Re: What percentage of kernel is non-paid work?
From: David Schwartz (davids_at_webmaster.com)
Date: 06/23/05
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Date: Wed, 22 Jun 2005 22:12:27 -0700
"Floyd L. Davidson" <floyd@barrow.com> wrote in message
news:87oe9xraui.fld@barrow.com...
>> The issue of company time is not relevant. For copyright purposes,
>>"company time" is whenever you are doing company work. So to use it to
>>tell
> Company time is when they are paying you and you are doing what
> they expect you to do while being paid.
Right.
>> So long as the work is not ancillary to the job. If you're developing
>> an
>>application, for example, and just happen to be testing it on Linux and
>>discover, say, a kernel bug that breaks the application, a fix for that
>>bug
>>would likely still be yours, not the company's.
> If you develop a patch to correct that bug while you are being
> paid by the company, the company owns the patch. If you go home
> and use the information gathered while you were being paid, you
> own the patch.
No, they don't. The company didn't hire you to patch the Linux kernel
nor did they direct you to do so. This is not a work for hire because they
didn't hire you to do it.
>>> A contract employee probably fits the
>>> same classification, while a subcontract employee probably does
>>> not. But of course, in those cases the contract will almost
>>> certainly detail precisely who owns the copyrighted product.
>>
>> Right, and it will detail who owns the product. Not some other work
>> that
>>you might happen to create during the course of your employment.
>
> And if you charge them for time developing something not part of
> the contract, you would be in violation of the contract...
Not usually. It's possible to word a contract this way, but it's neither
ordinary nor reasonable if you think about it. The contract is to provide
them a specific product or function.
For example, suppose while working on this product, I discover a bug in
my open source debugger. This prevents me from completing the product. So
it's reasonable to bill the customer for fixing this bug. However, the
customer did not hire you to fix the bug. So it's also reasonable to say
that the bug fix was not a work for hire and therefore the customer does not
own it.
Most contracts specify the actual work that is for hire. Anything you do
that's not part of that work, even if necessary to create that work, would
not ordinarily be part of the work for hire.
>>> If the employee is goofing off, writing programs (or personal
>>> letters, for example) instead of doing approved work, then the
>>> copyright belongs to the employee... and might be cause for a
>>> pink slip.
>>
>> Exactly.
>>
>>> And (for an example that David cited) a Linux kernel bug
>>> discovered while doing company assigned work, means nothing.
>>> But, if a patch is created on company time, it belongs to the
>>> company and the company has the say so on whether it is
>>> submitted to Linus, used only inhouse, or distributed. (And the
>>> legal ramifications of doing any of that are great, or course.)
>>
>> No, not true. There is no legal notion of "company time" that affects
> Did you read the cite you offered as an authoritative source?
I didn't offer it as an authoritative source. The only real
authoritative source is copyright law itself and the cases that interpret
it. I offered it specifically to refute the claims. It is not incorrect
anywhere, but it is very easy to misunderstand. It's trying to provide
general guidance.
>>ownership. Company time is when you are doing company work, so to say it's
>>company work because it's on company time is circular. Whether your work
>>is
>>owned by the company has to do with the nature of the work and it's
>>relationship to your job responsibilities, whether your supervisor
>>directed
>>you to do the work and how much control he had over it, not what time of
>>day
>>you did it.
> For a salaried employee, the two are not distinguishable...
Yes, they are totally distinguishable. If you write a letter to your mom
while you're on the clock, the company does not own the copyright to that
letter because they did not direct you to write it, they did not supervise
your writing, and they did not employ you to write it. This means, for
copyright purposes, you did not write it on company time, regardless of what
a clock or time card shows.
>> If you work on company stuff at home, it's "company time" regardless
>> of
>>what the clock says. If you work on personal stuff at the office, it's not
>>company time.
> If you are paid an hourly wage and have a fixed schedule, they
> are.
No, they are not. This is utterly nonsensical. It would also leave the
absurd result that you could later dispute the company's copyright by
showing that some of the work was done outside of the hours they paid you
for.
As far as copyright is concerned, they pay you to do specific things,
not for whatever you do at specific times.
DS
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