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Re: reinvent (for GPL) code u wrote for employer who owns it?

From: Alexander Terekhov
Subject: Re: reinvent (for GPL) code u wrote for employer who owns it?
Date: Tue, 24 Mar 2009 12:17:37 +0100

Rjack wrote:
> Barry Margolin wrote:
> > In article <>,
> > (Name withheld by request) wrote:
> >
> >> How might one ethically/legally re-write a suite of scripts one wrote
> >> for a former employer, so that the new code may be shared under GPL?
> >
> > IANAL, but I think this is likely to be difficult.  You have to ensure
> > that your new code looks nothing like the old code.

"One way to avoid infringement when writing a program that is similar to
another program is through the use of a “clean room” procedure. This is
what was done when companies cloned the BIOS of the IBM personal
computer to produce compatible systems. In a clean room procedure, there
are two separate teams working on the development of the new program.

The first team determines how the original program works, by examining
its source code if it is available (IBM published the source code for
its BIOS in a technical manual), by reverse engineering the program (by
converting its object code back to source code and attempting to
understand it or by testing it to see how it behaves), or by studying
available user manuals and other descriptions of the program’s function.
This first team puts together a complete technical specification that
describes the functioning of the original program. Such a specification
is not an infringement, since the copyright in the original program
doesn’t protect its functionality, only the expression in the program
that creates that functionality. Generally, an intellectual property
attorney will review the functional specification to assure that it does
not contain any protected expression from the original program.

Given the functional specification, a second team of programmers,
metaphorically in a “clean room” uncontaminated by the original program,
implements the new program. These programmers have not seen the source
code of the original program. In fact, it is best if they have never
seen any aspect of the original program, getting all their knowledge of
it from the functional specification. Because they haven’t seen the
original program, they cannot be copying it, even unconsciously.

A limited clean room was used by programmers at Altai when they
discovered that one of their employees had written a program that
included portions of a program he had worked on at a competitor.
Although Computer Associates v. Altai {FN106: 982 F.2d 693, 23 USPQ2d
1241 (2d Cir. 1992)} does not spend much time on the clean room aspects
of Altai’s new implementation, it does suggest that such a procedure
results in a program that does not infringe as long as the portions that
are similar are dictated by function."

> >
> > The GPL is irrelevant to this question, it's the same problem no matter
> > how you plan on licensing the new code, unless your old employer gives
> > you permission.  Otherwise, there's likely to be a presumption that you
> > copied some of your previous code, which you don't have rights to (the
> > copyright belongs to the ex-employer).
> >
> The best guide would be to study the principles underlying the
> abstraction-filtration-comparison test used by the courts to
> answer infringement questions.


(GNG is a derecursive recursive derecursion which pwns GNU since it can
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards
too, whereas GNU cannot.)

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