The other issue is, as a contractor, the contractor retains all copyrights to the material created. Work for hire does not apply in this instance.
He could send a DMCA takedown notice and have all of his articles removed, or organize all the other unemployed writers and coordinate a massive DMCA takedown letter writing campaign.
Virtually all contractors in our field work under "work-for-hire" clauses. I am baffled by the people voting you up and those questioning you down. It is not "in the Constitution" that two parties can't agree to a binding contract that transfers ownership of work product.
The IRS tests for contractor vs. employee status break down to:
* Does the worker control the "how" as well as the "what" of their task, or do they have to e.g. work at proscribed locations during set hours?
* Does the worker control the business aspects of their work, for instance the cost of tools, the expenses incurred, &c.
* Has the company employing the worker done things to create a de facto employee relationship, such as offering benefits?
None of these are bright-line differences. Contractors routinely work on-site, 9-5, using tools provided by their employers; however, care has been taken in structuring the relationship (for instance, by working corp-to-corp with a large consulting firm or head shop that itself maintains a W2 relationship with the workers).
It is indeed possible or even likely that AOL is treading a fine line by 1099'ing the people writing its content. On the other hand, AOL can afford pretty good lawyers, and it's equally likely that every aspect of their workflow has been structured to avoid imputing employee status to people doing piecework writing for them. You should tone down your stridency. There are a lot of people on HN that consult professionally.
It is true that a contractor generally retains ownership in any original work of authorship but AOL, in paying for the work, would get an implied license to publish that work as intended by the contract - that is its point in paying for it (much as any website owner who might fail to secure copyrights from a contractor who does work for his site, though he may not own the rights or be able to prevent the contractor from re-using the work elsewhere, nonetheless may use it for his own site in having paid for the work for that purpose). Thus, A DMCA takedown notice could not be used to remove any of the articles.
Contracts of this type also would normally be expressly framed as work-for-hire contracts and would also provide for the assignment of all rights to work that did not technically meet the criteria of works made for hire. Such clauses are valid and enforceable and are indeed a staple of every tech developers invention-assignment agreement. They apply with equal force to works of authorship by an independent writer. Assuming the contract here is so framed, AOL would own the copyrights in the works of the author.
The employee-contractor question, on the other hand, is a tricky one. This is a murky area but one where, generally, the lower the skill level and the more the worker must abide by company-defined procedures and schedule in how the work is done (among many other factors), the greater the risk of being classified as an employee. Many writers work independently with no risk to anyone of their being treated as employees but the AOL situation described in this piece might be vulnerable to audit risks owing to its assembly-line aspects. Hard to say without knowing a lot more detail.
Depends on the contract the IC signs with AOL. However, unless the copyright to the work(s) is specifically assigned, it remains with the creator. My guess is that AOL has this covered however.
He may be determined to be an employee by the IRS. He would then lose all IP rights, but would receive a tax refund, while AOL would receive a tax penalty.
He could send a DMCA takedown notice and have all of his articles removed, or organize all the other unemployed writers and coordinate a massive DMCA takedown letter writing campaign.
Even if this were true (it isn't), what difference would it make? The content he was writing was ephemeral fluff, designed to fill the daily news hole. It's not like Wikipedia. They could lose everything that all these writers wrote up to 6 months ago and chances are that nobody would notice. Guy got fired because he would have had to be treated differently for tax purposes if they had kept him on the payroll any longer, I suspect.
The content creator licenses the content. Not a "get".
17 U.S.C. § 101
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.
Just because it's not a work made for hire doesn't mean the company can't receive the copyright. A copyright holder is always free to transfer the copyright; if AOL has two brain cells to knock together, their contracts with these contractors include a clause saying that the copyright is transferred to AOL.
It's not the case that contractors are guaranteed copyright to their work; in fact, the opposite is more common. The issue of copyright doesn't come up in the IRS criteria for contractor vs. employee.
It's not the case that contractors are guaranteed copyright to their work; in fact, the opposite is more common.
It is in the constitution, actually, "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;"
The issue of copyright doesn't come up in the IRS criteria for contractor vs. employee.
No, but the IRS's determination of the business relationship between the two parties affects the applicability of work-for-hire.
As someone who runs a application design and development business I have yet to receive or sign a contract that doesn't explicitly state the final disposition for the rights to the resulting IP. I would find it hard to believe that there's a publishing outlet that doesn't do the same in their contractor agreements, particularly with writers.
No actually code, on its own is not patentable, systems and algorithms are. All those cool Apache and BSD licenses are about copyright which apply equally to code and a news article.
The issue is that the agreement may not be valid because of the business relationship between the two entities.
A "work made for hire" is anything an employee makes in the scope of his or her employment OR as a contractor "...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."
If he was treated by AOL as a contractor, but was determined by the IRS to be an employee, he would be entitled to a refund for the excessive taxes he paid as a contractor and AOL would then be liable for those taxes. However, he would lose all IP rights to the content (because he was an employee).
However, if he were an employee, and the IRS determined he was a contractor, and there was no written "work made for hire" agreement (because the company assumed he was an employee and a signed agreement was unnecessary), he would retain all rights to his works.
In his specific case, if is is determined by the IRS to be a contractor, the agreement he signed would have to be specifically for a "work made for hire" and his works were "...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."
I'm not sure if writing search engine spam constitutes any of those.
If you sign a professionally drafted contract stating that you are being compensated for writing done on a work-for-hire basis, you are not keeping the copyright to your work regardless of whether the IRS determines that your employer owes penalties and interest for stiffing them on your payroll taxes.
I am saying if you sign a work for hire agreement, and are later determined to be an employee, the company owns the IP because you are an employee of the company, not because you signed a 'work for hire' agreement.
Conversely, if the company assumed you didn't need to sign a 'work for hire' agreement because you were an employee, but the IRS determined you were a contractor, you would retain the rights to your works.
Not quite. The constitution doesn't stipulate the relationship between contractors. The part of the constitution that you've cited establishes copyright as a concept. It doesn't denote that every work you create is automatically owned by you. While it is true that works you create on your own time are by default protected by copyright, you can also enter into work-for-hire and other intellectual property agreements that alter the status of what you create.
See this comment:
http://news.ycombinator.com/item?id=2666507
The other issue is, as a contractor, the contractor retains all copyrights to the material created. Work for hire does not apply in this instance.
He could send a DMCA takedown notice and have all of his articles removed, or organize all the other unemployed writers and coordinate a massive DMCA takedown letter writing campaign.