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(ichi) Re: Professional Employees and Works for Hire

by ichimunki (Priest)
on Mar 20, 2002 at 20:11 UTC ( #153110=note: print w/replies, xml ) Need Help??

in reply to Professional Employees and Works for Hire

Tilly, very unfortunate that they've decided to be so hard-nosed about this! Thank you for another excellent reminder to us all that good programming isn't just about code, it's also about copyright issues, employment issues, and often business sense.

I want to make sure to point everyone to theUS Copyright Office. This is an essential resource when it comes to understanding your rights and responsibilities. Especially of note is Circular 9, "Works Made For Hire"...

Of specific importance here is the quote from page two, "Section 101 of the copyright law defines a "work made for hire" as: (1) a work prepared by an employee within the scope of his or her employment;". The obvious implication is that if your employment is that of "Perl Programmer" or just "Programmer" that your work could very well fall into that scope, even if done outside of the office.

Another good resource is the Department of Labor's pages about the Fair Labor Standards Act, which sets out at a Federal level certain definitions such as what it means to be a "professional" employee. Programmers typically meet one of the professional designations, since there is one in there especially for programmers and systems analysts-- which is why there are few hourly programmers who are not contractors. But from a Labor perspective this means certain things about pay, hours, and duties, not about copyright or other "rights" an employer may or may not enjoy.

Copyright is not always black and white in practice. It may well be that your employer's lawyers have said this, and that even other lawyers in the state agree, but that does not mean they are correct (of course, if your state law somehow trumps a federal law, they may well be). Without clear precedent or a decision from a judge, believing lawyers is a bit like believing salesmen. They tell you what they want you to hear-- it's their job to promote their employer's interests after all. More important is the contract you signed, and whether it is valid, in whole or in part. If you signed a contract that stated all of your programming work belonged to your employer, then that would seem to be an assignment of rights (whether this is possible with works that have not yet been created is another question).

I can't say I think they have many grounds to demonstrate harm that would justify monetary damages in a civil case. They might file for some injunctive relief (i.e. "what happened to all of tilly's great code?"), but how would they evaluate damages? What harm could they demonstrate has been done? Can you imagine a jury awarding punitive damages to your employer for your crime of being helpful?

Please note: I am not a lawyer, although I often wish I were and frequently consider becoming one. The foregoing does not constitute legal advice and is for entertainment/educational purposes only. If you need legal advice, please retain the services of a licensed lawyer in your state.
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