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 Post subject: Here's a preservation and collection question for you.......
PostPosted: Tue Jan 03, 2023 1:05 am 

Joined: Sat Jul 02, 2005 7:16 am
Posts: 1998
I’d like to post a hypothetical scenario here which is rather extreme but at the same time it’s quite intriguing. I’m posting this because it pertains to preservation and something somewhat similar to this happened a few years ago. I’d like to get the input of the people on this board as to the legal ramifications and where the various participants would stand on this matter.

Here’s the situation:
A man works for a company for many years, he is a loyal and valued employee, and he is approaching retirement age. The company which is a subsidiary of a much larger corporation is gradually spiraling downhill and the employee decides that he wants to retire before it is sold. Over his many years of work he has acquired a large collection of advertising and public relations handouts, technical papers, and memorabilia. Most of these items, while not easily available to the public, are not copyrighted and were distributed to customers and available to other employees as well. The managers who made the items available to him had the authority to do so.

Following his retirement, the large corporation decides to sell the subsidiary, and it is purchased by an independent company which retains ownership for nearly a decade. During this period of time the man passes away and his extensive collection of memorabilia is passed along to his next of kin. They decide to donate some of the items to a nonprofit historical group’s library and make others generally available to support the efforts of authors doing historical journalism. One other interesting twist here, during this period of time the large corporation that formerly owned the company goes bankrupt and is dissolved.

Subsequently the company the man worked for is sold again, but this time to a subsidiary of a giant corporation. So the company has been sold twice now since the man retired, and once since he passed away.

Some time passes in one day the phone at the deceased employees house rings and this is a call for his widow from a high-powered lawyer at the giant corporation. The lawyer has heard that the man’s collection of papers is being made available to others for research and demands that everything be immediately rounded up sent to the current owners of the company. (The third owner since the deceased employee retired). The lawyer has no idea what exactly is in the collection, he just knows that it pertains to the company his corporation has acquired.

So here’s the question: Does the man’s family need to comply with any part of this demand?

I’ll give you my input on this just for information. I’m no lawyer, but my understanding from running a company is that when the company is sold there is no continuing obligation on the employees. The current employees are basically all terminated and rehired, if they desire to stay, when the ownership of the company changes hands. It is not a pass-through matter.

As far as living former employees who have retired are concerned, their status is entirely a matter for their retirement fund and Social Security and completely outside the issue of the company they used to work for changing ownership.

Regarding deceased former employees leaving their collections to the next of kin, it seems to me that once the probate has been filed and the collections handed over that is entirely a family matter and nobody else’s business.

And with regard to employees returning any company materials when they retire, I would think that matter needs to be negotiated before they get out the door, and it is the obligation of the company to state exactly what materials they were given and what materials they are to return and provide the employee with a list.

So I would think that the widow is justified telling the high-powered corporate lawyer “Sorry can’t help you”.

Your thoughts on this? Have fun. Happy 2023.

PC

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 Post subject: Re: Here's a preservation and collection question for you...
PostPosted: Tue Jan 03, 2023 3:54 am 

Joined: Wed Jan 16, 2019 8:47 pm
Posts: 216
Seems like an oddly specific hypothetical...

Firstly a disclaimer- I'm not a lawyer. But it sounds to me like said items were legitimately given to the employee and thus became his private property which he could do with what he pleased from then onward- including passing them down to heirs who could then do whatever, including donating the items.

Especially since it sounds like these would be items of relatively low value, which were handed out free to customers, this (in my opinion) wouldn't pass the sniff test for any court proceedings.

For example, if I gave out free advertising with my company's name/logo to people- I don't have the standing to demand they give me what is now their property. Add to that degrees of removal of selling the company- the new owners still do not have any more of a claim to the property than I did.

If I were the person receiving these demands I would consult a lawyer- but it sounds like a load of BS to me.


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 Post subject: Re: Here's a preservation and collection question for you...
PostPosted: Tue Jan 03, 2023 7:45 am 

Joined: Fri Aug 27, 2004 4:02 pm
Posts: 1742
Location: Back in NE Ohio
I agree with Boilermaker. A bluff to try and intimidate. If the man's family were trying to reproduce pieces of the items for sale, the company might have a copyright claim, but otherwise no way. Although one never knows, the way the courts have been packed with corporate-shill judges in the last decade.


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 Post subject: Re: Here's a preservation and collection question for you...
PostPosted: Tue Jan 03, 2023 9:39 am 

Joined: Thu May 24, 2012 1:37 pm
Posts: 2213
Not a lawyer, but have been involved in IP matters for a while.

The initial question is whether any or all the materials are in copyright. That will govern some of what can be done with the material... and accepted copyright law also deals with issues of fair use and ownership rights.

The second question is what the reasons the now-owning company might have in wanting to recover the material. If it is the technical property of the company, I'd argue that a good set of scans would represent most if not all the actual scholarly value to 'others' (and steps to make the appropriate scans taken promptly, before further issues might present themselves).

I might add that, on matters of copyright access, I am firmly of the opinion that 'sharing copies' via a closed repository is legal unless the author indicates otherwise. Once the author ceases to profit by further sale/resale of his or her work, "copyright" starts serving the purposes of rare book dealers and other gatekeepers rather than the actual people who did the work of production.

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 Post subject: Re: Here's a preservation and collection question for you...
PostPosted: Tue Jan 03, 2023 11:57 am 

Joined: Sat Jul 02, 2005 7:16 am
Posts: 1998
Yes the scenario is quite detailed because it is a close parallel to something that actually happened to the family of a friend who had passed.

One detail I probably should add, the first owners of the company threw a lot of the records and promotional material in the trash before they sold the place, so the lawyer for the third owner probably exploited an opportunity to attempt to bluff the family into handing over a lot of historical material that might restore the company archives at little or no cost.

PC

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 Post subject: Re: Here's a preservation and collection question for you...
PostPosted: Tue Jan 03, 2023 11:58 am 

Joined: Thu Oct 08, 2015 11:54 am
Posts: 1773
Location: New Franklin, OH
Same disclaimer, not a lawyer and there’s really not enough detail here but I’ll throw in my two cents.

I don’t believe there’s a copyright issue here at all. Wearing my graphic artist hat, I’ve produced a lot of promotional artwork so I’m relatively hip to how copyright applies in cases like these.

If these were promotional materials - nonproprietary things that were meant to be consumed outside, or even inside the company, with no expectation of return or of privacy - I’d tell the lawyer to go pound sand. This would be akin to the successor corporations that currently own the movie studios demanding all the theater posters back from the 50’s. Very thin legal ground if any so good luck with that. If this is the case, I’d presume this is a shot in the dark. It would be difficult to think that a large corporation would be willing to spend money on fighting over this but stranger things have happened. If they want materials for historical purposes, they could simply ask or offer compensation appropriate to the collection’s value.

However, if the technical papers are proprietary and were not meant for public viewing - like trade secrets for example - they, the corporate lawyers, may have a leg to stand on.

“Public” in this instance would be any entity to which the info was given or meant to be given without an expectation of returning or protecting any information contained within those materials.

You’d have to know the details of the contents of the technical papers to determine if the demand may be valid in any way or not. Like I said, not enough detail here.

Appearances count for a lot - bad form from the corporation in my opinion.

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 Post subject: Re: Here's a preservation and collection question for you...
PostPosted: Tue Jan 03, 2023 1:32 pm 

Joined: Sun Aug 22, 2004 1:51 pm
Posts: 11481
Location: Somewhere east of Prescott, AZ along the old Santa Fe "Prescott & Eastern"
As someone with both professional and "School of Hard Knocks" training in archives work:

"Possession is 9/10ths of the law."

It's only in recent decades that the whole rigamarole of "ownership of intellectual property" has been applied to/by corporations and employees. These days, it's common for companies to force employees to sign non-disclosure agreements that basically purport to claim ownership of anything the employee thinks about anywhere.

I had one friend of mine take the NDA he was asked to sign to a lawyer, and refused to sign until certain clauses were modified to mutual understanding. As he told me later, "They are hiring me for microprocessor and semiconductor application research. Under the terms of that piece of garbage they wanted me to sign, they would have had ownership of any homebrew beer recipe I came up with, any improvement of firearms hardware, or any improvement mods I made to a racing car engine!" (And he well could have done all of the above in his spare time. Those were his hobbies.)

An awful lot of what I have catalogued and/or transferred to various rail museum archives I could verify was rescued from abandoned stations, pulled out of dumpsters behind railroad or library buildings, or carefully collected by OCD timetable collectors.

Sincerely, the analogy that comes to mind with such a far-reaching demand--not to drag politics into this--would be the massive FBI raids on Trump's residence in a "fishing expedition" or "witchhunt" for "incriminating" evidence. Which, at least for the most part, turned out (depending on how much you despise Trump & Co.) to be a "big nothing."

Yes, there are indeed some gray areas involved. Ever noticed the line on or inside the covers of most employee timetables stating something along the lines of "For the Governance of Employees Only"? I always made sure never to have a current ETT in my car on the property even when on legitimate RR business. But then again, the last ETT I picked up was apparently a pirated copy of a current BNSF systemwide ETT that fell out of some trespassing "hobo-wannabe" renegade rider's bag along the ATSF Transcon.........

Overmod wrote:
I might add that, on matters of copyright access, I am firmly of the opinion that 'sharing copies' via a closed repository is legal unless the author indicates otherwise. Once the author ceases to profit by further sale/resale of his or her work, "copyright" starts serving the purposes of rare book dealers and other gatekeepers rather than the actual people who did the work of production.


That's not even an opinion. That's policy. Otherwise, we can shut down every public, private, and academic library in existence. ("They got the library in Alexandria; they sure as Hell won't get MINE!" as the one bumper sticker I have proclaims.)

There exist people who sell digitized versions of ETT and PTT collections and/or Official Guides, Official Railway Equipment Registers, etc. Those people, thanks to the wretched excesses of Disney protecting a totally characterless character, are on somewhat shaky legal ground, but more resources are going to be thrown at the Hollywood movie DVD bootleggers than those folks that may not even be really making a worthwhile profit.

The proper response to this attorney, assuming the situation has been properly described AND no known Draconian NDA contracts cover any of the employment in question, involve two words, the second being "off." And if that fails, I suggest the approach of Rat in "Pearls Before Swine"......
(Seems my copy of his baseball-bat-smashing strategy is too big for here......)


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 Post subject: Re: Here's a preservation and collection question for you...
PostPosted: Tue Jan 03, 2023 2:22 pm 

Joined: Tue Aug 24, 2004 2:35 pm
Posts: 406
Location: NJ
Wonder what would have happened if the widow was also deceased?

I would tell that lawyer to take a hike.

One thing I have found over many years in government, meeting many lawyers, they don't know much about specifics. They rely on the technical folks to feed them information.

Have him / her make the demand in writing noting the exact reason the documents need to be returned. My bet it is will be nonsense.

There is an old adage that comes to mind, "If you have the facts on your side, pound the facts; if you have the law on your side, pound the law; if you have neither the facts nor the law, pound the table."

Sounds like this lawyer is pounding the table.

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 Post subject: Re: Here's a preservation and collection question for you...
PostPosted: Tue Jan 03, 2023 2:53 pm 

Joined: Thu Oct 08, 2015 11:54 am
Posts: 1773
Location: New Franklin, OH
Concerning NDAs, a lot of theses were/are not really enforceable as they weren’t very specific, kinda like throwing everything at the wall and seeing what sticks. They need to be very specific in terms of intellectual property. One of my employers asked that I sign an NDA. After reading it, and having a lawyer look at it, my comment was that it wasn’t enforceable since it would restrict any other activity, company related or not, and employment I may seek elsewhere. I didn’t sign it and they never brought it up again.

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 Post subject: Re: Here's a preservation and collection question for you...
PostPosted: Tue Jan 03, 2023 5:21 pm 

Joined: Tue Sep 14, 2004 7:52 am
Posts: 2560
Location: Strasburg, PA
Since it was publicly disseminated material anyway, the widow might suggest that the lawyer put his paralegal to watching eBay if he wants to start his own collection...

So, if some corporation buys up whatever surviving corporate remnant of Baldwin Locomotive Works that happens to still exist, are they going to sick their lawyers on DeGolyer Library demanding their blueprints back?


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 Post subject: Re: Here's a preservation and collection question for you...
PostPosted: Tue Jan 03, 2023 5:49 pm 

Joined: Thu May 24, 2012 1:37 pm
Posts: 2213
There is an issue here, that has been alluded to but for which we'd need to know something specific to the company (actually, companies) involved.

It was and is "not uncommon" for a corporation to have employees sign an agreement that any intellectual property they develop "with corporate resources or on company time" is the property of the company, or at the very least granted nonexclusive but full rights to. I'd be interested to see if, for example, EMD had this or a similar clause somewhere in its employee agreements.

For this to survive corporate 'transfer' would (at least, I think) require explicit confirmation that all rights are transferred as part of the surviving collateral. An issue very similar to this killed the idea that the steam_tech Yahoo group would be ported over to groups.io -- there was an explicit clause in the groups.io TOS that any intellectual property on a hosted site could become the property of any 'acquiring entity' without notice or recourse. There were plenty of participants for whom that alone was a dealbreaker.

At one point in my brief career as an exercise impresario, I had a client with an early-model Precor treadmill, which was perfectly serviceable except that the SCR had failed and perhaps taken out components on the control board. This part was no longer stocked by Precor, or any other parts house I could find, so (as I was a licensed Precor tech) I asked for a copy of the schematic to troubleshoot any problems correctly.

I was told I could not see them "because they were proprietary". So here was a client who in good faith paid somewhere north of $5000 for an exercise machine, which the company not only could not or would not repair. Made me so mad I almost thought about breaching the term in the technician's agreement I signed that I would not attempt to reverse-engineer any Precor components -- as it turned out, I remoted the SCR itself onto one of the frame rails, which made a far more excellent heatsink than existed on the driver board, and hardwired the six pins on the board to the six terminals. It ran, but the bad taste in my mouth over that attitude toward clients has stuck with me ever since...

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 Post subject: Re: Here's a preservation and collection question for you...
PostPosted: Tue Jan 03, 2023 8:58 pm 

Joined: Sat Oct 17, 2015 5:55 pm
Posts: 2279
Certain entities, e.g. Caterpillar Tractor Co., were infamous for being litigious to the point of overkill long before it became routine. I recall a series of incidents in the 1980s involving a used equipment dealer in the Peoria area that called itself Earthworm Tractor, with a small e emblem similar to the C Caterpillar used at the time. Caterpillar was outraged and tried to wear him down in court to get him to change his name. To get back at them the used dealer trademarked a company called Raterpillar (that he said sold used rats) and they again dragged him through court until he sold them the rights (which cost him a ton of legal fees). So watch out if it is them.


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 Post subject: Re: Here's a preservation and collection question for you...
PostPosted: Tue Jan 03, 2023 9:33 pm 

Joined: Sat Jul 02, 2005 7:16 am
Posts: 1998
Just for information, I was told in the 1970s at EMD by Ken Williams (Publications Manager) and Bill Becker (Service Manager) that EMD did not print any copyright notices on many of their maintenance and training related documents prior to that time because if customers copied them, it assisted the distribution and reduced the need to print more copies, and the information in the documents was specifically intended to help maintain the equipment which helped to support the marketing and sales efforts.

To quote Bill Becker: "This is why Service Department is organized as part Sales Department".

I was also told at EMD that there was no such thing as "confidential" relating to printed material handed over to customers as part of sales proposals or training classes. Once an electrical print (for example) was put in a bid submission or handed out to students they considered it to be public information.

When you are handing packs of books and schematics to 20 students a class, two (or three) classes per week, 52 weeks a year, to claim anything given out is "confidential" is just silly.

PC

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 Post subject: Re: Here's a preservation and collection question for you...
PostPosted: Wed Jan 04, 2023 10:05 am 

Joined: Wed Jul 26, 2017 4:24 pm
Posts: 113
No is a complete sentence. Also I like to stir the proverbial septic tank and would tell them to pound sand or something probably too salty and cursed filled to write here


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 Post subject: Re: Here's a preservation and collection question for you...
PostPosted: Wed Jan 04, 2023 7:56 pm 

Joined: Sun Aug 22, 2004 9:16 am
Posts: 495
Location: Northern Illinois
[quote="PMC"]Certain entities, e.g. Caterpillar Tractor Co., were infamous for being litigious to the point of overkill long before it became routine. I recall a series of incidents in the 1980s involving a used equipment dealer in the Peoria area that called itself Earthworm Tractor, with a small [i]e[/i] emblem similar to the C Caterpillar used at the time. Caterpillar was outraged and tried to wear him down in court to get him to change his name. To get back at them the used dealer trademarked a company called Raterpillar (that he said sold used rats) and they again dragged him through court until he sold them the rights (which cost him a ton of legal fees). So watch out if it is them.[/quote]

Maybe the used equipment dealer was a fan of Joe E. Brown movies from the 1930/40's.

https://en.wikipedia.org/wiki/Earthworm_Tractors


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