A driver's license is proof you had training in operating a potentially dangerous piece of machinery around others. Which is why they have ticky boxes for things like "chauffeur" and "commercial" on it. You know, because it's about driving. I agree, it shouldn't be used for anything other than employment as a driver, traffic violations, and insurance purposes! In fact, it's a perfect example of how the "oh, this card will only be used for X" is so easily corrupted!
A driver's license is also issued as a government-issued ID card. If you don't want a driver's license (or can't get one) then you can actually get an ID card, that looks quite similar to a driver's license.
...try leaving your house some time in the U.S. without your driver's license, car registration, proof of insurance...
You only need all of that if you're operating a vehicle, because operating a vehicle is a privilege.
I can walk out my house right now without any of that, and if a cop stops me while walking around or taking a bus, he cannot legitimately haul me into jail for failing to have any of it.
Oddly enough, in Washington state, with a motorcycle, you do not have to have proof of insurance, or even insurance at all. You also do not have to have your vehicle registration on you, as your bike's license plate is sufficient for them to look up the information, and validate it. And usually, they don't even care about your driver's license, as long as you can remember your DL number.
Literally, I could be going 80mph down a 60mph zone on my motorcycle, be stopped by a cop, and receive a ticket without showing one single piece of paper to him.
Immigration isn't difficult to control. Just go around to all the constructions sites and haul in all the workers that can't speak English. No, this isn't a troll. Those that can't speak English at all will either have some very fresh papers saying they can work here, or they will have a concerned family member monitoring them.
This may apply in your particular area, but it does NOT apply over the entire USA. Particularly in New Mexico, where there are children born, who get to the 1st grade without speaking any English... "those are anchor babies" Some, yes, but New Mexico is also full of a Spanish-speaking population that has been around so long that these Spanish-only children have grandparents with full American citizenship.
Not to mention that this would be a gross violation of discrimination based on national origin. The US Supreme Court has already ruled very clearly that English-speaking requirements are only valid if English is absolutely required to perform the work being done. Construction jobs do not require English... especially when the foremen are guaranteed legal immigrants or native-born Americans who also natively speak Spanish.
E) The courts find that as a matter of fact, Bob is not an employee of Alice. THEREFORE: The work is not a work for hire.
Changing premise E would make it a work for hire, but I wasn't considering this case
Premise E is a matter of law determined by the judge, but yes, essentially that would be true, ignoring for a moment the huge gulf between premises D and E.
Ah, determining the difference of matter of law, or matter of fact can be a difficult one for people without experience in law.
I am aware of the enormous gulf... I'm attempting to learn, so I'm establishing premises designed specifically for learning.
I'm not sure I follow what you're talking about... the default for copyrights is the producing individual. Work for hire is provided as an explicit exception to this.
The default owner of the copyright holder is the creator. When that is done by the will of the artist, the default owner is the artist. When the artist is hired by a patron, the patron is the default owner. There is no transfer--copyright is vested in the patron.
(Also taking into account your revised statement below.) Yes, I understand this, and that there is no transfer of copyright in a work for hire situation. The Constitution assigns copyright to the "author", and work for hire establishes the author to be the patron.
In the case where a copyright dispute arises and there is a disagreement of fact as to who owns the copyright, the employer must have prima facie evidence to support the contention that it was a work for hire.
No. A commissioned work is presumptively a work for hire. The artist must demonstrate that he is not an employee, and that as an independent contractor, the work is ineligible for application of the work for hire doctrine.
You are conflating presumption and burden.
That the patron hired the artist for the work establishes a reasonable assumption that the work is a work for hire. However, this still skips a few steps of legal "process" as I would see it.
For instance, German law establishes a simple purchase of an item as three "contracts". Two of which are an obligation to transfer money/goods to the other party.
This three-part "contract" is a part of ALL purchases... that the vast hojillions of purchases are carried out with any knowledge of the technical legal details of the purchase, those technical details are still in force.
In the same way, my pedantic mind is approaching matters similarly. Breaking it down into kind of pseudo-code, I would establish:
var work = artist makes a copyrightable work var work->author = artist
if (work is for hire) work->author = patron
work->copyright owner = work->author
The alternative of:
var work = artist makes a copyrightable work var work->author = patron
if (work is not for hire) work->author = artist
work->copyright owner = work->author
violates some simple precepts that should be self-apparent. Not all works have a patron, thus one cannot default the author to be the patron in all cases. Turning it into:
var work = artist makes a copyrightable work
if (work is for hire) work->author = patron else work->author = artist
work->copyright owner = work->author
Still establishes a default, because there is a generic state, and an exceptional state.
I don't care how much you want to argue about this, for the very reason that not all works have patrons declares that "work for hire" must be an exceptional situation legally... even if it is the most common situation in reality.
What this typical practice means, is that if a lawyer is handed this case to work on, his
I switched after High School. I learned about Dvorak in wandering the Internet (pre Wiki days) and thought it made sense. Even if the "X much faster" claims were biased, leaving the home row and less finger movement sounded good.
After my last project my senior year I figured this was the last time I would ever be able to 'switch' because from here on out it'd be College then Work nonstop.
Printed out a keymap and kept it next to the monitor. Kept up my IRC/AIM chatting. It took 2 weeks to get back to my 'old speed'. And within a month I was up +30 WPM where I eventually settled.
DV Assist is a great tool for Windows users who don't have admin access, I keep it on a thumb drive at all times, plug it in and run and switch. And it's not like you 'forget' QWERTY, it's always printed in front of you.
The worst is passwords.... I really don't "remember" my passwords. So a password: 1234',.paoeu is just the first 3 lines of the keyboard on the left... but when I go to a QWERTY keyboard I have to think it through...
I tend to use a German keyboard layout (QWERTZUIOP). I do this because, I can type English just fine with a German keyboard, but I cannot type German the proper way I would like to with an English keyboard.
While working at a company that had a one-a-month password reset policy, I actually used the "section character" (Shift-3 on the German keyboard) for my password once. This was fine, and I had no problems for the most part, except for the 5 times that I had to type my password on another person's computer (while RDPing into my desktop machine). I had to learn what the Alt+0 windows keycode was for the character so that I could login reliably.
The rest of my passwords have intentionally avoided this issue.
You are absolutely wrong. If a contract employee works in what we call "staff augmentation," that is to say, they work like an employee but are paid as a contractor, then everything they produce is a work for hire.
... did you miss where I said "unless you're a normal employee"?
Such an individual is a normal employee, and thus it is a work for hire.
I'm sorry for using the legal definition of "contractor" instead of the common definition... except that using common definitions I cannot properly state the condition under which programming novel software de novo would result in the complete inability for it to be considered "work for hire".
if you don't explicitly state that it is a work for hire, then even if it would qualify as a work for hire, the absence of the explicit language would make it not so.
Express consent by the parties is required only of independent contractors, not of employees. If the work ordinarily qualifies as a work for hire (as e.g. a contribution to a joint authorship), then as the expected business practice, that weighs heavily in the direction of "employee".
Let me restate in a better format so you can see the logic that I was trying to present here. GIVEN: A) Alice hires Bob to do a copyrightable work. B) Alice and Bob draft a contract for the work. C) The contract contains no language stating that it is a "work for hire". D) A dispute of copyright ownership is brought to the courts. E) The courts find that as a matter of fact, Bob is not an employee of Alice. THEREFORE: The work is not a work for hire.
Changing premise E would make it a work for hire, but I wasn't considering this case, because it's trivially a work for hire if this is true. Thus, while drafting any contract for the commission of a copyrightable work, I hold that if Alice wished to maximize the rights that she would have given any potential court ruling, that she should ensure that the contract states that Bob is an employee, that Bob is working for hire, and that Bob will transfer all copyrights to Alice. Should the nature of the work be such that it would be unreasonable for Alice to state that Bob is an employee, then she should still at least provide the later two provisions into the contract.
and the default presumption that the work is his
There is no such presumption. In fact, common practice weighs the opposite direction for most programmers hired to create a new work. The only time there is a default presumption that the programmer retains all rights is if s/he creates it of his own initiative.
I'm not sure I follow what you're talking about... the default for copyrights is the producing individual. Work for hire is provided as an explicit exception to this.
In the case where a copyright dispute arises and there is a disagreement of fact as to who owns the copyright, the employer must have prima facie evidence to support the contention that it was a work for hire. Because this is normally as simply as having an employment agreement with the employee, it's usually pointless to contest the ownership of the copyright.
Just because the default presumption is quickly, and quitely superseded in the vast majority of cases does not mean that it is not the default presumption...
When a work is specially commissioned, the historical and typical practice is that the commissioner buys the work, lock, stock, and barrel.
Correct... it is common practice... but that does not mean that it is the legal default.
As an example, I live in Washington state, which is an "at will" state. A company could make the choice that by typical and standard practice, they do enter into true employment contracts. This is their process for 50 years. One day, while hiring an employee, the company declines to enter into a true employment contract. That employee is hired "at will", rather than protected by a true employment contract, regardless of what the company's historical and typical practice is.
What this typical practice means, is that if a lawyer is handed this case to work on, his first assumption could be that it was done as you've stated, however that is not the legal default... simply the most common.
This is true of all copyrightable works, including software. The buyer who commissions a work buys the work on the theory that the artist is but a tool, a means to an end for the commissioner[.]
Yes, the buyer does buy the work on such a theory... however it does not guaran
It's difficult to find a photographer that agrees, because its a false legal assumption.
His first statement might have been false, but it's not a false legal assumption to pay someone with the understanding that you have rights to the photos in return.
Also note that it isn't even necessary that the copyright be transferred (even thought that's how the rest of the world works - I don't see why photographers are so special) - it would be good enough that a married couple can have a licence to the photos they paid for. You know, so they aren't breaking the law when they decide to make a copy of their own wedding photos.
A poor choice of words... "it's not the implicit/default legal assumption".
Making copies of ones own wedding photos would most easily qualify as "Fair Use", and thus be protected no matter what agreement the photographer and wedding party agree to. However, being able to distribute those copies to others would clearly require the right to distribute another person's work... without owning the copyright, then it's difficult to argue that one has a right to give friends and family copies that you made... (If you order multiple prints, and hand out prints produced by the photographer, then that's reselling a single product, and not distribution of a copy.)
EVEN IF, a photographers assigns the rights to the wedding party, if the wedding party "mutilates" the pictures in such a way that the photographer finds them offensive, his moral rights would supersede the copyrights and he could enjoin the wedding party from distributing such a "mutilated" work.
A good example of this later one could be shown by this example. A photographer Alice takes pictures of Bob and Charlene being married. Bob and Charlene obtain the copyrights to the photographs, and make copies, and distributes them to friends and family. However, they alter the works to be fuzzy, blurry, or perhaps put red eye artificially into the pictures. These new pictures would NEVER be produced by Alice, as they do not match the artistic standard that Alice produces. Thus Alice could potentially seek damages or even an injunction to prevent their distribution.
Actually, it legally is different. Specifically, there is no way at all for software to be written "for hire" unless you are a normal employee.
You are wrong. See discussion in an earlier thread.
I'm not wrong, just not entirely correct.
There is no clear immediate and unambiguous way that software could be a "work for hire" unless they are a normal employee, because "software program" is not listed in the second part of the definition.
This is slightly different from a lawyer being able to argue that a work does satisfy one of the categories to enable it to be a "work for hire".
1) they mean employee under the general common law of agency. Every one of the contractors I've hired fits this description even though they were not my "employees."
For you. My boyfriend does contract website work, and would be as far from "employee" as possible. He provides his own equipment, schedules his own hours, and produces the work without supervision. The other party simply has a "yay or nay" vote on if they accept the work as acceptable.
2) Even if you are not and employee under the general common law of agency you can create a written agreement between parties, read contract, specifying that the work is a work made for hire if it satisfies one of the 9 categories listed in part two. Programing certainly would if the code you are working on is not yours.
Hiring someone to fix bugs or adapt a current codebase most certainly would be a work for hire situation, however this would also be hiring the person to make a derivative work, and thus their rights to even make the derivative work are governed by an original set of copyrights that exist prior to the contract.
However, if one hires another to produce de novo a program, then this program likely will not satisfy one of the nine criteria.
3) the transfer of rights is not particularly relevant since in a work for hire they were never yours.
The transfer of rights is relevant, because as I noted below, if the "work for hire" argument fails, then they have zero rights to the work. Including language for both protects the buyer the most, when they are most interested in obtaining the rights to the work.
If the customer explicitly agreed that it was not a work for hire, particularly a sophisticated customer, it probably won't be found one later. If the contract explicitly states that it is a work for hire, it is a virtual certainty that federal judges will make it so by the end of the trial, and usually will do so without so much as breaking a sweat.
I can see a lot of worth in this. If you're the buyer then almost always say that it is a work for hire. If it is later found to not be a work for hire, then no loss... however, if you don't explicitly state that it is a work for hire, then even if it would qualify as a work for hire, the absence of the explicit language would make it not so.
But as any one with legal reading should know, a lot of it comes down to specifics of the situation... I'll have to read up about common law of agency before I can comment about that.
I still hold that it would be stupid of the programmer not to be aware of his legal rights (and the default presumption that the work is his) and the putative employer to know their legal rights (and the necessity of stating in clear explicit language that they will obtain the rights to the code).
I've contracted for multiple places with million dollar lawyers to review their contracts that used 'work for hire'. Those lawyers obviously have some belief that they will prevail if it comes down to a lawsuit. They could be wrong, but I doubt it.
"Work for hire" is a strictly defined legal term. One could potentially include it for--of the top of my head--two reasons:
1) It shows an intent for an agreement between the two parties that the work will be treated as if it were a work for hire. Thus setting up an implicit transfer of copyrights from the worker to the payer.
This still has no authority for actually defining the work as a "work for hire", because it contradicts the US federal law concerning copyrights. As well, the reinstatement of original copyright to the author after ~30 years is an inalienable right of the author. What this means is that even if you sign a contract stating that you forfeit this right, such a term is unenforceable and thus voidable.
2) The people who are signing the contract do not have multi-million dollar law firms representing them. Thus being naive, they are likely to agree to terms in a contract that are unenforceable.
Being a cynical bitch, I believe this is the most likely. Bill collectors ask you to hit up friends and family to pay your bills, and to get you to cash out 401(k) or IRAs to pay your bills. What they fail to ever tell you though, is that there is no legal way for them to force such an action... they're basically trying really hard to convince you that your rights don't exist, and you should go ahead and trust them because they're in the business, and they know the law.
Don't ever buy the story that someone else's lawyer is representing your interests, as they are not. ALWAYS consult your own lawyer about these contracts. You CANNOT contract away inalienable rights, and companies can only take away natural rights if you let them.
"if I pay a plumber to fix my tap, I don’t ask him to leave his toolbox so I can fix it myself next time"
"You might ask why I didn’t make a contract with this client in the first place. It’s because I’ve found, over the years, that insisting on a contract before development starts will result either in a delayed start or even a project being shelved."
So, this developer doesn't disclose this to customers who aren't aware that they are screwed when the developer walks away? His tortured analogy of the plumber and his tools is only correct if the plumber is installing pipes, valves, etc. that are 100% proprietary to the plumber and can't be purchased anywhere else. The word slimy leaps to mind for his business ethics (and plumbing in general).
I agree, the matter of starting work without a contract is kind of slimy. Primarily because he is aware of his rights, and the people he contracts with don't. He should at least give a disclaimer to them that there are legal consequences that haven't been settled if he starts work right away, and they should speak with a lawyer about their rights and concerns.
Although, he could entirely be screwed, if he started work on the product, and then propose a contract later that the customers don't wish to agree to. They're not bound to signing this contract, and could potentially hole up and refuse to pay until the terms of the contract are favorable to them. When brought to court, they can easily state that there had never been a "meeting of minds" and thus their verbal contract were void... thus he's done a ton of work, and won't get paid for it.
It's pretty simple. If you are an employee, your employer owns your code. If you are a contractor you own your code unless your contract or agreement states that the work is a "work for hire" (or uses equivalent language). Requisite Wikipedia reference.
Except that there is the requirement for the work for hire to be in a specifically enumerated list of things which computer programs do not fall under. Unless you're a normal employee, then software cannot possibly be a work for hire... even if the contract specifically says it is.
1) that would infringe patents, 2) that would infringe registered trademarks and patents, and 3) I'd probably go to jail for trying to sell "pecker wreckers."
Yes, Yes, No. You cannot go to jail for even the most grievous of IP violations. They can sue you and obtain a judgement that makes you wish you were in jail, but they can't get you there.
If someone pays you to perform work, they own all rights to that work.
This is your opinion, and your clear intent and desire when you are soliciting work. It is not however legal fact.
When I was married, we had a difficult time finding a photographer that agreed, and simply didn't do business with those that wanted to be paid for their work, and wanted to keep all rights to said photos for use in promotions and fees for reprints.
It's difficult to find a photographer that agrees, because its a false legal assumption. Your actions however are the proper way to deal with the situation... refuse to hire anyone to do the work, who refuse to transfer the copyrights.
I consider that a form of double jeopardy where I'm being forced to pay for something twice.
You're misusing the term "double jeopardy". Double jeopardy only applies to criminal punishment. This requirement to "pay for something twice" is also not something that is so unfair that it cannot be contracted away. It's entirely reasonable for an artist (e.g. a photographer) to retain the rights to the works, which they produce. They are after all artists. If you want to own the copyrights to it, then you have to pay for that separately from simply having the artist produce the singular work for your enjoyment.
Software is no different.
Actually, it legally is different. Specifically, there is no way at all for software to be written "for hire" unless you are a normal employee.
If you're being paid to perform a specific work, it's no different than if the person/organization paying you did the work themselves. You can't have both.
As a matter of US law, you are wrong. Copyright in a work for hire resides with the employer (or whomever the work was made for). See Circular 9 of the US Copyright Office. If an entire program is being developed as a contract piece, it *might* not qualify as a work for hire, but contracted software components and anything a normal employee writes within the scope of his employment are works for hire, and the people writing the checks own those works.
I don't know about the corresponding laws in other countries, but if you work in the US, you are woefully misinformed.
You are woefully misinformed as well. Work for Hire in the USA must satisfy certain requirements. The simplest is being an employee. If you are a contractor, then in so far as computer programming there is NO WAY FOR THE WORK TO BE A WORK FOR HIRE... even if your contract says it is.
For computer programming, one's contract must explicitly include terms for the transfer of copyrights, otherwise the programmer will retain all copyrights, regardless of if he were being paid by someone else to do the work.
Oddly enough, even with a transfer of copyrights, the author recovers the copyrights after 35 years... and this right is inalienable.
The main issue - is if you are an employee - the employer owns the code. If you are "sub-contracted" it depends on what the contract looked like. Generally though this looks like a work for hire situation where the owner isn't the author. IANAL so your mileage may vary.
Work for Hire has either a single simple requirement: be a regular employee, or a number of other requirements together. Being contracted to do work settles that the former is not the case. The later has a requirement that the work be from an exhaustive list, of which computer programs are not a part.
Thus, there is no possibility that the work is a Work for Hire... REGARDLESS OF WHAT ANY TERMS OF THE CONTRACT STATE. Similar to the inability to contract oneself into slavery, parties cannot simply agree that a work is a work for hire. (This is oddly because copyrights are Constitutionally guaranteed rights.)
Computer programs written on contract require terms which explicitly transfer of copyrights to the contracting party, and I would suggest avoiding the wording "Work for Hire", as it cannot possibly qualify as one, and thus it would present an unenforceable term of the contract, and without a severability clause could make the entire contract voidable. (Meaning if either party disliked any term, they could get the whole thing thrown out.) Even with a severability clause, using the wording "Work for Hire" could void the entire transfer of copyrights, meaning that the contracting party would still obtain no copyrights to their work.
What's important here is that the contracting party needs to be on their toes about what is going on here, and speak with a lawyer about their rights, and ensure that their contract grants them the rights that they are expecting.
And the contracted party can use this copyright retention and potentially moral rights to the work to ensure payment by their contracting party. Ensure that copyrights when they are to be transfered, are not transfered unless payment has been made in full.
Well, it's important to note that these violations of the distribution rights was a matter of fact, and thus something to be decided by jury, or judge if both sides decline a jury trial.
Considering that the findings of the court were against Tenenbaum, and that violation being a matter of fact that must be established before a judgement against him be rendered... the matter of fact was settled.
There are two ways that this could have been settled, either it was a matter of fact that neither side disputed, or it was a matter of fact that the jury ruled was the case.
Either way, the trial court settled the matter declaring that he had violated the distribution rights, and any appeal could not be based on a foundation of "the matter of facts found were wrong"... Appeals can only be made on matters of law.
Nesson claimed that the songs he uploaded and linked to on his blog were irrelevant to the Tennenbaum case that he was the lawyer for. Is it possible that Nesson is right? Suppose that Tennenbaum had been accused of bank robbery and then suppose that Nesson goes out and robs a different bank on his own time. Is that new crime relevant to his client's case? The judge granted the RIAA Motion to Compel and now the same judge has ordered Nesson to pay the RIAA expenses but...maybe...Nesson's got a better case on appeal...and maybe the judgments and punishments will be used to support his central argument that the punishment is out of proportion to the damages for a civil case.
I think he's just crazy... I mean, ok, in your example, no the lawyer's crime is not relevant to the defendant that he's representing... it would likely be an ethical violation which could have him disbarred though.
But really, if a lawyer is out there talking about his case in public, and pulls something THIS boneheaded... then it's totally relevant. He's communicating about the case, and thus it has relevance.
I wonder if NewYorkCountryLawyer will finally stop harping on the question that no one proved distribution... at the very least, the lawyer obviously distributed the copyrighted material in violation of the law...
You just demonstrated why debating with non-nerds is so annoying to nerds.
The original person is pointing out that there is a fallacy in saying that it is widespread and thus safe... he is pointing out the fallacy of appeal to the majority. As evidence he presents certain premises.
The next person points out that the premises used are flawed. Things that are widely in use are widely in use typically because they're preventing something significantly worse than any side-effect that may result from their use.
DDT was preventing Malaria. Asbestos was preventing fires. Vaccines are preventing horrible debilitating diseases. DDT is still used to prevent Malaria where it is a big deal (which is not the USA). Asbestos is still used in certain cases. Asbestos is generally safe, until it breaks down into fibers that get into the lungs. As it is created with a binding agent, this typically only happens once it gets wet and deteriorates. And vaccines... screw autism... you could get an INFECTION at the injection site that if untreated could lead to your death, but we can treat all the side-effects a heck of a lot better than we can treat mumps measles and rubella. And if you don't remember how bad these diseases are if you get them, you should ask an person around age 50, I think would do right now.
The point here, is that a lot of pseudoscience gets its brazenness behind "well, people thought plate techtonics was crazy when it was first proposed." (and it actually was as originally proposed... he was using it to explain the Biblical Flood)
There is a common habit for people to jump on the bandwagon of fear-mongering because the other fear-mongers point out other cases where things went wrong, but they don't point out the millions of times where things DIDN'T went wrong.
When the first trains were making it up to 25-mph, Scientific American reported that people were concerned that it would suck all the air out of the train and suffocate passengers.
Fear-mongering just to fear-monger is WORTHLESS, and he was trying to point that out. He didn't attack the root of the original argument about the safety of XY, because the other guy didn't make an argument about the safety of XY, but rather made the argument that A, B, and C turned out bad, so we should avoid XY... So he points out that the same analogous argument can be made FOR EVERYTHING... so if one wants to make a REAL logical argument based on it, the only logical conclusion is absurdity. (reductio ad absurdium)
Which brings me to ask... why did you hate doing logic PROPERLY?
But if he does, they are more likely to be mutants. (99% chance of them being bad mutations, but that.1% chance that he will be the father of the new master race....)
Each human has about 100 novel mutations from their parents. It turns out that the vast majority of mutations are actually neutral...
HAHA! Impeede the carriers signal! I bet they loose a few Db if you shield ur apt.
Maybe this apartment is in New York... and the fact that so many people have put these metallic paints on their walls is the reason why the 3G coverage is so bad that ATT doesn't want to sell iPhone 3Gs in the area...
Slashdot Mirror
A driver's license is proof you had training in operating a potentially dangerous piece of machinery around others. Which is why they have ticky boxes for things like "chauffeur" and "commercial" on it. You know, because it's about driving. I agree, it shouldn't be used for anything other than employment as a driver, traffic violations, and insurance purposes! In fact, it's a perfect example of how the "oh, this card will only be used for X" is so easily corrupted!
A driver's license is also issued as a government-issued ID card. If you don't want a driver's license (or can't get one) then you can actually get an ID card, that looks quite similar to a driver's license.
...try leaving your house some time in the U.S. without your driver's license, car registration, proof of insurance...
You only need all of that if you're operating a vehicle, because operating a vehicle is a privilege.
I can walk out my house right now without any of that, and if a cop stops me while walking around or taking a bus, he cannot legitimately haul me into jail for failing to have any of it.
Oddly enough, in Washington state, with a motorcycle, you do not have to have proof of insurance, or even insurance at all. You also do not have to have your vehicle registration on you, as your bike's license plate is sufficient for them to look up the information, and validate it. And usually, they don't even care about your driver's license, as long as you can remember your DL number.
Literally, I could be going 80mph down a 60mph zone on my motorcycle, be stopped by a cop, and receive a ticket without showing one single piece of paper to him.
Immigration isn't difficult to control. Just go around to all the constructions sites and haul in all the workers that can't speak English. No, this isn't a troll. Those that can't speak English at all will either have some very fresh papers saying they can work here, or they will have a concerned family member monitoring them.
This may apply in your particular area, but it does NOT apply over the entire USA. Particularly in New Mexico, where there are children born, who get to the 1st grade without speaking any English... "those are anchor babies" Some, yes, but New Mexico is also full of a Spanish-speaking population that has been around so long that these Spanish-only children have grandparents with full American citizenship.
Not to mention that this would be a gross violation of discrimination based on national origin. The US Supreme Court has already ruled very clearly that English-speaking requirements are only valid if English is absolutely required to perform the work being done. Construction jobs do not require English... especially when the foremen are guaranteed legal immigrants or native-born Americans who also natively speak Spanish.
E) The courts find that as a matter of fact, Bob is not an employee of Alice. THEREFORE: The work is not a work for hire.
Changing premise E would make it a work for hire, but I wasn't considering this case
Premise E is a matter of law determined by the judge, but yes, essentially that would be true, ignoring for a moment the huge gulf between premises D and E.
Ah, determining the difference of matter of law, or matter of fact can be a difficult one for people without experience in law.
I am aware of the enormous gulf... I'm attempting to learn, so I'm establishing premises designed specifically for learning.
I'm not sure I follow what you're talking about... the default for copyrights is the producing individual. Work for hire is provided as an explicit exception to this.
The default owner of the copyright holder is the creator. When that is done by the will of the artist, the default owner is the artist. When the artist is hired by a patron, the patron is the default owner. There is no transfer--copyright is vested in the patron.
(Also taking into account your revised statement below.) Yes, I understand this, and that there is no transfer of copyright in a work for hire situation. The Constitution assigns copyright to the "author", and work for hire establishes the author to be the patron.
In the case where a copyright dispute arises and there is a disagreement of fact as to who owns the copyright, the employer must have prima facie evidence to support the contention that it was a work for hire.
No. A commissioned work is presumptively a work for hire. The artist must demonstrate that he is not an employee, and that as an independent contractor, the work is ineligible for application of the work for hire doctrine.
You are conflating presumption and burden.
That the patron hired the artist for the work establishes a reasonable assumption that the work is a work for hire. However, this still skips a few steps of legal "process" as I would see it.
For instance, German law establishes a simple purchase of an item as three "contracts". Two of which are an obligation to transfer money/goods to the other party.
This three-part "contract" is a part of ALL purchases... that the vast hojillions of purchases are carried out with any knowledge of the technical legal details of the purchase, those technical details are still in force.
In the same way, my pedantic mind is approaching matters similarly. Breaking it down into kind of pseudo-code, I would establish:
var work = artist makes a copyrightable work
var work->author = artist
if (work is for hire) work->author = patron
work->copyright owner = work->author
The alternative of:
var work = artist makes a copyrightable work
var work->author = patron
if (work is not for hire) work->author = artist
work->copyright owner = work->author
violates some simple precepts that should be self-apparent. Not all works have a patron, thus one cannot default the author to be the patron in all cases. Turning it into:
var work = artist makes a copyrightable work
if (work is for hire) work->author = patron
else work->author = artist
work->copyright owner = work->author
Still establishes a default, because there is a generic state, and an exceptional state.
I don't care how much you want to argue about this, for the very reason that not all works have patrons declares that "work for hire" must be an exceptional situation legally... even if it is the most common situation in reality.
What this typical practice means, is that if a lawyer is handed this case to work on, his
I switched after High School. I learned about Dvorak in wandering the Internet (pre Wiki days) and thought it made sense. Even if the "X much faster" claims were biased, leaving the home row and less finger movement sounded good.
After my last project my senior year I figured this was the last time I would ever be able to 'switch' because from here on out it'd be College then Work nonstop.
Printed out a keymap and kept it next to the monitor. Kept up my IRC/AIM chatting. It took 2 weeks to get back to my 'old speed'. And within a month I was up +30 WPM where I eventually settled.
DV Assist is a great tool for Windows users who don't have admin access, I keep it on a thumb drive at all times, plug it in and run and switch. And it's not like you 'forget' QWERTY, it's always printed in front of you.
The worst is passwords.... I really don't "remember" my passwords. So a password: 1234',.paoeu is just the first 3 lines of the keyboard on the left... but when I go to a QWERTY keyboard I have to think it through...
I tend to use a German keyboard layout (QWERTZUIOP). I do this because, I can type English just fine with a German keyboard, but I cannot type German the proper way I would like to with an English keyboard.
While working at a company that had a one-a-month password reset policy, I actually used the "section character" (Shift-3 on the German keyboard) for my password once. This was fine, and I had no problems for the most part, except for the 5 times that I had to type my password on another person's computer (while RDPing into my desktop machine). I had to learn what the Alt+0 windows keycode was for the character so that I could login reliably.
The rest of my passwords have intentionally avoided this issue.
You are absolutely wrong. If a contract employee works in what we call "staff augmentation," that is to say, they work like an employee but are paid as a contractor, then everything they produce is a work for hire.
... did you miss where I said "unless you're a normal employee"?
Such an individual is a normal employee, and thus it is a work for hire.
I'm sorry for using the legal definition of "contractor" instead of the common definition... except that using common definitions I cannot properly state the condition under which programming novel software de novo would result in the complete inability for it to be considered "work for hire".
if you don't explicitly state that it is a work for hire, then even if it would qualify as a work for hire, the absence of the explicit language would make it not so.
Express consent by the parties is required only of independent contractors, not of employees. If the work ordinarily qualifies as a work for hire (as e.g. a contribution to a joint authorship), then as the expected business practice, that weighs heavily in the direction of "employee".
Let me restate in a better format so you can see the logic that I was trying to present here. GIVEN: A) Alice hires Bob to do a copyrightable work. B) Alice and Bob draft a contract for the work. C) The contract contains no language stating that it is a "work for hire". D) A dispute of copyright ownership is brought to the courts. E) The courts find that as a matter of fact, Bob is not an employee of Alice. THEREFORE: The work is not a work for hire.
Changing premise E would make it a work for hire, but I wasn't considering this case, because it's trivially a work for hire if this is true. Thus, while drafting any contract for the commission of a copyrightable work, I hold that if Alice wished to maximize the rights that she would have given any potential court ruling, that she should ensure that the contract states that Bob is an employee, that Bob is working for hire, and that Bob will transfer all copyrights to Alice. Should the nature of the work be such that it would be unreasonable for Alice to state that Bob is an employee, then she should still at least provide the later two provisions into the contract.
and the default presumption that the work is his
There is no such presumption. In fact, common practice weighs the opposite direction for most programmers hired to create a new work. The only time there is a default presumption that the programmer retains all rights is if s/he creates it of his own initiative.
I'm not sure I follow what you're talking about... the default for copyrights is the producing individual. Work for hire is provided as an explicit exception to this.
In the case where a copyright dispute arises and there is a disagreement of fact as to who owns the copyright, the employer must have prima facie evidence to support the contention that it was a work for hire. Because this is normally as simply as having an employment agreement with the employee, it's usually pointless to contest the ownership of the copyright.
Just because the default presumption is quickly, and quitely superseded in the vast majority of cases does not mean that it is not the default presumption...
When a work is specially commissioned, the historical and typical practice is that the commissioner buys the work, lock, stock, and barrel.
Correct... it is common practice... but that does not mean that it is the legal default.
As an example, I live in Washington state, which is an "at will" state. A company could make the choice that by typical and standard practice, they do enter into true employment contracts. This is their process for 50 years. One day, while hiring an employee, the company declines to enter into a true employment contract. That employee is hired "at will", rather than protected by a true employment contract, regardless of what the company's historical and typical practice is.
What this typical practice means, is that if a lawyer is handed this case to work on, his first assumption could be that it was done as you've stated, however that is not the legal default... simply the most common.
This is true of all copyrightable works, including software. The buyer who commissions a work buys the work on the theory that the artist is but a tool, a means to an end for the commissioner[.]
Yes, the buyer does buy the work on such a theory... however it does not guaran
It's difficult to find a photographer that agrees, because its a false legal assumption.
His first statement might have been false, but it's not a false legal assumption to pay someone with the understanding that you have rights to the photos in return.
Also note that it isn't even necessary that the copyright be transferred (even thought that's how the rest of the world works - I don't see why photographers are so special) - it would be good enough that a married couple can have a licence to the photos they paid for. You know, so they aren't breaking the law when they decide to make a copy of their own wedding photos.
A poor choice of words... "it's not the implicit/default legal assumption".
Making copies of ones own wedding photos would most easily qualify as "Fair Use", and thus be protected no matter what agreement the photographer and wedding party agree to. However, being able to distribute those copies to others would clearly require the right to distribute another person's work... without owning the copyright, then it's difficult to argue that one has a right to give friends and family copies that you made... (If you order multiple prints, and hand out prints produced by the photographer, then that's reselling a single product, and not distribution of a copy.)
EVEN IF, a photographers assigns the rights to the wedding party, if the wedding party "mutilates" the pictures in such a way that the photographer finds them offensive, his moral rights would supersede the copyrights and he could enjoin the wedding party from distributing such a "mutilated" work.
A good example of this later one could be shown by this example. A photographer Alice takes pictures of Bob and Charlene being married. Bob and Charlene obtain the copyrights to the photographs, and make copies, and distributes them to friends and family. However, they alter the works to be fuzzy, blurry, or perhaps put red eye artificially into the pictures. These new pictures would NEVER be produced by Alice, as they do not match the artistic standard that Alice produces. Thus Alice could potentially seek damages or even an injunction to prevent their distribution.
Actually, it legally is different. Specifically, there is no way at all for software to be written "for hire" unless you are a normal employee.
You are wrong. See discussion in an earlier thread.
I'm not wrong, just not entirely correct.
There is no clear immediate and unambiguous way that software could be a "work for hire" unless they are a normal employee, because "software program" is not listed in the second part of the definition.
This is slightly different from a lawyer being able to argue that a work does satisfy one of the categories to enable it to be a "work for hire".
You should really read the circular.
Done.
1) they mean employee under the general common law of agency. Every one of the contractors I've hired fits this description even though they were not my "employees."
For you. My boyfriend does contract website work, and would be as far from "employee" as possible. He provides his own equipment, schedules his own hours, and produces the work without supervision. The other party simply has a "yay or nay" vote on if they accept the work as acceptable.
2) Even if you are not and employee under the general common law of agency you can create a written agreement between parties, read contract, specifying that the work is a work made for hire if it satisfies one of the 9 categories listed in part two. Programing certainly would if the code you are working on is not yours.
Hiring someone to fix bugs or adapt a current codebase most certainly would be a work for hire situation, however this would also be hiring the person to make a derivative work, and thus their rights to even make the derivative work are governed by an original set of copyrights that exist prior to the contract.
However, if one hires another to produce de novo a program, then this program likely will not satisfy one of the nine criteria.
3) the transfer of rights is not particularly relevant since in a work for hire they were never yours.
The transfer of rights is relevant, because as I noted below, if the "work for hire" argument fails, then they have zero rights to the work. Including language for both protects the buyer the most, when they are most interested in obtaining the rights to the work.
If the customer explicitly agreed that it was not a work for hire, particularly a sophisticated customer, it probably won't be found one later. If the contract explicitly states that it is a work for hire, it is a virtual certainty that federal judges will make it so by the end of the trial, and usually will do so without so much as breaking a sweat.
I can see a lot of worth in this. If you're the buyer then almost always say that it is a work for hire. If it is later found to not be a work for hire, then no loss... however, if you don't explicitly state that it is a work for hire, then even if it would qualify as a work for hire, the absence of the explicit language would make it not so.
But as any one with legal reading should know, a lot of it comes down to specifics of the situation... I'll have to read up about common law of agency before I can comment about that.
I still hold that it would be stupid of the programmer not to be aware of his legal rights (and the default presumption that the work is his) and the putative employer to know their legal rights (and the necessity of stating in clear explicit language that they will obtain the rights to the code).
I've contracted for multiple places with million dollar lawyers to review their contracts that used 'work for hire'. Those lawyers obviously have some belief that they will prevail if it comes down to a lawsuit. They could be wrong, but I doubt it.
"Work for hire" is a strictly defined legal term. One could potentially include it for--of the top of my head--two reasons:
1) It shows an intent for an agreement between the two parties that the work will be treated as if it were a work for hire. Thus setting up an implicit transfer of copyrights from the worker to the payer.
This still has no authority for actually defining the work as a "work for hire", because it contradicts the US federal law concerning copyrights. As well, the reinstatement of original copyright to the author after ~30 years is an inalienable right of the author. What this means is that even if you sign a contract stating that you forfeit this right, such a term is unenforceable and thus voidable.
2) The people who are signing the contract do not have multi-million dollar law firms representing them. Thus being naive, they are likely to agree to terms in a contract that are unenforceable.
Being a cynical bitch, I believe this is the most likely. Bill collectors ask you to hit up friends and family to pay your bills, and to get you to cash out 401(k) or IRAs to pay your bills. What they fail to ever tell you though, is that there is no legal way for them to force such an action... they're basically trying really hard to convince you that your rights don't exist, and you should go ahead and trust them because they're in the business, and they know the law.
Don't ever buy the story that someone else's lawyer is representing your interests, as they are not. ALWAYS consult your own lawyer about these contracts. You CANNOT contract away inalienable rights, and companies can only take away natural rights if you let them.
FTA:
"if I pay a plumber to fix my tap, I don’t ask him to leave his toolbox so I can fix it myself next time"
"You might ask why I didn’t make a contract with this client in the first place. It’s because I’ve found, over the years, that insisting on a contract before development starts will result either in a delayed start or even a project being shelved."
So, this developer doesn't disclose this to customers who aren't aware that they are screwed when the developer walks away? His tortured analogy of the plumber and his tools is only correct if the plumber is installing pipes, valves, etc. that are 100% proprietary to the plumber and can't be purchased anywhere else. The word slimy leaps to mind for his business ethics (and plumbing in general).
I agree, the matter of starting work without a contract is kind of slimy. Primarily because he is aware of his rights, and the people he contracts with don't. He should at least give a disclaimer to them that there are legal consequences that haven't been settled if he starts work right away, and they should speak with a lawyer about their rights and concerns.
Although, he could entirely be screwed, if he started work on the product, and then propose a contract later that the customers don't wish to agree to. They're not bound to signing this contract, and could potentially hole up and refuse to pay until the terms of the contract are favorable to them. When brought to court, they can easily state that there had never been a "meeting of minds" and thus their verbal contract were void... thus he's done a ton of work, and won't get paid for it.
It's pretty simple. If you are an employee, your employer owns your code. If you are a contractor you own your code unless your contract or agreement states that the work is a "work for hire" (or uses equivalent language). Requisite Wikipedia reference.
Except that there is the requirement for the work for hire to be in a specifically enumerated list of things which computer programs do not fall under. Unless you're a normal employee, then software cannot possibly be a work for hire... even if the contract specifically says it is.
1) that would infringe patents, 2) that would infringe registered trademarks and patents, and 3) I'd probably go to jail for trying to sell "pecker wreckers."
Yes, Yes, No. You cannot go to jail for even the most grievous of IP violations. They can sue you and obtain a judgement that makes you wish you were in jail, but they can't get you there.
If someone pays you to perform work, they own all rights to that work.
This is your opinion, and your clear intent and desire when you are soliciting work. It is not however legal fact.
When I was married, we had a difficult time finding a photographer that agreed, and simply didn't do business with those that wanted to be paid for their work, and wanted to keep all rights to said photos for use in promotions and fees for reprints.
It's difficult to find a photographer that agrees, because its a false legal assumption. Your actions however are the proper way to deal with the situation... refuse to hire anyone to do the work, who refuse to transfer the copyrights.
I consider that a form of double jeopardy where I'm being forced to pay for something twice.
You're misusing the term "double jeopardy". Double jeopardy only applies to criminal punishment. This requirement to "pay for something twice" is also not something that is so unfair that it cannot be contracted away. It's entirely reasonable for an artist (e.g. a photographer) to retain the rights to the works, which they produce. They are after all artists. If you want to own the copyrights to it, then you have to pay for that separately from simply having the artist produce the singular work for your enjoyment.
Software is no different.
Actually, it legally is different. Specifically, there is no way at all for software to be written "for hire" unless you are a normal employee.
If you're being paid to perform a specific work, it's no different than if the person/organization paying you did the work themselves. You can't have both.
This is not legally correct.
As a matter of US law, you are wrong. Copyright in a work for hire resides with the employer (or whomever the work was made for). See Circular 9 of the US Copyright Office. If an entire program is being developed as a contract piece, it *might* not qualify as a work for hire, but contracted software components and anything a normal employee writes within the scope of his employment are works for hire, and the people writing the checks own those works.
I don't know about the corresponding laws in other countries, but if you work in the US, you are woefully misinformed.
You are woefully misinformed as well. Work for Hire in the USA must satisfy certain requirements. The simplest is being an employee. If you are a contractor, then in so far as computer programming there is NO WAY FOR THE WORK TO BE A WORK FOR HIRE... even if your contract says it is.
For computer programming, one's contract must explicitly include terms for the transfer of copyrights, otherwise the programmer will retain all copyrights, regardless of if he were being paid by someone else to do the work.
Oddly enough, even with a transfer of copyrights, the author recovers the copyrights after 35 years... and this right is inalienable.
The main issue - is if you are an employee - the employer owns the code. If you are "sub-contracted" it depends on what the contract looked like. Generally though this looks like a work for hire situation where the owner isn't the author. IANAL so your mileage may vary.
Work for Hire has either a single simple requirement: be a regular employee, or a number of other requirements together. Being contracted to do work settles that the former is not the case. The later has a requirement that the work be from an exhaustive list, of which computer programs are not a part.
Thus, there is no possibility that the work is a Work for Hire... REGARDLESS OF WHAT ANY TERMS OF THE CONTRACT STATE. Similar to the inability to contract oneself into slavery, parties cannot simply agree that a work is a work for hire. (This is oddly because copyrights are Constitutionally guaranteed rights.)
Computer programs written on contract require terms which explicitly transfer of copyrights to the contracting party, and I would suggest avoiding the wording "Work for Hire", as it cannot possibly qualify as one, and thus it would present an unenforceable term of the contract, and without a severability clause could make the entire contract voidable. (Meaning if either party disliked any term, they could get the whole thing thrown out.) Even with a severability clause, using the wording "Work for Hire" could void the entire transfer of copyrights, meaning that the contracting party would still obtain no copyrights to their work.
What's important here is that the contracting party needs to be on their toes about what is going on here, and speak with a lawyer about their rights, and ensure that their contract grants them the rights that they are expecting.
And the contracted party can use this copyright retention and potentially moral rights to the work to ensure payment by their contracting party. Ensure that copyrights when they are to be transfered, are not transfered unless payment has been made in full.
Well, it's important to note that these violations of the distribution rights was a matter of fact, and thus something to be decided by jury, or judge if both sides decline a jury trial.
Considering that the findings of the court were against Tenenbaum, and that violation being a matter of fact that must be established before a judgement against him be rendered... the matter of fact was settled.
There are two ways that this could have been settled, either it was a matter of fact that neither side disputed, or it was a matter of fact that the jury ruled was the case.
Either way, the trial court settled the matter declaring that he had violated the distribution rights, and any appeal could not be based on a foundation of "the matter of facts found were wrong"... Appeals can only be made on matters of law.
Nesson claimed that the songs he uploaded and linked to on his blog were irrelevant to the Tennenbaum case that he was the lawyer for. Is it possible that Nesson is right? Suppose that Tennenbaum had been accused of bank robbery and then suppose that Nesson goes out and robs a different bank on his own time. Is that new crime relevant to his client's case? The judge granted the RIAA Motion to Compel and now the same judge has ordered Nesson to pay the RIAA expenses but...maybe...Nesson's got a better case on appeal...and maybe the judgments and punishments will be used to support his central argument that the punishment is out of proportion to the damages for a civil case.
I think he's just crazy... I mean, ok, in your example, no the lawyer's crime is not relevant to the defendant that he's representing... it would likely be an ethical violation which could have him disbarred though.
But really, if a lawyer is out there talking about his case in public, and pulls something THIS boneheaded... then it's totally relevant. He's communicating about the case, and thus it has relevance.
I wonder if NewYorkCountryLawyer will finally stop harping on the question that no one proved distribution... at the very least, the lawyer obviously distributed the copyrighted material in violation of the law...
You, sir, have presented the best argument that I could possible consider for this discussion, and I end reading here.
Thank you, you have won this level of teh intarwebs.
You just demonstrated why debating with non-nerds is so annoying to nerds.
The original person is pointing out that there is a fallacy in saying that it is widespread and thus safe... he is pointing out the fallacy of appeal to the majority. As evidence he presents certain premises.
The next person points out that the premises used are flawed. Things that are widely in use are widely in use typically because they're preventing something significantly worse than any side-effect that may result from their use.
DDT was preventing Malaria. Asbestos was preventing fires. Vaccines are preventing horrible debilitating diseases. DDT is still used to prevent Malaria where it is a big deal (which is not the USA). Asbestos is still used in certain cases. Asbestos is generally safe, until it breaks down into fibers that get into the lungs. As it is created with a binding agent, this typically only happens once it gets wet and deteriorates. And vaccines... screw autism... you could get an INFECTION at the injection site that if untreated could lead to your death, but we can treat all the side-effects a heck of a lot better than we can treat mumps measles and rubella. And if you don't remember how bad these diseases are if you get them, you should ask an person around age 50, I think would do right now.
The point here, is that a lot of pseudoscience gets its brazenness behind "well, people thought plate techtonics was crazy when it was first proposed." (and it actually was as originally proposed... he was using it to explain the Biblical Flood)
There is a common habit for people to jump on the bandwagon of fear-mongering because the other fear-mongers point out other cases where things went wrong, but they don't point out the millions of times where things DIDN'T went wrong.
When the first trains were making it up to 25-mph, Scientific American reported that people were concerned that it would suck all the air out of the train and suffocate passengers.
Fear-mongering just to fear-monger is WORTHLESS, and he was trying to point that out. He didn't attack the root of the original argument about the safety of XY, because the other guy didn't make an argument about the safety of XY, but rather made the argument that A, B, and C turned out bad, so we should avoid XY... So he points out that the same analogous argument can be made FOR EVERYTHING... so if one wants to make a REAL logical argument based on it, the only logical conclusion is absurdity. (reductio ad absurdium)
Which brings me to ask... why did you hate doing logic PROPERLY?
But if he does, they are more likely to be mutants. (99% chance of them being bad mutations, but that .1% chance that he will be the father of the new master race....)
Each human has about 100 novel mutations from their parents. It turns out that the vast majority of mutations are actually neutral...
HAHA! Impeede the carriers signal! I bet they loose a few Db if you shield ur apt.
Maybe this apartment is in New York... and the fact that so many people have put these metallic paints on their walls is the reason why the 3G coverage is so bad that ATT doesn't want to sell iPhone 3Gs in the area...