Subject: Re: [FWD: RE: [Ebxmlrr-tech] License issue with our customer]
From: Rick Moen <>
Date: Wed, 3 May 2006 15:25:42 -0700

[Snip from distribution.]

Quoting David RR Webber (XML) (

> Team,

Hmm, let's not let "team" become a synonym for "co-defendents in a
lengthy and eminently avoidable UPL action", please.  More below.

> Can anyone provide some help for Ladislav here?
> Seems like once again corporate lawyers are trying to trample on open
> licensing...

As you'll have seen, both the lawyers and the non-lawyers (like yr.
humble correspondent) are obliged to carefully avoid giving anything 
that can be plausibly argued to be "legal advice".

For the lawyers subscribed here, even if they were licensed for legal
practice in Ladislav's jurisdiction, and were inclined to give out for
free to completely unfamiliar strangers what they do for a living,
professional ethics would oblige them to have an actual consultation
with the client _first_, to ensure that their advice fits the client's

For us non-lawyers, it is a specific, serious statutory offence for them
to render specific legal advice to specific parties.  However,
discussing the law's particular _without_ reference to particular
current cases and their affected parties is perfectly lawful -- not to
mention interesting and a civic obligation.  USA subscribers interested
in understanding the boundaries between those situations might want to
read about the abortive attempt in 1997 by the Texas "Unauthorized
Practice of Law Committee" to ban the publications of Berkeley,
California self-help law publisher Nolo Press from all Texas libraries
and bookstores[1].  This effort was quickly swatted flat by legislative
action, and so never adjudicated, but in 2001 the Ohio Unauthorized Practice
of Law Board clarified the matter a great deal more, concerning the case
of "Office of Disciplinary Counsel v. Palmer"[2], where one David Palmer
had been operating a Web site giving out no-charge legal information.
The Board found that Palmer's Web discussion board had broken no laws,
because "one key element of the practice of law is missing in published
advice offered to the general public: the tailoring of that advice to
the needs of a specific person."

That's it, in a nutshell:  General information (and information about
hypothetical cases, or views on the legal affairs of people whom you're
not actually _advising_ on their problems) is fine.  Advising people on
their specific legal problems is not.

I therefore strongly ask that people not EVER ask, here, for what David
Webber did:  The lawyers overwhelmingly cannot do it (and in tiny
exceptions _should_ not); the non-lawyers would do so only very
illegally and at grievous risk to themselves.


Ladislav --

Whether a software work produced for a consulting customer is a "work
for hire" within the meaning of copyright law is partly determined by 
sections 17 U.S.C. 201(b) and 17 U.S.C. 101 of the Copyright Act, and
partly by related factual tests established by caselaw (see: CCNV v.

"Employee", "independent contractor", etc. must be interpreted according
to their term-of-art meanings within the law of agency, rather than as
used informally or (in particular) as defined by employers/customers --
which definitions get ignored by the courts as irrelevant to the issue.

To be a "work for hire", the software would either have to be "prepared
by an employee within the scope of his or her employment" in the case
of someone not considered (per agency law) an independent contractor, 
_or_ (in the case of independent contractors) would have to exist in one
of nine categories of "specially ordered or commissioned" works
enumerated in section 101 subsection 2 plus there being a written
agreement that "work for hire" treatment should apply.

For the exact provisions and for the nine categories, see the Copyright
Act wording and CCNV v. Reid.  (For one thing, I might be talking out my
hat, and my analysis might be work a great deal less than rien du tout.)

I have _no_ reason to render any opinion about how those general legal
principles apply to your case -- and for reasons mentioned above am 
very scrupulously avoiding giving one.  (You very clearly do need
competent professional legal counsel, and I trust you have hired some.)
Good luck with your situation.

Rick Moen                 "Anger makes dull men witty, but it keeps them poor."                                   -- Elizabeth Tudor