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  • Subject: RE: work contracts inquiry
  • From: "Nathan M. Andelin" <nathanma@xxxxxxxxx>
  • Date: Thu, 5 Oct 2000 12:01:00 -0600

<snip from Bob Crothers>

As an employee (which I have been), the best course of action would be to
get approval before doing the project.

<end snip>

Bob, your previous example of an RPG programmer who works for a paper mill
and comes up with an idea for a program to cut rolls of paper is a very good
one to illustrate a point.  The program would have obvious benefit to the
employer.  But, the program might have commercial value for the employee as
well.

The law is pretty clear that if the employee writes the program on his own
time, using his own (or a timeshare) computer, and for the purpose of his
own commercialization, then he owns the copyright - not the employer,
regardless of the fact that his employment laid the foundation for the idea.

But, if the employee introduces the idea to his employer, it immediately
moves the employer into the driver seat.  What if the employer wants the
program?  What if the employer makes it an assignment?  Raising the idea
will likely shift this work back into the realm of "within the scope of
employment", regardless of the employees willingness to do the work on his
own time.

If the employee understands the law, and wants to commercialize the program
himself, and is willing to do the work on his own time, he's not likely to
raise the idea with his employer.

One key to this dilemma lies in peoples attitudes about employment.  In my
experience, most employers (and the officers who represent them) simply
dictate policy with the expectation that employees will comply.  For
example, they will hand out a new employment contract with terms most
favorable to the interest of the employer and expect all employees to sign
it.  I think most employers have the attitude that employees should put
loyalty to the employer above their own personal interests.  Is this not the
case?

Another key to this dilemma lies with the ability of the employee to
negotiate.  Is he financially independent?  Can he readily get another job
with equal or greater pay and benefits?  Can the employer easily replace him
with a new hire?  I think in most cases employees find themselves in a weak
position to negotiate.

The last key is an understanding and respect for copyright law.  I think its
important for people like us who create or manage the development, or
publish intellectual property, to understand our rights and limits.
Otherwise, some of us (speaking from sad personal experience) are going
to get an education the hard way... in court!



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