Re: "State trooper lays claim to software he developed"

Nice one Terry. And for my students, if I had any, I would be looking for the First Amendment angle. If not copyrightable, what right does the state have to suppress speech? Is there anything in the nature of "software" that would distinguish it from, say, a pamphlet published by the state and modified by the trooper? (And, as far as the copyright clause of the Constitution is concerned, does the interest of the state, as author, pale in comparison to the interest in prohibiting the state, as censor?)

John

On Jan 16, 2007, at 5:55 PM, Terry Carroll wrote:

> Interesting story over at
> http://www.jsonline.com/story/index.aspx?id=552682 ...
>
> Basic facts are that a Wisconsin state trooper modified some software,
> apparently originally written by the state of Iowa. Whether he did
> so on
> state time and using state facilities, or under the state's
> direction, is
> apparently subject to dispute. Wisconsin is demanding he turn over the
> code. The trooper has filed suit, in a state court.
>
> This would make a great exam question.
>
> Work made for hire: he's an employee, but is this within the scope of
> employment? What if the state specifically gave him time and
> facilities
> for development, as it claims? What if he also did it on his own
> time?
> He's in a union, so the state must have a collective bargaining
> agreement
> with his union; assuming that that agreements spells out the duties
> of a
> state trooper, and software development is not among them, what impact
> does that have on the issue of scope of employment?
>
> Implied license: even if the state loses on the ownership issue, if it
> really did give him time and facilities, does it at least get an
> implied
> license? Including to the source code?
>
> If the trooper is the author and owner, can he commercialize it? The
> state of Iowa is the owner of the underlying code he modified. And
> distribution of his code would necessarily distribute the Iowa
> work. See
> Stewart v. Abend for the impact of that.
>
> Wait a minute... is this even copyrightable? Iowa provided the
> program on
> the condition that it not be commercialized. Under 103(a), which
> denies
> copyright to any part of a derivative work in which pre-existing
> material
> has been used unlawfully, maybe no one even has a copyright here.
>
> And can this case go forward in state court? What's his claim?
> Does it amount to a declaratory action for copyright ownership? If
> so, that's probably exclusively in the federal courts. But if it's
> for,
> for example, breach of the union agreement, maybe it's not preempted.
> Which might even lead to a counterclaim of infringement, by the
> state of
> Wisconsin, in state court. (At least one state has held that a
> counterclaim of infringement does not divest the state court of
> jurisdiction.)
>
> And if Wisconsin successfully removes to federal court, can it
> still plead
> Eleventh Amendment immunity, or will the removal amount to waiver? (I
> seem to recall a case saying that removal does not amount to
> waiver, but
> couldn't cite it if I had to.)
>
> Like I said, great exam question.
>
>
>
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Received on Thu Jan 18 2007 - 03:55:01 GMT