the language that keeps software in a vendor's IP locker. In cases like these, IP not only means Intellectual Property. It means, "in perpetuity." If anyone has a digital copy of their contract, searching for that phrase will certainly bring up a hit.

Eleven years ago, the 3000 community talked this through while Hewlett-Packard considered the new licensing of MPE/iX source code. Customers wanted their intention of owning a 3000 — to run a business in perpetuity — to match the intentions of HP's product licensing. We invoked French law to give voice to our wishes for that outcome.

There is an aspect of French law which does not exist in US law. It's called "droit moral," meant to protect the moral rights of ownership of a work of art. Even more than HP's support group, the 3000 community considered MPE/iX to be a work of art.

One story about using droit moral in the movie business:

Droit moral is an intellectual right of an artist to protect his work. When an artist dies, the droit moral goes to his heirs, unless he appoints someone else. For example, a John Huston movie was colorized in the US, and the movie was shown this way in the States, despite the opposition of the Huston heirs who were trying to honor their father's artistic wishes. But in France, where the Huston heirs argued their father didn't want his film to be in color, the colorized film can't be shown because of droit moral.

The argument, one which might be tested in court, is that the intention of investing hundreds of thousands of dollars in a product is to use it in perpetuity. Ownership of source hasn't been much tested in US law. The places where cases have appeared before a judge are courtrooms where things went better for the customers than the manufacturers.

Image by Isa KARAKUS from Pixabay

10:26 AM in Homesteading, News Outta HP | Permalink

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