Question on OSD #5

[Chris Travers]

On Nov 24, 2007 6:12 PM, Matthew Flaschen <matthew.flaschen at gatech.edu> wrote:
> Chris Travers wrote:

> IANAL, but your employee would be in violation of their contract.  I'm
> not sure about copyright law.

The question is whether a copyright license to the general public
exists for modifications intended to remain private and never
intentionally distributed by the author to other parties.  Given the
Novel v. SCO issue on the APA amendment II, I would think not, but
IANAL.


>
> > If patents were involved, such clandestine distribution would not
> > automatically license the patents, by my reading.
>
> IANAL, but I think what happens is the company argues that licensing
> patents is out of the scope of the employee's job.  Thus, a receptionist
> can never successfully license something.  But the general counsel may
> be able to, even against company orders.

My argument would be simpler (IANAL).  Any express or implied license
to copyright or patent rights needs to be something agreed to by the
licensing party.  A rogue employee distributing open source software
in a clandestine manner would not qualify as an agreement with the
company, and I would argue that this would be the case even if an
officer of the company did so in a clandestine manner (for example, if
the CEO took the software home and put it on his personal web site).
Even parties normally able to issue licenses would not be able to do
so if not acting in an official capacity.

If we can agree that mere use of the software does not grant a patent
right to others, and that private modifications do not grant patent
rights by their mere existance, the question is whether the manner of
distribution creates an agreement with the business or not.

However, the major issue here is that such restricted modifications
themselves are not open source in any meaningful sense, even if the
parent works are.  In fact, I would suggest that private modifications
which are never distributed are not open source in any meaningful
sense.  However, this doesn't really make any real difference to the
OSI or any other body.

Best Wishes,
Chris Travers