1. The employee would be liable to the copyright owner for the copyright infringement as a joint tort feasor (a wrong doer) and as one who authorised the infringement.
see http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s36.html. 2. Another interesting issue includes the liability of the employee to the employer. The contract of employment is relevant as to what IP (and indemnity) provisions it has in it in relation to third party suits. It would also clearly be a breach of the duties an employee owes to an employer. A negligence suit is also possible but the scope of such negligence claims against employees by employers is limited in some states. 3. Another interesting question is whether or not the employee could be exposed to say a TPA suit from a customers for being involved in a representation that the employer could grant a licence of such code to its customers. see, for instance, http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/2006/59.html 4. Another interesting question is the quantum of damages for which the employee would be personally liable. eg. Has the employee authorised worldwide copying and hence is he or she responsible for same? 5. The relevance of the employee's knowledge is more limited than suggested. It is relevant for whether or the infringement was flagrant (and attracts aggravated damages) but not the infringement in the first instance. see http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s115.html It may also be relevant to the insurance position if the employer had say knowledge of the copyright infringement. The key issue in copying source code is that if you do not copy then you are not subject to suit. Once the source code is delivered up by Court order for analysis proof is in my experience not problematic. Credibility problems can arise when lexical analysis of the code reveals 99%+ matches unless there is a really good explanation for same eg. interoperability, etc. 6. Patent protection is not relevant as to whether or not a copyright infringement has occurred. It is an independent suit. As an aside you may have noticed that Microsoft & ors in the specifications of their patents assert copyright in their code as well as patent protection. 7. Please note that the above questions arise frequently in relation to software business sales particular those involving open source. Whilst open source suits are very rare (the plaintiff is hard to find and fund) purchasers of software businesses need to review all the licences so used including open source licenses. If you use open source libraries (or other unapproved libraries) then you need to ensure that you have a licence to use same and disclose same to your employers.... /sww +61 414 235 633 From: [email protected] [mailto:[email protected]] On Behalf Of Glen Harvy Sent: Thursday, 23 June 2011 3:36 PM To: ozDotNet Subject: Re: [OT] Software "ownership" (was BYO Computer @ Suncorp) Read the first sentence again - '... I stole from someone else ...' Your at fault - gone - history - plead guilty. BUT, if you deny you stole it then when you go to court they will first (A) need to prove they own it and then (B) need to prove that there was a reasonable expectation that you knew they owned it. You of course will also need to prove that you own it and didn't know they claimed that they owned it because if you didn't challenge their claim that they own it when you first became aware of their claim, then your first argument will fail because you didn't assert ownership when you knew someone else was 'pretending' to claim ownership. (A) can be quickly assisted by seeking patents or registration in some recognised legal jurisdiction although there are other ways that a judge may be swayed. You should also understand that filling in a form and submitting it for a patent etc is no guarantee that you were first with the idea/code. Patents etc can be overturned. Similarly (B) does not mean that they need prove that you (yes YOU) personally were aware that the code was already 'owned' by someone else. They will only need to prove that you are not stupid and in fact do have experience in the appropriate software development, so much so that it is reasonable for you to have an expectation that such-and-such code (or a pretty close proximity to it) is used by the aggrieved party. In short, we live in a legal system that is adversarial in nature. That means that the lawyers will all get rich because there is really no definitive answer to any legal question of this type. It is a case of who can convince the judge that they deserve the protection that the law can provide. Hopefully the court will get it right but the system is not perfect. More importantly it is not cheap. Like most coders, we all work in black and white. We use 'while ..' loops and 'if ... else' etc. The law is more like leaving all those statements open at the end. Like a 'perhaps when .. then try .. ' without having any default break statement. Given all those if statements, the judge must make a decision which in fact can have more than one answer and even then result in a less than satisfactory outcome to both or either party. On 23/06/2011 11:39 AM, mike smith wrote: On Thu, Jun 23, 2011 at 9:42 AM, David Connors <[email protected]<mailto:[email protected]>> wrote: On Wed, Jun 22, 2011 at 10:58 PM, Glen Harvy <[email protected]<mailto:[email protected]>> wrote: On 22/06/2011 9:04 PM, Scott Barnes wrote: What if I wrote some code that I stole from someone else on Codeplex. If the company in question "owns" that code and I don't, does that mean they are the ones getting sued for copyright infringement? In terms of your first sentence, you are the one that is at fault. Spot on - that is precisely the opinion that came to us from our HR lawyer's mouth. As a software engineer, if you choose to put something into a solution then the liability is with you. You are obligated to ensure that it is unencumbered by IP ownership. If you don't know the status of the IP ownership or can't get an indemnification to that effect - then don't use the code. But IP can be an idea (often expressed as a patent, like the multi-touch one Apple are pursuing so aggressively) - this means that everytime you do something 'new' you need to search to see if it is patented? Nothing would ever get done! Also, It really isn't that hard to ask for management permission to use a third party library and hence absolve yourself from responsibility. Not that hard, and in 12 or so months, who knows, they might come back with an answer. -- Meski http://courteous.ly/aAOZcv "Going to Starbucks for coffee is like going to prison for sex. Sure, you'll get it, but it's going to be rough" - Adam Hills
