wow this so sucks for us devs in a way. As sure if you do the wrong thing than quite frankly you deserve a punch in the legal nose :) but that being said if one owns your work then i think one should also own the responsibility of choice that comes with producing the work?
On Fri, Jun 24, 2011 at 10:35 AM, Ian Thomas <[email protected]> wrote: > Is there any progress on making the “IP laws” uniform across the numerous > jurisdictions in Australia? (I’m not so interested in the whole copyright > area)**** > > ** ** > ------------------------------ > > **Ian Thomas > **Victoria Park, ****Western Australia******** > ------------------------------ > > *From:* [email protected] [mailto: > [email protected]] *On Behalf Of *Steve White > *Sent:* Friday, June 24, 2011 7:07 AM > *To:* ozDotNet > *Subject:* RE: [OT] Software "ownership" **** > > ** ** > > 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]> wrote:** > ** > > On Wed, Jun 22, 2011 at 10:58 PM, Glen Harvy <[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**** > > ** ** >
