Contractors posting our specification...

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Author Message Jerome J. Lazar, RA, CCS, CSI, SCIP Senior Member Username: lazarcitec Post Number: 215 Registered: 05-2003 Posted on Tuesday, April 11, 2006 - 03:56 pm:    A Contractor on one of our projects has asked if we would mind his office scanning our specifications and posting them temporarily on his website/server for use in pre-bidding a project. We have never allowed this however we have been told that we are archaic in our thinking - this is a privately funded commercial/residential project - any other specwriters have the same issues or thoughts? Doug Brinley AIA CSI CDT CCS Senior Member Username: dbrinley Post Number: 201 Registered: 12-2002 Posted on Tuesday, April 11, 2006 - 04:14 pm:    We actually encourage our clients to do so in order to facilitate subcontractor bids. We use PlanWell, which is an affiliate of numerous reprographics 'houses'. The advantage of using a repro site such as PlanWell is that: -the repro house still makes money (this is a good thing) - the documents are secure (they post PDFs with security enabled, so the documents cannot be printed without a password) I strongly recommend 'us' specifiers insist (and verify) that the Contractor ONLY post PDFs, and that those PDFs have security enabled so that the files cannot be saved, and the files cannot be printed without a password. If the subcontractors want hard copies, they have to work with the repro house. We can always indicate some sections (such as boilerplate) that do not require such security. In this way we can protect the rights to our work. Someone else will have to jump in about intellectual rights to works paid for with public funds. Melissa J. Aguiar, CSI, CCS, MAI, SCIP Senior Member Username: melissaaguiar Post Number: 35 Registered: 12-2003 Posted on Tuesday, April 11, 2006 - 04:15 pm:    I guess I am archaic in my thinking as well, and I am in my 30's. Here is my experience. I allowed an Architect to transfer my documents to pdf and he gave them to Contractor. We had issued addenda. The Architect did the addenda and left something out. I had to redo all the addenda correctly and then send them back to the Architect electronically to repost. The Architect messed it up and BLAMED ME for the problem. I looked like the fool and it upset me terribly. Since that day, I still will only print out hardcopies and send to Architect to handle. That experience has scarred me for life. Remember they are your documents. Not his. So what if you do not wish to allow him to post to his site. What if something gets messed up in translation. Who is to blame? Anyway, those are my two cents worth. Julie Root Senior Member Username: julie_root Post Number: 52 Registered: 02-2004 Posted on Tuesday, April 11, 2006 - 04:40 pm:    I think you have the same risk factor with hard copies. I am also a big fan of the repro house site like PlanWell. We have insisted that once posted that all our consultants check the site and verify that everything was included per their issuance to us (I am an architect) before the bid period begins. Addendums are also more timely. The other advantage for the owner is that there is a record if the contractor ordered all the required documents. Prior to signing a contract the Owner knows whether or not the contractor had all the documents to review. Using the system in construction the GC know if the sub-contractor ordered all the sections that pertained to the trade. It saves a bundle on paper and trees. Contractors do have software that can change protected pdfs, but you always have what you posted. It really helps the architect not spend time sending drawings and making sure they are delivered, etc. I say the future is now and this is happening. Go far it as it is not as scary as it sounds. Dean McCarty, CCS, CSI, SCIP Senior Member Username: dean_e_mccarty Post Number: 43 Registered: 08-2002 Posted on Tuesday, April 11, 2006 - 04:42 pm:    I agree with both positions: we should be moving into the technical age by posting the specifications (in pdf of course) electronically. I am familiar with PlanWell and another similar service. However, I have not been asked to use these services. Like Melissa, I too, had forwarded electronic copies of a project manual to a good client of mine. Next thing I know, he did another similar project using those very specifications. He and I talked after the fact, and he paid me nominally for their use. The question I put out here is this: I am not a licensed professional, and my agreement states that the specifications are certified by the architect. Does this mean that the signing architect is responsible for the specifications once he takes possession? I submit that he does. I do have agreement language stating that, pertaining to modifications, I am certainly not responsible for changes made without my review. Melissa, I feel bad for you for getting blamed on the project you noted. David Axt, AIA, CCS, CSI Senior Member Username: david_axt Post Number: 651 Registered: 03-2002 Posted on Tuesday, April 11, 2006 - 04:48 pm:    Jerome, How will the drawing be handled? Melissa, We rarely give the contractor anything but PDF files, just for the reasons that you stated. (It was good to sit by you at the Awards Gala.) Jerome J. Lazar, RA, CCS, CSI, SCIP Senior Member Username: lazarcitec Post Number: 216 Registered: 05-2003 Posted on Tuesday, April 11, 2006 - 05:08 pm:    David, I have a meeting with the Architect tomorrow to discuss this, right now we believe that the drawings are being posted on the website, however we remain concerned that our intellectual property will be abused - we have had our specifications copied in the past, usually by scanning by an unauthorized party, and because of that have found our specifications used as in Dean's situation, we have even had copies of our specifications placed on shop drawings without our permission (in one case the idiot left our name on the scan, boy did he regret that one), where drawings are less likely to be abused in such a manner - for specification writers who are working on a much smaller fee scale than the architect of record, having our specifications abused in this manner seems to hurt more - with our budget going after the perpetrator of this crime simply does not pay, so we would rather avoid the situation all together - easier said than done? Melissa J. Aguiar, CSI, CCS, MAI, SCIP Senior Member Username: melissaaguiar Post Number: 36 Registered: 12-2003 Posted on Tuesday, April 11, 2006 - 05:09 pm:    Dean, thanks for comments. David, It was great to sit next to you as well! I hope you had a fun after party! Vegas was a hoot! Anyway, back to Dean and others, I had similar agreement language written up by my former boss to all the architectural clients. BUT, If the Architect is not knowledgable in the dealings with technology, as my was not, it was a huge hassle and embarrasment to fix the situation because 1) I do not want to look egotistical and try to explain to my clients how to handle technology and I would like repeat business. IT is their job to keep up with technology. I had to learn it and I am still trying to understand it! 2) When it is issued through electronic media, not all hardware and software are compatible and we are really all not on the same page when receiving documents off a server out in lala land. 3) Even the pdf translations are not a safe and secure way, if I wanted to I can take that document and use it however I so wish. I am for technology. Heck, I run two businesses, specifications writing and website design and maintenance for commercial clientle. I hope I am not scared of the future. I do not think I am. My problem is $$$$ and Courts. Even though, the architect is the one who signs off for my project manual, I still have an obligation to represent it as correct and a legal binding document. If I make a mistake, I will pay for it in some form or another. David Axt, AIA, CCS, CSI Senior Member Username: david_axt Post Number: 653 Registered: 03-2002 Posted on Tuesday, April 11, 2006 - 06:08 pm:    As long as we are talking about copyright infringement. A few years ago a product rep called up the other spec writer (John Jeffcott) in the office and told him that the product specified is all wrong. John asked what project and the rep told him. John explained that our firm never did that project. The rep was insistent that it was our spec, so we had him fax it over. Sure enough it was our spec....but it was 10 years old. I'm not sure how the other firm got the spec, but we did not pursue it. We figured that we would let the other firm learn by our mistakes. Anne Whitacre, FCSI CCS Senior Member Username: awhitacre Post Number: 321 Registered: 07-2002 Posted on Tuesday, April 11, 2006 - 11:19 pm:    I contend that any time a spec is published, whether it is in hard copy or electronic, it is in the public domain. And I think you will find that you are NOT the owner of your documents but rather the person who hired you (or the building owner) is. most owner/consultant agreements state that the ownership of the documents transfers to the owner upon payment of fees owed. At that time, they can do anything they want with the spec, including paper the walls in the reception room. We provide a product but it is only a representation of what we do. when I consulted, I did not provide a product to my clients, I provided a service and part of that service is the good judgment about product use and project flow. I contend that spec writers are selling their experience, not a project manual. Ralph Liebing, RA, CSI Senior Member Username: rliebing Post Number: 358 Registered: 02-2003 Posted on Wednesday, April 12, 2006 - 07:02 am:    Doesn't AIA Document A201 [at Article 1.6] speak rather specifically and fully about this issue? Also, references in other places in the same document. Granted 201 is not part of every project, but it is a good starting place, and a well experienced item. Robert E. Woodburn Senior Member Username: bwoodburn Post Number: 108 Registered: 01-2005 Posted on Wednesday, April 12, 2006 - 12:00 pm:    With all due respect, the contention that "any time a spec is published...it is in the public domain" is squarely and substantially at odds with both legal principle and professional practice, as established by copyright law and the relevant provisions of industry-standard contract terms and conditions (such as those in AIA A201). At the least, it represents a profound lack of understanding of both law and practice, and, if this erroneous idea were to gain credence, a risky and dangerous erosion of intellectual property rights. First, the spec isn't "published" just because it is issued; project drawings and specifications are usually considered unpublished documents. Second, the copyright automatically belongs to the original author, unless that author has agreed that his or her work be considered a "work for hire," which most professionals would specifically avoid granting their clients, or has otherwise sold the rights outright, which is seldom done. Of course, to claim damages for infringement, one must register the copyright, but failure to do so alone would not place a work in public domain. It now takes many decades after the author's death before a work is in public domain. Third, standard contract provisions typically define construction documents as "instruments of service" (as opposed to products) and do not convey ownership, but rather the limited license to use those documents, but only for the purpose(s) intended. Though a certain number of record copies are sometimes conveyed to the project owner for the owner's convenience (e.g., as a record of the Work, and for use in maintenance), the owner has only a license to use them for those purposes, and not actual ownership of those documents. Unless specifically allowed by contract, the owner cannot use them to build another project, or for any other purpose--even to paper the walls. John Guill AIA, CCS, SCIPa Senior Member Username: johng Post Number: 15 Registered: 07-2005 Posted on Wednesday, April 12, 2006 - 12:31 pm:    The post regarding the equivalence of the public domain and publication is based on a misunderstanding of terminology, statute and practice. The post concerning the effect of the contract under which the work product is prepared is on the right track, but incomplete. Depending on the specific terms of a specific contract, the preparer may still retain some basic rights to the work product. Publication does not equal release into the public, regardless of the contract conditions or status of the work product. The rules concerning public domain and copyright are a complex topic worthy of it's own thread. For a full and complete discussion of copyright refer: http://en.wikipedia.org/wiki/Copyright. Also: This quotation from Wikipedia "(Almost) everything written down is copyrighted. ...According to U.S. law, at least, an author's original works are covered by copyright, even without a formal notice incorporated into the work. But such laws were passed at a time when the focus was on materials that could not be as easily and cheaply reproduced as digital media, nor did they comprehend the ultimate impossibility of determining which set of electronic bits is original. Technically, any Internet posting (such as blogs or emails) could be considered copyrighted material unless explicitly stated otherwise." See also for public domain: http://en.wikipedia.org/wiki/Public_domain#.28Almost.29_everything_written_down_is_copyrighted Postings in this forum can be construed to be the copyrighted intellectual property of the poster, unless specifically noted otherwise. I have not seen an editorial policy addressing this, but that does not mean it does not exist. Also, for those interested in questioning my free use of the long quotation above, please note that Wikipedia text is available under the terms of the GNU Free Documentation License (GFDL). Refer http://en.wikipedia.org/wiki/Wikipedia:Copyrights for a description of the GFDL. Information wants to be free. Anonymous   Posted on Wednesday, April 12, 2006 - 01:11 pm:    Sorry, but I'll need a better authority than a website that allows anyone to post supposed facts to be included in an encyclopedia. Robert E. Woodburn Senior Member Username: bwoodburn Post Number: 109 Registered: 01-2005 Posted on Wednesday, April 12, 2006 - 01:21 pm:    "Information wants to be free" is not just a clever figure of speech, it is an assertion -- and an obviously false one, since information is inanimate and has no volition, let alone any rights, "civil" or otherwise. The slogan denigrates intellectual property rights. Perhaps most information is, in fact, free (but not because it "wants to be"); it's the kind of free information about the world around us that we grasp through the use of our senses. What is not free is the unique information created by authors. We hear references to the "Freedom of Information Act" so often that those with a superficial knowlege of the news may conflate it with the slogan "Information wants to be free." Sooner or later some wacky group will probably grab its 15 minutes of fame with a violent movement to "liberate" information they feel is crying out for freedom. Intellectual property is a valuable possession. Like many valuable things, there are those who would like to steal it. Let's not encourage them by repeating inane slogans just because they sound clever. Marc C Chavez Senior Member Username: mchavez Post Number: 148 Registered: 07-2002 Posted on Wednesday, April 12, 2006 - 01:21 pm:    I must agree with anon here. Wikipedia has been wrong before. The feds have several good sites and any search on copyright will turn up any number of references to the actual laws. Anne Whitacre, FCSI CCS Senior Member Username: awhitacre Post Number: 322 Registered: 07-2002 Posted on Wednesday, April 12, 2006 - 01:29 pm:    I may have written too quickly in the earlier post, so I'll start over. By "public domain" what I meant is that once a document has been distributed in any fashion, I think its naive to expect the issuer (architect or spec writer) to maintain control over who has the information and what is done with it. an example was given of a spec that had circulated around for 10 years or so; I have generated sections specifically for one client and then 7 years later, had them given to me by a contractor as part of their "standard" documents. I think that protecting the documents, long term, is simply misplaced effort. it is appropriate to have a record copy showing what is part of the contract requirements for a specific project, because all other contractual requirements stem from that set of documents. Concern about that is appropriate, and professionally responsible. After the project is completed though, we don't go around collecting all the sets of drawings and specs out there and subsequently burn them. As for ownership of the documents: our contracts with the owner almost invariably state that the owner becomes the owner of the documents at project completion. we may have a copyright on those documents (which we seldom file for) but the project documents are the owner's property. Every services contract I signed as a consultant stated the same thing. My original point still is valid though: I do not think that the main thing we do is provide documents, I think we provide a service limited to a specific project. Taken in that light, the reuse of my documents doesn't concern me very much. John Guill AIA, CCS, SCIPa Senior Member Username: johng Post Number: 18 Registered: 07-2005 Posted on Wednesday, April 12, 2006 - 02:49 pm:    To Anonymous Posters: Potential validity of information and criticism increases when the identity of the source is available to all users of the information. Refer: http://en.wikipedia.org/wiki/Wikipedia:Who_writes_Wikipedia In a related link, there is an article on how to assess the accuracy and relevance of an article in question. Much of this applies to other arenas as well. In this regard, wikipedia is much like real life. It is not always true that "anything free is worth what you paid for it", for if it were, none of us would read this forum either. It is a fair criticism of wikipedia to note that there are a number of unidentified contributors, not all of whom are vandals. It is also fair to note that similar caveats apply to discussion forums of this type. One of the means for readers of forums to assign potential accuracy and relevance of information is the identity of the poster, their published credentials and the length of their registration. In my case, you may choose to find all of these to be inadequate, and you may do that because of the information supplied. Regards... J. Peter Jordan Senior Member Username: jpjordan Post Number: 177 Registered: 05-2004 Posted on Wednesday, April 12, 2006 - 06:59 pm:    Mr. Woodburn and Ms. Whitacre make valid points regarding the nature of what design professionals sell and the relationship of that "product" to the "physical stuff" that clients use. It has always been somewhat of a mystery to me which almost every firm I have ever worked for has required me to sign a non-disclosure statement about "proprietary" details and processes in that office. OK; and what specifically is different about the HM door jamb I detailed last week from the one I drew in 1993 from the one I drew in 1974 from the one I probably first drew about 1967 or '68. For that matter, has the illustration of HM door jamb details changed that much over the years in Architectural Graphic Standards? Or what about the specification for gypsum board I generated on my first specification in 1979? How much difference is there in the basic information from the one I did last week for a project 1/4 way around the world just a little over a 1/4 century later? The diamond cutter charges $10,000 to cut a 10 carat diamond; $100 for making the cut and $9,900 for knowing where to cut. I would suggest that the client pays me substantially more for knowing where a HM door jamb is appropriate and applicable and how the specification should be written than they do for actually drawing the detail or "writing" the specification. All of that being said, I would suggest that those who generate such documents consider the "work product" as an "instrument of service." As noted above, certain limited licenses are granted to users (Owners, Contractors, Subcontractors) so that the documents can be used (published, distributed, copied, rolled up, stored in a gun rack, etc.) and such use limited to that project. A "work for hire" means that the "work product" belongs to the one who hired it's production, not the one who produces it. Magazine articles are typically "works for hire." However, an architect, drafter, or spec writer who is employed in a firm produces "work for hire" in which the work product belongs to the firm. You can't take copies of what you produce with you when you leave your firm; however, you can take what you have learned. It seems to me that design firms hire specification consultants to produce "works for hire." The design firm subsequently takes professional design responsibility for it by affixing a seal. Ownership of the "work product" (rather than a license for use) would seem to me to reside more with the design firm than the specification consultant.