Yea, I thought it was weird that a review of PHP IDEs omitted Dreamweaver; I have tried at least 4 of the IDEs they list, and used Coda on Mac until I got Dreamweaver. My preference is still Homesite (the old Allaire product that morphed into DW after macromedia bought it). But, homesite only runs on windows, so on a mac IMO Dreamweaver CS4 works better than all of them and allows me to do a lot of pretty fast validation and integrity checking./mike
See http://www.gnu.org/licenses/gpl-faq.html#GPLAndPlugins and the next answer. "If the program dynamically links plug-ins, and they make function calls to each other and share data structures, we believe they form a single program, which must be treated as an extension of both the main program and the plug-ins. This means the plug-ins must be released under the GPL or a GPL-compatible free software license, and that the terms of the GPL must be followed when those plug-ins are distributed." and "If the program dynamically links plug-ins, but the communication between them is limited to invoking the ‘main’ function of the plug-in with some options and waiting for it to return, that is a borderline case."
IMO this conflicts with existing jurisprudence on the meaning of a "derivative work" because merely referring to another work without modifying it can (almost) never be a derivative - at least I am aware of no case saying so. Unfortunately the people who wrote the GPL use words like "combine" which have no meaning under copyright law. So, you have ambiguous language, and even worse ambiguity in the GPL FAQ.
I am a lawyer and practice primarily in software. I tried to read through this thread and responses - and as is typical here, at least for me, it is hard to separate the valuable insight from really really bad advice. I enjoy/. mainly for the comical signature lines most of the time.
First - no venture, no product or service, is risk free. There are ways to minimize the risk - and often small changes can make a big difference. The post you made here is itself possible evidence. By merely posting in a public area like this, and describing your intent, you have increased your risk.
Second - no software, and I mean none of it, is IP infringement free. Your objective should be to modify or avoid areas that increase risk, and then proceed.
Third - a common misconception in software development of related software is the idea that because you do not have the prior code, you are not making a derivative work. There are a number of copyright cases in other areas (they principally deal with "plots" in movies and books) that will apply to software development, because a game in the end is an interactive audiovisual work that is also a story that the player writes. So, you have to apply these older cases in the theater world to software. Those cases distinguish between going too far in plot duplication, from taking only what is known as "scenes a faire." That doctrine translates in English to "common element" or "building block." So, for example, copyright law will not prevent one author from using a common theme, element or building block gained from the knowledge of a past work. Otherwise, copyright would protect the idea - and copyright law cannot protect ideas.
So, you need to go see a lawyer, and show the lawyer the prior game. A good lawyer who knows copyright law can then tell you what elements are "building blocks" and which are core plot or thematic elements. In the cases, one component of this analysis is how well a character is developed. For example, "Lara Croft" was a very well developed game character. In the games she killed people and blew things up etc and had grand adventures. So, the idea of a woman in a game doing these things cannot be protected by the owner of the Lara Croft games. However, as a subsequent game character approaches expressive elements of Lara Croft's character . . . infringement is likely.
It is even more complex than this, though. Because assuming you can hurdle copyright law, now you need to deal with trademark law. In short . . . this is a complex issue and you do need to see a lawyer.
I have been engaged to both prevent, and to correct, errors made during software development. It is VASTLY less expensive to hire a lawyer and prevent errors. Once an error is made, the cost is astronomical to fix it. The last jury trial I did was a game development gone bad, and I represented the developer trying to get paid. We won and the jury gave us 100% . . . but since that time, I have devoted the last 15 years to doing only transactional software development law and licensing. Please find a lawyer and pay them for some advice. There are things you can do on the front end to really minimize the likelihood that the prior game owner will sue you.
A final thought - many people have suggested contacting the prior game owner. That is definitely something to consider IMO only if the advice is that your game is likely an infringement of the prior game. When development would be easier this way we advise this - but be prepared for negotiating a royalty deal. In most cases, a developer will simply "design around" the prior intellectual property and not seek permission. However, depending on the IP owner, sometimes permission is easy (for example, it is fairly easy to get permission from the estate of Jimi Hendrix; it is next near impossible to get it from the estate of Jim Morrison of the Doors - and figuring this out is rather easy - also, a lawyer can do this for you anonymously).
A friend and I worked at a major law firm (we have both since left there). He left before I did. About 6 months before he left, the firm decided to do a marketing brochure to show how ethnically diverse we were. They located one of each ethnicity they could find (about 7 lawyers as I recall), and did a photo shoot.
He left voluntarily (was not fired), but I recall that coming in the morning after he left, there was a photocopy picture of the 7 ethnically diverse lawyers at the firm, and he (or someone) had cut himself out of the picture. No note - this was years before email, the web etc.
I thought it a poignant statement, made without words, which of course to my knowledge not a single senior partner understood (or accepted). It would be hard to do that so anonymously today via an email - no one really knew whether he did it or someone else did.
This lawyer today is very, very successful and has a very important position in internet law policy making at the federal level.
The cited article fails to either list the tested firewall software, list the tests performed, or even link to some place where that information is available. It is a statement of the obvious, well known facts that: (i) some software fails to perform even its designed function, and (ii) correctly designed software is often misconfigured to the point where it cannot perform as designed.
The article further makes suggested solutions we have heard a thousand times, nothing new.
To meaningfully talk about security on a the average Joe's winbox, the focus has to come off average joe and be placed on the OS software companies, and on laws and rules (at least in the US) that utterly fail to require any software publisher to be responsible for either designing securable software, or providing adequate notice of the risks associated with installing or using software (or a website). Of course, malware and greyware writers will not follow those requirements... but if average joe wanders down some dark internet alley without a condom on, its his own fault, whereas when average joe is going to a regular business site or using regular business software, the onus really should be on the publisher to disclose fully the risk, and to provide some tools to allow the user to understand what is going out.
With respect to malware that attaches without user intervention, IMO, all outbound traffic ought to be opt in, not opt out by default on OS install, and turning that off ought to be as hard as cancelling AOL (i.e. next to impossible).
You *might* need a lawyer; your employer *clearly* needs one. Your post does not say if you are in the US, or abroad, or whether you are a full time employee (W-2) or contractor (1099). Answers to those questions matter a great deal and define what form of agreement you need.
If you are in the US and a true W-2 employee, it is actually unclear the best way to do this, because: (i) by operation of law, the work is probably Work Made for Hire; and (ii) because of (i), your employer is deemed to be the *author* of the copyright in the work. In this case, in an odd twist, the best way to handle it is probably to either GPL or open source it, or assign the copyright back to you. Making an agreement that tries to retroactively modify who is deemed to be the author (such as backdating it) may not work. This problem arises because you already created a work of authorship.
If you are a US 1099 independent contractor, you are already the author and owner of the copyright in the code (which explains my comment at the top).
If the code involves a potentially patentable idea, the rules are completely different. Unless you were "hired to invent" (and from the post, you were not), even if you are a US W-2 employee, you are the inventor and there is no implied duty to assign the patent; the best the company has is a shop right (limited internal license). Hence, again, my comment at the top.
If your employer truly is this generous (or potentially this dumb), when I am counsel for the employee, I usually ask the employer's counsel to draft the agreement, if they are competent - this costs less.
The posts about determining value and risk are good advice - if this is just ASP or scripting of hacked together GPL code (indeed, if it contains GPL code or derivatives) and is not really a true application - you do not need a lawyer and are probably better off without even an agreement in writing.
If, however, this is a valuable code and it will matter down the line who owns it and who has a license, and the scope of that license, *good* lawyers will save you the $'s in the end.
I practice and teach in this area. The answer is never that you should *always* hire a lawyer, or never hire a lawyer. But I can tell you that if value presents itself later and proper agreements are not in place, you will either abandon the code or spend much more fixing the problems.
To put it in terms of a computer analogy - I still write software code/scripts for may non profits and simple sites - and we do not do formal agreements; but if there is any significant commercial issue, I hire a professional programmer/developer or real techie. The trick is knowing when the issue is serious enough to call on a professional.
If you want to do it yourself, I often recommend starting at Lawguru.
- mike
Linus' comments are very typical in the software development context. Developers use previously authored building blocks of code not because they want to use someone else's IP, but rather because it is less wastefull and promotes innovation by not having 1000's of people re-inventing the wheel.
Sadly, too, his comment is the best explanation of why pure software patents and particualrly method patents often do not make sense to me. The U.S. Patent system is a give/take system: an underlying concept in US law is that you publicly disclose your idea, thus destroying any trade secrets, and you get a 20yr monopoly on the claim. The purpose of the disclosure ostensibly is to permit others to learn the idea and improve on it.
If software developers are not reviewing new software patents for the ideas disclosed in them (and I have every reason to believe that Linus is in with the vast majority of programmers not doing so), then a fundamental tenet of the US patent law system is being undermined. Either: (i) the law should be changed to promote such review; (ii) developers should begin reviewing the patents for ideas and suck it up; or (iii) we should stop looking at the patent system as one which "promotes the useful arts" and simply acknolwedge it for what it is, a property protection system. (there is a constituional question whether if that is all it is, it was authorized by the granting clause in Article I, but that's another discussion)
Of course, this tension is not endemic to software - many industries suffer the same issues - where ideas that are patented are not "true ideas" but merely eloquently designed claims by patent lawyers designed to "cover" some useful system that may or may not have actually been "invented" by the patent applicant. Invention is not the same thing as discovery.
I think if you looked at the history of patenting in the US, you would see a steady deviation away from patents being issued for true inventions (i.e. the light bulb, the cotton gin, etc) and towards a system that is provoking people not to innovate, but to find clever ways to claim inventorship in simple methods that have been converted to electronic methods.
There is a story, the reference to which I cannot recall, that the Commissioner of Patents at the turn of the 20th century, declared that there were no new ideas, that everything had been patented that could. No question he was wrong (radio, TV and transistor were yet to come), but he was headed in the right direction . ..
(and, in any event, SCO is saying its copyrights have been infringed, not its patents (AFAIK), so I am not sure how this morphed into the patent issue, but its the most interesting one to me)
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Yea, I thought it was weird that a review of PHP IDEs omitted Dreamweaver; I have tried at least 4 of the IDEs they list, and used Coda on Mac until I got Dreamweaver. My preference is still Homesite (the old Allaire product that morphed into DW after macromedia bought it). But, homesite only runs on windows, so on a mac IMO Dreamweaver CS4 works better than all of them and allows me to do a lot of pretty fast validation and integrity checking. /mike
See http://www.gnu.org/licenses/gpl-faq.html#GPLAndPlugins and the next answer. "If the program dynamically links plug-ins, and they make function calls to each other and share data structures, we believe they form a single program, which must be treated as an extension of both the main program and the plug-ins. This means the plug-ins must be released under the GPL or a GPL-compatible free software license, and that the terms of the GPL must be followed when those plug-ins are distributed." and "If the program dynamically links plug-ins, but the communication between them is limited to invoking the ‘main’ function of the plug-in with some options and waiting for it to return, that is a borderline case."
IMO this conflicts with existing jurisprudence on the meaning of a "derivative work" because merely referring to another work without modifying it can (almost) never be a derivative - at least I am aware of no case saying so. Unfortunately the people who wrote the GPL use words like "combine" which have no meaning under copyright law. So, you have ambiguous language, and even worse ambiguity in the GPL FAQ.
- mike oliver
I am a lawyer and practice primarily in software. I tried to read through this thread and responses - and as is typical here, at least for me, it is hard to separate the valuable insight from really really bad advice. I enjoy /. mainly for the comical signature lines most of the time.
First - no venture, no product or service, is risk free. There are ways to minimize the risk - and often small changes can make a big difference. The post you made here is itself possible evidence. By merely posting in a public area like this, and describing your intent, you have increased your risk.
Second - no software, and I mean none of it, is IP infringement free. Your objective should be to modify or avoid areas that increase risk, and then proceed.
Third - a common misconception in software development of related software is the idea that because you do not have the prior code, you are not making a derivative work. There are a number of copyright cases in other areas (they principally deal with "plots" in movies and books) that will apply to software development, because a game in the end is an interactive audiovisual work that is also a story that the player writes. So, you have to apply these older cases in the theater world to software. Those cases distinguish between going too far in plot duplication, from taking only what is known as "scenes a faire." That doctrine translates in English to "common element" or "building block." So, for example, copyright law will not prevent one author from using a common theme, element or building block gained from the knowledge of a past work. Otherwise, copyright would protect the idea - and copyright law cannot protect ideas.
So, you need to go see a lawyer, and show the lawyer the prior game. A good lawyer who knows copyright law can then tell you what elements are "building blocks" and which are core plot or thematic elements. In the cases, one component of this analysis is how well a character is developed. For example, "Lara Croft" was a very well developed game character. In the games she killed people and blew things up etc and had grand adventures. So, the idea of a woman in a game doing these things cannot be protected by the owner of the Lara Croft games. However, as a subsequent game character approaches expressive elements of Lara Croft's character . . . infringement is likely.
It is even more complex than this, though. Because assuming you can hurdle copyright law, now you need to deal with trademark law. In short . . . this is a complex issue and you do need to see a lawyer.
I have been engaged to both prevent, and to correct, errors made during software development. It is VASTLY less expensive to hire a lawyer and prevent errors. Once an error is made, the cost is astronomical to fix it. The last jury trial I did was a game development gone bad, and I represented the developer trying to get paid. We won and the jury gave us 100% . . . but since that time, I have devoted the last 15 years to doing only transactional software development law and licensing. Please find a lawyer and pay them for some advice. There are things you can do on the front end to really minimize the likelihood that the prior game owner will sue you.
A final thought - many people have suggested contacting the prior game owner. That is definitely something to consider IMO only if the advice is that your game is likely an infringement of the prior game. When development would be easier this way we advise this - but be prepared for negotiating a royalty deal. In most cases, a developer will simply "design around" the prior intellectual property and not seek permission. However, depending on the IP owner, sometimes permission is easy (for example, it is fairly easy to get permission from the estate of Jimi Hendrix; it is next near impossible to get it from the estate of Jim Morrison of the Doors - and figuring this out is rather easy - also, a lawyer can do this for you anonymously).
- mike oliver
A friend and I worked at a major law firm (we have both since left there). He left before I did. About 6 months before he left, the firm decided to do a marketing brochure to show how ethnically diverse we were. They located one of each ethnicity they could find (about 7 lawyers as I recall), and did a photo shoot.
He left voluntarily (was not fired), but I recall that coming in the morning after he left, there was a photocopy picture of the 7 ethnically diverse lawyers at the firm, and he (or someone) had cut himself out of the picture. No note - this was years before email, the web etc.
I thought it a poignant statement, made without words, which of course to my knowledge not a single senior partner understood (or accepted). It would be hard to do that so anonymously today via an email - no one really knew whether he did it or someone else did.
This lawyer today is very, very successful and has a very important position in internet law policy making at the federal level.
The cited article fails to either list the tested firewall software, list the tests performed, or even link to some place where that information is available. It is a statement of the obvious, well known facts that: (i) some software fails to perform even its designed function, and (ii) correctly designed software is often misconfigured to the point where it cannot perform as designed.
... but if average joe wanders down some dark internet alley without a condom on, its his own fault, whereas when average joe is going to a regular business site or using regular business software, the onus really should be on the publisher to disclose fully the risk, and to provide some tools to allow the user to understand what is going out.
The article further makes suggested solutions we have heard a thousand times, nothing new.
To meaningfully talk about security on a the average Joe's winbox, the focus has to come off average joe and be placed on the OS software companies, and on laws and rules (at least in the US) that utterly fail to require any software publisher to be responsible for either designing securable software, or providing adequate notice of the risks associated with installing or using software (or a website). Of course, malware and greyware writers will not follow those requirements
With respect to malware that attaches without user intervention, IMO, all outbound traffic ought to be opt in, not opt out by default on OS install, and turning that off ought to be as hard as cancelling AOL (i.e. next to impossible).
I don't have a sig line, sorry.
If you are in the US and a true W-2 employee, it is actually unclear the best way to do this, because: (i) by operation of law, the work is probably Work Made for Hire; and (ii) because of (i), your employer is deemed to be the *author* of the copyright in the work. In this case, in an odd twist, the best way to handle it is probably to either GPL or open source it, or assign the copyright back to you. Making an agreement that tries to retroactively modify who is deemed to be the author (such as backdating it) may not work. This problem arises because you already created a work of authorship.
If you are a US 1099 independent contractor, you are already the author and owner of the copyright in the code (which explains my comment at the top).
If the code involves a potentially patentable idea, the rules are completely different. Unless you were "hired to invent" (and from the post, you were not), even if you are a US W-2 employee, you are the inventor and there is no implied duty to assign the patent; the best the company has is a shop right (limited internal license). Hence, again, my comment at the top.
If your employer truly is this generous (or potentially this dumb), when I am counsel for the employee, I usually ask the employer's counsel to draft the agreement, if they are competent - this costs less.
The posts about determining value and risk are good advice - if this is just ASP or scripting of hacked together GPL code (indeed, if it contains GPL code or derivatives) and is not really a true application - you do not need a lawyer and are probably better off without even an agreement in writing.
If, however, this is a valuable code and it will matter down the line who owns it and who has a license, and the scope of that license, *good* lawyers will save you the $'s in the end.
I practice and teach in this area. The answer is never that you should *always* hire a lawyer, or never hire a lawyer. But I can tell you that if value presents itself later and proper agreements are not in place, you will either abandon the code or spend much more fixing the problems.
To put it in terms of a computer analogy - I still write software code/scripts for may non profits and simple sites - and we do not do formal agreements; but if there is any significant commercial issue, I hire a professional programmer/developer or real techie. The trick is knowing when the issue is serious enough to call on a professional.
If you want to do it yourself, I often recommend starting at Lawguru. - mikeLinus' comments are very typical in the software development context. Developers use previously authored building blocks of code not because they want to use someone else's IP, but rather because it is less wastefull and promotes innovation by not having 1000's of people re-inventing the wheel.
.
Sadly, too, his comment is the best explanation of why pure software patents and particualrly method patents often do not make sense to me. The U.S. Patent system is a give/take system: an underlying concept in US law is that you publicly disclose your idea, thus destroying any trade secrets, and you get a 20yr monopoly on the claim. The purpose of the disclosure ostensibly is to permit others to learn the idea and improve on it.
If software developers are not reviewing new software patents for the ideas disclosed in them (and I have every reason to believe that Linus is in with the vast majority of programmers not doing so), then a fundamental tenet of the US patent law system is being undermined. Either: (i) the law should be changed to promote such review; (ii) developers should begin reviewing the patents for ideas and suck it up; or (iii) we should stop looking at the patent system as one which "promotes the useful arts" and simply acknolwedge it for what it is, a property protection system. (there is a constituional question whether if that is all it is, it was authorized by the granting clause in Article I, but that's another discussion)
Of course, this tension is not endemic to software - many industries suffer the same issues - where ideas that are patented are not "true ideas" but merely eloquently designed claims by patent lawyers designed to "cover" some useful system that may or may not have actually been "invented" by the patent applicant. Invention is not the same thing as discovery.
I think if you looked at the history of patenting in the US, you would see a steady deviation away from patents being issued for true inventions (i.e. the light bulb, the cotton gin, etc) and towards a system that is provoking people not to innovate, but to find clever ways to claim inventorship in simple methods that have been converted to electronic methods.
There is a story, the reference to which I cannot recall, that the Commissioner of Patents at the turn of the 20th century, declared that there were no new ideas, that everything had been patented that could. No question he was wrong (radio, TV and transistor were yet to come), but he was headed in the right direction . .
(and, in any event, SCO is saying its copyrights have been infringed, not its patents (AFAIK), so I am not sure how this morphed into the patent issue, but its the most interesting one to me)
- mike oliver