[ILUG] looking for linux software people

[Silent Partner]

On Monday, Dec 30, 2002, Gavin Henrick wrote:

> /me did Commercial Contract Law when studying for a post grad dip.
> (I am not a lawyer though)
>
> It is down to what is seen as fair by the courts, which will
> historically allow for some restriction but it will probably (at a
> guess) be short timespan.

No disrespect to you or your educators, but that is complete BS.
Courts apply law, the letter of the law, period. What is fair or
otherwise does not come into it. You get law in a court, not justice.
Again, IANAL, but I have been through the courts system enough times
to work this one out, and have been advised of this by my lawyer on
each occasion.

Where a judge can apply fairness is in the imposition of a sentence or
requirement on the defeated party, that is usually at his own
discretion (with guidelines from the law), but legally challengable
through appeals to enforce it to be brought into line with law. The
establishment of which party should be defeated is always done 100% in
accordance with law, be that contract law or the law of the land.
Fairness, or the fairness opinions of a single person are not brought
into proceedings, thats what keeps the court system relatively clean
and even handed.

If you, in a legally binding fashion, sign yourself up to give the
boss a BJ every morning, then that is your legal responsibility to him
irregadless of it being fair or not in the context of your employment
by him as a linux developer. You had a fair chance not to sign the
legally binding document or to sign it in a manner that was not
legally binding (which can usually be had by keeping your mouth shut,
random pen strokes at clause numbers, and signing on the spot without
question, chances are your rights have been infringed).

Its not just a matter of having a signed doc from someone, the manner
in which the signed document was obtained has bearings on its
legality. You do have rights, and you should always endeavour to have
them infringed so that you dont have to worry about what you've just
signed, and work on ethically. Signing quickly before they can comply
with their lawyers request to advise you to have a lawyer look over
the doc before signing will get you out of all NDA's, according to my
lawyer. If you are presenting an NDA, present it, but dont let go of
the physical doc until you have explained the signors rights to them.

> But this is completely different to the use of private art
(copyright)
> which has its own substantial set of laws and is not so simple.
> copyright exists from the moment something is written, so if you
write
> something completely "new" for a company as part of your
work/contract
> for them, they own it unless your contract states otherwise. Not
really
> grey here :)

I think the grey area issue being debated is if the company owns the
know-how that you developed under their employment to create that
copyrighted piece of work.

On this issue, I would take an ethical stance, and if my employer was
in the business of writing and selling an MTA, then while I am
expected to have built up a collection of experience with this
employer, I should not be able to enable this employers opposition to
create a comparable / better MTA system with the experience I have
gained. However, as this experience relates to specific coding
problems, I should be able to take my key MTA experience and apply it
to a peer to peer music distribution network problem if that was what
my new employer required, and if so doing, did not decrease the market
share of my original employer.

In short, don't be the babysitter who beats the kids, and if you're in
the employment game, don't be the guy who f$#ks the babysitter. Keep
it clean and fair children, then you are unlikely to be challenged and
should have little to worry about.

SP