Subject: Re: [FWD: RE: [Ebxmlrr-tech] License issue with our customer]
From: Rick Moen <rick@linuxmafia.com>
Date: Thu, 4 May 2006 12:34:56 -0700

Quoting Russ Nelson (nelson@crynwr.com):

> It's not a particularly interesting case unless you happen to be one
> of the participants.  It has almost nothing to do with open source
> licensing, and everything to do with the terms of the contract.

Nonetheless, USA copyright law is very clear:  Unless and until the creator
of a copyright-covered work explicitly conveys title in writing, nobody 
can claim that title from him/her as a "work for hire" unless either:

o  it was "prepared by an employee within the scope of his or her employment"
   (where "employee" refers to the status per agency law)

   or

o  the work falls into one of nine statutory categories, _and_, there was a
   written agreement to consider it a "work for hire".

Those categories are:

  (1) a translation, (2) a contribution to a motion picture or other
  audiovisual work, (3) a contribution to a collective work (such as a
  magazine), (4) as an atlas, (5) as a compilation, (6) as an
  instructional text, (7) as a test, (8) as answer material for a test,
  (9) or a supplementary work (i.e., "a secondary adjunct to a work by
  another author" such as a foreword, afterword, chart, illustration,
  editorial note, bibliography, appendix and index). 

You'll note that software is NOT anywhere in that list.

Software thus cannot be claimed as a "work for hire" when created by an
independent contractor.  It could only be acquired from its creator by a
separate, explicit, written conveyance of title.

My wife (before I knew her) was obliged to haul a major New Hampshire
software retail firm into court over her software development work for 
them.  That firm had reportedly been able to sandbag a number of other
claims from prior contractors by citing "work for hire" rules.  My
then-future wife, however, cited CCNV v. Reid, blowing that tactic out
of the water -- and thus became the first outside coder for that firm to
get paid.