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Could a “Dilbert” cartoon or a child’s homework paper bring copyright troubles to a corporation? Deborah Bailey-Wells thinks so. Bailey-Wells, an intellectual property partner in the San Francisco office of Baker & McKenzie, has been warning her clients that off-site, telecommuting employees can be putting their companies at risk of a whole range of copyright infringement charges. She said the strict controls that companies establish against misuse of other people’s intellectual property seem to evaporate when employees are working from home. An at-home employee may rip a “Dilbert” cartoon from the newspaper, scan it into the computer, and send it in to the company electronic bulletin board. That’s a source of potential copyright liability, she said. The questions with which courts will have to struggle, she predicted, are whether at-home employees operate on their own or within the scope of their employment, and whether a company’s internal electronic bulletin board “functions like an Internet service provider.” HOMEWORK LIABILITY The issue of the child’s homework paper is troubling to employment law specialist Debra L. Fischer, a partner at San Francisco’s McCutchen, Doyle, Brown & Enersen. Letting the kids research their school projects on a database licensed to the parents’ employer may well be a violation of the licensing agreement, “a breach of an agreement with the third-party vendor,” she said. Some companies have subscriptions to electronic journals. If every employee downloads many chapters from those journals, prints them out, takes some home and sets them up on a bookshelf, the limits of fair use might well be exceeded. “Technically, if you bring these home and use them for something other than work, you might be violating these agreements,” Fischer said. Piracy is a big concern for a Washington, D.C.-based trade group, the Software & Information Industry Association (SIIA). Keith Kupferschmid, SIIA’s intellectual property counsel, said that companies increasingly are being meticulous about the software they allow to be loaded onto in-house computers. “But how do you implement software policies when you have employees working at home?” he asked. “You’re losing the level of control and the ability to audit that employee’s computer. And this is especially difficult when you have a computer that’s also used for personal purposes.” He warned that companies “cannot turn a blind eye” to employees’ at-home use of pirated software to do work to which they are assigned. Companies need to make sure the software used at home for office work is properly licensed, he said. “When you have full-time employees working from home and not giving them the tools to do the job, how do you think they’re doing their jobs?” he asked. The dangers may be particularly acute at startup companies, suggested John C. Fox, chairman of the employment and labor group at Palo Alto, Calif.’s Fenwick & West. His clients are young Silicon Valley companies whose employees may move back and forth between telecommuting and working at the office. Many of the companies he counsels are “as loose as a goose. We have a hard time getting simple policies in place.” He said, however, that he hasn’t had any different experiences regarding infringement problems between telecommuting and at-work employees. “The issues and the problems are equally large at both locations,” he said.

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