Which License Should I Use?

Robert Kern robert.kern at gmail.com
Tue Nov 29 21:50:49 CET 2005

Andrew Koenig wrote:
> "Robert Kern" <robert.kern at gmail.com> wrote in message 
> news:mailman.1248.1133119309.18701.python-list at python.org...
>>Andrew Koenig wrote:
>>>I'm pretty sure that there was a change to the copyright laws a few years
>>>ago (perhaps as part of the DMCA), that made it clear that you own
>>>everything you produce, unless you're a W-2 employee or there is a 
>>>agreement to the contrary.
>>The US Copyright Office does not agree with you.
>> http://www.copyright.gov/circs/circ09.pdf
> Well, it comes pretty close to agreeing with me--the only issue is whether 
> the definition of "employee" extends beyond the notion of "W-2 employee" and 
> that issue is not really relevant to the original posting.

Yes it is given that the OP is "technically" a contractor. But it does
flatly contradict what you wrote since it specifically states that there
are classes of "employee" for the "work made for hire" doctrine that go
beyond the "W-2 employee" definition. There was no such law that made
the distinction that you did.

> Here's the relevant quote:
> If a work is created by an employee, part 1 of the statutory definition 
> applies, and generally the work would be considered a work made for hire. 
> Important: The term "employee" here is not really the same as the common 
> understanding of the term; for copyright purposes, it means an employee 
> under the general common law of agency. This is explained in further detail 
> below. Please read about this at "Employer-Employee Relationship Under 
> Agency Law." If a work is created by an independent contractor (that is, 
> someone who is not an employee under the general common law of agency), then 
> the work is a specially ordered or commissioned work, and part 2 of the 
> statutory definition applies. Such a work can be a work made for hire only 
> if both of the following conditions are met: (1) it comes within one of the 
> nine categories of works listed in part 2 of the definition and (2) there is 
> a written agreement between the parties specifying that the work is a work 
> made for hire.

That's not the relevant quote. The relevant quote comes from the part
that "explain[s] in further detail below" about the factors laid down in
Community for Creative Non-Violence v. Reid.

> The reason I say that the distinction between W-2 employment and agency 
> employment isn't really relevant is that in the kind of situation we're 
> talking about, there is generally a written agreement specifying scope and 
> nature of work.

Stop guessing.

> So I'll amend my statement slightly:
>     If someone pays you to produce a specific piece of work, or you're an 
> employee, any work you do for hire belongs to your employer.  Otherwise, 
> it's yours unless there's a written agreement to the contrary.

You can't use the phrase you're trying to define in the definition.

> I think that's a fair paraphrase of the paragraph I cited.  If you disagree, 
> please say why.

I disagree because it's a complicated bit of law that can't be boiled
down to two sentences. There are lots of tests a judge might apply and
none of them are of the form, "if the conditions are such-and-such then
the work is made for hire, otherwise not." This is not a guessing game
for laymen. This is an area for lawyers.

If I have one bit of advice for anyone reading this thread, it is this:
Don't listen to schmucks on USENET when making legal decisions. Hire
yourself a competent schmuck.

Robert Kern
robert.kern at gmail.com

"In the fields of hell where the grass grows high
 Are the graves of dreams allowed to die."
  -- Richard Harter

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