Re: Software application copyright opinion

"Lee Hollaar" <[EMAIL PROTECTED]> wrote in message
news:[EMAIL PROTECTED]
> In article <[EMAIL PROTECTED]> "GaryG"
<[EMAIL PROTECTED]> writes:
> >"R. Kaushik" <[EMAIL PROTECTED]> wrote in message
> >news:[EMAIL PROTECTED]
> >> 1. Can my previous employer claim it as copyright infringement?
> >
> >Since the new app is a re-write, I don't think you'll have any copyright
> >issues.  You might at some point be required to prove this, but it sounds
> >like you're OK there.
>
> Really bad advice.  Just because your version is a rewrite doesn't mean
> that it won't infringe the copyright in the original program that you
> wrote.
>
> First of all, because you wrote the original program as an employee and
> as your work assignment, the author of that program as far as United
> States copyright law is concerned is the employer and the copyright
> initially vests with the employer.  You have no more rights under
> copyright law in that program than I do.
>
> See http://digital-law-online.info/lpdi1.0/treatise10.html#secII.F.2.
> for a discussion of "works made for hire."
>
> Second, because you have had access to the original program, a program
> that you write that is substantially similar could be an infringement
> of the copyright of the original program, even if you no longer have
> access to the original program and are not even thinking about it
> when you write the new program.
>
> There is little case law on the subject, but the decision of the Second
> Circuit Court of Appeals in _ABKCP Music v. Harrisongs Music_ (see
> http://digital-law-online.info/cases/221PQ490.htm) is instructive.
>
> In that case, George Harrison was found to have infringed the copyright
> of "He's So Fine," a song that he had heard years before, when he wrote
> "My Sweet Lord."  There was no allegation that he was looking at "He's
> So Fine" when he wrote "My Sweet Lord," or even that he consciously
> remembered it.  But it was copyright infringement never the less.
>
> See http://digital-law-online.info/lpdi1.0/treatise27.html#secVI.C.
> for a discussion of new software from old.

Well, I still disagree.  Just because he gained expertise developing an app
for an employer, doesn't mean he can't use that expertise to develop a
similar app for himself.  That sort of thing happens all the time.

AFAIK, it is the computer source code that is copyrighted, not the
functionality or look and feel.  So, if he rewrites it himself, even if the
functionality is similar, I am of the opinion that it would not violate
copyright.

I know of several folks who have developed unique apps for employers for
internal usage, and then later created similar apps on their own and offered
them for sale.

The case with George Harrison would be relevant, if the OP was using the
source code he developed at his former employer.  The lyrics and the score
were very similar...this would be the same as if the OP used original code
from the former employer.  But, as he says, he rewrote the whole thing from
scratch.

But, clearly this is a case where it would be wise to consult with a
knowledgeable attorney beforehand.  Of course, that kind of advice is
substantially more expensive than what you'll get in usenet :-).

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