9 ms·

That is not the only criteria. See this comment: http://news.ycombinator.com/item?id=2666507 http://news.ycombinator.com/item?id=2666507 The other issue is,

That is not the only criteria. See this comment: http://news.ycombinator.com/item?id=2666507 http://news.ycombinator.com/item?id=2666507 The other issue is, as a contractor, the contractor retains all copyrights to the material created. Work for hire does not apply in this instance. He could send a DMCA takedown notice and have all of his articles removed, or organize all the other unemployed writers and coordinate a massive DMCA takedown letter writing campaign.

metageek 15y ago
That's the default, but I'm pretty sure the contract can say AOL gets the copyright.
- chopsueyar 15y ago
  The content creator licenses the content. Not a "get". 17 U.S.C. § 101 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. Collective or supplementary work? Not sure.
  - metageek 15y ago
    Just because it's not a work made for hire doesn't mean the company can't receive the copyright. A copyright holder is always free to transfer the copyright; if AOL has two brain cells to knock together, their contracts with these contractors include a clause saying that the copyright is transferred to AOL.
- deleted 15y ago
  [deleted]
jeffreymcmanus 15y ago
It's not the case that contractors are guaranteed copyright to their work; in fact, the opposite is more common. The issue of copyright doesn't come up in the IRS criteria for contractor vs. employee.
- chopsueyar 15y ago
  It's not the case that contractors are guaranteed copyright to their work; in fact, the opposite is more common. It is in the constitution, actually, "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;" The issue of copyright doesn't come up in the IRS criteria for contractor vs. employee. No, but the IRS's determination of the business relationship between the two parties affects the applicability of work-for-hire.
  - ryanisinallofus 15y ago
    You usually sign agreements before starting contract work for those companies right? I assume they cover it in there. Still I wonder what would happen if an AOL writer sued AOL for copyright infringement citing his/her constitutional rights.
    - chopsueyar 15y ago
      The issue is that the agreement may not be valid because of the business relationship between the two entities. A "work made for hire" is anything an employee makes in the scope of his or her employment OR as a contractor "...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." If he was treated by AOL as a contractor, but was determined by the IRS to be an employee, he would be entitled to a refund for the excessive taxes he paid as a contractor and AOL would then be liable for those taxes. However, he would lose all IP rights to the content (because he was an employee). However, if he were an employee, and the IRS determined he was a contractor, and there was no written "work made for hire" agreement (because the company assumed he was an employee and a signed agreement was unnecessary), he would retain all rights to his works. In his specific case, if is is determined by the IRS to be a contractor, the agreement he signed would have to be specifically for a "work made for hire" and his works were "...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." I'm not sure if writing search engine spam constitutes any of those.
patrickgzill 15y ago
Depends on the contract the IC signs with AOL. However, unless the copyright to the work(s) is specifically assigned, it remains with the creator. My guess is that AOL has this covered however.
- chopsueyar 15y ago
  He may be determined to be an employee by the IRS. He would then lose all IP rights, but would receive a tax refund, while AOL would receive a tax penalty.
tptacek 15y ago
Virtually all contractors in our field work under "work-for-hire" clauses. I am baffled by the people voting you up and those questioning you down. It is not "in the Constitution" that two parties can't agree to a binding contract that transfers ownership of work product. The IRS tests for contractor vs. employee status break down to: * Does the worker control the "how" as well as the "what" of their task, or do they have to e.g. work at proscribed locations during set hours? * Does the worker control the business aspects of their work, for instance the cost of tools, the expenses incurred, &c. * Has the company employing the worker done things to create a de facto employee relationship, such as offering benefits? None of these are bright-line differences. Contractors routinely work on-site, 9-5, using tools provided by their employers; however, care has been taken in structuring the relationship (for instance, by working corp-to-corp with a large consulting firm or head shop that itself maintains a W2 relationship with the workers). It is indeed possible or even likely that AOL is treading a fine line by 1099'ing the people writing its content. On the other hand, AOL can afford pretty good lawyers, and it's equally likely that every aspect of their workflow has been structured to avoid imputing employee status to people doing piecework writing for them. You should tone down your stridency. There are a lot of people on HN that consult professionally.
- chopsueyar 15y ago
  With regard to the Constitution, I was merely stating that the initial owner of a copyright in a work be the author. So, without any other sort of agreement, the guy who made it is the guy who owns it. The IRS employee vs contractor 'test' includes: Behavioral: This includes type of instruction given, degree of instruction, evaluation systems, and training - http://www.irs.gov/businesses/small/article/0,,id=179111,00... http://www.irs.gov/businesses/small/article/0,,id=179111,00..... Financial: This includes significant investment, reimbursed expenses, opportunity for profit or loss, services available to the market, and method of payment - http://www.irs.gov/businesses/small/article/0,,id=179113,00... http://www.irs.gov/businesses/small/article/0,,id=179113,00..... Type of Relationship: This includes written contracts, employment benefits, permanency of the relationship, and services provided as key activities of the business - http://www.irs.gov/businesses/small/article/0,,id=179116,00... http://www.irs.gov/businesses/small/article/0,,id=179116,00..... This issue has been around since at least 1989. Do you remember this? http://www.reuters.com/article/2009/04/01/businesspropicks-us-findlaw-dont-treat-c-idUSTRE53063S20090401 http://www.reuters.com/article/2009/04/01/businesspropicks-u... As for being strident, you are free to downvote. I am enjoying this discourse.
anigbrowl 15y ago
He could send a DMCA takedown notice and have all of his articles removed, or organize all the other unemployed writers and coordinate a massive DMCA takedown letter writing campaign. Even if this were true (it isn't), what difference would it make? The content he was writing was ephemeral fluff, designed to fill the daily news hole. It's not like Wikipedia. They could lose everything that all these writers wrote up to 6 months ago and chances are that nobody would notice. Guy got fired because he would have had to be treated differently for tax purposes if they had kept him on the payroll any longer, I suspect.
grellas 15y ago
It is true that a contractor generally retains ownership in any original work of authorship but AOL, in paying for the work, would get an implied license to publish that work as intended by the contract - that is its point in paying for it (much as any website owner who might fail to secure copyrights from a contractor who does work for his site, though he may not own the rights or be able to prevent the contractor from re-using the work elsewhere, nonetheless may use it for his own site in having paid for the work for that purpose). Thus, A DMCA takedown notice could not be used to remove any of the articles. Contracts of this type also would normally be expressly framed as work-for-hire contracts and would also provide for the assignment of all rights to work that did not technically meet the criteria of works made for hire. Such clauses are valid and enforceable and are indeed a staple of every tech developers invention-assignment agreement. They apply with equal force to works of authorship by an independent writer. Assuming the contract here is so framed, AOL would own the copyrights in the works of the author. The employee-contractor question, on the other hand, is a tricky one. This is a murky area but one where, generally, the lower the skill level and the more the worker must abide by company-defined procedures and schedule in how the work is done (among many other factors), the greater the risk of being classified as an employee. Many writers work independently with no risk to anyone of their being treated as employees but the AOL situation described in this piece might be vulnerable to audit risks owing to its assembly-line aspects. Hard to say without knowing a lot more detail.
- chopsueyar 15y ago
  Thank you for the clarification.

metageek 15y ago

That's the default, but I'm pretty sure the contract can say AOL gets the copyright.

chopsueyar 15y ago
The content creator licenses the content. Not a "get". 17 U.S.C. § 101 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. Collective or supplementary work? Not sure.
- metageek 15y ago
  Just because it's not a work made for hire doesn't mean the company can't receive the copyright. A copyright holder is always free to transfer the copyright; if AOL has two brain cells to knock together, their contracts with these contractors include a clause saying that the copyright is transferred to AOL.
deleted 15y ago
[deleted]

jeffreymcmanus 15y ago

It's not the case that contractors are guaranteed copyright to their work; in fact, the opposite is more common. The issue of copyright doesn't come up in the IRS criteria for contractor vs. employee.

chopsueyar 15y ago
It's not the case that contractors are guaranteed copyright to their work; in fact, the opposite is more common. It is in the constitution, actually, "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;" The issue of copyright doesn't come up in the IRS criteria for contractor vs. employee. No, but the IRS's determination of the business relationship between the two parties affects the applicability of work-for-hire.
- ryanisinallofus 15y ago
  You usually sign agreements before starting contract work for those companies right? I assume they cover it in there. Still I wonder what would happen if an AOL writer sued AOL for copyright infringement citing his/her constitutional rights.
  - chopsueyar 15y ago
    The issue is that the agreement may not be valid because of the business relationship between the two entities. A "work made for hire" is anything an employee makes in the scope of his or her employment OR as a contractor "...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." If he was treated by AOL as a contractor, but was determined by the IRS to be an employee, he would be entitled to a refund for the excessive taxes he paid as a contractor and AOL would then be liable for those taxes. However, he would lose all IP rights to the content (because he was an employee). However, if he were an employee, and the IRS determined he was a contractor, and there was no written "work made for hire" agreement (because the company assumed he was an employee and a signed agreement was unnecessary), he would retain all rights to his works. In his specific case, if is is determined by the IRS to be a contractor, the agreement he signed would have to be specifically for a "work made for hire" and his works were "...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." I'm not sure if writing search engine spam constitutes any of those.

patrickgzill 15y ago

Depends on the contract the IC signs with AOL. However, unless the copyright to the work(s) is specifically assigned, it remains with the creator. My guess is that AOL has this covered however.

chopsueyar 15y ago
He may be determined to be an employee by the IRS. He would then lose all IP rights, but would receive a tax refund, while AOL would receive a tax penalty.

tptacek 15y ago

Virtually all contractors in our field work under "work-for-hire" clauses. I am baffled by the people voting you up and those questioning you down. It is not "in the Constitution" that two parties can't agree to a binding contract that transfers ownership of work product. The IRS tests for contractor vs. employee status break down to: * Does the worker control the "how" as well as the "what" of their task, or do they have to e.g. work at proscribed locations during set hours? * Does the worker control the business aspects of their work, for instance the cost of tools, the expenses incurred, &c. * Has the company employing the worker done things to create a de facto employee relationship, such as offering benefits? None of these are bright-line differences. Contractors routinely work on-site, 9-5, using tools provided by their employers; however, care has been taken in structuring the relationship (for instance, by working corp-to-corp with a large consulting firm or head shop that itself maintains a W2 relationship with the workers). It is indeed possible or even likely that AOL is treading a fine line by 1099'ing the people writing its content. On the other hand, AOL can afford pretty good lawyers, and it's equally likely that every aspect of their workflow has been structured to avoid imputing employee status to people doing piecework writing for them. You should tone down your stridency. There are a lot of people on HN that consult professionally.

chopsueyar 15y ago
With regard to the Constitution, I was merely stating that the initial owner of a copyright in a work be the author. So, without any other sort of agreement, the guy who made it is the guy who owns it. The IRS employee vs contractor 'test' includes: Behavioral: This includes type of instruction given, degree of instruction, evaluation systems, and training - http://www.irs.gov/businesses/small/article/0,,id=179111,00... http://www.irs.gov/businesses/small/article/0,,id=179111,00..... Financial: This includes significant investment, reimbursed expenses, opportunity for profit or loss, services available to the market, and method of payment - http://www.irs.gov/businesses/small/article/0,,id=179113,00... http://www.irs.gov/businesses/small/article/0,,id=179113,00..... Type of Relationship: This includes written contracts, employment benefits, permanency of the relationship, and services provided as key activities of the business - http://www.irs.gov/businesses/small/article/0,,id=179116,00... http://www.irs.gov/businesses/small/article/0,,id=179116,00..... This issue has been around since at least 1989. Do you remember this? http://www.reuters.com/article/2009/04/01/businesspropicks-us-findlaw-dont-treat-c-idUSTRE53063S20090401 http://www.reuters.com/article/2009/04/01/businesspropicks-u... As for being strident, you are free to downvote. I am enjoying this discourse.

anigbrowl 15y ago

He could send a DMCA takedown notice and have all of his articles removed, or organize all the other unemployed writers and coordinate a massive DMCA takedown letter writing campaign. Even if this were true (it isn't), what difference would it make? The content he was writing was ephemeral fluff, designed to fill the daily news hole. It's not like Wikipedia. They could lose everything that all these writers wrote up to 6 months ago and chances are that nobody would notice. Guy got fired because he would have had to be treated differently for tax purposes if they had kept him on the payroll any longer, I suspect.

grellas 15y ago

It is true that a contractor generally retains ownership in any original work of authorship but AOL, in paying for the work, would get an implied license to publish that work as intended by the contract - that is its point in paying for it (much as any website owner who might fail to secure copyrights from a contractor who does work for his site, though he may not own the rights or be able to prevent the contractor from re-using the work elsewhere, nonetheless may use it for his own site in having paid for the work for that purpose). Thus, A DMCA takedown notice could not be used to remove any of the articles. Contracts of this type also would normally be expressly framed as work-for-hire contracts and would also provide for the assignment of all rights to work that did not technically meet the criteria of works made for hire. Such clauses are valid and enforceable and are indeed a staple of every tech developers invention-assignment agreement. They apply with equal force to works of authorship by an independent writer. Assuming the contract here is so framed, AOL would own the copyrights in the works of the author. The employee-contractor question, on the other hand, is a tricky one. This is a murky area but one where, generally, the lower the skill level and the more the worker must abide by company-defined procedures and schedule in how the work is done (among many other factors), the greater the risk of being classified as an employee. Many writers work independently with no risk to anyone of their being treated as employees but the AOL situation described in this piece might be vulnerable to audit risks owing to its assembly-line aspects. Hard to say without knowing a lot more detail.

chopsueyar 15y ago
Thank you for the clarification.