Supreme Court Lets Utilization Rights Stand

Moof writes "The United States Supreme Court refused to hear a case between a programmer and his former employer. What makes this news is the fact that the court is letting stand the rulings of the lower courts: Essentially if someone owns a physical copy of software, then they are allowed to modify the code as part of their regular use, no matter what other agreements are in place."

Re:How does he legally claim copyright?

[Xentor]

Maybe it was more of a consultant gig, where he sold them a black-box custom solution. They'd own the program, but he'd keep the code. They'd get it a little cheaper, but they'd have to hire him again whenever changes were needed...

I've seen this tactic before... I wouldn't work that way.

Re:How does he legally claim copyright?

[Anonymous Coward]

Actually, that's not always the case. Copywrite law says that the author is the owner, unless they expressly give up those rights. Most of the time employment contracts have clauses that do just that; make the programmer give up rights to the code to the employer. Sometimes, though, it gets overlooked (especially with small companies that don't know any better). It's happened to me before, actually.

The big point - who owned the code

[MyNameIsFred]

See this [wistechnology.com] for more details. This issue appears to have been whether the company actually owned the source. The courts said yes.

Re:Fair use has been reinforced...

[no_opinion]

Wrong, that cannot be concluded from the ruling. If you read the opinion you'll see it is limited to software programs, not music or movies.

Definition of the ruling

[acherrington]

I think that a lot of people are jumping on the "I can get rid of the copyright protection on my CD/DVD/GAME/Etc...." band wagon. This isn't exactly correct.

The company involved owned the software... outright owned it. You must remember that when you purchase a copy of 99.99999999% of all works, you do not own it, rather you purchased a license for it. Bascially, they are saying you may mod your car or house, because you own it, but they haven't said anything about licensed software.

Re:Contradiction

[Xentor]

That's a good point... I forgot about the whole ownership vs. license distinction. In the case of the article, the company had to prove that this software fell into the "ownership" category, while normally we just buy "licenses" for software.

This link, posted in another comment, explains it better than the link in the /. submission...

http://wistechnology.com/article.php?id=2194 [wistechnology.com]

I stand corrected.

Re:How does he legally claim copyright?

[lantenon]

From the wiki on work for hire [wikipedia.org]:

A "work for hire" (sometimes expressed as "work made for hire") is an exception to the general rule that the person who actually creates a work is the legally-recognized author of that work. According to copyright law in most countries, if a work is "made for hire", the employer - not the employee - is considered the legal author. The employer may be a corporation or an individual.

The employee doesn't own this; the corporation does.

Re:How does he legally claim copyright?

[XorNand]

Well, there's a difference between putting a photographer on the payroll and hiring him just for your wedding. If the photographer worked for a studio, the studio owner would actually own the images, not the guy who snapped them. The term "employee" (which was used in the article) has a very specific legal definition. Google "employee contractor IRS" to see exactly how well-defined it is.

Re:DMCA Violation!

[ArsenneLupin]

So is there any reason why this programmer can't turn around and start another suit claiming that the company violated the DMCA when they "picked the lock" and circumvented his digital security measure without his permission?

As other people have pointed out, the alleged violations happened before the DMCA existed. And no law is retroactive (or rather: no law should be retroactive)

Re:How does he legally claim copyright?

[ScuzzMonkey]

What the grandparent is getting at is that the corporate entity is the author of software, or any other "work for hire" built by an employee during his or her term of employment. That would be a better phrase to Google for, actually. Anything you come up with during your normal course of business (and in some cases, I believe it's been interpreted to including anything at all you create while employeed by the company) belongs to them.

Re:How does he legally claim copyright?

[Fareq]

Because shrink-wrapped software is not produced as a work-for-hire -- and works for hire are one of the explicit exceptions to an author owning copyright.

Re:How does he legally claim copyright?

[richardtallent]

From TFCD (court decision):

"Titleserv initially asserted that the programs were "works made for hire" within the
meaning of 17 U.S.C. 201(b). It later asserted entitlement to summary judgment regardless of
whether Krause was an independent contractor or employee. For the purposes of its summary
judgment ruling, the district court, adopting the magistrate judge's report, assumed arguendo that
Krause was an independent contractor and owner of the copyright in the programs he developed."

Re:You can't generalize it like that

[Raffaello]

In practice when the SCOTUS refuses to hear a case the highest appellate court ruling is treated as controlling law by other federal courts. If the SCOTUS lets a ruling stand then other federal courts, even in other districts will look long and hard before handing down a decision that goes against the ruling that the SCOTUS let stand. Federal judges do not like to be reversed by higher courts - its professionally humiliating. Essentially what's going on when a decision is overturned is that the SCOTUS or other appellate court is saying *BZZT* WRONG! What were you thinking when you made this ruling? It's BACKWARDS! Therefore, when the SCOTUS lets a ruling stand it becomes in practice controlling law on that/those issue/s because federal judges really don't like the public humiliation of having their decisions overruled by higher courts.

Re:Fair use has been reinforced...

[rewt66]

This is what Adobe did with PostScript fonts. IIRC, there was something about fonts were just shapes, and couldn't be copyrighted, or some such, so Adobe made the font into a program that drew the shapes, and then it was covered by copyright.

Maybe somebody else remembers the details better...

Work Made for Hire

[PCM2]

When someone hires you to create a work, they own the copyright under the doctrine of "work for hire". The contracts do a couple of things: they spell this out explicitly, and often extend the provision to works you were not directly asked to create.

IAANAL, but while that certainly may be true and such a doctrine does exist, it is more specific than you seem to believe it is.

In order for a work that is created by a freelance contractor to qualify as a "work made for hire" [copyright.gov] (specific wording of copyright law), both parties have to specifically agree, in writing, that the work is a work made for hire. If no such agreement exists, then the contractor owns the copyright of the work. That's one good reason to have a contract if you are the one doing the hiring.

In addition, the work must fall into one of nine specific categories delineated by copyright law -- for example, it might be a contribution to a collective work. Generally speaking, if a contractor wrote a software program from whole cloth and nobody else ever touched the code and there was no understanding that anybody ever would, then that program could probably not be considered a work made for hire under copyright law. If if the contractor's code is part of a collective work, however, it still is not a work for hire unless the abovementioned agreement is in place.

The rules for employees are different. The employer clearly has the upper hand there.

Not a problem

[Anonymous Coward]

because the GPL only comes into effect when you distribute the derivative work. You don't have to agree to the GPL to edit any of the code or compile for your own use.

Re:GPL implication

[arkhan_jg]

Just a slight correction; the GPL v2 does not kick in when you modify the code - you already have that right, as copyright law has little to nothing to say about modification (the DMCA does, but that only applies to copy prevention mechanisms) - the GPL is not a EULA. You may or may not have the right to make local copies for personal use only without needing the GPL, but that depends upon your particular fair use rights in your area.

The GPL v2 only definitely kicks in when you want to distribute copies of the GPL software, which is otherwise illegal under copyright law. The terms are that you can distribute copies, as long as the new copies are also covered by the GPL, to whit, make available the source as well as the binaries. This defacto means if you want to sell or give away modified GPL software, you have to give them the modifications too. But only if you're distributing copies. You keep the modifications in-house, you don't need to give anyone anything, as the GPL is not needed to defend a case of copyright infringement; as you're not infringing copyright.

Since you already have the right of modification, this ruling won't affect existing GPL v2 software, as the ruling doesn't address reselling copies of modified software.

It's difficult to see how the GPL v3 is going to address the output of modified GPL software being used for network services; the GPL gains its strength from allowing more than copyright does, but at the price of sharing the source. Copyright law doesn't cover the output of programs, as it's not a derivative work. About the only way something like say, apache, could easily be covered is to force all web pages to include a copyrighted piece of GPL code, which then requires that the rest of the GPL software that generated that output to be made available as part of that 'bundling'.

Still, assuming they did find some legal trick, like modifying the output, or the legal 'hack' of saying extra copies into memory or locally on hard-drives count as copyright infringement (works in some places, but not others), and thus compliance with the GPL needed to do so; then the ability to modify software without needing to comply with the GPL would indeed make this court case a possible road block for the GPL team.

Note, IANAL, but this is my understanding based on discussions with people who are.

Re:How does he legally claim copyright?

[Richard Steiner]

Yup, but thankfully it isn't universally true that all photographers keep the copyright -- our wedding photographer provided the option to buy the copyright to the photos she took, so when all was said and done we had the prints, the negatives, and the right to make copies however we wish. However, she retained the right to use the photos in her promotional materials.

Most photographers wanted to retain copyright and provided no options, which is why we didn't give them our business. :-)

Thank you. Grandparent post is just *wrong*

[Anonymous Coward]

A work is not a "work for hire" unless it fits in one of the categories defined in the law AND the contract specifically calls the work a "work for hire".

Re:How does he legally claim copyright?

[TinyManCan]

BTW, MS does give you the code if you're a big enough customer. Trust me when I say, you do not ever want to sign the NDA to get it though.

Re:How does he legally claim copyright?

[ankarbass]

If you had read the opinion you would know that Krause 1) wrote the code in Clipper which for latecomers to the computer scene was a dbase compatible database system from the late eighties early nineties, and 2) knew that TitleServ had backup tapes so deleting the code would have been a pointless gesture.

I've seen this happen a lot. Someone gets a gig and is careless about leaving source code lying around. Later they figure out that they might be able to sell their code to someone else, or that their relationship with the company is going to change, and realize that they should have been more careful in distributing source code.

However the complaint involves not only the source code but executable only code as well. His choice of languge, clipper, allowed TitlServ to eventually decompile the executable only applications to which they didn't have source code. I suspect this is at the heart of Krause's complaint. Even if he realized too late that he left some source behind he probably felt at least with the two programs he was careful with that they would have to contract with him for more work or to bend over to get the source code. Today that might be a DMCA violation, but in days gone by, simply decompiling a program to make changes to it was not necessarily any sort of civil or criminal offense.

If you're contracting for someone it's best to get this sort of thing in writing up front.

ymmv.

Re:How does he legally claim copyright?

[Desert Raven]

Having done a bit of independent contracting and design work in the past, general rules of thumb:

If you were working on an existing product owned by the employer, copyright is theirs.

If you were working on a product substantially *designed* (not just spec'd) by the employer, copyright is theirs.

If you were working with a team of others hired by the company, or employees of the company, copyright is theirs.

If you were indistinguishable from an employee during your work (worked in their facilities, on their equipment, on their hours) it is generally considered "work for hire" and the copyright is theirs.

If you recieved specs, then designed and built the product on your own time, on your own property/systems, without constant direct oversight, then the copyrights are most likely yours, with a perpetual, non-exclusive license given to the employer.

That said, if you are relying on any of this without having it expressly written in your contract, you are a fool.

This doesn't invalidate the GPL

[John Murdoch]

Which means it also invalidates the GPL, since that too, is a license.

Hi!

Um, no. Nothing is getting invalidated here. And this doesn't affect GPL'd software, precisely because you (generally) don't pay substantial sums of money for it. (Remember that paying substantial sums of money was one of the criteria for ownership.) Even if it does apply to GPL'd software, so what? Nothing's changed: the whole point of Open Source software, regardless of the license, is that you can examine the source code and make modifications. This decision simply puts commercial software on the same basis: if you paid substantial sums to buy it, can use it indefinitely, and have the ability to discard it if you choose, then for purposes of interpreting the statute you "own" a copy of the software.

Re:You're buying a CD.

[Pofy]

>What is "sold" is a CD copy of the software.

Uhu, of course, what else would it be? That is exactly what I said.

> As it says, "you own the media on which the software is stored...."

There is no such distinction, the CD *is* the copy of the work in question (software in this case). Since this is the US, you might want to look at the US copyright law and its definition. Especially of a "copy" which is a material object including the media it is stored on. There is no such thing as "the media and the software" as seperate entities. here, a link for you:

http://www.law.cornell.edu/uscode/html/uscode17/us c_sec_17_00000101----000-.html [cornell.edu]

And if you are too lazy, here is the text:

"?Copies? are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term ?copies? includes the material object, other than a phonorecord, in which the work is first fixed."

That is a copy of a work.

>The right to copy and execute that software are what is spelled out in the EULA.

The right to copy is covered and restricted by the LAW (copyright law in this case). For copying it is quite restrictive. Only if I need ADDITIONAL copying, that is forbidden by the copyright law, do I need any special licence. Otherwise I do not since there is nothing forbidding it.

There is no such thing as "right to use". It is not covered by copyright law and is not a special right of the copyright holder. As long as the use does not involve infringing actions, it is perfectly allowed without any sort of permision or license.