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From memory transfer of copyright requires a written contract in the US; so be it your employment contract or a freelancers contract it needs to be written down

From memory transfer of copyright requires a written contract in the US; so be it your employment contract or a freelancers contract it needs to be written down. I have had contracts where I have successfully negotiated having that clause removed. Just because someone pays you to write code doesn't necessarily mean that at the end they own the copyright. Some jurisdictions however have implicit transfer of copyright in work for hire situations so consult a lawyer and make sure it is always written down.

rosser 12y ago
Do you mean to imply that Goldman's employment contract somehow neglected the bog-standard "work for hire" clause that every other employment contract pretty much ever has included?
tptacek 12y ago
No. In the US, works created by employees in the scope of their employment are considered "for hire" explicitly by statute: 17 USC 101. It's also true, as my sibling commenter points out, that boilerplate contracts have CYA "for hire" provisions in them. This is a bit of a silly digression, right, because if WFH was going to exonerate Aleynikov, his very-expensive lawyers would have deployed it as an argument. But it would be dangerous for readers to rely on an Internet argument that their own employee work contributions might be their own property, so it seems worth correcting this. WFH is very relevant for contractors (who are by definition not employees), but less so for full-time employees like Aleynikov. Incidentally: you don't have to answer questions about US law "from memory". The answer to this question --- which, by the way, is a whole pamphlet the Copyright Office publishes specifically to resolve confusion on this question --- is a Google search away.
- tankenmate 12y ago
  Title 17 Circular 92 Chapter 2 § 204 . Execution of transfers of copyright ownership (a) A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner's duly authorized agent. So it would seem that I didn't realise that there was a clause "other than by operation of law"; but you will also note that my last statement of my comment said that you should get a lawyer...
  - tptacek 12y ago
    Your argument here being that 17 USC 101's plain and simple definition of "work for hire" is "invalid"? A “work made for hire” is— (1)a work prepared by an employee within the scope of his or her employment; or (no further qualification is made regarding A.1)
    - tankenmate 12y ago
      No that is not my argument; what I am saying is that we are both right. If there is a matter that is covered under the law, for example work for hire (which is covered under title 17), then there is no need for a written contract (or other written conveyance of transfer). If however the transfer happens under a matter not covered by law then a written contract is required; say for example a transfer as a part of the sale of a company. But my final point is still valid (as is supported by standard employment contracts covering IP rights even though it is covered under title 17) that if something is important to you get it written down in a contract and make sure it is checked by your own lawyer.
  - jdmichal 12y ago
    "Work made to hire" means that the programmer never owned the copyright in the first place. The employer owned it from the moment it was created. There is no transfer of ownership taking place to document.
pluma 12y ago
You may be thinking about EU law. I don't know whether this is universal to the EU, but in Germany it works the way you describe: even if you get paid to do it, unless you're explicitly granting exclusive rights, you only grant a non-exclusive right. For example, if you hire a freelancer to write you software, you don't have anything other than simple usage rights unless you signed a contract with them explicitly granting you additional rights. Even if you gave them a bunch of requirements and defined deliverables. This is a case where the braindead application of existing copyright (e.g. how this works for commissioned literature) actually resulted in a good thing.

rosser 12y ago

Do you mean to imply that Goldman's employment contract somehow neglected the bog-standard "work for hire" clause that every other employment contract pretty much ever has included?

tptacek 12y ago

No. In the US, works created by employees in the scope of their employment are considered "for hire" explicitly by statute: 17 USC 101. It's also true, as my sibling commenter points out, that boilerplate contracts have CYA "for hire" provisions in them. This is a bit of a silly digression, right, because if WFH was going to exonerate Aleynikov, his very-expensive lawyers would have deployed it as an argument. But it would be dangerous for readers to rely on an Internet argument that their own employee work contributions might be their own property, so it seems worth correcting this. WFH is very relevant for contractors (who are by definition not employees), but less so for full-time employees like Aleynikov. Incidentally: you don't have to answer questions about US law "from memory". The answer to this question --- which, by the way, is a whole pamphlet the Copyright Office publishes specifically to resolve confusion on this question --- is a Google search away.

tankenmate 12y ago
Title 17 Circular 92 Chapter 2 § 204 . Execution of transfers of copyright ownership (a) A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner's duly authorized agent. So it would seem that I didn't realise that there was a clause "other than by operation of law"; but you will also note that my last statement of my comment said that you should get a lawyer...
- tptacek 12y ago
  Your argument here being that 17 USC 101's plain and simple definition of "work for hire" is "invalid"? A “work made for hire” is— (1)a work prepared by an employee within the scope of his or her employment; or (no further qualification is made regarding A.1)
  - tankenmate 12y ago
    No that is not my argument; what I am saying is that we are both right. If there is a matter that is covered under the law, for example work for hire (which is covered under title 17), then there is no need for a written contract (or other written conveyance of transfer). If however the transfer happens under a matter not covered by law then a written contract is required; say for example a transfer as a part of the sale of a company. But my final point is still valid (as is supported by standard employment contracts covering IP rights even though it is covered under title 17) that if something is important to you get it written down in a contract and make sure it is checked by your own lawyer.
- jdmichal 12y ago
  "Work made to hire" means that the programmer never owned the copyright in the first place. The employer owned it from the moment it was created. There is no transfer of ownership taking place to document.

pluma 12y ago

You may be thinking about EU law. I don't know whether this is universal to the EU, but in Germany it works the way you describe: even if you get paid to do it, unless you're explicitly granting exclusive rights, you only grant a non-exclusive right. For example, if you hire a freelancer to write you software, you don't have anything other than simple usage rights unless you signed a contract with them explicitly granting you additional rights. Even if you gave them a bunch of requirements and defined deliverables. This is a case where the braindead application of existing copyright (e.g. how this works for commissioned literature) actually resulted in a good thing.