Re: [gentoo-dev] Re: [gentoo-dev-announce] Soliciting Feedback: Gentoo Copyright Assignments / Licensing

[Greg KH]

On Fri, Dec 21, 2012 at 12:01:00AM -0500, Rich Freeman wrote:
> On Thu, Dec 20, 2012 at 11:08 PM, Greg KH <gregkh@g.o> wrote:
> > On Fri, Dec 21, 2012 at 02:32:25AM +0000, Robin H. Johnson wrote:
> >> 1. Are you party to any *copyright assignment* (eg FSF copyright assignment)?
> >
> > You need to rephrase this to be (in order for it to make any sense):
> >   Are you party to any *copyright assignment* that is not part of your
> >   employment agreement?
> >
> > Otherwise, everyone in the US, and most other countries, would almost
> > always have to just say "yes" to this, as their employer owns the
> > copyright for their work no matter what it is done on (open source or
> > not.)
>
> Work done for hire is certainly owned by the employer, unless an
> agreement to the contrary is explicitly documented, but employment
> agreements that purport to assign copyright for works unrelated to
> employment to the employer are rare.  Maybe they're not as rare in the
> software industry, but most people aren't employed in the software
> industry (even if most Gentoo developers might be - though perhaps not
> as a big a majority as you might expect).
>
> Certainly I haven't signed any kind of document that assigns ownership
> of works created on my own time to my employer, and the legality of
> any contract I did sign to that effect would be dubious.

That's not true in the US, in fact, it's the exact opposite.  Your
employer has ownership of all of your work, even done on your own time,
unless you explicitly have permission otherwise, if it is done in an
industry that is related to your employer.  Read the traditional US
employment agreement for details about this.

Yes, some states allow for exceptions to this rule, but those are the
exceptions (California has some unique changes here).

You might have signed these types of agreements when you were hired by a
company, and didn't realize it, it's usually quite well hidden in the
agreement.

Now this is all for the US, Europe has other types of laws, but they
still assign ownership/copyright of what you do while being paid by
those companies, to the company, and not to you.  Again, there are
exceptions, but traditionally that is how they work.

> > Remember, in the US, individuals who actually own the copyright on the
> > work they do is quite rare once they get out of college, and even then,
> > while in college, the school does have the right to assert copyright
> > ownership of the work, depending on what it was done on/for (who
> > provided the equipment, tasks, etc.)
>
> Ownership of "work" in the sense of something you're paid to do
> usually does tend to reside with whoever is paying you to do the work,
> unless you're a consultant of some kind or otherwise paid by the
> engagement (in which case it is usually spelled out).  Ownership of
> stuff like the photos everybody will be taking next week with family
> rarely ends up belonging to an employer.

Photos, yes, but all joking aside, go read the agreement, they are
incredibly broad.  As numerous "inventors" have found out the hard way
over the years when their companies end up owning the rights to things
they have created "on their own time".  Again, some states have rules to
try to give rights back to the individuals (like CA), but those are
rare, and only cover limited things.

I speak from person experience about this.  I used to work for IBM, and
IBM's employment agreement is so broad, the joke used to be, "the only
thing you could do on your own time that isn't owned by IBM would be to
mow people's lawns for them."  That joke turned into reality when a
coworker of mine started a landscaping company and eventually quit to
run it full time.

The rules involved here are complex, and usually never in an
individual's favor for they don't get to write the rules.

Be mindful that if Gentoo is to go down a "assign copyright to the
Foundation" type of arrangement, they are going to run smack into a
whole range of people's employment agreements, almost all of them which
will prevent them from participating unless they get explicit agreement
from their employer.

Just ask anyone who has had to get their company to sign the FSF
copyright assignment paperwork, for just how hard that was, and how long
it took.

thanks,

greg k-h