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Your Privacy Rights
Last updated January 4th, 2017.
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Consumer Privacy at Grandin Road, an HSNi Company
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At HSNi, we respect the privacy of our customers and the importance of the information they entrust to us. This Privacy Policy is intended to describe for you, as an individual who uses one or more of our websites, views our television programming, uses our mobile applications, places orders by phone, uses our other services, or who otherwise provides us with information through various means ("Services"), the information we collect, how that information may be used, with whom it may be shared, and your choices about such uses and disclosures. We summarize below the basic information policies and practices in place for all HSNi Services. To read the entire Privacy Policy of Grandin Road, please click here. We encourage you to read the Grandin Road Privacy Policy carefully when using our Services or transacting business with us. By using our Services or otherwise doing business with us, you are accepting the practices described in the Grandin Road Privacy Policy.
Information We May Collect (read more)
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We do not knowingly collect personal information from children under the age of 13. Should we ever do so, we will comply with the Children's Online Privacy Protection Act.
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With Whom We May Share Information We Collect (read more)
We will not share your personal information with others except as indicated below, or except when we inform you in advance and give you the opportunity to opt out. We may share personal information with:
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We may share aggregated, non-personal information in any of the above situations and also with advertisers and others.
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We take appropriate physical, electronic, and other security measures to help safeguard personal information from unauthorized access, alteration, or disclosure.
Changes to our Privacy Policy#footer>
We may occasionally update our Privacy Policy to reflect changes in our practices and Services. If we make material changes in the way we collect, use, or share your personal information, we will notify you by sending you an e-mail to the e-mail address you most recently provided to us and/or by prominently posting notice of the changes on our online Services.
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and PUBLIC EMPLOYEE RELATIONS BOARD,
1. Under the Public Employer-Employee Relations Act, K.S.A. 75-4321 et seq., the Kansas Board of Regents, a public employer, is required to meet and confer with a recognized public employee organization on the subject of the ownership of intellectual property only if ownership of intellectual property is a condition of employment. K.S.A. 75-4327. If the ownership of intellectual property is a condition of employment, the subject may be included in a memorandum of agreement if no exception applies, i.e., if ownership of intellectual property is not preempted by state or federal law, is not a right of a public employee, or is not a right of a public employer. K.S.A. 75-4330.
2. Neither state nor federal law preempts the subject of ownership of intellectual property from being the subject of negotiations between a public employer and a recognized public employee organization or from being included within the scope of a memorandum of understanding. Therefore, the subject of the ownership of intellectual property is not preempted within the meaning of K.S.A. 75-4330(a)(1), the applicable provision of the Public Employer-Employee Relations Act, K.S.A. 75-4321 et seq.
Review of the judgment of the Court of Appeals in an unpublished opinion filed December 10, 2004. Appeal from Shawnee district court; CHARLES E. ANDREWS, JR., judge. Judgment of the Court of Appeals reversing the district court is reversed. Judgment of the district court is affirmed in part, reversed in part, and remanded with directions. Opinion filed November 10, 2005.
William Scott Hesse, assistant attorney general, argued the cause and was on the briefs for appellants.
John G. Mazurek, of Menghini, Menghini & Mazurek, LLC., of Pittsburg, Kansas, argued the cause, and David Schauner, general counsel, Kansas National Education Association, of Topeka, Kansas, was with him on the briefs for appellee.
Thomas E. Hayes, of The Spigarelli Law Firm, of Pittsburg, Kansas, David M. Rabban, Professor of Law and general counsel, of American Association of University Professors, of Austin, Texas, Ann D. Springer and Donna R. Euben, of American Association of University Professors, of Washington, D.C., and Robert A. Gorman, Professor of Law, Emeritus, of Philadelphia, Pennsylvania, were on the brief for amicus curiae American Association of University Professors.
The opinion was delivered by
LUCKERT, J.: This case determines a narrow question of first impression: whether ownership of intellectual property rights is a subject preempted by state or federal law and, therefore, not mandatorily negotiable under the Public Employer-Employee Relations Act (PEERA), K.S.A. 75-4321, et seq. The issue arises from a complaint filed with the Public Employee Relations Board (PERB) by the Pittsburg State University/Kansas National Education Association (KNEA), a recognized public employee organization representing some of the faculty of Pittsburg State University (PSU). In the complaint, KNEA alleges that the Kansas Board of Regents/Pittsburg State University (KBR) committed a prohibited practice under PEERA when it did not meet and confer with KNEA before adopting a policy regarding the ownership of intellectual property. PERB determined there was no obligation to meet and confer because federal and state law preempted the subject. The district court reversed this conclusion, but the Court of Appeals agreed with PERB and reversed the district court in Pittsburg State Univ. v. Kansas Bd. of Regents, No. 91,305, unpublished opinion filed December 10, 2004 (PSU/KNEA).
We reverse the determination of the Court of Appeals, affirm the district court's holding on this issue, and conclude that neither state nor federal law preempts the subject of ownership of intellectual property from being included within the scope of a memorandum of understanding. Therefore, the subject of the ownership of intellectual property is not "preempted" within the meaning of K.S.A. 75-4330(a)(1), the applicable provision of PEERA.
Resolution of this issue does not determine the overarching question raised in this case of whether a public employer must meet and confer with a recognized public employee organization regarding ownership of intellectual property rights. In order to resolve that question, two additional issues, also of first impression, must be decided: (1) whether the subject of ownership of intellectual property rights is a condition of employment and, therefore, mandatorily negotiable under PEERA and (2) whether the subject of ownership of intellectual property falls within the management prerogative exception of K.S.A. 75-4330(a)(3) and, therefore, is not mandatorily negotiable under PEERA. PERB did not resolve these issues, resting its decision solely upon the conclusion that the subject of the ownership of intellectual property was preempted from negotiation by state and federal law. We hold that the district court erred in resolving these issues without the benefit of PERB having made such findings and remand the case for additional findings.
Factual Background
The dispute giving rise to KNEA's complaint began in 1997 when KBR proposed a policy which, if adopted, would have dictated that KBR retained ownership and control of any intellectual property created by faculty at PSU. KNEA, the recognized employee organization of certain PSU faculty, rejected this policy as unacceptable, proposed its own policy, and insisted that the parties negotiate the matter. KBR responded by stating that it was not required under PEERA to negotiate the policy because the subject of intellectual property rights was not a condition of employment, was preempted by federal and state law, and was a management prerogative.
KNEA filed its complaint with PERB on March 13, 1998. While the complaint was pending, KBR formally adopted a different intellectual property policy without meeting and conferring with KNEA. This policy gave some intellectual property rights to employees of KBR's institutions. KNEA amended its complaint to allege that KBR's unilateral adoption of this policy was also a prohibited practice.
Overview of PEERA
In order to discuss PERB's resolution of the complaint and KNEA's arguments regarding the PERB's and lower courts' decisions, it is necessary to first examine those statutory provisions of PEERA which are relevant to KNEA's complaint.
The essence of the complaint is that KBR had an obligation to meet and confer before adopting a policy regarding ownership of intellectual property. PEERA is a hybrid labor relations act which falls "somewhere between a pure 'meet and confer' act and a classic 'collective bargaining' act." State Dept. of Administration v. Public Employees Relations Bd., 257 Kan. 275, 281-82, 894 P.2d 777 (1995). PEERA imposes on public employers and recognized public employee organizations the obligation "to enter into discussions with affirmative willingness to resolve grievances and disputes relating to conditions of employment, acting within the framework of law." K.S.A. 75-4321(b); Kansas Bd. of Regents v. Pittsburg State Univ. Chap. of K-NEA, 233 Kan. 801, 804-05, 667 P.2d 306 (1983) (Pittsburg State).
More specifically, under PEERA, public employers are required to "meet and confer in good faith" with recognized public employee organizations "in the determination of conditions of employment." K.S.A. 75-4327(b).
A nonexclusive list of "conditions of employment"– the matters about which there must be negotiation – is contained in K.S.A. 75-4322(t): The list includes "salaries, wages, hours of work, vacation allowances, sick and injury leave, number of holidays, retirement benefits, insurance benefits, prepaid legal service benefits, wearing apparel, premium pay for overtime, shift differential pay, jury duty and grievance procedures." In Pittsburg State, 233 Kan. 801, a case relating to a previous PEERA dispute between the parties in this case, this court concluded that the legislature did not intend that the "laundry list of conditions of employment as set forth in K.S.A. 75-4322(t) be viewed narrowly with the object of limiting and restricting the subjects for discussion between employer and employee. To the contrary, the legislature targets all subjects relating to conditions of employment." 233 Kan. at 819. The court examined several subjects to see if the "item [was] significantly related to an express condition of employment" of PSU faculty. 233 Kan. at 816. The court held that budget inputs for salary generation and allocation; out of state travel funds; the criteria, procedures, or methods by which candidates for promotion are identified; the criteria, procedures, or methods for screening candidates for summer employment; tenure; retrenchment procedures; and personnel files were significantly related to one or more of the statutorily listed conditions of employment and were mandatorily negotiable. 233 Kan. at 826-28.
If a subject is a condition of employment, then the public employer must meet with a recognized public employee organization and confer in good faith. K.S.A. 75-4327. To "meet and confer in good faith" requires the free exchange of "information, opinions and proposals to endeavor to reach agreement on conditions of employment." K.S.A. 75-4322(m). The refusal to meet and confer regarding conditions of employment is a "prohibited practice." K.S.A. 75-4333(b)(5).
Additionally, K.S.A. 75-4327, the statute which imposes the obligation to meet and confer, provides that a public employer "may enter into a memorandum of agreement" with a recognized employee organization. K.S.A. 75-4327(b). The scope of such a memorandum of agreement is defined in K.S.A. 75-4330 and "may extend to all matters relating to conditions of employment, except proposals relating to (1) any subject preempted by federal or state law . . .; (2) public employee rights defined in K.S.A. 75-4324 . . .; [or] (3) public employer rights defined in K.S.A. 75-4326 . . . ." K.S.A. 75-4330(a); see K.S.A. 75-4322(n) (defining "memorandum of agreement"). The first exception, which we will refer to as the preemption exception, is the primary focus of this decision. Beyond stating the exception, PEERA provides little guidance as to its application; the term "preempted" is not defined. The second exception, relating to public employee rights, is not implicated by any arguments made by the parties. The third exception, relating to the rights of public employers, is asserted by KBR as being applicable to the subject of ownership of intellectual property. The exception is sometimes referred to as management rights or managerial prerogatives, see Pittsburg State, 233 Kan. at 816, 819. K.S.A. 75-4326 defines this "managerial" exception.
Summarizing these provisions in the context of this case, these provisions mean that KBR, a public employer, is required to meet and confer with KNEA, a recognized public employee organization, only if ownership of intellectual property is a condition of employment. If the ownership of intellectual property is a condition of employment, the subject may be included in a memorandum of agreement if no exception applies, i.e., if ownership of intellectual property is not preempted by state or federal law, is not a right of a public employee, or is not a right of a public employer.
From the time KBR proposed the intellectual property policy and KNEA objected thereto, KBR has argued that ownership of intellectual property is not a condition of employment and that, even if it is, it could not be included as a subject in a memorandum of agreement because the subject is preempted by statute and falls within the rights of the public employer. Consequently, according to KBR it had no obligation to meet and confer with KNEA and, therefore, it did not commit a prohibited practice.
The Hearing Officer's Initial Order
The hearing officer agreed with KBR, concluding that KBR did not commit a prohibited practice. That determination was based upon a finding that the subject of ownership of intellectual property was preempted by state and federal law. In reaching this determination, the hearing officer, after conducting a formal hearing, made the following findings of fact:
"1. The Kansas Board of Regents is a constitutional agency of the state of Kansas with the authority to supervise and control institutions of higher education within the state.
"2. Pittsburg State University is a member institution of the Kansas State Board of Regents.
"3. Kansas Board of Regents/Pittsburg State University is the employer of college professors at Pittsburg State University.
"4. Professors at Pittsburg State University have three major responsibilities: teaching, scholarship, and creative endeavor and service.
"5. Pittsburg State University provides its professors with office space, equipment, research facilities, supplies, and secretarial help.
"6. Among other responsibilities, Pittsburg State University professors conduct research, write scholarly articles, publish scholarly articles, create songs or artwork and other forms of intellectual property.
"7. Professors who publish scholarly works receive better performance evaluations and receive a higher level of compensation from the employer.
"8. Professors' promotions are based on production of books and articles and on presentation of information at conferences."
Although the hearing officer's findings of fact seem to relate to whether intellectual property rights are a condition of employment, he declined to decide that question and instead moved forward "on the assumption that the subject of intellectual property rights intimately and directly affects the work and welfare of the public employees at issue here." The hearing officer also declined to decide the application of the exception regarding the public employer's rights, which he labeled as "inherent managerial prerogatives." Instead, the hearing officer concluded: "[I]t is necessary to determine first whether any constitutional or statutory provisions relating to the subject sought to be negotiated would remove it from the area of mandatory negotiability" and then found that both federal and state laws were preemptive. Regarding federal law, the hearing officer focused solely upon copyright law and found that university employees
"are expected to produce intellectual property in the scope of their employment. Intellectual property thus created falls under the work for hire doctrine, and by operation of federal law, belongs to the employer, Kansas Board of Regents/Pittsburg State University. The subject of intellectual property rights is thus preempted by operation of federal law."
The hearing officer noted, although federal copyright law expressly provides the ownership of intellectual property rights could be changed by agreement of the parties, that "does not mean that the subject is not preempted, merely that the preemptive result may be changed."
As an additional ground for finding no prohibited practice by KBR, the hearing officer found that state law, specifically K.S.A. 76-718, mandates that any funds received by a state educational institution or its employees from intellectual property be dedicated solely to the use of that institution. Therefore, the hearing officer concluded that the disposition of funds received from intellectual property was "fixed by statute" and not a mandatorily negotiable condition of employment pursuant to K.S.A. 75-4322(t).
PERB's Final Order
On review, PERB upheld the hearing officer's initial order and decision. One member dissented. The majority did not expand upon the analysis of the hearing officer, adopting the hearing officer's order "without modification." The dissenting member stated that he did not agree that either the federal or state statute "preempts all subjects that might be related to the subject of intellectual property."
The District Court's Decision
The district court reversed. First, the district court stated: "By applying the Presiding Officer's findings of fact to the precedential law of Pittsburg State [233 Kan. 801], this Court concludes that intellectual property constitutes a condition of employment." Second, the district court concluded that the requirement to "meet and confer on the subject of intellectual property does not violate K.S.A. 75-4326 or in anyway impermissibly effect any so called 'inherent managerial policy.'" Third, the district court concluded the subject was not preempted. Discussing the state statute which the hearing officer had found to be preemptive, K.S.A. 76-718, the district court concluded it was "inapposite." Regarding federal law, the district court concluded: (a) "The gambit of intellectual property is not, in toto, preempted by federal law" and (b) the hearing officer relied solely upon the Copyright Act of 1976, 17 U.S.C. § 101 et seq. (2000), but that Act does not cover patents or trademarks. The district court concluded that KBR committed a prohibited practice when it refused to negotiate.
The Court of Appeals' Decision
In an unpublished decision, the Court of Appeals reversed the district court and reinstated the decision of PERB, holding that "requiring mandatory negotiations concerning intellectual property is preempted by federal copyright law." PSU/KNEA, slip op. at 6. The rationale for this decision will be discussed in more detail. The Court of Appeals did not address any other portions of the district court decision, including the discussion of whether K.S.A. 76-718 preempted the subject.
This court granted KNEA's petition for review.
Standard of Review
Judicial review of a PERB decision on a prohibited practice complaint is governed by the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq. See K.S.A. 75-4334(c); State Dept. of Administration, 257 Kan. at 281.
The KJRA limits appellate review of an agency action by providing, in relevant part:
"(c) The court shall grant relief only if it determines any one or more of the following:
. . . .
"(3) the agency has not decided an issue requiring resolution;
"(4) the agency has erroneously interpreted or applied the law;
. . . .
"(7) the agency action is based on a determination of fact, made or implied by the agency, that is not supported by evidence that is substantial when viewed in light of the record as a whole, which includes the agency record for judicial review, supplemented by any additional evidence received by the court under this act; or
"(8) the agency action is otherwise unreasonable, arbitrary or capricious." K.S.A. 77-621.
The application of these provisions to PERB orders was discussed in Pittsburg State:
"Neither the district court nor this court can weigh conflicts in the evidence and substitute its judgment for that of the Board. [Citations omitted.] . . . .
"The PERB orders in this case are partly factual determinations, which are subject to the review stated above, and partly determinations of law, which involve a different standard of review. . . . 'In reviewing questions of law, the trial court may substitute its judgment for that of the agency, although ordinarily the court will give deference to the agency's interpretation of the law. [Citation omitted.]'" 233 Kan. at 808-09.
The principal issue raised for our review is the determination that the subject of ownership of intellectual property was preempted by state or federal laws. PERB's operative interpretation of the meaning of PEERA's preemption exception is entitled to deference. However, as KNEA correctly points out, PERB is not entitled to deference in its interpretation of other state or federal statutes, including those regarding intellectual property. See State Dept. of Administration, 257 Kan. at 281.
These principles regarding judicial review apply equally to the district court's, the Court of Appeals' and our review of the PERB decision. That review requires initial analysis of: (1) the interpretation of the preemption exception; (2) application of federal copyright law to this exception; (3) application of other forms of federal intellectual property law to the exception; and (4) application of K.S.A. 76-718 to the exception.
Interpretation of the Preemption Exception
The Court of Appeals' and PERB's interpretations of the preemption exception were quite different. The Court of Appeals applied the term "preempt" in the traditional sense of federal preemption of state law, noting: "As a general rule, federal copyright law preempts state law claims which fall within its general scope. See 17 U.S.C. § 301(a) (2000)." PSU/KNEA, slip op. at 5. The Court of Appeals then utilized a two-part test for determining whether a state statute is preempted by federal copyright law: "To determine whether a statute is preempted by federal copyright law, we look at two factors. First, whether the statute falls within the subject matter of the copyright law and, if so, whether the statute conflicts with the federal law. [Citations omitted.]" PSU/KNEA, slip op. at 5.
However, the issue is not whether federal legislation occupies the field to the exclusion of a state statute. Such an interpretation is inconsistent with the language and purpose of PEERA. K.S.A. 75-4330 speaks in terms of whether a subject of a memorandum of agreement is preempted, not whether a state statute is preempted by federal law. In other words, the appropriate inquiry is whether federal law prevents the parties from negotiating regarding ownership of intellectual property rights and entering into a memorandum of agreement which includes that subject. If the freedom to contract remains, the subject of ownership of intellectual property rights is not preempted. See Wright v. Board. of Educ. of City of East Orange, 99 N.J. 112, 119, 491 A.2d 644 (1985) (mere existence of statute or regulation relating to given term or condition of employment does not automatically preclude negotiation; negotiation is preempted only if the statute or regulation speaks in the imperative and leaves nothing to the discretion of the public employer).
The Court of Appeals recognized that federal copyright law allows the parties to contract regarding ownership. Despite this, the Court of Appeals stated that federal copyright law would conflict with a requirement that the parties negotiate regarding the subject of ownership of intellectual property. Similarly, PERB, although it did not focus on the traditional preemption of federal law over state law or claims, concluded that negotiation cannot be required because federal law establishes a preemptive ownership right.
Both the Court of Appeals' conclusion and PERB's analysis, which erroneously focus upon only one form of intellectual property (copyright), are contrary to the language and purposes of PEERA and are incorrect applications of federal copyright law. To explain, it is necessary to first examine some general principles of copyright law and the work-for-hire doctrine.
Copyright Law
Under the Copyright Act of 1976, copyright ownership "vests initially in the author or authors of the work." 17 U.S.C. § 201(a) (2000). However, where a work is made for hire: "[T]he employer or other person for whom the work was prepared is considered the author . . . and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright." (Emphasis added.) 17 U.S.C. § 201(b) (2000). This is known as the work-for-hire doctrine.
The hearing officer stated that 17 U.S.C. § 201(b) created a "preemptive result." In reaching this conclusion, the hearing officer looked to a dictionary definition of "preempt" as meaning: "'to gain possession of by prior right or opportunity.' The American Heritage Dictionary, p. 1032 (1976)." Applying this definition, he concluded: "The public employer gains possession of intellectual property rights by prior right or opportunity, that is, by operation of the federal work for hire doctrine." However, 17 U.S.C. § 201(b) does not create a right similar to a shareholder's privilege or preemptive right to purchase newly issued stock -- the definition imposed by the hearing officer. Rather, 17 U.S.C. § 201(b) creates a presumptive result. See generally Easter Seal Soc. v. Playboy Enterprises, 815 F.2d 323 (5th Cir. 1987) (discussing historical evolution of presumptions in work-for-hire context). As Washburn Law Professor James B. Wadley and coauthor JoLynn Brown explain:
"This provision [17 U.S.C. § 201(b)] suggests three things worthy of note. First, it is apparent that the work-for-hire doctrine embodies only a presumption regarding the ownership of copyright rights and, as such, particularly allows the parties an opportunity to conform the law to their expectations, simply by agreeing to a particular copyright ownership outcome. Second, it is apparent that the law does not feel particularly strongly about the presumption since the ownership provision vesting the copyright in the employer operates more as a default provision, operating unless the parties agree otherwise. Finally, the opportunity to avoid the impact of the presumption arises only when the presumption itself is invoked. That is, even if the works at issue are produced within an employment relationship but are not sufficiently considered the objects of that relationship to be considered works for hire, the employee should not bear the burden of requiring a writing to preserve his or her copyright claim to such works." Wadley & Brown, Working Between the Lines of Reid: Teachers, Copyrights, Work-For-Hire and a New Washburn University Policy, 38 Washburn L.J. 385, 421 (1999).
As this commentary indicates, the plain language of the statute reflects that Congress clearly contemplated that parties could negotiate ownership of a copyright. In other words, 17 U.S.C. § 201(b) allows the subject of copyright ownership to be covered within a memorandum of understanding or any other written agreement.
At most, 17 U.S.C. § 201(b) gives the bargaining power to KBR in those situations where the work-for-hire doctrine applies to ownership of a copyright. However, that does not foreclose negotiation regarding ownership. In this respect, we disagree with the Court of Appeals' determination that to require intellectual property rights issues to be mandatorily negotiable would conflict with federal copyright law. The Court of Appeals reasoned as follows:
"The copyright law clearly allows an employer in a 'work for hire' situation to negotiate with employees concerning the rights to intellectual property, but the federal law does not require an 'author' to negotiate away the rights. Interpreting the Kansas statute to require a [KBR] university to negotiate away rights to copyrighted material would conflict with the federal law provisions which state in a work-for-hire situation, the employer is considered to be the author and owner of the material." PSU/KNEA, slip op. at 5-6.
The Court of Appeals incorrectly concluded that requiring KBR to "meet and confer" is the equivalent of requiring KBR to "negotiate away rights" to copyrighted materials. See PSU/KNEA, slip op. at 5. In fact, an employer is never required to "negotiate away rights" under PEERA:
"PEERA imposes no obligation on the employer to agree to the employees' demands. However, PEERA prevents public employers that come under its provisions from simply acting unilaterally in determining conditions of employment. Although the governing body of the public employer ultimately can dictate any mandatory subject of bargaining, it can do so only after the public employer has negotiated in good faith, reached impasse in good faith, and participated in impasse-resolution procedures such as fact-finding and mediation. See K.S.A. 75-4332." State Dept. of Administration, 257 Kan. at 287.
Furthermore, rather than negotiating away rights, KBR and KNEA would be negotiating consistent with the parties' expectations. This may mean that KBR will maintain ownership rights. However, it may also be that KBR will determine it does not always have ownership rights or that it is willing to contractually grant those rights to the faculty. For example, the policy finally adopted by KBR did give some intellectual property rights to employees of KBR's institutions.
17 U.S.C. § 201(b) does not prevent the parties from entering into a memorandum of agreement regarding the subject of intellectual property rights; it contemplates that there can be negotiation of the subject.
Work-for-hire Doctrine and a Teacher Exception
Additionally, KNEA argues that both PERB and the Court of Appeals erred in assuming that the work-for-hire doctrine applies to any and all intellectual property created by PSU faculty simply because those faculty are employees of PSU. Works can be produced within an employment relationship which "are not sufficiently considered the objects of that relationship to be considered works for hire." Wadley & Brown, 38 Washburn L.J. at 421.
KNEA in its supplemental brief extends this argument and contends that all faculty works are excluded from the work-for-hire doctrine under a teacher exception. Therefore, according to the KNEA, federal law would give ownership of the copyright to the teachers.
The American Association of University Professors (AAUP) filed an amicus brief generally supporting the position of KNEA and arguing that faculty scholarly works are not considered works for hire under federal copyright law. The AAUP also points out that its own policy, academic practice, and preservation of academic freedom require that professors own the copyrights to their own works. However, even the AAUP policy recognizes that some academic works properly fall within the category of works for hire.
A teacher exception to the work-for-hire doctrine has been discussed by courts. See Williams v. Weisser, 273 Cal. App. 2d 726, 78 Cal. Rptr. 542 (1969). However, a teacher exception to the work-for-hire doctrine was not incorporated into the Copyright Act when it was revised in 1976. See 17 U.S.C. § 201. This caused confusion as to whether the teacher exception continued to exist. The Seventh Circuit Court of Appeals decided two cases which seemed to continue the exception on the basis of custom: Hays v. Sony Corp. of America, 847 F.2d 412 (7th Cir. 1988), abrogated on other grounds Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 406-09, 110 L. Ed. 2d 359, 110 S. Ct. 2447 (1990) and Weinstein v. University of Illinois, 811 F.2d 1091 (7th Cir. 1987).
KBR argues that because both Hays and Weinstein were decided prior to the United States Supreme Court decision in Community for Creative Non-Violence v. Reid, 490 U.S. 730, 104 L. Ed. 2d 811, 109 S. Ct. 2166 (1989), they "have dubious precedential value." Reid is the benchmark case interpreting the work-for-hire provisions of the 1976 Copyright Act. In Reid, the United States Supreme Court considered whether the work of an independent contractor who created a sculpture was a work for hire under the Copyright Act. The Court noted that 17 U.S.C. § 101 (2000) defines a "work made for hire" as:
"(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."
The Court interpreted this definition as follows: "The structure of § 101 indicates that a work for hire can arise through one of two mutually exclusive means, one for employees and one for independent contractors, and . . . the classification of a particular hired party should be made with reference to agency law." Reid, 490 U.S. at 742-43. Because Reid was an independent contractor, 17 U.S.C. § 101 "work made for hire" (2) applied, and, in order for the work to be considered work for hire, his work had to fall within one of the nine enumerated categories of 17 U.S.C. § 101 "work made for hire" (2) and there had to be an express writing stating that the work was one made for hire. Because these requirements were not met, the Court ruled that Reid, rather than his employer, owned the copyright to his work. 490 U.S. at 753.
With regard to works prepared by employees, the Reid Court noted that the term "scope of employment," as used in 17 U.S.C. § 101 "work made for hire" (1), is a widely used term of art in agency law. 490 U.S. at 740. Since Reid, courts have relied on the Restatement (Second) of Agency § 228 (1957) to determine whether a work is prepared in the scope of employment. See, e.g., Avtec Systems, Inc. v. Peiffer, 21 F.3d 568, 571 (4th Cir. 1994). Under the Restatement (Second) of Agency § 228(1), an employee's conduct falls within the scope of employment "only if: (a) it is of the kind he is employed to perform; (b) it occurs substantially within the authorized time and space limits; [and] (c) it is actuated, at least in part, by a purpose to serve the master." An employee's conduct does not fall within the scope of employment if "it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master." Restatement (Second) of Agency § 228(2).
KBR cites several more recent decisions which applied Reid and the Restatement test to reach a different conclusion than Hays and Weinstein. For example, in Shaul v. Cherry Valley-Springfield Cent. School, 363 F.3d 177 (2d Cir. 2004), the Second Circuit Court of Appeals held that a high school teacher's preparation of tests, quizzes, and homework problems fell within the scope of his employment; thus, the school district rather than the teacher owned the copyright to those materials under the work-for-hire doctrine of the 1976 Copyright Act. 363 F.3d at 186. The court rejected the teacher's attempt to invoke an academic exception to the work-for-hire doctrine based on Weinstein, distinguishing that case on the ground that the school district did not have a formal written policy like the one in Weinstein. The court also noted that the academic tradition of granting university professors ownership of their scholarly works "is not pertinent to teaching materials that were never explicitly prepared for publication . . . as opposed to published articles by university professors." 363 F.3d at 186.
In two other cases, courts applied the rules stated in Reid without discussing any possible teacher or academic exception: Vanderhurst v. Colorado Mountain College Dist., 16 F. Supp. 2d 1297 (D. Colo. 1998) (professor's outlines were works for hire where outlines were incidental to his employment and a method of carrying out employment's objectives, even though he prepared them on his own time and with his own materials); Genzmer v. Public Health Trust of Miami-Dade, 219 F. Supp. 2d 1275 (S.D. Fla. 2002) (computer program written by postgraduate physician as assigned research project during his fellowship at county hospital was work for hire; therefore, copyright was owned by hospital).
Law review articles disagree on the current state of law with regard to this issue. Some commentators have expressed doubt that a teacher exception continued to exist after the 1976 Copyright Act. See Packard, Copyright or Copy Wrong: An Analysis of University Claims to Faculty Work, 7 Comm. L. & Pol'y 275, 314 (2002). Others believe the 1976 Copyright Act did not disturb the teacher exception to the work-for-hire doctrine. See Lape, Ownership of Copyrightable Works of University Professors: The Interplay Between the Copyright Act and University Copyright Policies, 37 Vill. L. Rev. 223, 238-46, 268-69 (1992). Yet others believe a teacher exception is no longer necessary because, under Reid, most teachers' works will fall outside the work-for-hire doctrine. See Wadley & Brown, 38 Washburn L.J. at 432 ("[S]ince the Court's decision in the Reid case provides the necessary reasoning to support the proposition that some academic works created during employment are outside the work-for-hire doctrine, it is questionable whether an explicit 'teacher exception' for academic works is needed.").
While it is far from clear that there is an absolute teacher exception to the work-for-hire doctrine as argued by KNEA, KBR's argument on this point goes too far in the opposite direction. According to KBR, PERB's factual findings show that PSU faculty is employed under work-for-hire circumstances and all intellectual properties created by the faculty in the form of scholarly works or creative endeavors are works for hire. The logical next step is to conclude that KBR owns all rights to any intellectual property created by PSU faculty. That is too big a leap. Even if PSU faculty are employees of KBR, that does not end the analysis for purposes of determining whether the works they create are works for hire. As described above, whether any particular creative work of a faculty member constitutes work for hire will depend on whether the work meets the Restatement test, i.e., whether it is the type of work the faculty member was hired to create; whether it was created substantially within the time and space limits of the job; and whether it was motivated by a purpose to serve the university employer. See Restatement (Second) of Agency § 228. This will necessarily involve not just a case-by-case evaluation, but potentially a task-by-task evaluation. See Wadley & Brown, 38 Washburn L.J. at 404.
Accordingly, the Court of Appeals, the hearing officer, and PERB erred in assuming that the work-for-hire doctrine would apply to any intellectual property created by PSU faculty simply because those faculty are employees of PSU.
Intellectual Property Other Than Copyright
KNEA also argues that the Court of Appeals' decision failed to address other kinds of intellectual property including patents and trademarks. KNEA points out that the Patent Act, 35 U.S.C. § 1 et seq. (2000), does not include the same kind of work-for-hire provisions as does federal copyright law. Rather, absent a written assignment of rights pursuant to 35 U.S.C. § 261 (2000), patent ownership issues are resolved by common law.
United States v. Dubilier Condenser Corp., 289 U.S. 178, 187-89, 77 L. Ed. 1114, 53 S. Ct. 554 (1933), stated the rule for when an employer owns the patent rights to an employee's invention:
"One employed to make an invention, who succeeds, during his term of service, in accomplishing that task, is bound to assign to his employer any patent obtained. The reason is that he has only produced that which he was employed to invent. His invention is the precise subject of the contract of employment. A term of the agreement necessarily is that what he is paid to produce belongs to his paymaster. [Citation omitted.] On the other hand, if the employment be general, albeit it covers a field of labor and effort in the performance of which the employee conceived the invention for which he obtained a patent, the contract is not so broadly construed as to require an assignment of the patent. [Citations omitted.]"
Dubilier has been interpreted to mean that an employee must be specifically hired or directed to create an invention before the employer may claim ownership of patent rights. See Teets v. Chromalloy Gas Turbine Corp., 83 F.3d 403, 407 (Fed. Cir. 1996).
In circumstances where the employee was not specifically hired or directed to create an invention, but he or she does so during his or her hours of employment and while working with his or her employer's materials and equipment, the employer may obtain what is known as a "shop right." Dubilier, 289 U.S. at 188. A shop right allows the employer to use the employee's invention without liability for infringement but also without obtaining ownership of it. Dubilier, 289 U.S. at 188-89; Teets, 83 F.3d at 407.
Again, as with federal copyright law, federal law regarding patent ownership does not prevent the parties from entering into a memorandum of agreement regarding the subject of patent ownership. To the contrary, the Patent Act specifically provides that the parties may assign patent ownership rights. 35 U.S.C. § 261. Thus, federal law does not preempt any kind of intellectual property rights from becoming the subject of a memorandum of agreement under PEERA.
State Law Preemption
In addition to finding that the subject of intellectual property rights was preempted by federal copyright law, the hearing officer in this case also found that, under state law, the disposition of funds received from intellectual property belonging to the state's educational institutions was fixed by state statute and was therefore not a condition of employment. In support, the hearing officer cited K.S.A. 76-718. K.S.A. 76-718 provides:
"All moneys received from the rent or sale of property, interest on endowment funds, moneys from the federal government, or from any other source by state educational institutions or their employees under the law or the order of the board of regents or by the state for such state educational institutions are hereby dedicated to the use of the state educational institution collecting or for which the same are collected." (Emphasis added.)
The hearing officer concluded that, by virtue of the operation of this provision, disposition of funds received from intellectual property was "fixed by statute" and was not a mandatorily negotiable condition of employment pursuant to K.S.A. 75-4322(t).
The Court of Appeals did not discuss this issue. The district court rejected the hearing officer's conclusion that K.S.A. 76-718 controls the disposition of funds received from intellectual property. The district court stated:
"K.S.A. 76-718 cannot be read in such a broad manner. This statutory provision maintains that certain monies – not intellectual property rights – received by either: (1) Pittsburg State University, (2) any Pittsburg State University employee, or (3) the State of Kansas for Pittsburg State University be dedicated to the use of Pittsburg State University and not, say, the University of Kansas, Kansas State University, or Wichita State University. K.S.A. 76-718 is awkwardly out of place and inapposite."
We agree with the district court. K.S.A. 76-718 only provides that monies received for a particular state education institution are dedicated to that specific educational institution. The statute does not govern whether monies received by an educational institution's employees for the sale of intellectual property belong to the educational institution or the employee.
Accordingly, PERB erroneously interpreted the law in concluding that, under state law, the disposition of funds received from intellectual property was fixed by state statute and was therefore not a condition of employment.
Conclusion Regarding Preemption
Neither state nor federal law preempts the subject of ownership of intellectual property from being the subject of negotiations between a public employer and a recognized public employee organization or being included within the scope of a memorandum of understanding. Therefore, the subject of the ownership of intellectual property is not preempted within the meaning of K.S.A. 75-4330(a)(1), the applicable provision of PEERA.
Condition of Employment
The next logical question is whether intellectual property rights are a condition of employment under PEERA. The Court of Appeals did not address this issue, although the parties discussed it in their briefs. This court is free to consider issues which were presented to but not addressed by the Court of Appeals pursuant to Supreme Court Rule 8.03(h)(3) (2004 Kan. Ct. R. Annot. 58). Alires v. McGehee, 277 Kan. 398, 404-05, 85 P.3d 1191 (2004).
According to the KNEA, both PERB and the district court agreed that intellectual property rights are a condition of employment under PEERA. This is not an accurate reflection of PERB's ruling. As noted earlier, PERB did not make the determination. Rather, PERB adopted the hearing officer's opinion which stated: "Based upon the facts set forth above, this determination will proceed on the assumption that the subject of intellectual property rights intimately and directly affects the work and welfare of the public employees at issue here." (Emphasis added.) In a footnote, the hearing officer commented that KBR had made a compelling argument to the contrary based upon the professors' receiving full compensation for any intellectual property they created as part of the normal, expected course of their employment.
The district court, on the other hand, did address the question and ruled that intellectual property rights were a condition of employment. In doing so, the district court applied the test approved in Pittsburg State of whether the item was "significantly related to an express condition of employment." See 233 Kan. at 816. The district court accepted the hearing officer's findings of fact adopted without modification as PERB's final agency order, but ruled that PERB had reached an erroneous legal conclusion when applying the law to those facts.
In its brief before the Court of Appeals, KBR argued that the district court overstepped and substituted its own judgment for that of PERB in ruling that ownership of intellectual property rights was a condition of employment under PEERA. KNEA responds that the district court did not substitute its judgment or reweigh facts; rather, the court accepted those findings of fact but drew a different legal conclusion from those facts. Furthermore, the district court concluded that the provisions of K.S.A. 75-4326 regarding public employer rights did not apply, an issue not reached by PERB.
The facts of Transam Trucking, Inc. v. Kansas Dept. of Human Resources, 30 Kan. App. 2d 1117, 54 P.3d 527 (2002) are instructive. In that case, an employer sought review of an agency decision awarding unemployment benefits to the claimant after the employer had fired the claimant for his involvement in several accidents. The agency concluded that the claimant's involvement in the accidents did not amount to "misconduct," which would have disqualified him for unemployment benefits. On appeal, the district court found that the agency had applied an outdated legal definition of misconduct from an earlier version of the applicable statute. The district court then found that the claimant's accidents did constitute misconduct under the current statutory definition.
The Court of Appeals reversed, holding:
"The district court overstepped. A district court reviewing the Board's decisions may grant relief only on the grounds set forth in K.S.A. 77-621(c). [Citation omitted.] These grounds include the agency's erroneous interpretation or application of the law. K.S.A. 77-621(c)(4).
"Here, the district court was within its authority to recognize the agency had erroneously applied K.S.A. 44-706(b)(1) (Furse 1993) and to grant relief, but it should have remanded for further Board findings under the proper standard. Neither the district court nor this court has de novo review of this matter. [Citation omitted.] The district court was not free to substitute its own findings for those of the Board or referee." 30 Kan. App. 2d at 1123-24.
Similarly, in this case, the district court was authorized to determine whether PERB had erroneously interpreted and applied the law to the facts of the case pursuant to K.S.A. 77-621(c)(4). As the hearing officer's decision notes, not all findings regarding facts about conditions of employment were made and the hearing officer did not reach the step of employing the balancing test recognized in Pittsburg State which requires applying the law to the facts. See 233 Kan. at 816 ("PERB, in order to determine whether a particular item is or is not mandatorily negotiable, has developed and employs a balancing test: If an item is significantly related to an express condition of employment, and if negotiating the item will not unduly interfere with management rights reserved to the employer by law, then the item is mandatorily negotiable."). The district court should have remanded the case to PERB for additional findings regarding whether ownership of intellectual property is a condition of employment and whether the exception of K.S.A. 75-4330(a)(3) (public employer rights as defined in K.S.A. 75-4326) applies. See K.S.A. 77-621(c)(3) (court may grant relief where "the agency has not decided an issue requiring resolution"). We, therefore, reverse the district court regarding its findings on these issues and remand to the district court with directions to remand to PERB for further proceedings.
Judgment of the Court of Appeals reversing the district court is reversed. Judgment of the district court is affirmed in part, reversed in part, and remanded with directions.
LARSON, S.J., assigned.1
1 REPORTER'S NOTE: Senior Judge Edward Larson was assigned to hear case No. 91,305 pursuant to the authority vested in the Supreme Court by K.S.A. 20-2616 to fill the vacancy on the court resulting from Justice Gernon's death.

subset: commoncrawl


text:
Neil MacFarquhar – New Times Nov 10, 2012
The Syrian National Council, the largest antigovernment coalition, resisted an initiative on Saturday that would place all opponents of the government under one umbrella — a streamlining sought by foreign backers who fear that the bickering exile movements are being eclipsed by events on the battlegrounds in Syria.
"Nobody should be subsumed under anybody," said George Sabra, the newly elected president of the council, opening his inaugural news conference here in a combative mood before heading into negotiations over the unification proposal.
"The S.N.C. is older than this initiative or any other initiative, and it has a deep political and regional structure," said Mr. Sabra, 65, a Christian and a veteran leftist dissident.
But a group of more than 50 activists of various stripes — backed by the United States, Qatar and other foreign supporters of the uprising — have proposed creating a larger body that would include the council. It would effectively end the S.N.C.'s failed efforts of more than a year to be recognized as the government in exile for all Syrians.
Called the Syrian National Initiative, the new group is aimed at incorporating virtually all opposition parties, internal councils and notable figures. Perhaps its two most important are creating both a unified military command and a group of technocrats who could guide aid and other support from outside Syria to those actually fighting against President Bashar al-Assad.
Foreign governments have sought this unification so that they too can better coordinate their aid efforts, rather than having every country picking its own favorites inside Syria, and allowing the overall effort to remain confused and diffuse.
Some diplomats and other analysts suggested that the reorganization effort had been too hastily prepared, leaving the outcome dependent on endless bartering among the Syrians.
Ultimately, all the talks could well come down to haggling over the number of seats the council would receive on the new body. It would most likely get about 20 out of 60, but its members have suggested that they would not settle for less than 40 percent.
The S.N.C. negotiators' opening gambit was to offer a series of counterproposals that would basically keep the council as a first among equals while also moving toward greater unity.
The council envisions a kind of "coordinating committee" underneath it that other groups would join to supervise the military, as well as a special fund that all foreign donors would finance to help distribute aid inside Syria.
"Let us not create a new body that will take time to be established — ours is already there," said Louay Safi, a member of the S.N.C.'s 41-member General Secretariat, an elected body that advises the executive committee.
The main criticism of the S.N.C. has been that it is riven by internal bickering and has failed to attract a wide variety of groups. It lacks a significant presence of Alawites, the minority sect of Mr. Assad that controls Syria, as well as other minorities, tribal and religious elders and business leaders.
Mr. Safi rejected that criticism, saying people like businessmen should join some of the political groups within the council, not be incorporated as separate blocs.
The council has put up various smoke screens in trying to avoid the formation of the new umbrella group. It has proposed that a grand conference of opposition activists should be held inside opposition-held territory in Syria to create an interim government, for example, even though current security fears make that unlikely. Only then, council members said, should the S.N.C. be dissolved.
In promoting the idea, Radwan Zeyada, another council member, said there was no guarantee that a larger group would not be plagued by the same problems that had dogged the S.N.C. Many activists backing unity are disaffected council members.
"If they met inside Syria, they will feel the heat, the urgency to do something quick for the Syrian people," Mr. Zeyada said. "They won't be sitting around in a five-star hotel."
S.N.C. leaders said that foreign powers should focus more on the daily death toll in Syria rather than meddle with the politics of the opposition. But a big reason foreign supporters want a more streamlined opposition, better connected to rebels in Syria, is that they fear the emergence of separate warlords and jihadi fiefs if the opposition staggers on with only limited coordination.
On Saturday, double suicide bombings aimed at government outposts in the southern Syrian city of Dara'a killed at least 20 soldiers, according to an activist group. After the explosions rocked the city, new clashes broke out between government and rebel forces, said the group, the Syrian Observatory for Human Rights, which tracks the fighting from Britain with the help of contacts in Syria.
The official news agency, SANA, which for months has avoided reporting specific death tolls for soldiers, said the blasts caused numerous casualties.
In recent weeks, a number of suicide attacks have hit military targets or neighborhoods where soldiers live. The uprising started in Dara'a in March 2011 after several children were arrested and tortured for writing antigovernment graffiti on walls in the town.
Hala Droubi contributed reporting from Doha, and Hania Mourtada from Beirut, Lebanon


text:
Latest News
Syria's Farouq rebels battle to hold onto Qusayr, last outpost near Lebanese border
As representatives of the more than 70 countries dubbed Friends of Syria met in Paris on Thursday to discuss aid to the country's opposition, some of the fighters here wondered if it might already be too late.
"Maybe this will be the end," said Ammar al Bukiyah, one of the leaders of the Farouq Brigade, the largest group of rebels operating under the umbrella of the Free Syrian Army, the loosely organized armed opposition to Syrian President Bashar Assad. As Bukiyah spoke, shells and rockets fell nearby, rattling the windows of the house that had become a makeshift military base.
Many of the fighters in this largely empty city that was once home to about 35,000 people came here from nearby Homs, Syria's third largest city, at the end of February, when they abandoned their positions in the Baba Amr neighborhood after weeks of fierce shelling. Since then, the fighters here controlled Qusayr's northern half, a position that has appeared tenuous more than once as the Syrian military expanded its offensive against the rebels all over the country. On Thursday, the rebels fought the army for the second day in a row as pro-Assad tanks and troops attempted to enter rebel-held territory from the east.
At the beginning of March, the rebels here had said they would leave Qusayr so as not to condemn it to the same fate as Baba Amr, which was largely destroyed by shelling before loyalist ground troops moved in. But as the rebels have run out of places to go, that seems to have changed. "We will fight to the death," said Bukiyah, a 35-year-old house painter wearing a black tracksuit who spoke as he helped manage a battle that began around 8 a.m. and ended in the early afternoon.
The rebels claimed to have destroyed a pair of Syrian tanks and an armored personnel carrier, as well as killing more than a dozen Syrian soldiers in the two days of fighting. The driver of a Syrian tank also defected during the battle, according to the rebels.
The battle here shows the complexity of the conflict that now simmers in Syria. While the anti-Assad movement began as peaceful demonstrations against a repressive government, it has for much of the past year become a struggle between armed rebels and the better-equipped Syrian military. Neither side is willing to concede turf to the other in the wake of a U.N.-brokered cease-fire that went into effect a week ago.
In Paris, U.N. Secretary-General Ban Ki-moon demanded that Syria pull its forces out of cities and town, saying keeping troops and tanks in populated areas violated the terms of the cease-fire. But he stopped short of saying the cease-fire had failed and called for the Security Council to approve the dispatch of as many as 300 monitors to determine whether the two sides were adhering to the cease-fire.
There are few civilians left in Qusayr and surrounding towns and villages. Those who have remained seem to have grown accustomed to the sounds of gunfire, shelling and rockets, walking calmly through a neighborhood that was home for dozens of fighters.
As evening fell, the rebels were preparing for a third day of battle. Bukiyah used Skype to talk to Abdel Rizaq Tlass, the leader of the Farouq Brigade, asking him for reinforcements and weapons. Tlass remains in Homs, which looks increasingly as though it will be abandoned by the Free Syrian Army after two and a half months of heavy shelling.
"Homs is destroyed," Bukiyah said.
The fighters in Qusayr who came from Homs had been hoping to return there at the beginning of the week. But as the army moved against them in Qusayr and increased the number of checkpoints between the two cities, going back became increasingly unlikely. Rather, the rebels in Qusayr were talking about Homs being abandoned by fighters entirely.
Bukiyah's personal story follows that of the larger uprising against the government, which began with three months of peaceful demonstrations before becoming an armed rebellion in response to Assad's violent crackdown that left hundreds dead and thousands in prison. "I began as a peaceful demonstrator," he said. "But if we don't fight, Bashar Assad will kill us all."
As the conflict intensified, casualties ballooned. The London-based Syrian Observatory for Human Rights, which has kept the most detailed records of any group, says more than 10,000 people have died; the Syrian government says 3,000 soldiers and police have died in the conflict.
In August, Bukiyah helped start the Farouq Brigade's branch in Baba Amr, which the fighters took over, then earned fame for withstanding a month of heavy shelling before running short of ammunition and withdrawing at the end of February.
"Baba Amr was a victory," Bukiyah said. "They could only enter after a month of shelling."
Bukiyah said 2,000 Farouq fighters have been killed since August.
The Syrian military on Thursday also shelled the town of Jusey, between Qusayr and the Lebanese border, further pressing the areas that remain under rebel control. Like Qusayr, the residents of Jusey have largely fled, leaving mostly fighters, also from the Farouq Brigade.


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CEO and President
Named PGi's CEO in 2015 following the company's acquisition by Siris Capital Group, Theodore P. Schrafft has served as President since July 2006 and oversees the entire operations of PGi. He has more than 35 years of experience in the technology and business communications industries.
With extensive expertise in operations management, sales and marketing, Mr. Schrafft previously served in various capacities with the company, most recently as President of the company's former Conferencing & Collaboration solution from January 2000 to July 2006, as well as Senior Vice President and General Manager from March 1999 to January 2000. He also served as President of our former Voice and Data Messaging business unit and as Vice President of Corporate Messaging.
Before joining PGi, Mr. Schrafft served as President and Chief Operating Officer of Voicecom Systems, Inc. from June 1996 until October 1997. He spent 14 years at Digital Equipment Corporation serving in various senior level sales and marketing positions. In 1992, he was President and Chief Executive Officer of EA Systems, a global engineering software company and a subsidiary of Digital Equipment Corporation. Mr. Schrafft serves as a member of the board of Junior Achievement of Georgia, Inc.


text:
Satin Chain Print Swimsuit with Kimono
£10 £40
- Model Wears Size UK 8/ EU 36/ AUS 8/ US 4
- Model Height is 5'6"
- Item Fit: Fitted
- Machine Washable
- Free Next Day Delivery
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Orders can be made by selecting the item you want to purchase and then going to the checkout.
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If you are not happy with your purchase and wish to return it then this must be done within 14 days of the date of the purchase.
Please email us at email@example.com with the order number and reason for return.
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Once the item is received by us we will notify you via email and a full refund will be made for item(s) minus the the delivery charge. We will not refund the delivery charge.
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All returns please send to:
Mimi Clothing
222 Unit 1
Imperial Court
Exchange Street East


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If I had a time machine, the second thing I'd do would be go back to last century and tell 12-year-old Jason that in 2013, I will own an ultra-powerful portable gaming device that can play just about any Final Fantasy game, including, for some reason, a bunch of fighting games with weird names and a total remake of Final Fantasy Tactics with Shakespeare language.
(The first thing I'd do: prevent the Jets from trading for Tim Tebow.)
So 12-year-old Jason might flip out if he heard that starting today, to celebrate Final Fantasy's 25th anniversary (which was technically last December, but whatevs), Square's running a sale on a whole bunch of Final Fantasy games, all 50% off for the next two weeks. Here's the full list, courtesy the PlayStation blog:
DISSIDIA 012[duodecim] FINAL FANTASY (PSP)
FINAL FANTASY Tactics: War of Lions (PSP)
Final Fantasy (PSOne Classics)
Final Fantasy II (PSOne Classics)
FINAL FANTASY IV: Complete Collection (PSP)
Final Fantasy V (PSOne Classics)
Final Fantasy VI (PSOne Classics)
Final Fantasy VII (PSOne Classics)
Final Fantasy VIII (PSOne Classics)
Final Fantasy IX (PSOne Classics)
Sure, I already bought most of these games when they first came out, but for $5 each, I am totally re-buying FFVIII and FFIX to play on my Vita. Don't judge.
50% off Select Final Fantasy Games for the Series' 25-Year Anniversary [PlayStation Blog]


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origamimaster Senior Thursday 05/07/2012, 05:17
I have looked through the survivor record decks and most of them have one thing in common: attack manipulation.
With the low amount of pillz given at later levels, attack manipulation is pretty much needed. My question is: what needs to happen for this to change.
I was thinking maybe the need to ban certain cards in this format but I would like to hear others' opinions.
origamimaster Senior Monday 16/07/2012, 01:43
Wow good work on those 21 wins
You people have given me hope for the future of survivor and I thank you for that


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The Adjudicating authority under the Prevention of Money Laundering Act (PMLA) has issued notices to Satyam Computer Services Ltd (Mahindra Satyam) to appear before it in connection with an alleged (rpt alleged) money-laundering case involving its previous management.
The Enforcement Directorate (ED) on October 18 issued provisional attachment order of the company's fixed deposits (FDs) worth Rs 822 crore in a money laundering case related to the previous management.
Based on a complaint filed by the ED, the authority has asked the company to provide evidence and information related to the FDs attached under the Prevention of Money Laundering Act (PMLA), the notice said.
"You are directed to appear before the Adjudicating Authority, Preventions of Money Laundering Act...in person or through advocate/ authorised representative, duly instructed on the 10th December, 2012 at 11.00 am, failing which the complaint shall be heard and decided in your absence," the notice said.
When contacted, a Mahindra Satyam spokesperson refused to comment.
Vineet Nayyar, Chairman, MSat had earlier stated that the company is going to challenge the ED's order as the deposits rightfully belonged to the company.
"We are going to challenge it because we never had access to that money. That money (which former chairman of SCSL B Ramalinga Raju claims to have brought in) had already been spent when we took over.
"In fact, the situation was so bad that when the government directors were appointed they had to borrow Rs 450 crore to pay salaries in the US.
"The money which was never available to us cannot be seen as debt on us," Nayyar had said in a press conference after announcing Q2 results here last month.


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Wednesday, June 6, 2007
Bestwick And Burr Lead ESPN2 Back From The Brink
There was no Tim Cowlishaw. There was no Brad Daugherty. There was no "fantasy racing" or "driver pick 'ems." There was no screaming, yelling, or hype. Finally, for a solid thirty minutes on ESPN2, NASCAR Now was just about racing. Somehow, this seems to happen when Allen Bestwick is at the helm.
As the "off-duty" drivers assembled in Ohio for Tony Stewart's "Prelude to the Dream," Bestwick shifted the focus of the show to Eldora Speedway. He began the show by speaking directly with Tony Stewart, and giving Stewart the time to explain how this night of racing came about, and how it would benefit the Victory Junction Gang Camp.
Then, for the better part of the entire show, ESPN focused on the drivers involved in the race, and put reporter Shannon Spake right smack dab in the middle of them. The results were hilarious. Finally, fans got to see the NASCAR stars when they did not have to wear the right shades, drink the right drink, and mention the list of sponsors all while being politically correct. Montoya, Hamlin, Martin, and Ray Evernham were all great with Spake, and their good humor was contagious.
Bestwick introduced a fantastic feature by Mike Massaro on ageless veteran Red Farmer. As long as anyone can remember, Farmer has been driving or working on race cars. An original member of the Alabama gang, Farmer was well-known on the NASCAR circuit for his closeness with the Allison family. Massaro led Farmer through the tragic story of the helicopter accident that killed Davy Allison, while sparing the life of Farmer. This was the type of feature that NASCAR fans have deserved from NASCAR Now since the show began in February. It was heart-warming, entertaining, and put the sport in a whole new light.
Maybe the best part of the show was the live interview with Jeff Gordon from Eldora. Bestwick and Gordon have known each other for years, and it showed. Gordon was relaxed, and let his personality and understanding of racing come across in his unique way. As a grown man with a baby on the way, Gordon was quite different from the intense young man who raced USAC Sprints and Midgets with an unmatched ferocity. A NASCAR champion was on ESPN in a T-shirt talking with a smile on his face about racing. What could be better?
This show was so interesting, it was over before anyone knew it. Bestwick and co-host Ryan Burr have changed NASCAR Now from the "hype machine" into a true racing program. The only challenge for ESPN now is to keep the momentum going
for the rest of the season. This is only going to be done with the right combination of on-air talent and racing content.
After the Tuesday and Wednesday editions of NASCAR Now, it may well be that the network has found that combination. Hosts Allen Bestwick and Ryan Burr are surrounded by a strong cast of reporters, great news from the "Insiders," and solid analysis from the race and studio announcers. All the elements are in place, and its up to the ESPN management to make it happen.
The Daly Planet welcomes comments from readers. Simply click on the COMMENTS button below, or email firstname.lastname@example.com if you wish not to be published. Thanks again for taking the time to stop by.
7 comments:
- Thomas said...
DANG! For once, I wish I'd watched the show - and there's no replay :-(
- June 7, 2007 at 8:16 AM
- Anonymous said...
As I have said all along, you can't beat Allen Bestwick when it comes to racing. Such a great gentleman and commentator. Go Allen.
- June 7, 2007 at 9:18 AM
- Joe said...
What a great show! The fastest 30 minutes I've seen, and every minute was great. Best show of the year.
- June 7, 2007 at 10:58 AM
- Anonymous said...
Speaking of ESPN, has anyone noticed that Kenny Mayne is hosting the series "Fast Cars & Superstars". I can't believe that after slamming Nascar fans they make him a host of a Nascar style reality series!!!??
- June 7, 2007 at 11:21 AM
- William said...
This gets my vote for best show of the year. It convinced me to go ahead and buy the Prelude. It was a fantastic night and I owe it to a great show by the NASCAR Now crew.
- June 7, 2007 at 3:53 PM
- Bob in Jersey said...
I'm a lot more comfortable seeing A.B. than the other rah-rahs Kuselias and Banks on this show. Heck, they already have him under contract for the race coverage, how does it not make sense for him to be on this?
And for the guy troubled about Mayne, remember that "Fast Cars..." is a paid program, a piece of filler on nights when ABC is showing games of the NBA championship final series, of which the league is convinced people will not fall asleep during those games.
- June 7, 2007 at 10:26 PM
- gmnodave said...
It was great seeing Mr. Bestwick back on NASCAR Now Wednesday. However, once again, Mr. Kuselias was host on Thursday. Just when I think ESPN has been listening to us, they regress & ruin the feeling.
- June 8, 2007 at 3:31 AM


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Burton Descendant 2017Email to a Friend
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Because eight arms are better than two
If you want up-to-the-minute news (and who doesn't?), you can hit our blog or follow us on Twitter. We'll post new releases, updates, and beta opportunities, and you can be the envy of your friends by seeing them first.
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and we can talk about how Tentacle Software and our partners can help. Contact us...
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Colleagues, FORECAST: PAULA is now a Tropical Depression with winds of 35 mph, off the north coast of Cuba moving E at 13 mph. It will be rounding the eastern edge of a developing surface ridge to its west and cross Cuba next week. Not much of a storm left. Just some rain (not much).
DISCUSSION: The delay of crossing Cuba and staying over water has slowed down the decay somewhat, but 35 mph isn't much of a storm. PAULA's only hope was to quickly get south of Cuba, and that may not happen at all.
NEXT FORECAST: When something changes or new development
Peter Ray
DISCLAIMER: The Florida State University required that I not use any FSU equipment to send out these forecasts. To comply, I have purchased my own computer for making and sending these forecasts. I have been touched by the many offers of encouragement and support that I have received. I am deeply indebted to the Secretary and the staff of the Department of Children and Families who value these forecasts for the citizens of Florida. Also to the firm Hayes Computer Systems, which set up the distribution software and is providing for the distribution of these forecasts at no cost. They are very professional and competent. I acknowledge that these forecasts are mine alone, by my own effort and initiative. I only try to provide the best possible forecasts for the community, and the State of Florida and now, surrounding states at no cost to those who receive it.
I have set up a website and blog which may be reached at URL http://www.hurricanehunt.com In this website you can find the forecast, as well as a blog of expanded interests of mine dealing with weather and climate and hurricanes, and an opportunity for you to comment as well. There is also an opportunity for you to contribute to defraying the increasing costs of maintaining this service, if and only if you want to. This must always be a not for profit public service and free as long as I have anything to do with it. But I have had offers of help in the past and it is increasingly difficult for me to underwrite all the cost, even with the generous and gracious support form Hayes Computer Systems.
Please do NOT send subscription messages to email@example.com.
To subscribe or unsubscribe to the hurricane forecast list send an email to firstname.lastname@example.com with "subscribe" or "unsubscribe" as the subject. You can manage your subscription at: http://lists.hcs.net/mailman/listinfo/hurricane-forecast_lists.hcs.net If someone wishes to contact me, they can send an email to firstname.lastname@example.com.
Peter S. Ray
_______________________________________________ hurricane-forecast mailing list email@example.com http://lists.hcs.net/mailman/listinfo/hurricane-forecast_lists.hcs.net


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Floral Necktie No. 324
Blue Floral Cotton Necktie
About this itemFabric: 100% Cotton
Dimensions: 2.5" Wide - 58" Long
Fabric Care: Imported, Dry-clean Only
View Shipping & Return Policy
Priority & Overnight shipping is available. Cost based on overall weight.
If you are not 100% satisfied with your purchase, we will accept most returns as long as the product is in an unused state.[/TABS]
It is Ella Bing's every intent to provide you, the customer, with kindness and excellent customer service. Most of our products carry an open return policy, as in, we will work with you to ensure you are a repeat customer. Exceptions include, but are not limited to, wood products including wood bow ties & wooden sunglasses - physical abuse and/or accidental damage. These incidences are handled on a case-by-case basis. If the product you purchase via the Ella Bing website, is a third party product. IE, another brand. We will do our best to work with the brand to get you a replacement. We stand behind our goods and services and want you to be satisfied with them. We'll always do our best to take care of customers—our philosophy is to deal with you fairly and reasonably; we hope you will be fair and reasonable with us as well.
Orders placed before 12PM EST ship out the same business day, in most cases. Orders placed after 1PM EST ship out the following business day. All weekend orders ship out the following Monday. Of course, although rare, there are exceptions. IE, a product needs to be made, or reproduced. Priority & Overnight shipping is available. Cost based on overall weight. Most of the time, we ships in a genuine cigar box, with a microfiber cloth pouch for safekeeping & cleaning.


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I'm using curl_multi functions to request multiple URLs and process them as they complete. As one connection completes all I really have is the cURL handle (and associated data) from
The URLs come from a job queue, and once processed I need to remove the job from the queue. I don't want to rely on the URL to identify the job (there shouldn't be duplicate URLs, but what if there is).
The solution I've worked up so far is to use the cURL handle as an array key pointing to the jobid. Form what I can tell, when treated as a string the handle is something like:
"Resource id #1"
That seams reasonably unique to me. The basic code is:
$ch = curl_init($job->getUrl());
$handles[$ch] = $job;
//then later
$done = curl_multi_info_read($master);
curl_multi_remove_handle($master, $done['handle']);
Is the cURL handle safe to use in this way?
Or is there a better way to map the cURL handles to the job that created them?


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My first grader knows that she has to be in bed by 9PM no matter what. I uaually give her an 8PM warning so she can play, watch a cartoon, draw, or anything else she would like to do before bedtime. Then at 8:45 we put on pj's, brush teeth and read a story. After this we usually don't have a problem with her going to bed. Sometimes I hear her talking to her stuffed animals in bed but as long as the lights stay out and she stays in bed ( she usually is asleep within 20min.) she is allowed to do this. We have had this routine for several years and it has worked well for us. We always do homework right after school and that way she has the whole rest of the day to do whatever play she wants so by bedtime she doesn't feel like there is anything else she wants to do. She is an only child and really enjoys solo playtime and as long she gets enough of it, she is happy to go to bed.
How can you get a grade schooler to go to sleep earlier?
Not getting enough sleep can affect your child's schooler performance and behavior. How can you teach your grade schooler healthy sleeping habits and get them to start going to bed earlier?
Routine routine routine. Our daughter (grade 1) gets home from school right around 5:00. Our evening routine begins right there.We eat as close to then as possible. After supper it's her job to clear the table, so around 6:00 it's upstairs to prep for bed. (Brush teeth, get in pi's, set out clothes for tomorrow, tidy up, etc.) Once they have done that, she has time to do homework (she rarely has any) or play with her little sisters or watch Wheel of Fortune--it's her choice. At 7:00 we have family worship and tuck them all in bed. The older girls get a story tape or CD to listen to.
It's been the school-night routine for forever, so there's usually no struggle. If there is, they lose the story, or some other related consequence. It works for us :) I am a strong believer in kids getting enough sleep!
I would suggest getting the child up earlier in the morning. And then after they get out of school try to do either exercise/sports/physical activity with your child or more mental activities that will exercise their brain. Both can make anyone tired.
I agree routine is the best way to get results. Lack of sleep can cause behavioural issues as well as having an effect on school performance. My girl is still in nursery but as with her older brother we have shown her the time on the clock that she should go to bed. A couple of gentle reminders when the time is drawing near allows her to make the most of her play time and then off to bed with a story or a radio show on quietly (I choose classic fm due to the lack of loud thumpy music and the gentle voice of the presenters). She has the occasional night where she will play up but by starting the routine so early in her life she shouldn't have any problems by the time she starts school. This worked for my son and he has conmsistantly been a high performer at school, both academically and sports. (When we have had any problems I have pointed out that we do all of our growing and our bodies repair whilst we are sleeping so if they don't get enough sleep they will never 'be big' lol)
We have a no TV rule Monday - Thursday. We do homework, enjoy dinner and the boys are in their rooms with out electronics around 9. They can read, draw etc... Usually they turn in on their own with out guidance from us. If your kids not tired you should include exercise/play in the mix after school. Routines work best for us.
Good Luck
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Hello everybody. First I want to tell you about my situation.
I know It's not nice what I'm about to do right now and I hate doing this but If I can't send the complete reversi code to my java teacher in university in a few days probably I will not be able to take java part 2 lessons and have to take java lessons next year again because this reversi game was project work.
If anyone has the code please I need it...Thanks already.


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DEECO SERVICES Ltd
Tel : 0800 433 326
Fax : 0800 333 267
Tel : 0800 433 326
Fax : 0800 333 267
Combining the best from tradition, experience and modern management, Deeco Services Ltd exclusively markets to the fluid treatment and waterworks industries specialising in Horticultural and effluent disposal Irrigation, systems, control - valves, water meters, automatic meter reading and network analysis systems, Vee wire screening systems, water filtration products, well and intake screening, solids removal and dewatering systems, backflow and cross connection protection. backflow and cross connection protection.
As a reliable supplier of valves, filters and metering systems, Deeco offers a local and national service to assist with the commissioning of these products in the field.
In addition to this, we are able to train the operators in the operation and maintenance to ensure optimum performance of these systems.
With offices in four main centres, together with the right products and services to satisfy your needs, Deeco Services Limited remains at your personal service.
Deeco Services Ltd. All rights reserved Home | About | News | Metering | Filtration | Valves | Emitters | Contact Us