<div>Rick,</div>
<div> </div>
<div>I should have been more explicit - I was chiefly looking for someone
with expertise whom Ladislav could contact directly - social
networking.</div>
<div> </div>
<div>Clearly discussing nitty gritty of a specific legal case is not what
this list is about ; -)</div>
<div> </div>
<div>We'll stick to crafting licenses that keep people away from the holes
and ravines along the road. The intersection of contract and
license is that fractured inexact science which we're always struggling
with it seems.</div>
<div> </div>
<div>It appears that we're getting Ladislav some help for his specific
case so hopefully he can get that resolved expeditiously.</div>
<div> </div>
<div>Thanks, DW</div>
<DIV id=wmMessageComp name="wmMessageComp"><BR><BR>
<BLOCKQUOTE style="PADDING-LEFT: 8px; MARGIN-LEFT: 8px; BORDER-LEFT:
blue 2px solid">-------- Original Message --------<BR>Subject: Re:
[FWD: RE: [Ebxmlrr-tech] License issue with our customer]<BR>From: Rick
Moen <rick@linuxmafia.com><BR>Date: Wed, May 03, 2006 6:25
pm<BR>To: license-discuss@opensource.org<BR>Cc: Ladislav Urban
<ladislav.urban@webswell.com><BR><BR>[Snip osi@opensource.org
from distribution.]<BR><BR>Quoting David RR Webber (XML)
(david@drrw.info):<BR><BR>> Team,<BR><BR>Hmm, let's not let "team"
become a synonym for "co-defendents in a<BR>lengthy and eminently
avoidable UPL action", please. More below.<BR><BR>> Can anyone
provide some help for Ladislav here?<BR>> <BR>> Seems like once
again corporate lawyers are trying to trample on open<BR>>
licensing...<BR><BR>As you'll have seen, both the lawyers and the
non-lawyers (like yr.<BR>humble correspondent) are obliged to carefully
avoid giving anything <BR>that can be plausibly argued to be "legal
advice".<BR><BR>For the lawyers subscribed here, even if they were
licensed for legal<BR>practice in Ladislav's jurisdiction, and were
inclined to give out for<BR>free to completely unfamiliar strangers
what they do for a living,<BR>professional ethics would oblige them to
have an actual consultation<BR>with the client _first_, to ensure that
their advice fits the client's<BR>situation.<BR><BR>For us non-lawyers,
it is a specific, serious statutory offence for them<BR>to render
specific legal advice to specific parties. However,<BR>discussing
the law's particular _without_ reference to particular<BR>current cases
and their affected parties is perfectly lawful -- not to<BR>mention
interesting and a civic obligation. USA subscribers
interested<BR>in understanding the boundaries between those situations
might want to<BR>read about the abortive attempt in 1997 by the Texas
"Unauthorized<BR>Practice of Law Committee" to ban the publications of
Berkeley,<BR>California self-help law publisher Nolo Press from all
Texas libraries<BR>and bookstores[1]. This effort was quickly
swatted flat by legislative<BR>action, and so never adjudicated, but in
2001 the Ohio Unauthorized Practice<BR>of Law Board clarified the matter
a great deal more, concerning the case<BR>of "Office of Disciplinary
Counsel v. Palmer"[2], where one David Palmer<BR>had been operating a
Web site giving out no-charge legal information.<BR>The Board found
that Palmer's Web discussion board had broken no laws,<BR>because "one
key element of the practice of law is missing in published<BR>advice
offered to the general public: the tailoring of that advice to<BR>the
needs of a specific person."<BR><BR>That's it, in a nutshell:
General information (and information about<BR>hypothetical cases,
or views on the legal affairs of people whom you're<BR>not actually
_advising_ on their problems) is fine. Advising people
on<BR>their specific legal problems is not.<BR><BR>I therefore strongly
ask that people not EVER ask, here, for what David<BR>Webber did:
The lawyers overwhelmingly cannot do it (and in
tiny<BR>exceptions _should_ not); the non-lawyers would do so only
very<BR>illegally and at grievous risk to themselves.<BR><BR>[1]
http://web.archive.org/web/20031202150003/www.nolo.com/texas/<BR>[2]
http://www.usatoday.com/tech/columnist/2002/02/01/sinrod.htm<BR><BR><BR><BR>Ladislav
--<BR><BR>Whether a software work produced for a consulting customer is
a "work<BR>for hire" within the meaning of copyright law is partly
determined by <BR>sections 17 U.S.C. 201(b) and 17 U.S.C. 101 of the
Copyright Act, and<BR>partly by related factual tests established by
caselaw (see: CCNV v.<BR>Reid).<BR><BR>"Employee", "independent
contractor", etc. must be interpreted according<BR>to their term-of-art
meanings within the law of agency, rather than as<BR>used informally or
(in particular) as defined by employers/customers --<BR>which
definitions get ignored by the courts as irrelevant to the
issue.<BR><BR>To be a "work for hire", the software would either have
to be "prepared<BR>by an employee within the scope of his or her
employment" in the case<BR>of someone not considered (per agency law)
an independent contractor, <BR>_or_ (in the case of independent
contractors) would have to exist in one<BR>of nine categories of
"specially ordered or commissioned" works<BR>enumerated in section 101
subsection 2 plus there being a written<BR>agreement that "work for
hire" treatment should apply.<BR><BR>For the exact provisions and for
the nine categories, see the Copyright<BR>Act wording and CCNV v. Reid.
(For one thing, I might be talking out my<BR>hat, and my analysis
might be work a great deal less than rien du tout.)<BR><BR>I have _no_
reason to render any opinion about how those general
legal<BR>principles apply to your case -- and for reasons mentioned
above am <BR>very scrupulously avoiding giving one. (You very
clearly do need<BR>competent professional legal counsel, and I trust
you have hired some.)<BR>Good luck with your situation.<BR><BR>--
<BR>Cheers, <BR>Rick Moen
"Anger makes
dull men witty, but it keeps them poor."<BR>rick@linuxmafia.com
-- Elizabeth Tudor
</BLOCKQUOTE></DIV>