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Software and Copyrights
The Ninth Circuit recently applied in the software context the rule that absent a written agreement to the contrary, the employer is the author of a work made for hire. Copyrights in software often trigger work for hire and employer-employee agency questions because of the fact that so much software development occurs within corporation or through 1099 independent contractors.
In US Auto Parts Network, Inc. v. Parts Geek LLC¸692 F.3d 1009 (9th Cir. 2012), US Auto Parts filed a copyright suit against Parts Geek, but the district court dismissed the suit finding that the plaintiff did not own the copyright to the software at issue. The Ninth Circuit reversed. In the case, the plaintiff during its start-up phase developed the software through some employees of a predecessor company. Specifically, the employees took some licensed pre-existing software and arguably created a derivative work. The software developers were employees and so the plaintiff argued the software was a work for hire belonging to the predecessor company, which rights were transferred to the plaintiff when it acquired the predecessor.
The Ninth Circuit found that the software developers could have been employees—making the work one for hire and thus belonging to the plaintiff—because there was evidence that the development work was within the scope of their employment, conducted duringhours and done by proper employees. The Court thus has required a trial to assess the questions more fully.