Re: Copyright of personal work (Was:RE: [JBoss-dev] Good-bye II)
The key phrase in the US code governing this is "a work prepared by an employee within the scope of his or her employment", and the determining case at the federal level is CCNV v. Reid. From http://www.utsystem.edu/ogc/intellectualproperty/cybrscen.htm: "The Court emphasized that state laws of agency govern whether one is an employee... In determining whether a work is within the scope of employment, the courts will focus on whether the employee was hired to do the kind of work in question or how closely related it is to the employees primary job responsibilities; whether the employee created the work substantially on the companys time and using its facilities; and whether the motivation to create the work was at least in part, to serve the employer, including serving fellow employees or the employers customers needs." Note the sentence "whether the employee was hired to do the kind of work in question or how closely related it is to the employees primary job responsibilities," and note also that it is state laws of agency which determine the "employee" and "scope of employment" status. As Dain said, it's something that varies state to state and is complex enough that just saying "but I did it at home" isn't enough. Do you ever do work at home for the employer? Were you hired by the employer to do the same type of work? My message was just meant as a word of caution. Whenever I'm hired as an employee, I try to advise them of the work I occasionally do on Open Source software, and if possible get a written agreement that they will eschew any copyright claim for work I do on my own time & equipment. Needless to say, they are almost never willing to do that, and what I usually end up with is a verbal agreement to that on principle, and then I'm careful not to work on any open source stuff that's too similar to what I do at work. Dave --- Rhett Aultman <[EMAIL PROTECTED]> wrote: > I honestly don't think that's the > case, which leads me to suspect that your employer > cannot just unilaterally annex work you do in your > spare time unless they can cite a conflict of > interests or some sort of other direct threat to > their interests (such as stealing a trade secret). > > Really...does anyone know a little of the case law > here? > > -Original Message- > From: Dave Neuer [mailto:[EMAIL PROTECTED]] > Sent: Monday, December 23, 2002 2:05 PM > To: [EMAIL PROTECTED] > Subject: Re: [JBoss-dev] Good-bye II > > > > --- Dain Sundstrom <[EMAIL PROTECTED]> wrote: > > Andy, > > > > Do you own your own work anymore? > > > > This is actually a key issue that everyone working > on > this type of projejct should really be aware of. If > you are a permanent employee of a company in the > USofA > which produces copyrightable material (such as > software) --unless you have a contract to the > contrary > -- that company owns the copyright to the work you > do. > Not just the work you do on company time & > equipment, > but often even the work you do from home on your > spare > time. > > IANAL, and my understanding is that the degree to > which the latter is the case MAY depend on how > similar > the work you've done on your own time & equipment is > to the work you get paid to do, but since that's up > to > a judge's discretion -- and case law, I guess -- it > would be insane for someone running an Open Source > project to knowingly allow questionable code into > their base as, LGPL, GPL or Bob's License, license > issues don't help you if some other entity can claim > to own the copyright. This is why the FSF asks > people > to formally assign the copyright to free software > under the GNU project to them. > > If Andy really does work for a company, as a regular > employee, who produces software similar to JBoss, > removing his code is the right thing to do even if > it's technically superior to every other bit of code > in the codebase and he's the sweetest human being > that > ever lived, to protect the right of all of the rest > of > us to use this awesome software. > > Dave Neuer > > __ > Do you Yahoo!? > Yahoo! Mail Plus - Powerful. Affordable. Sign up > now. > http://mailplus.yahoo.com > > > --- > This sf.net email is sponsored by:ThinkGeek > Welcome to geek heaven. > http://thinkgeek.com/sf > ___ > Jboss-development mailing list > [EMAIL PROTECTED] > https://lists.sourceforge.net/lists/listinfo/jboss-development > > > __ Do you Yahoo!? Yahoo! Mail Plus - Powerful. Affordable. Sign up now. http://mailplus.yahoo.com --- This sf.net email is sponsored by:ThinkGeek Welcome to geek heaven. http://thinkgeek.com/sf ___ Jboss-development mailing list [EMAIL PROTECTED] https://lists.sourceforge.net/lists/list
Re: Copyright of personal work (Was:RE: [JBoss-dev] Good-bye II)
Rhett, It all depends on your specific case. When it comes to this type of law, there are no hard and fast rules (every contract and country/state is different). You need to talk to a lawyer. -dain On Monday, December 23, 2002, at 01:31 PM, Rhett Aultman wrote: I know that I am not a lawyer and have only a semester of law to my name, but is there any real case law related to this matter? I could see where your employer could make claims against your private work if you were working on an open source project that was the spitting image of some proprietary work you were engaged in with said employer, but I would think that the claim would not be on the copyright of your own work but instead on divulging secrets or merely representing a conflict of interest. If what you're saying is true...that anything I do in my spare time can become the copyright of my employer, then I need to seriously rethink my budding writing career, since the articles and books I am writing on my home computer could fall in a legal gray area. I honestly don't think that's the case, which leads me to suspect that your employer cannot just unilaterally annex work you do in your spare time unless they can cite a conflict of interests or some sort of other direct threat to their interests (such as stealing a trade secret). Really...does anyone know a little of the case law here? -Original Message- From: Dave Neuer [mailto:[EMAIL PROTECTED]] Sent: Monday, December 23, 2002 2:05 PM To: [EMAIL PROTECTED] Subject: Re: [JBoss-dev] Good-bye II --- Dain Sundstrom <[EMAIL PROTECTED]> wrote: > Andy, > > Do you own your own work anymore? > This is actually a key issue that everyone working on this type of projejct should really be aware of. If you are a permanent employee of a company in the USofA which produces copyrightable material (such as software) --unless you have a contract to the contrary -- that company owns the copyright to the work you do. Not just the work you do on company time & equipment, but often even the work you do from home on your spare time. IANAL, and my understanding is that the degree to which the latter is the case MAY depend on how similar the work you've done on your own time & equipment is to the work you get paid to do, but since that's up to a judge's discretion -- and case law, I guess -- it would be insane for someone running an Open Source project to knowingly allow questionable code into their base as, LGPL, GPL or Bob's License, license issues don't help you if some other entity can claim to own the copyright. This is why the FSF asks people to formally assign the copyright to free software under the GNU project to them. If Andy really does work for a company, as a regular employee, who produces software similar to JBoss, removing his code is the right thing to do even if it's technically superior to every other bit of code in the codebase and he's the sweetest human being that ever lived, to protect the right of all of the rest of us to use this awesome software. Dave Neuer __ Do you Yahoo!? Yahoo! Mail Plus - Powerful. Affordable. Sign up now. http://mailplus.yahoo.com --- This sf.net email is sponsored by:ThinkGeek Welcome to geek heaven. http://thinkgeek.com/sf ___ Jboss-development mailing list [EMAIL PROTECTED] https://lists.sourceforge.net/lists/listinfo/jboss-development --- This sf.net email is sponsored by:ThinkGeek Welcome to geek heaven. http://thinkgeek.com/sf ___ Jboss-development mailing list [EMAIL PROTECTED] https://lists.sourceforge.net/lists/listinfo/jboss-development
Re: Copyright of personal work (Was:RE: [JBoss-dev] Good-bye II)
As much as I hate to let this whole thread spin too far off topic... In California I know that work you do does NOT get automatically assigned to your employer and, if your employer wants your independent work assigned over to them they must put that in the employment contract AND a copy of Section 2870(a) of the Calif. Labor Code. 2870 basically says your employer cannot force you to assign any of your rights to something you have created yourself on your own time with your own equipment unless what you have created relates at the time of conception or reduction to practice to work you are doing for that employer. I don't know about other states... However, if Andy was told by his employer not to work on JBoss because it competes in any way with the product his employer is making, taking CVS RW access away is the correct thing to do. At least until there is an agreement, in writing, giving blanket permission to contribute to the JBoss code base. The last thing you would want is for a company with their own EJB/Servlet/JSP/etc. implementation to slap an injunction against distributing JBoss right as they launch their product arguing that JBoss likely contains code that is their intellectual property. It could take months to clear the legal issues, all the while they are making money selling their product and JBoss developers find their consulting income wither to nothing. At 02:31 PM 12/23/2002 -0500, you wrote: I know that I am not a lawyer and have only a semester of law to my name, but is there any real case law related to this matter? I could see where your employer could make claims against your private work if you were working on an open source project that was the spitting image of some proprietary work you were engaged in with said employer, but I would think that the claim would not be on the copyright of your own work but instead on divulging secrets or merely representing a conflict of interest. If what you're saying is true...that anything I do in my spare time can become the copyright of my employer, then I need to seriously rethink my budding writing career, since the articles and books I am writing on my home computer could fall in a legal gray area. I honestly don't think that's the case, which leads me to suspect that your employer cannot just unilaterally annex work you do in your spare time unless they can cite a conflict of interests or some sort of other direct threat to their interests (such as stealing a trade secret). Really...does anyone know a little of the case law here? --- This sf.net email is sponsored by:ThinkGeek Welcome to geek heaven. http://thinkgeek.com/sf ___ Jboss-development mailing list [EMAIL PROTECTED] https://lists.sourceforge.net/lists/listinfo/jboss-development
Copyright of personal work (Was:RE: [JBoss-dev] Good-bye II)
Title: Re: [JBoss-dev] Good-bye II I know that I am not a lawyer and have only a semester of law to my name, but is there any real case law related to this matter? I could see where your employer could make claims against your private work if you were working on an open source project that was the spitting image of some proprietary work you were engaged in with said employer, but I would think that the claim would not be on the copyright of your own work but instead on divulging secrets or merely representing a conflict of interest. If what you're saying is true...that anything I do in my spare time can become the copyright of my employer, then I need to seriously rethink my budding writing career, since the articles and books I am writing on my home computer could fall in a legal gray area. I honestly don't think that's the case, which leads me to suspect that your employer cannot just unilaterally annex work you do in your spare time unless they can cite a conflict of interests or some sort of other direct threat to their interests (such as stealing a trade secret). Really...does anyone know a little of the case law here? -Original Message-From: Dave Neuer [mailto:[EMAIL PROTECTED]]Sent: Monday, December 23, 2002 2:05 PMTo: [EMAIL PROTECTED]Subject: Re: [JBoss-dev] Good-bye II --- Dain Sundstrom <[EMAIL PROTECTED]> wrote:> Andy,>> Do you own your own work anymore?>This is actually a key issue that everyone working onthis type of projejct should really be aware of. Ifyou are a permanent employee of a company in the USofAwhich produces copyrightable material (such assoftware) --unless you have a contract to the contrary-- that company owns the copyright to the work you do.Not just the work you do on company time & equipment,but often even the work you do from home on your sparetime.IANAL, and my understanding is that the degree towhich the latter is the case MAY depend on how similarthe work you've done on your own time & equipment isto the work you get paid to do, but since that's up toa judge's discretion -- and case law, I guess -- itwould be insane for someone running an Open Sourceproject to knowingly allow questionable code intotheir base as, LGPL, GPL or Bob's License, licenseissues don't help you if some other entity can claimto own the copyright. This is why the FSF asks peopleto formally assign the copyright to free softwareunder the GNU project to them.If Andy really does work for a company, as a regularemployee, who produces software similar to JBoss,removing his code is the right thing to do even ifit's technically superior to every other bit of codein the codebase and he's the sweetest human being thatever lived, to protect the right of all of the rest ofus to use this awesome software.Dave Neuer__Do you Yahoo!?Yahoo! Mail Plus - Powerful. Affordable. Sign up now.http://mailplus.yahoo.com---This sf.net email is sponsored by:ThinkGeekWelcome to geek heaven.http://thinkgeek.com/sf___Jboss-development mailing list[EMAIL PROTECTED]https://lists.sourceforge.net/lists/listinfo/jboss-development
