License issue with our customer]

Team,

Can anyone provide some help for Ladislav here?

Seems like once again corporate lawyers are trying to
trample on open
licensing...

Thanks, DW

-----Original Message-----
From: Ladislav Urban [mailto:ladislav.urbanwebswell.com] 
Sent: Wednesday, May 03, 2006 12:34 PM
To: ebxmlrr-tech
Cc: Sacha Schlegel; Vladimir Alexovic
Subject: [Ebxmlrr-tech] License issue with our customer

Hello all,
we have recently successfully completed integration project
(May 2,
2006) based on our integration package Webswell Connect.
This package is
under Academic Free License and uses Ebxml Reg/Rep and other
components
associated with Freebxml.

Our customer decided to charge us with copyright breaking
issue at the
court. The claim is that all open source software is
copyrighted
property of the customer because he payed our company to fix
the bugs in
Webswell Connect. They accuse us from false advertisement
that Webswell
Connect in the recent version belongs to Webswell and is
spread under
Academic Free License. They want us to reverse all changes
that have
been made by us on any OS SW that is used on the given
integration
project and withdraw it from SourceForge and all companies
that use it.

I have to tell that we have made many changes during the
time of the
project that has not been payed by the Customer and are not
used by the
customer.

They deleted emails on my notebook during yesterdays visit
and tell all
employees of the customer to not speak with us. I do backups
so I have
not lost any documentation.

We are small company we are only 2 plus one external member.
We do not
have to much money to spend on the attorneys. Do you know
somebody who
is able to help us in this case?

The court conference is on September 5, 2006 in United
States District
Court, Albany, New York. The magistrate judge is David R.
Homer.

I will send you the agreement with the customer and jury
trial documents
and other documents on request. 

We are convinced that the agreement with our customer can
not give them
copyright rights to software under Academic Free License.

Thank you for your help in advance.
Ladislav

-- 
Ladislav Urban
CEO
Webswell Inc.
1333 Howe Avenue, Suite 100
Sacramento, 95825 CA
email: ladislav.urbanwebswell.com
phone: +1 (916) 290-2040
fax: +1 (916) 921-2850
http://www.webswell.com



-------------------------------------------------------
Using Tomcat but need to do more? Need to support web
services,
security?
Get stuff done quickly with pre-integrated technology to
make your job
easier
Download IBM WebSphere Application Server v.1.0.1 based on
Apache
Geronimo
http://sel.as-us.falkag.net/
sel?cmd=lnk&kid=120709&bid=263057&dat=121642
_______________________________________________
ebxmlrr-tech mailing list
ebxmlrr-techlists.sourceforge.net
https://lists.sourceforge.net/lists/listinfo/ebxmlrr-te
ch 

On May 3, 2006, at 10:30PDT (CA), David RR Webber ((XML))
wrote:

> Team,
>
> Can anyone provide some help for Ladislav here?
>
> Seems like once again corporate lawyers are trying to
trample on open
> licensing...

The people at the Software Freedom Legal Center can't
directly help  
(as they only help projects, not companies) but they may be
able to  
recommend a lawyer who can help. Contact them at  
helpsoftwarefreedom.org asking for recommendations for a
lawyer (and  
include concise background information)

Cheers!
--zak

Another group to contact is the EFF (electronic freedom
foundation). 
That said, I'll note that this doesn't sound to this
non-lawyer like a
case of corporate lawyers trampling on free licences, but
rather a
dispute about who owns the copyright.  In particular the
customer
seems to be claiming that this was a work for hire, while
the people
who did the work don't.

If it was a work for hire, then it is not open source code
no matter
what the people who wrote it may have said.  If it was not a
work for
hire, then the authors can do what they want with the code,
including
release it as open source.  Whether or not it will be
determined to be
a work for hire depends upon the exact facts that are
presented about
the case.  If documentation of what happened and/or funding
for legal
fees are lacking, then it may wind up being determined to be
a work
for hire even when it shouldn't. :-(

Or at least that is what my limited understanding of the law
says.  A
real lawyer could tell you more.

Cheers,
Ben

PS A note for the future.  It is generally a good idea to
get a real
lawyer involved BEFORE cases go to court.  Lawyers can do
many things
for you.  An important one is that they can give you a
realistic
assessment of your case which can help you decide whether it
is better
to settle out of court, and if you choose to can help
negotiate that
agreement.  Another good one is that when the other side
knows that
you actually have a lawyer and know your rights, they may
back down. 
(They may - depending on the facts of the case - be hoping
to win by
virtue of the fact that the suit is filed in a state that is
hard for
you to get to.)

On 5/3/06, David RR Webber (XML) <daviddrrw.info> wrote:
> Team,
>
> Can anyone provide some help for Ladislav here?
>
> Seems like once again corporate lawyers are trying to
trample on open
> licensing...
>
> Thanks, DW
>
> -----Original Message-----
> From: Ladislav Urban [mailto:ladislav.urbanwebswell.com]
> Sent: Wednesday, May 03, 2006 12:34 PM
> To: ebxmlrr-tech
> Cc: Sacha Schlegel; Vladimir Alexovic
> Subject: [Ebxmlrr-tech] License issue with our customer
>
> Hello all,
> we have recently successfully completed integration
project (May 2,
> 2006) based on our integration package Webswell
Connect. This package is
> under Academic Free License and uses Ebxml Reg/Rep and
other components
> associated with Freebxml.
>
> Our customer decided to charge us with copyright
breaking issue at the
> court. The claim is that all open source software is
copyrighted
> property of the customer because he payed our company
to fix the bugs in
> Webswell Connect. They accuse us from false
advertisement that Webswell
> Connect in the recent version belongs to Webswell and
is spread under
> Academic Free License. They want us to reverse all
changes that have
> been made by us on any OS SW that is used on the given
integration
> project and withdraw it from SourceForge and all
companies that use it.
>
> I have to tell that we have made many changes during
the time of the
> project that has not been payed by the Customer and are
not used by the
> customer.
>
> They deleted emails on my notebook during yesterdays
visit and tell all
> employees of the customer to not speak with us. I do
backups so I have
> not lost any documentation.
>
> We are small company we are only 2 plus one external
member. We do not
> have to much money to spend on the attorneys. Do you
know somebody who
> is able to help us in this case?
>
> The court conference is on September 5, 2006 in United
States District
> Court, Albany, New York. The magistrate judge is David
R. Homer.
>
> I will send you the agreement with the customer and
jury trial documents
> and other documents on request.
>
> We are convinced that the agreement with our customer
can not give them
> copyright rights to software under Academic Free
License.
>
> Thank you for your help in advance.
> Ladislav
>
> --
> Ladislav Urban
> CEO
> Webswell Inc.
> 1333 Howe Avenue, Suite 100
> Sacramento, 95825 CA
> email: ladislav.urbanwebswell.com
> phone: +1 (916) 290-2040
> fax: +1 (916) 921-2850
> http://www.webswell.com
>
>
>
> -------------------------------------------------------
> Using Tomcat but need to do more? Need to support web
services,
> security?
> Get stuff done quickly with pre-integrated technology
to make your job
> easier
> Download IBM WebSphere Application Server v.1.0.1 based
on Apache
> Geronimo
> http://sel.as-us.falkag.net/
sel?cmd=lnk&kid=120709&bid=263057&dat=121642
> _______________________________________________
> ebxmlrr-tech mailing list
> ebxmlrr-techlists.sourceforge.net
> https://lists.sourceforge.net/lists/listinfo/ebxmlrr-te
ch
>
>

I'm not a lawyer; this isn't a legal opinion; and it
isn't even an
official OSI position.

Unless you've made some other arrangement, the default
ownership of
copyright goes to whoever paid for the creative effort
("A Work for
Hire").  If you modify a copy of open source code for
someone, they
own the copyright on it, even if you own the copyright on
the original
open source work.  Some open source licenses require that
modifications be contributed (e.g. APSL, RPSL, and ohers). 
The AFL is
not one of these licenses.

If, on the other hand, your customer make a suggestion for
what he
wanted in your Open Source product, and you sold him the
first copy
that had those features, then he has no copyright rights.

It go either way.  The crucial missing detail is whatever
arrangement,
agreement, or contract Ladislav made with his customer.

David RR Webber \(XML\) writes:
 > -----Original Message-----
 > From: Ladislav Urban [mailto:ladislav.urbanwebswell.com] 
 > Sent: Wednesday, May 03, 2006 12:34 PM
 > To: ebxmlrr-tech
 > Cc: Sacha Schlegel; Vladimir Alexovic
 > Subject: [Ebxmlrr-tech] License issue with our
customer
 > 
 > Hello all,
 > we have recently successfully completed integration
project (May 2,
 > 2006) based on our integration package Webswell
Connect. This package is
 > under Academic Free License and uses Ebxml Reg/Rep and
other components
 > associated with Freebxml.
 > 
 > Our customer decided to charge us with copyright
breaking issue at the
 > court. The claim is that all open source software is
copyrighted
 > property of the customer because he payed our company
to fix the bugs in
 > Webswell Connect. They accuse us from false
advertisement that Webswell
 > Connect in the recent version belongs to Webswell and
is spread under
 > Academic Free License. They want us to reverse all
changes that have
 > been made by us on any OS SW that is used on the given
integration
 > project and withdraw it from SourceForge and all
companies that use it.
 > 
 > I have to tell that we have made many changes during
the time of the
 > project that has not been payed by the Customer and
are not used by the
 > customer.
 > 
 > They deleted emails on my notebook during yesterdays
visit and tell all
 > employees of the customer to not speak with us. I do
backups so I have
 > not lost any documentation.
 > 
 > We are small company we are only 2 plus one external
member. We do not
 > have to much money to spend on the attorneys. Do you
know somebody who
 > is able to help us in this case?
 > 
 > The court conference is on September 5, 2006 in United
States District
 > Court, Albany, New York. The magistrate judge is David
R. Homer.
 > 
 > I will send you the agreement with the customer and
jury trial documents
 > and other documents on request. 
 > 
 > We are convinced that the agreement with our customer
can not give them
 > copyright rights to software under Academic Free
License.
 > 
 > Thank you for your help in advance.
 > Ladislav
 > 
 > -- 
 > Ladislav Urban
 > CEO
 > Webswell Inc.
 > 1333 Howe Avenue, Suite 100
 > Sacramento, 95825 CA
 > email: ladislav.urbanwebswell.com
 > phone: +1 (916) 290-2040
 > fax: +1 (916) 921-2850
 > http://www.webswell.com
 > 
 > 
 > 
 >
-------------------------------------------------------
 > Using Tomcat but need to do more? Need to support web
services,
 > security?
 > Get stuff done quickly with pre-integrated technology
to make your job
 > easier
 > Download IBM WebSphere Application Server v.1.0.1
based on Apache
 > Geronimo
 > http://sel.as-us.falkag.net/
sel?cmd=lnk&kid=120709&bid=263057&dat=121642
 > _______________________________________________
 > ebxmlrr-tech mailing list
 > ebxmlrr-techlists.sourceforge.net
 > https://lists.sourceforge.net/lists/listinfo/ebxmlrr-te
ch 
 > 

At 02:27 PM 5/3/2006 -0400, Russ Nelson wrote:
>I'm not a lawyer; this isn't a legal opinion; and it
isn't even an
>official OSI position.

IAAL, but this is not legal advice.

>Unless you've made some other arrangement, the default
ownership of
>copyright goes to whoever paid for the creative effort
("A Work for
>Hire").

This is not true.  Whether something is a work for hire
depends on 
the specific circumstances of its creation.  By default,
copyright 
belongs to the person who authored the work.

The work will be deemed "for hire" only if made
by an employee in the 
scope of employment (not an independent contractor) or if
the 
work-for-hire relationship is spelled out in a contract or
the payor 
directed the effort, with precise instructions and
oversight.

--Wendy

-- 
Wendy Seltzer -- wendyseltzer.com
Visiting Assistant Professor of Law, Brooklyn Law School
Fellow, Berkman Center for Internet & Society
http://cybe
r.law.harvard.edu/seltzer.html
Chilling Effects: http://www.chillingeff
ects.org

Russ - the issue of who owns the copyright is far more
involved than you
think.  It is not as simple as determining who paid for the
development or
whether the development was commissioned by the customer. 
The situations in
which a work qualifies as a "work made for hire"
under copyright law are
fairly limited.  Customers often misunderstand this issue -
they think they
will own the copyright, but then discover down the road that
they have only
a limited license to use the software.

I do not think the company has a clear understanding of the
case against it.
We would need to see the Complaint to have a better idea of
what the case is
about and who owns the copyright.



Dave
David A. Temeles, Jr.
Temeles & Temeles, PC
703.354.7905 x 230 (Tel)
703.354.7905 (Fax)
dtemelesnvalaw.com
1616 Anderson Road, Suite 101
McLean, VA 22102

STATEMENT OF CONFIDENTIALITY:
The information contained in this electronic message and any
attachments to
this message are intended for the exclusive use of the
addressee(s) and may
contain confidential or privileged information. If you are
not the intended
recipient, please notify David A. Temeles, Jr. immediately
at either (703)
354-7905 x 230 or at dtemelesnvalaw.com, and destroy all
copies of this
message and any attachments


-----Original Message-----
From: Russ Nelson [mailto:nelsoncrynwr.com] 
Sent: Wednesday, May 03, 2006 2:27 PM
To: David RR Webber (XML)
Cc: osiopensource.org; license-discussopensource.org; Ladislav
Urban
Subject: Re: [FWD: RE: [Ebxmlrr-tech] License issue with our
customer]

I'm not a lawyer; this isn't a legal opinion; and it
isn't even an
official OSI position.

Unless you've made some other arrangement, the default
ownership of
copyright goes to whoever paid for the creative effort
("A Work for
Hire").  If you modify a copy of open source code for
someone, they
own the copyright on it, even if you own the copyright on
the original
open source work.  Some open source licenses require that
modifications be contributed (e.g. APSL, RPSL, and ohers). 
The AFL is
not one of these licenses.

If, on the other hand, your customer make a suggestion for
what he
wanted in your Open Source product, and you sold him the
first copy
that had those features, then he has no copyright rights.

It go either way.  The crucial missing detail is whatever
arrangement,
agreement, or contract Ladislav made with his customer.

David RR Webber \(XML\) writes:
 > -----Original Message-----
 > From: Ladislav Urban [mailto:ladislav.urbanwebswell.com] 
 > Sent: Wednesday, May 03, 2006 12:34 PM
 > To: ebxmlrr-tech
 > Cc: Sacha Schlegel; Vladimir Alexovic
 > Subject: [Ebxmlrr-tech] License issue with our
customer
 > 
 > Hello all,
 > we have recently successfully completed integration
project (May 2,
 > 2006) based on our integration package Webswell
Connect. This package is
 > under Academic Free License and uses Ebxml Reg/Rep and
other components
 > associated with Freebxml.
 > 
 > Our customer decided to charge us with copyright
breaking issue at the
 > court. The claim is that all open source software is
copyrighted
 > property of the customer because he payed our company
to fix the bugs in
 > Webswell Connect. They accuse us from false
advertisement that Webswell
 > Connect in the recent version belongs to Webswell and
is spread under
 > Academic Free License. They want us to reverse all
changes that have
 > been made by us on any OS SW that is used on the given
integration
 > project and withdraw it from SourceForge and all
companies that use it.
 > 
 > I have to tell that we have made many changes during
the time of the
 > project that has not been payed by the Customer and
are not used by the
 > customer.
 > 
 > They deleted emails on my notebook during yesterdays
visit and tell all
 > employees of the customer to not speak with us. I do
backups so I have
 > not lost any documentation.
 > 
 > We are small company we are only 2 plus one external
member. We do not
 > have to much money to spend on the attorneys. Do you
know somebody who
 > is able to help us in this case?
 > 
 > The court conference is on September 5, 2006 in United
States District
 > Court, Albany, New York. The magistrate judge is David
R. Homer.
 > 
 > I will send you the agreement with the customer and
jury trial documents
 > and other documents on request. 
 > 
 > We are convinced that the agreement with our customer
can not give them
 > copyright rights to software under Academic Free
License.
 > 
 > Thank you for your help in advance.
 > Ladislav
 > 
 > -- 
 > Ladislav Urban
 > CEO
 > Webswell Inc.
 > 1333 Howe Avenue, Suite 100
 > Sacramento, 95825 CA
 > email: ladislav.urbanwebswell.com
 > phone: +1 (916) 290-2040
 > fax: +1 (916) 921-2850
 > http://www.webswell.com
 > 
 > 
 > 
 >
-------------------------------------------------------
 > Using Tomcat but need to do more? Need to support web
services,
 > security?
 > Get stuff done quickly with pre-integrated technology
to make your job
 > easier
 > Download IBM WebSphere Application Server v.1.0.1
based on Apache
 > Geronimo
 > http://sel.as-us.falkag.net/
sel?cmd=lnk&kid=120709&bid=263057&dat=121642
 > _______________________________________________
 > ebxmlrr-tech mailing list
 > ebxmlrr-techlists.sourceforge.net
 > https://lists.sourceforge.net/lists/listinfo/ebxmlrr-te
ch 
 > 

It is clear from the description of the case that the
company does not
understand the claims stated in the Complaint filed in the
USDC against
them.  If Mr. Urban can post the Complaint filed, I can help
summarize the
claims for him so that he can quickly explain the case to
potential counsel.
Unfortunately, however, I am not a member of the N.Y. Bar
and I cannot offer
him legal advice.  

Very truly yours,

Dave
David A. Temeles, Jr.
Temeles & Temeles, PC
703.354.7905 x 230 (Tel)
703.354.7905 (Fax)
dtemelesnvalaw.com
1616 Anderson Road, Suite 101
McLean, VA 22102

STATEMENT OF CONFIDENTIALITY:
The information contained in this electronic message and any
attachments to
this message are intended for the exclusive use of the
addressee(s) and may
contain confidential or privileged information. If you are
not the intended
recipient, please notify David A. Temeles, Jr. immediately
at either (703)
354-7905 x 230 or at dtemelesnvalaw.com, and destroy all
copies of this
message and any attachments


-----Original Message-----
From: Zak Greant [mailto:zak.greantgmail.com] On Behalf Of Zak
Greant
Sent: Wednesday, May 03, 2006 1:45 PM
To: David RR Webber (XML)
Cc: osiopensource.org; license-discussopensource.org; Ladislav
Urban
Subject: Re: [FWD: RE: [Ebxmlrr-tech] License issue with our
customer]


On May 3, 2006, at 10:30PDT (CA), David RR Webber ((XML))
wrote:

> Team,
>
> Can anyone provide some help for Ladislav here?
>
> Seems like once again corporate lawyers are trying to
trample on open
> licensing...

The people at the Software Freedom Legal Center can't
directly help  
(as they only help projects, not companies) but they may be
able to  
recommend a lawyer who can help. Contact them at  
helpsoftwarefreedom.org asking for recommendations for a
lawyer (and  
include concise background information)

Cheers!
--zak

Quoting Ben Tilly (btillygmail.com):

> If it was a work for hire, then it is not open source
code no matter
> what the people who wrote it may have said.  If it was
not a work for
> hire, then the authors can do what they want with the
code, including
> release it as open source.  Whether or not it will be
determined to be
> a work for hire depends upon the exact facts that are
presented about
> the case.

If one wants to properly understand "work for
hire" copyright caselaw in
USA jurisdictions, I'd highly recommend reading the
pertinent USSC
opinion, for CCNV v. Reid, 490 US 730 (1989).  It's a very
lucid and
clear writeup.

http://casel
aw.lp.findlaw.com/scripts/getcase.pl?navby=search&court=
US&case=/us/490/730.html

> PS A note for the future.  It is generally a good idea
to get a real
> lawyer involved BEFORE cases go to court.  Lawyers can
do many things
> for you.

Including avoiding shooting yourself in the foot during the
vital
pre-trial period -- a habit depressingly endemic among
computerists, 
especially given their tendency to yammer first and think
afterwards.

-- 
Cheers,             
Rick Moen                 "Anger makes dull men witty,
but it keeps them poor."
ricklinuxmafia.com                                   --
Elizabeth Tudor

[Snip osiopensource.org from distribution.]

Quoting David RR Webber (XML) (daviddrrw.info):

> Team,

Hmm, let's not let "team" become a synonym for
"co-defendents in a
lengthy and eminently avoidable UPL action", please. 
More below.

> Can anyone provide some help for Ladislav here?
> 
> Seems like once again corporate lawyers are trying to
trample on open
> licensing...

As you'll have seen, both the lawyers and the non-lawyers
(like yr.
humble correspondent) are obliged to carefully avoid giving
anything 
that can be plausibly argued to be "legal
advice".

For the lawyers subscribed here, even if they were licensed
for legal
practice in Ladislav's jurisdiction, and were inclined to
give out for
free to completely unfamiliar strangers what they do for a
living,
professional ethics would oblige them to have an actual
consultation
with the client _first_, to ensure that their advice fits
the client's
situation.

For us non-lawyers, it is a specific, serious statutory
offence for them
to render specific legal advice to specific parties. 
However,
discussing the law's particular _without_ reference to
particular
current cases and their affected parties is perfectly lawful
-- not to
mention interesting and a civic obligation.  USA subscribers
interested
in understanding the boundaries between those situations
might want to
read about the abortive attempt in 1997 by the Texas
"Unauthorized
Practice of Law Committee" to ban the publications of
Berkeley,
California self-help law publisher Nolo Press from all Texas
libraries
and bookstores[1].  This effort was quickly swatted flat by
legislative
action, and so never adjudicated, but in 2001 the Ohio
Unauthorized Practice
of Law Board clarified the matter a great deal more,
concerning the case
of "Office of Disciplinary Counsel v.
Palmer"[2], where one David Palmer
had been operating a Web site giving out no-charge legal
information.
The Board found that Palmer's Web discussion board had
broken no laws,
because "one key element of the practice of law is
missing in published
advice offered to the general public: the tailoring of that
advice to
the needs of a specific person."

That's it, in a nutshell:  General information (and
information about
hypothetical cases, or views on the legal affairs of people
whom you're
not actually _advising_ on their problems) is fine. 
Advising people on
their specific legal problems is not.

I therefore strongly ask that people not EVER ask, here, for
what David
Webber did:  The lawyers overwhelmingly cannot do it (and in
tiny
exceptions _should_ not); the non-lawyers would do so only
very
illegally and at grievous risk to themselves.

[1] http://web.archive.org/web/20031202150003/www.nolo.
com/texas/
[2] http://www.usatoday.com/tech/columnist/2002/02/01/si
nrod.htm



Ladislav --

Whether a software work produced for a consulting customer
is a "work
for hire" within the meaning of copyright law is
partly determined by 
sections 17 U.S.C. 201(b) and 17 U.S.C. 101 of the Copyright
Act, and
partly by related factual tests established by caselaw (see:
CCNV v.
Reid).

"Employee", "independent
contractor", etc. must be interpreted according
to their term-of-art meanings within the law of agency,
rather than as
used informally or (in particular) as defined by
employers/customers --
which definitions get ignored by the courts as irrelevant to
the issue.

To be a "work for hire", the software would
either have to be "prepared
by an employee within the scope of his or her
employment" in the case
of someone not considered (per agency law) an independent
contractor, 
_or_ (in the case of independent contractors) would have to
exist in one
of nine categories of "specially ordered or
commissioned" works
enumerated in section 101 subsection 2 plus there being a
written
agreement that "work for hire" treatment should
apply.

For the exact provisions and for the nine categories, see
the Copyright
Act wording and CCNV v. Reid.  (For one thing, I might be
talking out my
hat, and my analysis might be work a great deal less than
rien du tout.)

I have _no_ reason to render any opinion about how those
general legal
principles apply to your case -- and for reasons mentioned
above am 
very scrupulously avoiding giving one.  (You very clearly do
need
competent professional legal counsel, and I trust you have
hired some.)
Good luck with your situation.

-- 
Cheers,             
Rick Moen                 "Anger makes dull men witty,
but it keeps them poor."
ricklinuxmafia.com                                   --
Elizabeth Tudor