Re: Software application copyright opinion

GaryG on 15 Nov 2003 suggested:

> "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. 
> 
        You can disagree all you want, but I agree with Lee.  Expertise is 
one thing.  But creating a substantially similar or derivative work is 
something entirely different.  And just because it happens doesn't make 
it right.

> AFAIK, it is the computer source code that is copyrighted, not the
> functionality or look and feel. 

        This is true with regards to the functionality, as Copyright 
protects expression, not ideas or processes.  But one of the Copyright 
protections afforded the computer source code is the creation of 
derivative works.

> So, if he rewrites it himself, even if the functionality is similar,
> I am of the opinion that it would not violate copyright.
> 
        Possibly.  More than likely it would be an infringement, and even 
if it isn't, it would cost a lot to fight it in court.  Since he had 
access to the original copyright work, the resultant product if similar 
in its function and expression, would likely be considered a derivative 
work, which is one of the rights protected by 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.
> 
        Just because someone does it does NOT mean they are NOT violating 
the law.

> The case with George Harrison would be relevant, if the OP was using
> the source code he developed at his former employer. 

        The simple fact that he had access to the original source code 
before would create a presumption that the work is NOT original, and 
that it is derived from the protected work.  

> The lyrics and the score were very similar...this would be the same as 
> if the OP used original code from the former employer. 

        Again, he doesn't need the original code.  The fact he had access 
to it at one point is enough.

> But, as he says, he rewrote the whole thing from scratch.

        This would be a question of proof for the jury.  By the time you 
got to present this proof, you'd be a good six figures into the 
litigation, if not more.

> 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 :-).
> 
        But in the long run, may be a huge bargain, compared to following 
some of the advice found in usenet.

--Douglas