Comment by ghurtado | Hacker News Reader

Comment by ghurtado | Hacker News Reader

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Fair point.

I will point a couple:

- He says that contractors "by default" own the IP of the work they do for their employers. This is actually exactly the opposite: "work for hire" means that the employer owns the IP by default: http://contently.net/2013/07/09/find-work/work-made-for-hire...

- He glosses over / minimizes the fact that most of these "invention assignment" clauses are doomed in a court of law more often than not (even ignoring the states that outright prohibit them) if they do not fall within the scope of employment (sorry, I don't have a reference here, but I have heard of many such cases being thrown out in court)

As a business owner, he comes across as having a very clear agenda which is at odds with the reality of the law and the actual outcomes of these cases in court.

That link and Joel seem to agree. By default the contractor owns the IP, unless the contract contains the legal phrase "work made for hire." Maybe you should have kept reading?

I think you misunderstand: all work done by an independent contractor is by default "work made for hire" unless explicitly stated otherwise.

Not according to the Copyright Act of 1976:

https://www.copyright.gov/title17/92chap1.html

A “work made for hire” is— (1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.

Well, I'll be damned: it looks like you're right.

I think I was probably misremembering my experience as a software contractor, in that I don't think I ever signed a single contract that did not include the "work for hire" stipulation.

Ironically, it seems far from clear that "work for hire" even applies to software: http://www.lexology.com/library/detail.aspx?g=59a4a8c4-c446-...

Yes, and what is a "work for hire" besides a work made under a contract saying it's a work for hire?

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