Subject: Works for hire (was Re: GNU and classified software)
From: "Karsten M. Self" <kmself@ix.netcom.com>
Date: Sun, 13 May 2001 12:51:48 -0700
Sun, 13 May 2001 12:51:48 -0700
on Sat, May 12, 2001 at 02:48:40AM -0400, kragen@pobox.com (kragen@pobox.com) wrote:
> shap@cs.jhu.edu writes:
> > The contractor using GCC is not a problem -- this is a work for hire,
> 
> No, it isn't.

Sharp eyes, and yes, this is the general understanding.  "Work for hire"
for contract programming is generally contractually specified, not a
statuatory mandate.

> According to http://www4.law.cornell.edu/uscode/17/, USC title 17
> section 101 says:
> 
> A ''work made for hire'' is - 
> 
>   (1) a work prepared by an employee within the scope of his or her
>   employment; or
> 
>   (2) a work specially ordered or commissioned for use as a
>   contribution to a collective work, as a part of a motion picture or
>   other audiovisual work, as a sound recording, as a translation, as a

<...>

> (1) does not cover this case, because a contractor is, by definition,
> not an employee; and (2) does not cover this case, because the
> modified GCC is not a part of a motion picture or other audiovisual
> work, a sound recording, a translation, a supplementary work, a
> compilation, an instructional text, a test, answer material for a
> test, or an atlas.

Interesting side note.

There's been some suggestion that public display and performance rights
might be reserved for software under US copyright statute, as a possible
hook for triggering source distribution obligations.  I've heard from
several attorneys that, given a sufficiently broad definition, many
programs could be considered audiovisual works.  Which might have
interesting impacts on the work-for-hire issue.

-- 
Karsten M. Self <kmself@ix.netcom.com>    http://kmself.home.netcom.com/
 What part of "Gestalt" don't you understand?       There is no K5 cabal
  http://gestalt-system.sourceforge.net/         http://www.kuro5hin.org


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