On 11/1/05, Daniel Mayer maveric149@yahoo.com wrote:
Having an intellectual property officer was part of my platform in the first board election. This person would be the official point-of-contact for the foundation on these matters. I think it is high time we create such a position as part of the legal department. We *don't* want to be trademark and copyright Nazis, but at the same time we do need to have somebody who is tasked with representing the foundation on these matters when needed (as a final step in the illegal mirror review process and as one of the first steps in the trademark protection process; of course, asking nicely at first, yada, yada).
I don't understand how you can expect to maintain a trademark without someone authorized to make decisions about what is OK and what isn't. I don't see how this type of decision can be made ahead of time because it is so dependent on the specific circumstances. Not allowing anyone to use the trademarks for any commercial purpose would obviously be unacceptable, and if you're going to let people do whatever they want, then there's no sense in having the trademark in the first place (and supposedly you'd lose it anyway). But I don't know. Jean-Baptiste Soufron is an IP lawyer, and thinks we don't need one, so I'd defer to his opinion. I should note though that he says it "can be easily done by any officer of the Foundation, or local chapter representative." So really I think the only question is whether to have someone dedicated to the task or someone who does it as one of his/her many duties. You could also have a bunch of people doing the same thing without having a single person tasked with coordinating things, which is probably what's being done now, and probably isn't a good idea.
According to the US Code, a work made by an employee within the scope of his
employment is *always* a work made for hire. The copyright may have been transfered (and that transfer can be terminated after 35 years), but
AFAIK
you can't change the authorship of a work.
Perhaps. But my gut feeling is that only really applies when a specific work is commissioned... That is not the case with almost all of what Brion does. He is pretty much paid to do what he thinks is best (that itself, may or may not be legal). Either way, copyright ownership is a transferable asset, so if needed we'd just need to draw-up a contract whereby the foundation gives ownership of his paid copyrighted work as part of his compensation.
Actually, I think there's probably a good argument that Brion isn't actually an employee. If he does whatever he thinks is best, sets his own hours, and uses his own tools (computers and such owned by him), then he's probably not an employee. But that just opens up a whole different can of worms, so forget I mentioned it. Anyway, Robert Scott Horning seems to disagree with me, but I don't see how you can read the law any way other than that work by an employee within his scope of employment is anything but a work made for hire, regardless of any agreement to the contrary.
This is a very important point that we need to work out; if Brion's work is
owned by the foundation, then the foundation may need to account for that as an asset (this part of the law confuses me though since some types of software fall under it and others do not).
I think the IRS did away with amortization of software which isn't acquired from another entity. But don't quote me on that. You'd have to do some research or talk to someone more knowledgable about that stuff.
Since I don't yet know how to do that and I'm
the CFO, I'd much rather have Brion retain ownership of all his work if it means less work for me. :-) I wonder how free/open source software companies do this. For that matter, how the FSF does this since they like to have GNU software copyright assigned to them (I don't recall if that means transfer of ownership).
-- mav
You can access the 990 for the FSF and most other non-profits at www.guidestar.org http://www.guidestar.org. It's free, but you need to set up an account. That'd give you a good idea how the FSF runs its books. Anthony