was criminal use of linux [not] -now: ownership

[Patrick Kobly]

IANAL, and I suspect you are not either.  YMMV - employment law and intellectual property law differ from jurisdiction to jurisdiction.

-----Original message-----
From:	Dave Ihnat <dihnat at dminet.com>
Sent:	Thu 02-08-2012 07:43
Subject:	Re: was criminal use of linux [not] -now: ownership
To:	Community support for Fedora users <users at lists.fedoraproject.org>; 
> Once, long ago--actually, on Thu, Aug 02, 2012 at 07:26:02PM +1000--Roger 
> (arelem at bigpond.com) said:
> > Er... nobody can take ownership over work that you have written,
> > Your work is your own, regardless of whether they own the language
> > you write it in or not.
> 
> True, unless:
> 
>   1.  You contractually grant it to another.  It's quite common to either
>       take contracts or sign employment agreements that grant everything
> 	  you produce for a client or employer as a "work for hire".

In some jurisdictions, this is assumed to be the case (with respect to work conducted for the employer / client) unless your contract / employment agreement explicitly retains rights.


<SNIP>

> > Ad for ownership, I think it depends on circumstances. I have heard
> > instances of when one writes a work while employed by or under
> > contract to a company then they do not own their work, the company
> > does, even if the work was done on unpaid holidays or at home during
> > unpaid after hours.
> 
> This used to be a common restrictive clause in employment contracts.
> I haven't seen such tried in a mort of years. 

Because in some jurisdictions, these clauses were found to be unenforceable in employment agreements (as they pertained to work produced that was not for the employer).

> HOWEVER, make sure not
> to sign any such agreement, and don't ever use company resources or time
> to do any development you want to keep.  (And, of course, never use any
> information you could only have gotten from your employer or contractee.)

Surely wise advice.  Also sage advice - consult a lawyer if you have doubts about your rights.

> > If, say a programmer or developer is employed by a company or
> > organisation and they write code and say develop a site in their own
> > time, using open source applications, and contribute the whole thing
> > to Open source or under GPL, etc, can the company/organisation stake
> > a claim?
> 
> Only if you signed an agreement stating such.

And even then, not necessarily so.

> > If a vast number of snippets from a vast number of coders are
> > donated free of encumbrance to enhance a kernel or app, how does
> > that make the whole (Linux) responsible for copyright violation when
> > no one entity owns it?
> 
> None of the snippets that are unencumbered are in trouble, _unless_ they
> violate a copyright.

And if they do, it's generally the entity "distributing" the infringing material who bears the bulk of the liability.  Which is why many projects (including the kernel) go to great lengths to establish attribution and do their due diligence to ensure that contributed code is not encumbered.