Re: Software application copyright opinion

On Sun, 16 Nov 2003 21:05:26 GMT, Roger Schlafly <[EMAIL PROTECTED]> wrote:
> "Isaac" <[EMAIL PROTECTED]> wrote
>> It's hard to come up with a situation where there
>> is a higher degree of access than one involving an ex-employee wrote the
>> original.
> 
> A higher degree of access occurs when someone writing the new work
> has physical access to the original, and can cut-and-paste from the
> original. In this case, the programmer will not have access to the
> original while creating the new work.

Right.  I did indulge in some hyperbole.  

> 
>> >     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.
>> I think that's a little strong.  There would need to be at least some
>> similarity of protectable elements between the original and the
>> OP's work.
> 
> I don't think that there is any such presumption. The programmer
> is trying to do this project legally. If he adopts a legally defensible
> strategy, and documents what he is doing, he should be ok.

There isn't a presumption that anyone with access must be a copier, but 
in my experience, two programmers separately coding the same functionality 
are going to generate code with some similarities.  People who haven't had 
any access to the original source code are going to have an easy time 
establishing that those similarities were not the result of copying.  However, 
the OP might well find himself having to overcome a prima facie case of 
copying established by his ex employer.  

Perhaps there are legally defensible strategies, but I think a strategy
that involves the OP doing the coding has significant risk. 

Isaac