3 ms·

I used to respect him, but that post is so wrong on so many counts regarding US IP law and "work for hire" stipulations that I couldn't get myself to finish rea

I used to respect him, but that post is so wrong on so many counts regarding US IP law and "work for hire" stipulations that I couldn't get myself to finish reading even half of it. "be careful before taking legal advice from the Internet." - Indeed, Joel. Indeed.

kcorbitt 10y ago
Your critique would be much more useful if you explained what he's wrong about. As someone who has done a small amount of contract work in my career, his summary broadly matches my personal understanding.
- ghurtado 10y ago
  Fair point. I will point a couple: - He says that contractors "by default" own the IP of the work they do for their employers. This is actually exactly the opposite: "work for hire" means that the employer owns the IP by default: http://contently.net/2013/07/09/find-work/work-made-for-hire-what-it-really-means/ http://contently.net/2013/07/09/find-work/work-made-for-hire... - He glosses over / minimizes the fact that most of these "invention assignment" clauses are doomed in a court of law more often than not (even ignoring the states that outright prohibit them) if they do not fall within the scope of employment (sorry, I don't have a reference here, but I have heard of many such cases being thrown out in court) As a business owner, he comes across as having a very clear agenda which is at odds with the reality of the law and the actual outcomes of these cases in court.
  - ambrice 10y ago
    That link and Joel seem to agree. By default the contractor owns the IP, unless the contract contains the legal phrase "work made for hire." Maybe you should have kept reading?
    - ghurtado 10y ago
      I think you misunderstand: all work done by an independent contractor is by default "work made for hire" unless explicitly stated otherwise.
      - ambrice 10y ago
        Not according to the Copyright Act of 1976: https://www.copyright.gov/title17/92chap1.html https://www.copyright.gov/title17/92chap1.html A “work made for hire” is— (1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.
        ghurtado 10y ago
        Well, I'll be damned: it looks like you're right. I think I was probably misremembering my experience as a software contractor, in that I don't think I ever signed a single contract that did not include the "work for hire" stipulation. Ironically, it seems far from clear that "work for hire" even applies to software: http://www.lexology.com/library/detail.aspx?g=59a4a8c4-c446-4870-8710-5463bd8ea894 http://www.lexology.com/library/detail.aspx?g=59a4a8c4-c446-...
      - odbol_ 10y ago
        Yes, and what is a "work for hire" besides a work made under a contract saying it's a work for hire?

kcorbitt 10y ago

Your critique would be much more useful if you explained what he's wrong about. As someone who has done a small amount of contract work in my career, his summary broadly matches my personal understanding.

ghurtado 10y ago
Fair point. I will point a couple: - He says that contractors "by default" own the IP of the work they do for their employers. This is actually exactly the opposite: "work for hire" means that the employer owns the IP by default: http://contently.net/2013/07/09/find-work/work-made-for-hire-what-it-really-means/ http://contently.net/2013/07/09/find-work/work-made-for-hire... - He glosses over / minimizes the fact that most of these "invention assignment" clauses are doomed in a court of law more often than not (even ignoring the states that outright prohibit them) if they do not fall within the scope of employment (sorry, I don't have a reference here, but I have heard of many such cases being thrown out in court) As a business owner, he comes across as having a very clear agenda which is at odds with the reality of the law and the actual outcomes of these cases in court.
- ambrice 10y ago
  That link and Joel seem to agree. By default the contractor owns the IP, unless the contract contains the legal phrase "work made for hire." Maybe you should have kept reading?
  - ghurtado 10y ago
    I think you misunderstand: all work done by an independent contractor is by default "work made for hire" unless explicitly stated otherwise.
    - ambrice 10y ago
      Not according to the Copyright Act of 1976: https://www.copyright.gov/title17/92chap1.html https://www.copyright.gov/title17/92chap1.html A “work made for hire” is— (1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.
      - ghurtado 10y ago
        Well, I'll be damned: it looks like you're right. I think I was probably misremembering my experience as a software contractor, in that I don't think I ever signed a single contract that did not include the "work for hire" stipulation. Ironically, it seems far from clear that "work for hire" even applies to software: http://www.lexology.com/library/detail.aspx?g=59a4a8c4-c446-4870-8710-5463bd8ea894 http://www.lexology.com/library/detail.aspx?g=59a4a8c4-c446-...
    - odbol_ 10y ago
      Yes, and what is a "work for hire" besides a work made under a contract saying it's a work for hire?