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OT: Works for hire (was Re: SCO identifies code?)



on Mon, Aug 18, 2003 at 06:56:33PM -0700, Bill Moseley (moseley@hank.org) wrote:
> On Mon, Aug 18, 2003 at 09:33:03PM -0400, Bijan Soleymani wrote:
> > 
> > What's more extreme is the view that *any code* you write while being
> > employed by them is their property. Even code you write in your spare
> > time. I mean I think to some extent this can be defended especially if
> > it's in the same field. Because you could slack off on your real work
> > and do your version of the thing on the side for profit.
> > 
> > Example the guys working at ebay start their own auction site (in direct
> > competition with ebay) on the side and spend their spare time working on
> > that. How moral is that? I mean that doesn't even have to do with
> > copyright so much as common sense.
> 
> I can see where if you hire someone to create something for you, and you
> pay them to do it then it's yours.  People commission artists all the
> time for private work.  Clearly, there should be a way to protect your
> investment in development.  As Ebay you wouldn't want to pay programmers
> to develop your code and then allow them to take that and compete.  Not
> very fair competition.

Sorry to drag up this old thread, but there's some bogus data here.

The issue is called "works for hire".  One landmark case actually
involves a piece of art -- sculpture -- created for IIRC homeless
rights group.  The artist sued for copyright in the work.  See:

    http://www.gigalaw.com/library/ccnv-reid-1989-06-05-p1.html


The term "work for hire" is defined in the definitions section of 17
U.S.C. (the US copyright code):

    http://www4.law.cornell.edu/uscode/17/101.html

    A ''work made for hire'' is -

    (1) a work prepared by an employee within the scope of his or her
        employment; or

    (2) a work specially ordered or commissioned for use as a
        contribution to a collective work, as a part of a motion picture
        or other audiovisual work, as a translation, as a supplementary
        work, as a compilation, as an instructional text, as a test, as
        answer material for a test, or as an atlas, if the parties
        expressly agree in a written instrument signed by them that the
        work shall be considered a work made for hire.


....which is why those of you who've contracted in the US generally find
a rights assignment clause in your contract.  I typically request that
this be specifically limited to "works created at the request of
Company" or similar language.  In years of this practice, I've never had
significant pushback on this issue.

> Unfortunately there's a lot of gray area.  Programmers develop tools
> and idioms for doing common tasks.  Clearly that's something that
> belongs to the individual programmer and not the company.  If you work
> for one company developing some network code, you will likely use the
> same methods writing another program that is also network aware. 

This falls to an extend under noncompete law, which is governed in the
US by state, and can vary tremendously.  New York State, for example, is
particularly employee-unfriendly in this regard.

I'd strongly recommend perusing an article by a friend of mine who ran
into conflict when a general-use method he wanted to contribute to Perl
caught the attention of his employer:

    Professional Employees and Works for Hire
    http://perlmonks.thepen.com/153046.html

The upshot was that an informal arrangement between tilly and his
immediate supervisor was countermanded by corporate counsel and
management.  As tilly hadn't completed implementation of the concept, he
refused to do so, and negotiated an arrangement by which he would remain
with his employer for a period of time, with benefits accruing, etc.  He
left this employer in May, moved to California, and is working under far
more favorable law, at a better salary, and with a team he enjoys, not
to mention a disgustingly brief commute and sweet pad.  His former
employer is down their star employee of the past six years.


Peace.

-- 
Karsten M. Self <kmself@ix.netcom.com>        http://kmself.home.netcom.com/
 What Part of "Gestalt" don't you understand?
    Defeat EU Software Patents!                         http://swpat.ffii.org/

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