From: bhayden@teal.csn.org (Bruce Hayden)
Subject: Re: Who owns the goods????
Organization: Colorado SuperNet, Inc.
Date: Tue, 13 Oct 1992 01:51:53 GMT

thayne@unislc.uucp (Thayne Forbes) writes:

>Terry Carroll (tjc50@juts.ccc.amdahl.com) wrote:
>: In article <2093@sdrc.COM>, scjones@thor.sdrc.com (Larry Jones) writes:
>: > In article <ld4ijuINNqi5@cash.cs.utexas.edu>, bmich@cs.utexas.edu (Brian 
>: Keith 
>: > Michalk) writes:
>: > > This was strictly contract labor.  I was not an employee, but we did not 
>: sign
>: > > a contract as to what would be provided, or who would own the source code.
>: > 
>: > Without an agreement to the contrary, this is a work-for-hire and they
>: > own it.  You can ask for anything you want, but they have no legal
>: > obligation to supply any additional compensation.
>: 
>: For the resaons discussed in my other post of 10/7/92, I think Larry's 
>: comments are incorrect.  The case turns in part on the legal definition of 
>: employee, and Brian appears to have a strong case that he is not an employee, 
>: in which case the work-made-for-hire doctrine is not applicable.

>Sorry Terry, I disagree, twice.
>IMAO (In My Amatuer Opinion) the code is clearly a work for hire.  Brians
>status as an employee seems immaterial.  Brians ownership seems especially
>shaky considering that he did a 'significant' portion of the work at their
>office on their equipment.  Secondly, in case you didn't notice above
>I am pretty sure that the issue of work for hire and employement are
>separate.  In this case, I believe the best hope is for a non-exclusive
>right to the code.

>Not to obfuscate further, but my guideline is that if I walk into the office
>with a substantially complete piece of code at the start of the relationship
>then I walk out with complete ownership.  On the other hand, if I am 
>writing code mostly from scratch, then they own it.  (Although I nearly
>always get an agreement for non-exclusive rights).

>Sorry if this further confuses.  I am going to go right now and find
>the very nice paper that A Lawyer Friend (tm) wrote on the subject.
>-- 
>           "If we don't succeed, we run the risk of failure."
>                            -U.S. Vice President J. Danforth Quayl[e]
>Thayne Forbes

Well, having written a memo on the subject today, I disagree
very strongly. Supreme Ct. in CCNV v. Reid was very strong in its
statement that if you are not an employee, you do not have it in writing,
and if it did not fall into one of the exceptional catagories (which
software does not), then it was not a work for hire. The question then
is whether you are an employee. The Supreme Ct. indicated that 
std. agency law would apply in determining whether you are or are not
an employee. Some discussioni was made on ability to control. Additionally,
a number of indicia of employment were listed. These included such things
as who supplied materials, who set hours, whether taxes were withheld, etc.

Bruce E. Hayden, Esq.
Fields, Lewis, Pittenger & Rost
Denver, Colorado
(303) 758-8400
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>thayne@unislc.slc.unisys.com
Xref: sparky misc.legal.computing:2171 alt.conspiracy:11339