Re: Code rights for employees (was Re: SCO identifies code?)
Steve Lamb wrote:
So do you think that any artist would sign on and say that x type of work
is owned, whole or in part, by the company regardless of whether or not the
work was done for that copy or on their own?
If they did, that would be their own fault, wouldn't it? It also
wouldn't be the first time a starving artist took a deal that turned out
to be not so beneficial (think of most of the VH1 "Behind the Music"
specials, or the Prince fiasco of the early 90's). Actually, when was
the last time you saw a rock star tell a record label "you know, I wrote
this song on my own time, so I don't think you really own the rights to it"?
Granted DC Comics owns the copyright for Sandman and Warner Brothers owns
the copyright for Babylon 5 so one can argue that if Neil Gaiman or JMS write
stories in those universes they can be considered property of the companies
that own them. But the larger argument of th genre cannot be made. IE, JMS
still can (and does) write science fiction even though that may compete with
the WB property Babylon 5 which is science fiction. He can't call it Babylon
5 or relate it to Babylon 5 but he can write it, sell it, whatever even if it
were during the time he was working for WB's project provided it was on his
own time.
Then apparently, JMS is not forbidden to do so by contract. If he signed
a contract that stated he would not do ANY Sci-Fi writing for any other
bodies, then he would not be able to write, sell, or whatever, even on
his own time. This is an assumption, however, based on your observation
that he continues to write science fiction. We don't know for sure if
he's contractually forbidden to write science fiction unless we have a
copy of his contract :-)
It is the same principle here. If an author working on eBay (to keep with
the example) goes on to found a competing on-line auction site as long as
there is no code share and none of the work was done on eBay's time then eBay
has no claim as long as he doesn't call it eBay. IE eBay = title, auction
site = genre.
Again, this assumes that the author working on eBay did not sign a
noncompete contract. If he was a key developer, I would not be surprised
if eBay's contract stipulated that should the author leave eBay, that he
not work for any other online auction sites (at least for a period of
time, or within a geographic area). It's fairly common practice in
different industries (heck, I can't talk to my old insurance agent for
another couple of months, since he had a noncompete signed with his old
insurance company).
The arguments made so far are putting words into employment contracts,
or assuming that no contract exists. IANAL, but it seems that there are
several questions here:
1) Did the employee sign a contract?
no: It's likely that the employee retains ownership of everything done
on their own time, with possible IP exceptions, depending on copyright
law, and IP laws of their state.
Yes:
1a) did the contract contain provisions regarding ownership of
intellectual property, inventions, copyrights, etc?
If the contract did, it is likely that in signing the contract, the
employee VOLUNTARILY AGREED that any inventions, code, etc. are the
property of their employer, even if done on their own time.
2) What do state and federal laws dictate in the absence of a contract?
3) Can a contract impose ownership restrictions even if state and
federal law do not?
4) Can/do state and/or federal law place limits upon what IP, code,
copyright, etc. rights may be contractually transferred to a company as
part of an employment contract?
--Rich
_________________________________________________________
Rich Puhek
ETN Systems Inc.
2125 1st Ave East
Hibbing MN 55746
tel: 218.262.1130
email: rpuhek@etnsystems.com
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