A Briton has lost an appeal bid to claim copyright over software he wrote for his employer while being handsomely paid for doing so – despite saying he wrote parts of it in his spare time.
Michael Penhallurick had his case thrown out by Court of Appeal judges in London yesterday following his failed attempt to assert copyright over his Virtual Forensic Computing (VFC) suite in the High Court last year.
The former South Yorkshire police worker had claimed VFC was licensed to MD5 Ltd and the company infringed that licence when it stopped paying him sums of money he described as licensing fees, two years after he left MD5.
“The parties’ subjective intentions are not relevant to interpretation,” observed judge Sir Christopher Floyd. “As a consequence, it can often happen that the objective construction of an agreement does not align perfectly with the subjective intention of either party.”
Thus, said Sir Christopher, the words “the software developed at MD5 Ltd by yourself and sold as VFC” in a 2008 agreement between the developer and the company legally meant that copyright over VFC was owned by MD5.
As previously reported, Penhallurick had been paid 7.5 per cent of VFC’s annual sales, with those payments continuing for two years after his 2016 resignation. MD5 successfully argued in the High Court that the money was paid for ongoing support rather than royalties or licensing fees. The lack of a single clear contract resulted in the dispute going to court.
Discussing the 2008 agreement’s mention of a “bonus”, the Court of Appeal judge ruled: “I see no reason why that bonus should not be taken as valid consideration for the agreement to assign the copyright in such works as vested in the appellant as a result of his continuing work until the appellant left the respondent’s employment. Section 91 of the CDPA 1988 would then treat such copyrights as vesting in the respondent by operation of law.”
Praising barrister Nicholas Caddick QC’s “ingenious” arguments on Penhallurick’s behalf, Sir Christopher rejected them anyway and ruled in MD5’s favour, with fellow judges Lord Justice Arnold and Mrs Justice Falk agreeing.
His Honour Judge Hacon, sitting in the High Court, had previously found that everyone at MD5 knew Penhallurick was writing VFC for the company, including creating multiple versions of it, and paying him a cut of the sales as compensation for his work.
As we said previously: if you’re a dev working on something of your own, double check your contract of employment. Even if you’re doing it mostly in your spare time. ®
VMware has restored availability of vSphere 7 Update, a release that it withdrew in late 2021 after driver dramas derailed deployments.
Paul Turner, Virtzilla’s veep for vSphere product management, told The Register that the source of the problem was Intel driver updates that arrived out of sync with VMware’s pre-release testing program. When users adopted the new drivers – one of which had been renamed – vSphere produced errors that meant virtual server fleet managers could not sustain high availability operations.
Turner said around 30,000 customers had adopted the release, of which around eight per cent encountered the issue. That collection of around 2,400 impacted users was enough for VMware to pull the release before the other 270,000 vSphere users hit trouble. That level of potential problems, Turner admitted, was considered a sufficient threshold to justify a do-over and the embarrassment of a pulled release.
VMware has since reviewed its testing program and procedures in the hope it will avoid a repeat of this error. Doing so, and repairing the release, meant a busier-than-usual holiday period for VMware developers. Turner said those who put in the extra hours will be compensated with extra time off in the future.
VMware also used the time needed to get the release ready to ensure that vSphere 7 U3 thoroughly addresses the Log4j bug. It took the opportunity to update to the latest version of the tool – which is free of the critical bug that allowed almost any code to execute without authorisation.
But VMware decided not to add anything new to vSphere while it addressed Log4j and sorted out the driver drama. Users will have to wait a few more months for another dose of VMware’s usual concoction of security updates and feature tweaks.
There’s more interesting stuff on the way, too. VMware has promised a full vSphere-as-a-Service offering is in the works, and the Project Capitola software-defined memory tech that will pool RAM across hosts. The company has also dropped hints that its plan to run its ESX hypervisor on SmartNICs is nearing release.
VMware has detailed the new/old release here and made downloads available here.®
The EU’s antitrust chief Margrethe Vestager said she was satisfied for the company now known as Meta to pursue its Kustomer acquisition after it struck a deal for rivals.
Meta, the company formerly known as Facebook, has secured antitrust approval from the EU to pursue its acquisition of US customer services software start-up Kustomer.
The social media giant’s decision to acquire the start-up attracted EU scrutiny last April, months before its rebrand. Then known as Facebook, the company planned to integrate Kustomer’s products, including a chatbot, into its service.
Now, Meta has assured the European Commission that it will provide rivals free access to its messaging channels for 10 years.
The EU was satisfied that this addressed competition concerns which previously arose from the company’s decision to acquire Kustomer.
“Our decision today will ensure that innovative rivals and new entrants in the customer relationship management software market can effectively compete,” EU antitrust chief Margrethe Vestager said in a statement.
Facebook had initially announced its acquisition plan in November 2020. In February 2021, the Irish Council for Civil Liberties wrote to the European Commission outlining its concerns over data that Kustomer had gathered and what might happen to that data under Facebook’s watch. The Commission also received a referral request from Austria flagging concerns over the Kustomer deal.
Other Meta acquisitions have also attracted the scrutiny of competition regulators. Last November, the UK ordered Meta to sell Giphy after its acquisition of the GIF making company was found to have breached competition rules. In the US, it is facing an antitrust suit that could force the company to sell WhatsApp and Instagram.
The EU’s decision to allow Meta to pursue the acquisition of Kustomer comes following a recent vote in the European Parliament in favour of the Digital Services Act, a companion of the Digital Markets Act. The act represents the EU’s attempt to shift the balance of power away from Big Tech in favour of ordinary people.
The long-debated act was hailed by Facebook whistleblower Frances Haugen as a “gold standard”.
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‘OK, Dad, this is an incredible essay on the effects of grief and grey morality in a postapocalyptic society,” says the eldest child, AKA the millennial. “It’s got proper female characters, progressive takes on sexuality and tonnes of rain.”
“They’ve made a video game of The Handmaid’s Tale?”
“No, Dad. It’s The Last of Us. Don’t worry. It’s still a zombie shooter. And both games have the best ending ever.”
Now she has my interest. Video game endings fascinate me, because my generation started out with arcade games that didn’t have them. Pac-Man kept eating dots and chasing ghosts and the Space Invaders kept coming, wave after incessant wave. The first arcade game that had an actual ending was Dragon’s Lair and nobody actually saw that because it was so hard to complete.
I have a tough start with The Last of Us because I hate games where you search for stuff in every room of a house. I spend my normal life doing that with car keys and headphones. I want games where you walk into a room and all the objects get sucked into a magic pocket. But that isn’t realistic, I hear you cry. Well, neither is only being able to carry three shivs in a world where, despite the zombie apocalypse, cargo pants clearly still exist.
I also hate any form of crafting, because that was what my generation had to do for “fun” as kids before we had video games. Whether it’s smoke bombs from sugar and explosives or a set of Action Man drawers from matchboxes, it’s all boring to me.
“Keep going,” I tell myself. “The millennial says it’s got the best ending ever.”
Throughout the first chapter of Joel and Ellie’s jaunt across a post-infected US I keep trying to guess what this great ending will be. Maybe Ellie isn’t immune to infection after all? Maybe Joel is her real father? Maybe they’re both unwitting participants in some reality TV show, I’m Infected Get Me Out of Here?
As you will all know by now – and if you’ve yet to play The Last of Us then please stop reading – the ending has Joel murder a perfectly innocent and well-intentioned doctor who wants to cut Ellie open to find a cure that will save humanity. But Joel has no truck with utilitarian philosophy, because Ellie has now become a replacement for the daughter he lost. So, he disregards mankind’s future and, by stopping the operation, effectively murders the entire human race (alongside a whole hospital’s worth of doctors).
“Why does he do that?” I asked the millennial, in one of many fantastic discussions we had about the game.
“Because he’s a white male,” came the answer, because it’s 2022 and she’s in her 20s. And maybe she’s right. Either way it is a jaw-dropping, supremely brave ending and the terrific Left Behind side-story also brought the feels.
So, when it came to The Last of Us Part 2, I was beyond excited. Fifty million hours later I was beyond disappointed.
Don’t get me wrong, the millennial nailed it when she said it was a great exploration of the effects of grief and grey morality. But after spending the whole game switching between two strong female characters (literally, have you seen Abby’s arms?) and contrasting factional creeds, you have the final confrontation. They fight. And … they both live. And go their separate ways. The only real damage is Ellie losing a couple of fingers, and the game portrays the worst consequence of this as not being able to play guitar any more. Seriously? That’s the biggest drawback to being fingerless in a zombie apocalypse? The first game ended with Joel murdering an entire civilisation, the second ends with Ellie murdering one song on a guitar. It’s a scene you might have found in The Secret of Monkey Island. It’s hilarious.
The Last of Us Part 2leaves us with exactly the same non-ending as those original arcade games. Ellie and Abby will go on killing to keep their respective postapocalyptic factions going, both driven by the grief of murdered loved ones. They are both trapped, endlessly chasing ghosts. Sounds familiar…
The millennial says this shows there are no winners when it comes to revenge. I say they want both protagonists alive for The Last of Us 3. It’s a cynical cop out. But then, The Last of Us Part 2 is a game that features the most cynical scene ever, where apropos of nothing, after genuinely bravura portrayals of women, transgender and gay characters, alpha female Abby suddenly gets rogered from behind by some guy. It happens out of nowhere. The game spends umpteen hours portraying progressive sexuality, and then it’s like some marketing man decided they needed to toss the incels a piece of red meat to stop them hate-bombing all over 4chan (which didn’t work). It is easily the most gratuitous bit of nudity I have ever seen in games, and I have played The Witcher 3. The rogerer in question even has a girlfriend. Who is pregnant. Way to shit on a sister, Abby.
“It’s basically Pac-Man with gratuitous boobs,” I say to my eldest, who sighs and pours herself a large cup of coffee. This will be another long discussion.