Re: Help with another copyright problem

Jeff Lewis asks:
>
> We're having some problems with an ex-employee programmer who is claiming
> copyright protection for some code that he produced while he was working
> here. He was annoying enough about it (filing suit) that we signed an
> agreement stating that he can have the copyright, as long as we are
> licensed to both modify his code and continue distributing the software
> he developed free of charge. But the problem we're having now is that our
> programmers have been building on and refining and debugging that code, as
> well as incorporating pieces of it in entirely new programs. The ex-employee
> feels that use of any piece of the code he has copyrighted in a new
> program means that the agreement we signed must apply to that new piece
> of software.
>
> My first question is, what kind of granularity can he legally claim for the
> copyright protection on his code? Does the incorporation of 4 lines of code
> from one of his programs give him any claim on the new program? Or does it
> take the use of a whole function? Or a library of functions?
>
> And my second question is whether there is any concept of a derived work that
> applies here - how much modification must a software system go through before
> it's a new work? Can we claim that our agreement allows us to produce
> derived works, and therefore we get all the copyright protection for the new
> software?

It looks as if a number of mistakes were made. First, as an employee his claim to the copyright may have been rather fragile - but once you agree that he can have it Sec. 201 would give the employee the copyright. Once having failed to contest his ownership you should have made clear in your agreement that you had this right to include "his" code in "your" code. Having failed to do that your are forced into a gray area. Depending on the facts you might be able to claim fair use - as a non-profit educational insitution using small amounts of the program. But this is the kind of case where you will probably need the advice of a knowledgeable attorney who has access to all the facts.

  Don Berman --  

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