# Don't you just love it when builders change around the designs?



## Soxred93 (Sep 29, 2009)

About 10 years ago, our auditorium was subject to a huge renovation. This renovation included adding dimmable house lights, an ETC system over an old analog system, addition of new seats, a new booth, and other things. One of the biggest changes was that the whole front of house light bay which ran the width of the auditorium would be replaced with 5 small bays which would only hold 2 lights each. These would be run off of dimmers 1 - 12. 

Somewhere along the line, however, dimmers 11 and 12 just didn't get hooked up. They were never put into service, and we have no idea where the plugs are. For the past week, the TD and I have been searching the whole auditorium for them. We searched in the catwalk, in the floor boxes, on the loading rail (yes, we managed to find a ladder), and anywhere else we could think of. No luck. We then managed to get a hold of the blueprints for the renovation, and we got a surprise.

Apparently, there were supposed to be 6 bays, not 5... So the plugs for dimmers 11 and 12 don't exist, and they're just loose wires that are hanging out of the connector strip. D'oh! We turn on the dimmers, take up a VOM, and voila! We have power! 

We have yet to figure out why they only put in 5.


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## fredthe (Sep 29, 2009)

I dealt with a renovation a couple of years ago. Everything actually ended up pretty good (the theater and A/V consultants actually listened to us,) but even though they had dome acoustic modeling, the acoustics just didn't seem that great. It turns out they hung the ceiling panels at the wrong height (it was off by about 3 feet.) 

-Fred


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## Lotos (Sep 30, 2009)

Hey, look on the bright side Soxred... You just gained two circuits!


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## museav (Oct 10, 2009)

The stories so far seem to point out the importance of what is formally called Construction Administration and is basically keeping the designers and subject matter experts involved throughout construction to make sure you get what was intended and designed, or at least that any changes are noted and their impact assessed.

Too often the acoustician and the audio, lighting and rigging designers involvement ends when the building drawings and specifications are complete. In some cases the project may be lucky enough to have someone on the Owner's side who has been involved and can address the work and any changes, but both having such persons and their being in a position to be effective are certainly not a given. In a few cases, there may even be a third party 'commissioning agent' to provide some of these services. But in to many projects there is unfortunately no one to protect that the end result matches the vision defined and often decisions are made based dollars and/or unsubstantiated claims with little or no assessment of the actual value or impact of the changes.

One reason this is an area of contention for many consultants and designers is that their name is on the project yet what is actually built may not be what they designed or recommended, thus their name and reputation may be tied to poor results that were not what they designed and for changes for which they had no control or even input.


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## rwhealey (Oct 10, 2009)

I don't think it's totally applicable, but the thread title reminds me of something I'm writing a paper about right now.

Anyone recognize this picture?




Though there was a bit more funny business than just builders switching things around...


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## ptero (Oct 11, 2009)

rwhealey said:


> Anyone recognize this picture?
> 
> (snip)




hotel 'bridge' in Kansas City




.


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## waynehoskins (Oct 11, 2009)

Seems like I recognize the picture. Suspended walkway collapse because the rods didn't go all the way through to the lower level, but terminated at the upper level with the lower level suspended from the upper level steel, overstressing the upper level steel in the photo?


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## fredthe (Oct 11, 2009)

museav said:


> The stories so far seem to point out the importance of what is formally called Construction Administration and is basically keeping the designers and subject matter experts involved throughout construction to make sure you get what was intended and designed, or at least that any changes are noted and their impact assessed.


Ih the High School renovation I was involved in, I was able to watch during the construction, and the school did listen to my comments and suggestions during that time. Unfortunately, none of us involved thought to drop a tape measure from the ceiling panels, as they seemed to be in good position relative to the height of the existing catwalks. I believe the ultimate problem was the architect had the catwalk height off by 3' on the drawings.

There is one issue I had with the construction, which we were unable to correct. We have a very nice DriveRack processor for our speakers, but we are unable to modify any settings as we don't have the password. The A/V installer refused to give it to us, because the system was under warranty, and they didn't want anyone messing with it. That's perfectly understandable, but now that the warranty period is over, we are still stuck with calling the original contractor, because no one else knows the passwords. Any future projects I work on will have a clause in the contract specifying that all passwords be provided as part of the deliverables, with the provision that the contractor may provide them at the end of the warranty period if necessary.

-Fred


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## fredthe (Oct 11, 2009)

rwhealey said:


> Anyone recognize this picture?


I don't recognize it specifically, but I expect it's from that hotel walkway collapse, where they used a pair of steel rods, instead of the single rod the architect called for.

-Fred


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## rwhealey (Oct 11, 2009)

fredthe said:


> That's perfectly understandable, but now that the warranty period is over, we are still stuck with calling the original contractor, because no one else knows the passwords. Any future projects I work on will have a clause in the contract specifying that all passwords be provided as part of the deliverables, with the provision that the contractor may provide them at the end of the warranty period if necessary.
> 
> -Fred



If it were us, the contractor would get a nicely worded letter from our lawyer. There have been fights over on PSW about installers keeping the passwords, but I haven't heard a particularly compelling reason why a company would withhold a password. I don't think it's legally justifiable.


The picture I posted earlier is the Kansas City Hyatt Regency failure in 1981. It killed 114 people. The design was poor (53% of code capacity) in the first place, but the builder made a change, the architect and engineer signed off without thinking about it, and the walkway was suddenly only able to hold 30% of what the code said it should.

The original design had a rod running all the way through the channel to the lower level. The new design had the rod terminating in the first channel, then another down. Thus, the first channel now supported two walkways instead of one. 

Lesson: Think about everything you do. Especially when you're doing things that could cause bodily harm.


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## JChenault (Oct 11, 2009)

fredthe said:


> I don't recognize it specifically, but I expect it's from that hotel walkway collapse, where they used a pair of steel rods, instead of the single rod the architect called for.
> 
> -Fred



There is an excellent book that talks about this structural failure ( and many others) called 'Why Buildings Fall Down' Amazon.com: Why Buildings Fall Down: How Structures Fail (9780393311525): Matthys Levy, Mario Salvadori, Kevin Woest: Books

In the chapter on this tragedy it points out:

The dead load of the walkways was 8 percent higher than the computed load.
The change in the plan ( from a single rod to a pair of rods ) was submitted by the contractor on the shop drawings, approved by the architect, and reviewed by the structural engineer.
The walkways collapsed under loads substantially less than those specified by the Kansas city building code
The box beam-hanger rod connections under the original hanger rod detail ( continuous rod) would not have satisfied the Kansas City Building code.

The point being - that in any major accident like this it usually takes a number of things going wrong to get a catastrophic failure. There is a lot of blame to go around and the contractor probably deserves the least of it.

_
Edit - saw rwhealey's further explanation on what caused the failure which I missed the first time. I'm leaving this post in anyway as the book is one that is worth advertising._


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## photoatdv (Oct 19, 2009)

Maybe if you contact the manufacturer for the DriveRack they'll be able to give you a mater password. Is there any way to back up all settings? If so they also might be able to tell you a jumper or switch inside that will reset either the password or everything.


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## museav (Oct 21, 2009)

rwhealey said:


> If it were us, the contractor would get a nicely worded letter from our lawyer. There have been fights over on PSW about installers keeping the passwords, but I haven't heard a particularly compelling reason why a company would withhold a password. I don't think it's legally justifiable.


Actually, it is quite legally justifiable and having been there, not always without reason. Imagine getting called almost weekly to come out and reload the original programming because the end user messed it up playing with it. Or the Owner turning around and selling the programming to someone else or giving it to competitors who don't know how to program. Or someone modifying the code such that it causes other system problems or equipment failures. I have seen all of these happen.

I personally do require the program and passwords to be provided. However, this is done as a site license restricted to being used for the system(s) included in the Contract and the program is provided on CD-R so that the Contractor is responsible for only the programming they created and not for any changes made. I also will fully support the Contractor in any warranty issues that could be a result of someone modifying the programming, in my mind modifying the Contractor's work releases the Contractor from any related responsibility. This seems to define a reasonable compromise between protecting the Owner and giving them what they need while also protecting the Contractor and not resulting in a situation that greatly increases the project cost or otherwise negatively impacts the project.


rwhealey said:


> The picture I posted earlier is the Kansas City Hyatt Regency failure in 1981. It killed 114 people. The design was poor (53% of code capacity) in the first place, but the builder made a change, the architect and engineer signed off without thinking about it, and the walkway was suddenly only able to hold 30% of what the code said it should.
> 
> The original design had a rod running all the way through the channel to the lower level. The new design had the rod terminating in the first channel, then another down. Thus, the first channel now supported two walkways instead of one.


The offset in the modified two rod suspension, even though small, also caused a moment at that point that the box beam was not intended to support. The fact that this occurred right at a welded joint also contributed. My understanding is that the change in the suspension was done to make the construction easier/more practical and that it was submitted in Shop Drawings that were likely reviewed by a less experienced Engineer who did not catch the change. What always surprised me in this case was that although the Structural Engineer was rightfully severely penalized, including losing their licenses and ability to practice in two states, greatly for failing to catch the change or perform any related analysis, the Contractor that submitted the change without any associated analysis received little punishment or penalty, essentially all responsibility related to the Contractor's design change was assigned back to the Engineer.

Being in several Structural Engineering classes in the early 80's, one of my classmates had actually interned at the Engineering firm involved, the KC Hyatt walkway failure was a common case study then. One long term result was that most Architects and Engineers clarified their review stamps and language to no longer "Approve" submittals and strengthened the language and legal standing that the Contractor was responsible for the "means and methods" of construction and that the Architect's and Engineer's review of Shop Drawings was for compliance with "design intent" and not approval or acceptance of the means and methods shown. In short, it limited the Architect's or Engineer's take to only the work they themselves performed and clarified that the responsibility for any work, changes or deviations by the Contractor was on the Contractor.


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## Sony (Oct 21, 2009)

photoatdv said:


> Maybe if you contact the manufacturer for the DriveRack they'll be able to give you a mater password. Is there any way to back up all settings? If so they also might be able to tell you a jumper or switch inside that will reset either the password or everything.



I know there is definitely a way of doing a Hard Reset, but you will lose all of your settings. There is not a way to do just a password reset as that would COMPLETELY defeat the entire purpose of having a password and is a major security breach.

To fredthe:

I would definitely get the schools lawyers on the installers case. I'm pretty sure that by law they cannot withhold the password legally as you completely own the equipment and you have a right to all information regarding said equipment. The installer is most likely withholding said password to force you to use their business which is basically forcing a monopoly in regards to who you choose to do your A/V work. 

Most likely once you get lawyers involved they will fork over the password without a fight as they would definitely lose any legal battle that would ensue. If the equipment was leased or rented from them then it would be another story as they still technically own the equipment, but because you own and paid for the equipment in full you are privy to any and all information regarding that equipment.


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## fredthe (Oct 21, 2009)

I agree with Brad that the installer should have some control during the warrenty period. I've suggested an addition to future contracts to the effect that installers may withold the passwords until the end of the warrenty, but that if the don't provide them, then the warrenty will be extended until they do.

At this point we're trying the polite approach, as they are still doing other work in the building and we want to keep a good relationship. But, once they are done, the lawyers are a definate possibility.

-Fred


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## rwhealey (Oct 21, 2009)

museav said:


> My understanding is that the change in the suspension was done to make the construction easier/more practical and that it was submitted in Shop Drawings that were likely reviewed by a less experienced Engineer who did not catch the change. What always surprised me in this case was that although the Structural Engineer was rightfully severely penalized, including losing their licenses and ability to practice in two states, greatly for failing to catch the change or perform any related analysis, the Contractor that submitted the change without any associated analysis received little punishment or penalty, essentially all responsibility related to the Contractor's design change was assigned back to the Engineer.



My professor (who was part of the investigation either for the NIST or the insurance company) says that the people who made the changes were simply technicians or blueprint drawers and were never expected to be able to understand structural engineering. Their job was to figure out the best way to build something, they saw an easier way, and the engineer told them it was OK. They also didn't have any licenses to loose!

I understand the warranty point. I would agree that if I was to receive a new system, I could only receive warranty service if the original program was loaded in the DSP. If I screw something up, it's my fault (and I wouldn't try to wiggle my way out of paying, but I'm sure there are people who would). I would still request the password.

Holding the password past the warranty period seems like extortion.


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## venuetech (Oct 21, 2009)

when they built my college theatre in the early 70's the was a conflict between the electrical contractor and the rigging contractor. the end result being that series of 12, 6 circuit drop boxes were never installed. (that's 72 circuits) those circuits were wired to terminal strips in boxes on the grid and ready for the installation of multicable and drop boxes. The place was about ten years old when I was a student there in the early 80's There were close to 400 circuits so living without those circuits never was a problem. 
none of the house generated documentation at that time did not list those circuits. but you could find them in the patch bay, so I tracked them down one winters day.

fast forward to the late 90's, The large spaghetti patch bay for those 400 circuits and 90 12K dimmers took up the habit of smoking neoprene. Fortunately a dimmer per circuit upgrade was all ready in the works and only had to be fast tracked to keep the facility on line.
durring a visit to the old stomping grounds the TD/LD was suprised when i told him that he now had 72 dimmers on the grid that he did not know about.


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## JChenault (Oct 22, 2009)

Re the kansas city walkway disaster.


museav said:


> The offset in the modified two rod suspension, even though small, also caused a moment at that point that the box beam was not intended to support. The fact that this occurred right at a welded joint also contributed.



Not quite right as it was explained to me( by the engineer who did the post failure analysis). In the original (single rod) design, the upper box beam needed to support only the weight of the single bridge. The weight of the second bridge was carried solely by the single rod. When the change was made to two rods, the upper beam beam had to hold the weight of the upper bridge, as well as the weight of the lower bridge ( because the second rod was attached to the beam). It was not a question of a moment of rotation, it was more the fact that it was twice the calculated load.


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## mrb (Oct 22, 2009)

JChenault said:


> Re the kansas city walkway disaster.
> 
> 
> 
> Not quite right as it was explained to me( by the engineer who did the post failure analysis). In the original (single rod) design, the upper box beam needed to support only the weight of the single bridge. The weight of the second bridge was carried solely by the single rod. When the change was made to two rods, the upper beam beam had to hold the weight of the upper bridge, as well as the weight of the lower bridge ( because the second rod was attached to the beam). It was not a question of a moment of rotation, it was more the fact that it was twice the calculated load.



that is correct. The added weight made the box beam which consisted of 2 pieces of C channel welded together open up and slide right over the nut.


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## museav (Oct 22, 2009)

Sony said:


> I would definitely get the schools lawyers on the installers case. I'm pretty sure that by law they cannot withhold the password legally as you completely own the equipment and you have a right to all information regarding said equipment. The installer is most likely withholding said password to force you to use their business which is basically forcing a monopoly in regards to who you choose to do your A/V work.


Unfortunately, some firms do indeed use this approach for that exact reason. However, there are also totally legitimate reasons especially since you may not have any rights to the actual program file.


Sony said:


> Most likely once you get lawyers involved they will fork over the password without a fight as they would definitely lose any legal battle that would ensue. If the equipment was leased or rented from them then it would be another story as they still technically own the equipment, but because you own and paid for the equipment in full you are privy to any and all information regarding that equipment.


Actually, unless their Contract specifically states a requirement to provide such information, the Contractor would likely win quite easily. A simple analogy would be that you bought a computer and some software, in this case the DSP box and the manufacturer's programming software, but that is different than buying a file created with that software, the actual project program file, and even buying that would again be different than buying the ability to own, modify, distribute, copy, etc. that file. So the issue is what was bought; a box and software for it that allows you to create files, a box with a loaded program file to provide some defined functionality or a box, software and all rights to the file itself?

The critical issue is really what was contracted. If the responsibility is to deliver a working system, there is no requirement in the Contract Documents to turn over files or passwords and a working system is delivered, then the Contractor has a very strong case that they have fulfilled their obligation without providing any passwords. They also have every right to protect their work and that can include password protecting access to programs they created as part of the work and as allowed by the Contract. As already noted, in most cases nothing prevents you from resetting and reprogramming the device using the manufacturer's programming software but at the same time, unless defined otherwise, nothing prohibits or is inherently wrong with the Contractor password protecting the program they wrote for that project. If you want actual copies of any programming, passwords, etc., then that expectation needs to be clearly defined in the related Contract, without that there is little legal basis to demand it.

In doing so realize that what is at issue here is typically a component of a system. The Contractor is usually contracted to deliver a system with certain functionality and performance and they are liable for providing what is contracted, including any device programming necessary to meet the Contract requirements for the overall work. However, any modifications to the Contractor's work, including that programming, potentially releases them from their obligations, they can no longer control the results and thus cannot be responsible for them. In the case of schools, you may be fine with that in regards to modifying the programs used by programmable devices but the Administration may have differing views, at least for new system still under warranty, and they are the ones writing the Contracts.

The long term aspect is a little different and I believe that it is a good idea to ask for a copy of the programming or code and any passwords in order to support reloading the original programming in the case of equipment failure, having a copy should the Contractor lose theirs or cease operations, having a copy that can be modified to support any related equipment changes in the future, etc. But be careful of asking for full access or 'ownership' as those can be seen to indicate an intent to reuse or modify the programming, as well as potentially limiting the ability to use the programming or any elements of it in the future, and the Contractors will potentially have to address that possibility in the form of lesser work or higher costs.

The idea of allowing passwords and/or files to be withheld until the system warranty expires is an interesting one. It does avoid many of the potential issues, however there is a risk should something happen to the Contractor or the information prior to receiving all the program files and passwords. It also gets messier if there is an option for an extended warranty and how that affects this would have to be addressed as part of such an extension.


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## AdamBair (Oct 22, 2009)

fredthe said:


> We have a very nice DriveRack processor for our speakers, but we are unable to modify any settings as we don't have the password. The A/V installer refused to give it to us, because the system was under warranty, and they didn't want anyone messing with it. That's perfectly understandable, but now that the warranty period is over, we are still stuck with calling the original contractor, because no one else knows the passwords. Any future projects I work on will have a clause in the contract specifying that all passwords be provided as part of the deliverables, with the provision that the contractor may provide them at the end of the warranty period if necessary.
> 
> -Fred



I gotta disagree with you there. If you *own* the equipment, then you own the passwords from day one. Now having to fix "messed with" settings might not be cover by your warranty, which is fine, but having to ask for permission from the dealer to access your own gear is not fine. Passwords are about control, and that dealer had you guys locked up. Get the passwords day one, and then change them if possible.


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## museav (Oct 23, 2009)

AdamBair said:


> I gotta disagree with you there. If you *own* the equipment, then you own the passwords from day one. Now having to fix "messed with" settings might not be cover by your warranty, which is fine, but having to ask for permission from the dealer to access your own gear is not fine. Passwords are about control, and that dealer had you guys locked up. Get the passwords day one, and then change them if possible.


I think it is important to recognize that there are potentially three separate elements involved; the device itself, the programming software provided by the device manufacturer and the operating program created for each application. The latter element is not part of an equipment purchase, it is a separate service and its own Intellectual Property. Preventing you from being able to install your own program is one thing, protecting access to the programming created for that application is another. Go purchase a DSP or similar device and see if it comes with the programming and adjustments for your system. You do not 'own' that programming by buying the box and that is typically what the Contractor is protecting.


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## shiben (Oct 28, 2009)

It sounds like the passwords are not to protect the software, but the use of the software. The place I worked last had quite a few DSPs, and we changed settings on them all the time. We didnt mess with the software itself, but with the settings that the software allows us to make. If that functionality is password protected, then do you really own your box? It sounds to me like you would have then bought the contractor an expensive piece of gear that they leave in your space.


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## museav (Nov 1, 2009)

shiben said:


> It sounds like the passwords are not to protect the software, but the use of the software. The place I worked last had quite a few DSPs, and we changed settings on them all the time. We didnt mess with the software itself, but with the settings that the software allows us to make. If that functionality is password protected, then do you really own your box? It sounds to me like you would have then bought the contractor an expensive piece of gear that they leave in your space.


What DSP? Some of this depends greatly upon the device. With something like a DriveRack PA there is no real programming, it is mainly making adjustments to the fairly fixed internal programming provided by the manufacturer as an integral part of the device. However, with a MediaMatrix Nion, BSS London Architect BLU, Biamp Audia, Symetrix SymNet, etc. there is no inherent operating program provided with the device, when you buy the box itself you get a box and some software to create and manage programming but the programming is custom created for each application and not part of the box. Thus with some DSP devices the program itself is not a part of the equipment purchase, it is a unique creation and thus protected Intellectual Property.

However, even with something as simple as a DRPA, there is still the issue of the impact of any programming on the system. For example, if you allow someone to access limiters you have lost the ability to control what happens with the related protection for any devices downstream. Just the eventuality of changes that could negatively impact the system represent a risk for someone having to warranty the related components or system.

Perhaps we can look at this another way. Sorry for the long diatribe, but this is an important issue. The argument is that buying a DSP box buys you full access to the software/programming. However, buying a box really buys nothing other than what comes in the box and the manufacturer's standard warranty. No special support, no integration with other components, no setup, no related system documentation, no training, no system warranty, etc., just the box and the default programming. However, chances are that what was purchased was an operating system. In that case you have to look at the 'thing' purchased as being the system and not the individual components. That usually includes integration with other devices, system warranty, etc. And that usually includes the setup of the DSP as necessary to meet the project requirements.

An analogy might be a car. A modern car contains multiple programmable processors. What you get when you purchase a car is those devices as integrated into the vehicle with the user access defined by the party supporting those devices as far as service and warranty. Try asking Honda or Toyota or Ford or whomever for full access to all the processing devices installed in your car and the programming for them because you 'bought' that when you bought the car. You may be able to overwrite the initial programming, but typically with the express condition that this voids all warranties. A sound system is not that much different, you buy the component devices as integrated parts of a larger 'thing' and not as individual, unrelated parts.

And that is where the dilemma lies, the Contractor is responsible for providing a system that meets all the project requirements and typically for warrantying that system for some period. They also have their reputation tied to the system. You can't hold the Contractor responsible for changes made by others and the only reason you would need access to a DSP is to make changes. Thus the difficulty becomes how to balance access to DSP devices with the Contractor's responsibility for the system.

So the concept that you should be able to freely access the programming because you bought the DSP device is false in two potential manners; the programming may not be part of the device and the device is not operating in a vacuum but instead is a component of the system purchased with specific requirements and responsibility placed on the Contractor for that system. I agree that the Owner (which is different than the end user, e.g. the school district probably owns it) should have access to anything necessary to support the system in the future but you also have to somehow balance that with the Contractor's responsibility for the initial system and warranty.


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## shiben (Nov 1, 2009)

We have some BSS London Architect BLUs, and I checked yesterday. We also bought the ability to access some parts of the programing and whatnot. Its a complicated contract, and my former boss had to go to a special class or something to get allowed access. So i guess we knew about this issue and planned ahead.


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## JeffClark (Apr 13, 2010)

museav said:


> Thus with some DSP devices the program itself is not a part of the equipment purchase, it is a unique creation and thus protected Intellectual Property.



If the contract specifies to provide a working system, then that would mean everything that is required to make that system work, including the programming. Purchasing a working system inherently implies purchasing everything necessary to make the system work, hardware, software, and programming (in fact, in many line-item invoices, you will see a fee for device programming).

As a software programmer, when I work a contract, I have no IP rights to anything I do to fulfill that contract obligation. The programming required to make that solution work was commissioned by the company/person that issued the contract. The same works in larger software firms. They have employees write the code. Courts have long upheld that even though the individual wrote the code, if it was in the effort to do that person's job, (for example, say a programmer writes a new game physics engine in order to meet the goals of the game's design specs) then that company owns that code. The same standard applies here to DSP programming.

Passwords are only meant to prevent unauthorized tampering with the equipment. I believe that all passwords should be handed over at the project completion, whether that is at the end of installation, or the end of the warranty period is for the parties involved to decide.


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## museav (Apr 16, 2010)

JeffClark said:


> As a software programmer, when I work a contract, I have no IP rights to anything I do to fulfill that contract obligation. The programming required to make that solution work was commissioned by the company/person that issued the contract. The same works in larger software firms. They have employees write the code. Courts have long upheld that even though the individual wrote the code, if it was in the effort to do that person's job, (for example, say a programmer writes a new game physics engine in order to meet the goals of the game's design specs) then that company owns that code. The same standard applies here to DSP programming.


Actually, they seem to be two quite different situations. DSP programming is usually not the primary work contracted by the Owner/End User, it is instead ancillary to the primary work contracted. Also, two critical points in your comments are the programming being either by "employees" or a "commissioned" work, neither of which commonly applies to the programmer's relationship to the Owner/End User when addressing DSP or control system programming.

There are significant differences regarding 'work for hire' by Employees versus by Independent Contractors and unless the Programmer is an Employee of the Owner, then as far as the Owner is concerned the much stricter rules related to Independent Contractors providing the work apply. Those rules severely limit what can even be approached as 'work for hire'. So when talking about a third-party Contractor or Independent Programmer one cannot assume that it is, or that you can necessarily even consider it, 'work for hire'.

That gets into the "commissioned" aspect. A unique, commissioned work is one area where third-party work may be considered 'work for hire'. Most control system and DSP programmers would be happy to create a unique 'commissioned' work for any Client, provided that Client is willing to pay for it. However, as you noted, the Owner/End User is usually purchasing a working system rather than their specifically commissioning a program to be created. So in regards to DSP and control system programming it is rare that someone is actually specifically commissioning a unique work created just for them, the programming is typically more a means to an end and not the contracted work itself. Thus you cannot assume that any programming involved in an audio or AV system is 'work for hire' or 'commissioned', unless otherwise agreed to it will likely be considered more of an 'instrument of service' required by the Contractor in the course of providing a functional system.

I have been in the pro sound and AV industry since before there were processor based control systems and DSP devices and I have personally never run into a Contractor or Programmer that was unwilling to provide the project files provided that both parties were clear up front regarding what is wanted and what is being offered. The problem usually arises from one of two situations. One is when it is a competitive bid and the provision and ownership of DSP and control system files is not clearly defined. In that case some Contractors may see a potential to 'lock in' that Client for future work or to potentially profit more from later selling the related files, thus allowing them to offer a lower initial price. I have seen multiple projects where the firm that was the 'low bid' and was awarded the work would not have been the low bid had the code been properly addressed in the initial bid and Contract. The other situation is when an Owner assumes what is being provided differs from what was actually offered or purchased. One of the most common issues is assuming "ownership" of all programming when that is rarely what would be offered unless specifically requested or what is actually needed.


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