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Simple question, maybe not an easy answer: my employer gave me an MSDN subscription linked to my home hotmail account.

Can I download Visual Studio and write code at home with this license? I would be working after business hours on my own personal projects.. Would my company own the personal project because I used their Visual Studio license?

edit: just to be clear: my personal project is a video game, and my company does not make games, and in fact is in a completely different industry

dferraro
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  • If you are not working for the employer but on your own project, the code is yours. But your employer is sharing the license, which may be against the MSDN license, i.e. one license, one user. Check to see what type of license it is: single user, or site/business license. – BlueDogRanch Jan 24 '17 at 00:34
  • I would disagree... if the employer owns the tools (license) to the software you are using.. the employer owns what you create using it. – Scott Jan 24 '17 at 00:44
  • presuming that your employment agreement covers IP assignment clause, work product is owned by employer. Your personal project is not part of the work product. By using employer's infrastructure you'll dilute your rights. Is this personal project similar to your company's work or belongs to an altogether different area where your company have no interests either in present time or in future. – lawsome Jan 24 '17 at 01:35
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    @Scott, any work for hire must be explicitly identifiable from the employment contract, and cannot derive from the fact of using an employer-provided tool. The employer's recourse is to forbid using such tools, and does not make a person's IP "work for hire". – user6726 Jan 24 '17 at 02:22
  • If you say so @user6726 I think the mere fact that the employer provided tools would go a long way to establishing a work-for-hire position. – Scott Jan 24 '17 at 04:20
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    If I write a document at work using the pen on paper that my boss gives to me for that job, the document is theirs. If I take the pen and paper home, then write a different document related to my personal project with it, that second document belongs to me. I might get in trouble with my boss for taking the pen and paper home, or for using them on a personal project, but it's still my* document*. –  Jan 24 '17 at 04:46
  • @Nij, what if the pen and paper is a specific type and a really expensive one, not available without a license, specially given to you only for company's work. – lawsome Jan 24 '17 at 08:07
  • That's irrelevant to who owns the documents made with it. If I stole the paper and pen from someone I didn't know and didn't work for, then wrote it with them, the documents don't belong to the complete stranger. Yes, I can be prosecuted for theft and sued for damages caused by loss, but the copyright stays with me. Now if my contract of employment said "every document written by me belongs to my boss" or even "every document I make using this tool will belong to my boss" then that's obviously a transfer of copyright and/or corporate authorship, and this is a moot discussion. –  Jan 24 '17 at 08:18
  • Not irrelevant to me if I employ someone to write documents and provide them tools with specific functionality which is not available otherwise. Also I don't know what Visual Studio is but it is something for which an employer has paid money. – lawsome Jan 24 '17 at 08:27
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    Well, what you do about your employees using your expensive tools is your problem. But when it comes to copyright, unless you have a specific contract to say otherwise, what you think is irrelevant, is ironically irrelevant. –  Jan 24 '17 at 09:49
  • @Nij, see my answer. Do you think absence or presence of an IP assignment clause would have made any difference to outcome of Missing Link v. Magee. – lawsome Jan 24 '17 at 13:47
  • Some of this might vary based on where you are, as you may have signed something from your employer which may or may not be valid, based on where you are. – Andy Feb 04 '17 at 19:12

3 Answers3

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If the code is unrelated to your employment you own the copyright no matter if it is written in Visual Studio, on a piece of paper or tattooed on your butt. In the same way a sculptor owns the copyright in their sculpture even if they use someone else's chisel.

Using Visual Studio in this way may, however, violated your contract with your employer and/or their contract with Microsoft. Why go there? Visual Studio Community is free.

Dale M
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  • I think you'd need more information to answer this, as there's most likely an agreement the OP signed that details this. Some employers do claim any software you write while employed by them is the property of the employer, even if at home using your own tools. – Andy Feb 04 '17 at 19:14
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This would be an interesting stackexchange post to read. Not much legal content here but probably the same situation.

For the sake of a good legal argument:

Focussing on work for hire, since employer-employee relationship is clear and under no controversy here.

It is well settled law that employer own's the work product and can't have any claim on personal projects. In US, UK or common law the employer is treated as the first owner, but not deemed to be the author. Whereas in Civil law jurisdiction like Germany the ownership rights are firstly linked with the author and employer gets the ownership rights by assignment or contract.

Common law policy cites reason for first ownership to employers because employers provide infrastructure and facilities so that creative works can take place. This is seen as contribution of employers towards production of new works. Also they are in better position to market and exploit the product. And further to cut the transaction cost for assignment of rights like in civil law. Employees are rewarded by pay, continued employment, promotion etc. [Source: Bentley & Sherman]

The only test for this proposed question is to see whether a work is produced in the course of employment.

It does not necessarily means the office working hours or produced at home with personal resources.

Missing Link Software v. Magee [1991] FSR 14:

An employee wrote software outside work time and on his own equipment. Court found it to be in the course of employment and employer was given the ownership rights.

Reasoning: Employee was hired to write programs of the kind in dispute. It fell within the scope of tasks he was employed to carry out and he was employed at the time of writing it.

As I also said the area/project for which you are writing program, its proximity with the employer's business and your duties at employment are going to be a major factor.

Community
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lawsome
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  • Without an explicit clause to support it, the outcome in Missing Link still has at least other reasoning in it's favour, it would have to be a very heavy benefit of doubt otherwise. Such a clause would have made the problem moot unless it specified "personal projects exempt" - and then we're back at the original case anyway, just being considered from the other side of the question. –  Jan 24 '17 at 18:54
  • Absence of IP assignment clause would have also allowed the outcome in Employer's favor in Magee case. It would have been back to the intention of parties, their conduct & kind of work etc. lets rest this discussion here and keep more for other topics. – lawsome Jan 24 '17 at 20:13
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This will depend on jurisdiction, and on your employment contract.

In Germany, if you are a regular employee (abhängig Beschäftigter), then by default your employer owns all the rights to use to works you produce "to fulfill the duties imposed by the employment" (in Erfüllung seiner Verpflichtungen aus einem Arbeits- oder Dienstverhältnis, §43 Urheberrechtsgesetz).

So anything you produce as part of doing your job belongs to the employer(*). Conversely, if you do anything not related to your job, it's yours. It does not matter if you did it on company time or using company equipment - that may violate your employment contract and may get you fired, but does not by itself assign any rights to your employer.

(*) You still retain authorship rights, such as the right to be named as the author. These rights are inalienable in Germany (unlike e.g. in the US). However, the employer receives all rights that are practically relevant, such as the right to use and copy.

Of course, in practice the boundary between "job duty" and "private work" may be a bit blurry, so it's best to play it safe and keep private stuff at home. But using a software license provided by your employer will not give them any rights to the work you produce.

sleske
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  • I doubt that, after google translating and reading the clause you've linked , it seems to talk about authorship rights which are moral rights and it doesn't matter if you are in UK, US or France , use whosever equipment, no-one can take away your authorship rights. But Ownership rights are in issue here. – lawsome Jan 24 '17 at 08:50
  • @lawsome:The clause is part of subsection 2, "Nutzungsrechte", i.e. "right of use". So it is about what the employer may do. It is not about authorship rights, which, as you correctly point out, are inalienable in Germany. – sleske Jan 24 '17 at 10:04
  • Anyway, I edited to clarify the distinction. – sleske Jan 24 '17 at 10:06
  • My bad @sleske, my mind is not accustomed to civil law. I was on a different track. I hope you'll like reading this german decision [link] (http://lexetius.com/1983,1). The facts are very similar to this post. – lawsome Jan 24 '17 at 13:00
  • @lawsome I'm not sure how German law would impact anything at all in the US, unless one of the parties is in Germany. I write software in the US, and I'm fairly certain the authorship rights being moral rights concept doesn't exist here. – Andy Feb 04 '17 at 19:22
  • @Andy: Yes, AFAIK the whole concept of "moral rights" is mostly restricted to civil law. According to Wikipedia some of it carried over to civil or specifically to US law, but not a lot. – sleske Feb 04 '17 at 20:34
  • @sleske I'd be weary about putting too much stock in Wikipedia for law, but even if we did trust it, it seems moral rights are around visual arts, not software. – Andy Feb 04 '17 at 20:42