On Feb 11, 2005, at 3:40 PM, Anthony Atkielski wrote:
Chad Leigh -- Shire.Net LLC writes:
Their employers are paying them TO WORK on FreeBSD. They are not taking
their code that they write for their employers and also sticking it in
FreeBSD. Big difference.
Not if their work consists of writing code. In that case, the copyright
in the code belongs to their employer (in the U.S., and in a number of
other countries with similar provisions).
Yes there is a difference. If the employer assigns it to the FreeBSD project. That is what we are talking about.
Under 17 USC 101:
"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. [...]"
Note that a "collective work" is generally a book or a movie, not a computer operating system:
"A 'collective work' is a work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole."
"Computer program" is separately defined, which means that it is not a collective work.
In the first case, they are allowing it to happen and assign the copyrights as necessary.
Do they do this in writing before the code becomes a part of the project? Do they have a written agreement with their employees that explicitly waives their work-for-hire interest in the copyright?
I don't know. Go ask them. Look in the codebase yourself, or pay someone to do so.
Chad
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