[FWD: RE: [Ebxmlrr-tech] License issue with our customer]

Wed May 3 18:38:19 UTC 2006

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)
dtemeles at nvalaw.com
1616 Anderson Road, Suite 101
McLean, VA 22102

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-----Original Message-----
From: Russ Nelson [mailto:nelson at crynwr.com] 
Sent: Wednesday, May 03, 2006 2:27 PM
To: David RR Webber (XML)
Cc: osi at opensource.org; license-discuss at opensource.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.urban at webswell.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.urban at webswell.com
 > phone: +1 (916) 290-2040
 > fax: +1 (916) 921-2850
 > http://www.webswell.com
 > 
 > 
 > 
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 > 