Copyright Basics for Design Professionals

Fall 2008Issu

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Design Professionals expect the Copyright Laws to protect their work from unauthorized use, copying and distribu-tion. There is a perception among design professionals that if someone else (your client or another design professional) uses your design without your permission, they have violated the copyright laws. This is frequently a misperception.

The truth is that courts sometimes find that the allegedly in-fringing party has an “implied nonexclusive license” to use the design. As explained in this article, this “implied nonexclusive license” is “inferred” from the conduct of the parties. An im-plied nonexclusive license authorizes the allegedly infringing party to use the design in ways consistent with the terms of the implied license.

Part 2 of 2

David W. Francis, Esq.

Whether an implied nonexclusive license ex-ists is typically determined by the federal courts in response to a copyright infringement action. Although the courts sometimes determine the existence of an implied nonexclusive license based upon undisputed facts, this is not always the case. Sometimes ultimate resolution of the copyright infragment claim occurs only after an expensive and time-consuming trial.

The good news is that design professionals can protect themselves and their interest in the de-sign. Before we discuss how to protect yourself, let us discuss how you can fall into the trap and how this implied nonexclusive license doctrine is applied.

Copyright Law BasicsThe Copyright Law provides that “Original Works of Authorship” are copyrighted when created. There is no requarrymen in the copy-right law that parties register a copyright with the copyright office before the copyright is ef-fective. The copyright law also provides that the creator of a work is the copyright owner unless it is transferred to another. The transfer of copy-right ownership can be by contract or by virtue of a separate agreement. An exclusive license (i.e., the recipient has the exclusive license to use the copyright) is such a transfer. Any such transfer must be made in writing

However, the copyright law does not require writing for the issuance of a nonexclusive li-cense. The courts have inferred the existence of

Continued on Page7

President’s Message Ramblings by Chuck Majestic Rushmore2009 Conference InfoChapter News

Inside38

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Pennsylvania Society of Land Surveyors News

OfficersEmil Bove, PresidentRichard Phillips, President-ElectWilliam Lehman, Vice PresidentDavid Artman, SecretaryRalph Piatt, TreasurerRandall Myers, Past PresidentRobert Miller, NSPS Governor

State DirectorsAllegheny Heartlands Chapter Gerald Pastva & Norman Van WhyBucks Chapter Donald Rife & Donald KampDelaware Valley Chapter Karl Kriegh & Keith HouserHarrisburg Chapter Thomas W. Kimmel & Milton DavisLaurel Highlands Chapter Richard Bourg Jr. & Charles ZelenakLehigh Valley Chapter William Beitler & Thomas MorganelliMid-State Chapter Fred M. Henry & Kirby lockardNorth Central Chapter James Pahel & Charles LangNortheast Chapter Brent Birth & Jason MoranNorthwest Chapter Jeffrey Gilmore & Edward NorthropPocono Chapter Paul Waters & Duane Bishop Jr.Reading Chapter John Fuehrer II & Merlyn JenkinsSouth Central Chapter L. Bradley Foltz & Thomas Farcht Jr.South Pocono Chapter George Fetch Jr. & Robert StormSouthwest Chapter Norm Landsperger & Kevin HanneganSusquehanna Chapter Peter Uhl & Frederick Rankinen

PSLS StaffAndrew J. Hilt, Executive Vice PresidentShari L. Taylor, Assistant Executive DirectorKate C. Sherman, Director of Communications/ Member ServicesLaurie L. Troutman, Administrative Assistant

The Pennsylvania Surveyor is published quarterly by the Pennsylvania Society of Land Surveyors (PSLS). Ar-ticles or opinions expressed in this publication do not necessarily reflect the viewpoints of PSLS, but are pub-lished as a service to its members, the general public, and for the betterment of the surveying profession. Ar-ticles may be reprinted with due credit given.

We welcome submissions via e-mail in MS Word format. Please forward to ksherman@psls.org or call 717.540.6811.

Pennsylvania Society of Land Surveyors2040 Linglestown Road, Suite 200

Harrisburg, PA 17110 P: 717.540.6811 F: 717.540.6815

www.psls.org

Surveyors Swinging Clubs and “Cooking” in the Summer SunThis summer, John Van Natta hosted a cookout for some longtime friends at his house in Southport, N.C. Prior to the feast, John, Byron Rimmer, Don Rife and Don Kamp worked up an appetite on a golf course in Myrtle Beach.

Pennsylvania Society of Land Surveyors

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From left: John Van Natta, former PSLS executive director; Byron Rimmer; Don Rife; and Don Kamp

John was cook-ing up a storm for his friends at his house in Southport, N.C.

Hmm, they never did reveal how the game turned out.

And Now...A Word from Our PresidentEmil A. Bove, PLS

Fall 2008PA

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Continued on Page 4

• Educate the public• Improve customer service• Protect the scope of practice• Educate the land surveyor

The Good, the Bad, & the Ugly!Time really does fly. The year 2008 is coming to a fast conclusion. Did we have fall yet? It seems like summer and winter just ran into each other.

It has been a great experience serving as president of PSLS. I enjoyed working with the PSLS staff, the Execu-tive Committee, and the board of directors. It seems like it took the entire year to get settled in and ready to go, and now I’m a past president. I have prepared my version of the Good, the Bad and the Ugly of my 2008 term as PSLS president. I am sure there are other versions out there.

The GOOD

Strategic Plan

We developed four major goals:

Surveyors Conference It’s the best conference around! We had lots of educa-tional opportunities at a top notch facility. The Educa-tion/Conference Planning Committee puts a lot of hard work into this--thanks!

Web Site The web site has improved and will continue to expand.

New Director of Communication and Member Services Congratulations and good luck to Kate Sherman. You can contact Kate for newsletter and Web site additions or suggestions.

Met Many Dedicated People and Made New Friends.

Surrounding States Conferences Received invitations to attend other states’ Surveyors Conferences.

Drive to and from Harrisburg Three hours from New Stanton, Westmoreland County to Harrisburg provided me with six hours of me time.

The BAD

Strategic Plan Not enough accomplished, partly due to my lack of commitment (see “commitment” below).

Commitment It has been extremely difficult to commit time to PSLS while running a business and raising small children, especially with a working wife. With today’s economic condition, most of us are faced with this dilemma. This is not only a PSLS prob-lem. All societies are facing this crisis. I am not sure what the answer is.

Surveyors Conference To help keep the cost of the conference down, I would like to encourage people to reserve rooms at the Hershey Lodge. As you know, the PSLS Surveyors Conference occupies most of the avail-able conference space. To reserve that space, we need to guarantee a certain number of overnight rooms--the overnight rooms that are not filled are paid for by PSLS. In the future, it will cost us more to reserve the space if we do not fill the overnight rooms.

Old Director of Communication and Member Services The previous person in this position, hired in De-cember of 2007, started strong but left us after only a few months.

Dan Lake Dan’s leadership and commitment is sorely missed.

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4Fall 2008

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Surrounding States Conferences Unfortunately, due to lack of time (see “Commitment” above) I was unable to attend a single conference, except ours.

Drive to and from Harrisburg Six hours on the Pennsylvania Turnpike, especially in the winter, provided my vehicle with numerous hits from de-bris, salt and rocks.

The UGLY My E-mail System

I have realized that my Internet provider must be the worst available. The only e-mail I seem to receive is spam. If you need to e-mail me, call first – or better yet, just fax it. Mandatory Public Education When this was first proposed, I thought it was a good thing. But in its current form, it seems way too cumber-some. Hopefully, the final version is more practical.

Pumpkin Soup? Everyone attending the December 5, 2008, Board of Di-rectors meeting had the opportunity to try this soup. The first spoonful was kind of good; the second spoonful was interesting; after the third spoonful I determined that this taste was best to remain in pie form.

Drive to and from Harrisburg Although I never got caught up in a massive traffic jam due to an accident, I did have a couple of potentially seri-ous situations arise while making this commute. Once, a truck hauling a load of straw bales was coming toward me in the opposite lane when its load shifted and a straw bale flew off the truck, over the concrete medial barrier and across both lanes of the Turnpike, barely missing my vehicle. On a different trip, I was passing a tractor-trailer when its tire exploded, came off the truck, and bounced completely over my vehicle and landed off of the roadway. I can’t wait for the drive to the conference!

In closing, I wish the incoming president, Richard Phil-lips, the best and offer him my full support. Finally, I would like to wish everyone a safe and happy holiday sea-son, and a prosperous and happy New Year!

President’s Message Continued from Page 3

Emil Bove, PLS, is owner of Bove Engineering, Greensboro, Pa. He is a member of PSLS.

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have always given me strait answers to every question I’ve asked. Sometimes the answer is yes and sometimes the answer is no, but my clients get the truth from me and that’s what I get from Hayes.

There will always be logistical issues in surveying. The one thing I haven’t learned to do is to be in two places at once, but I am working very hard on learning how to do that. Hayes in Tennessee and me in Florida has never been an issue. The truth of the matter is that with overnight deliveries, the internet, email, FTP access and the telephone we can all do business with just about anyone we want.

I’m a Consulting Surveyor and I wouldn’t have it any other way. Things change and my business will change right along with them. The keys are motivation, support and always remembering that the harder we work, the more luck we have.”

Daniel galbraith, Psm, Plsgulf surveyors grouP, inc.www.gulfsurveyors.com

Dan specializes in surveying, GPS and robotics training, 3D modeling and data prep for machine control.

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Advancing technology is at the heart of my business plan. It allows me to compete directly on projects in ways that weren’t possible 8 or 10 years ago. It takes a lot of effort to stay on the leading edge and it takes support as well. Hands down, Hayes has the best technical support that I have ever used. They know their equipment and they know their software.

When I need an answer, I need it now. I’m not real interested in excuses, and I don’t appreciate the line: ‘Johnny is busy right now and maybe he can call you back tomorrow.’ If I tell my clients that maybe I can meet their schedule, I’m reasonably certain they will tell me that maybe they can get someone else. Hayes understands that and they

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6Fall 2008

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an implied nonexclusive license from the objective conduct of the parties. This is an implied nonexclu-sive license.

Courts look at three elements when they “infer” the existence of an implied license. These elements are:1. A client requests the creation of a work,2. The design professional makes the particular

work and delivers it to the client who requested it, and

3. The design professional in-tends (based upon objective evidence) for the client to copy and distribute the work to others.

The first two elements are fre-quently satisfied in copyright infringement actions involving a design of a project. Accordingly, finding an implied nonexclusive license typically comes down to the third element of intent. This element can be determined by looking at the objective facts, not the subjective intent of the parties. Because the existence of an implied license is an affirmative defense, the de-fendant in an infringement action has the obligation to prove that this implied license exists.

Development and Application of the Implied Nonexclusive License DoctrineAn early and important case that helped establish the principle that nonexclusive licenses can be im-plied from objective conduct was Effects Associates v. Cohen, 908 F.2d 555 (9th Cir. 1990). Although not a design professional case, it is very important to the development of this doctrine for design profes-sionals.

The Effects case involved a movie entrepreneur’s use of special effects footage without making payment in full and/or obtaining an express written license. In Effects, Cohen hired Effects Associates to prepare footage for a horror movie. According to Cohen, he was not satisfied with the footage and therefore only paid one-half of the amount billed. Effects demand-ed the full amount on several occasions, but Cohen

simply refused to pay it. Notwithstanding Cohen’s dissatis-faction with the footage, he used it anyway. Effects then sued him for breach of contract and copyright infringement.

Cohen raised several arguments in defense, including the ex-istence of an implied nonexclusive license to use the footage. The court decided this matter before the actual trial based upon the uncontested facts. The trial and appellate courts agreed that Effects had provided Cohen with an implied nonexclusive license to use the footage. The courts noted that Effects had created the footage at Cohen’s request and had provided it to Cohen with the intention that Cohen uses it. Effects’ actions created the implied nonexclusive li-cense. Cohen’s failure to issue payment to Effects was irrel-evant to the issuance of a copyright license. Accordingly, the

court rejected Effect’s copyright action.

The doctrine of an implied nonexclusive license set forth in Effects was subse-quently applied to design profession-als. A significant and often cited case that relied upon Effects was I.A.E. Inc. v. Shaver, 74 F.3d 768 (7th Cir. 1996). In Shaver, a regional airport author-ity entered into a contract with a joint venture for the design and construc-tion of a new air cargo/hangar building. The joint venture subsequently subcon-tracted with Shaver, a licensed architect, for architectural design services. The joint venture and Shaver entered into a written agreement—which was a letter prepared by Mr. Shaver—that only ad-

dressed the schematic design phase of the project. Although it was Shaver’s subjective belief and understanding that his firm would be hired to perform all of the design work on the project, the contract did not address the remaining design phases.

Shaver completed the schematic design and forwarded it to the joint venture for review along with an invoice for pay-ment. The joint venture approved and paid for only one-half of the design fee, and then hired a subsequent firm to pro-vide architectural services for the remainder of the project work. After Shaver found out, he notified the joint venture that he expected to be paid the full contract value, his ex-penses and a copyright assignment fee of $7,000 for the use of his drawings. The joint venture refused to pay and filed a declaratory judgment action seek-in, among other things, an order ruling that the joint venture had the right to use Shav-er’s schematic design drawings. Shaver filed a counterclaim for copyright infringement and breach of contract.

Continued on Page 18

Copyright continued from Page 1

How KeyNetGPS works

KeyNetGPS is a network of Trimble Survey grade GPS (NetRS and NetR5)receivers or a VRS (Virtual Reference System). The network provides fastand accurate GPS positioning over wider areas than conventional RTKsystems. It is available at any time via wireless technology. There is noneed to set up a base station for local control, the network providescommon control or reliable State Plane Coordinates anywhere within thenetwork. In the field you have the extra assurance of the built-in integritymonitoring system that warns of any problems with data.

The use of networked reference stations, consisting of Trimble receivers,rather than a single base station allows for the modeling of systematicerrors. GPS observation data from our fixed reference stations is transmittedback to our central server in Allentown, PA. The Trimble RTKNet softwarethen performs quality and integrity checks, computes ephemeris andatmospheric errors, and models these errors for RTK surveying. The resultsare: reduction in errors, increase in accuracy, improved reliability andquicker RTK initialization time.

The benefit of using KeyNetGPS: Increased productivity

A user can arrive on any site in the network and within minutes be survey-ing at centimeter accuracy by themselves. High quality control is availablethroughout the network with a common coordinate base providingincreased productivity and high accuracy with less equipment. There’s noneed for a base station and radio. Using modern GPS receivers, and datacollectors with built in cell phone technology along with Bluetooth youcan work with a completely cable-free rover. And, you may be able to useyour current base as a second rover. KeyNetGPS will also work with modernTopcon and Leica RTK equipment.

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Keystone Precision Instruments has committed to expanding and growingthe existing KeyNetGPS network and offers you the opportunity to be aparticipant in the network. Please call for more information as to how youcan become part of a unique business opportunity within KeyNetGPS(keynetgps.com or 800-833-9250).

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8Fall 2008

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Ramblings by Chuck

Charles Ghilani, PhD Penn State Wilkes-Barre

Single Zone System: Has it Arrived?

As I have explored in previous articles, observations must be reduced to their map equivalents if the ac-curacy of today’s surveys is to be maintained. Ad-ditionally, Pennsylvania has two zones. For survey-ors who work in both zones, this means occasional conversion of surveys between the zones. For people in PennDOT, it introduces the possibility of road designs that exist in both zones. For Pennsylvania, it means that two points have the same state plane coordinate system (SPCS) values.

In constructing a GIS for the state, this means that points in the north zone and south zone overlap on a statewide map. These problems can be alleviated with a single SPCS zone for the state. To gain some under-standing about de-signing a SPCS zone, we need to under-stand how the SPCS system was created in the first place. Origi-nally, the system was designed to maintain a distance precision between the ellipsoid (geodetic distance) and the map (grid distance) of 1:10,000 or better. To do this, the map projection zone limits in the north-south di-rection were limited to 158 mi. The approxi-mate latitude of the Mason-Dixon line (south bor-der) is 39°43’. Excluding the tip of Erie County, the northern border is at 42° latitude. The geodetic dis-tance between these two latitudes is about 157.6 mi.

If the tip of Erie County, which is about 1/3 of Erie County, is “included” in the geodetic distance is about 176 mi. The quotes simply mean it is part of the computed precision for the zone. It should be remembered that map projections do not stop at the zone limits. Being outside the zone limits simply means that the difference between the geodetic distance and equiv-alent map distance is lower than 1:10,000. Thus, not includ-ing the tip of Erie County in the zone limits means that the precision would be less than 1:10,000 in this region.

So how did Pennsylvania end up with two zones? Each time a SPCS was designed for Pennsylva-nia, the National Geo-detic Survey (NGS) sent a letter to the state ask-ing how it would like to have it designed. Unfor-tunately, Pennsylvania has never responded to these requests. Thus the NGS went about deter-mining the zone limits for each zone without any Pennsylvania-spe-cific interaction.

As shown in Figure 1, it set the north-ern border at the intersection of the east boundary of Erie County with the in-ternational border in Lake Erie. This means that the north zone of PA covers a considerable section of New York. As shown in Figure 1, the southern zone limits extend well into our southern neighbors by about an equal amount.

This means that most of Pennsylvania was well within the standard parallels of each zone and that the southern stan-dard parallel of the north zone is south of the northern stan-dard parallel of the south zone. The end result is a huge over-

Figure 1

As shown in Figure 1, it set the northern border at the intersection of the east boundary of Erie Coun-ty with the international border in Lake Erie. This means that the

north zone of PA covers a consider-able section of New York.

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lap between our two map projection systems when, in fact, one zone could have covered most of the commonwealth quite nicely. In a second-year class, students in the Surveying Engineer-ing and Surveying Technology programs at Penn State Wil-kes-Barre address this problem by designing a single zone for the entire state. They are asked to discuss both the ad-vantages and disadvantages of a single zone system in Penn-sylvania. Most designs result in a “precision” of 1:8500 or better. Obviously, this varies depending on the selected zone limits. Options on the zone limits include excluding the tip of Erie County, including it, selecting limits that place the extent of the zone slightly into our northern and southern neighbors. Students are also presented with the problem of the SPCS coordinates being identifiably different from our two current systems. This is accomplished by providing new false northings and eastings in the design that differ signifi-cantly from the current values of 0.000 m and 600,000.000 m, respectively. The advantages of having a single zone are obvious since only one map projection system would exist for the state. The dis-advantage is that the precision between a geodetic distance and equivalent map distance would be less than 1:10,000 for a small portion of the state. However, as was presented in the first article of this series, 1:10,000 is well below today’s survey standards, and the elevation factor often accounts for a more significant difference in Pennsylvania than does the scale factor. That is, any location that is higher than about 2300 ft will have a precision less than 1:10,000 due to its el-evation. Lower elevations may experience this also when the elevation factor is multiplied with the scale factor. Further-more, due to the increased measurement accuracy of our in-struments as compared to the transit and tape of the 1930s, most surveys are performed at much higher precisions than 1:10,000. The next time someone questions whether we should have one zone in Pennsylvania; do not use the argument that we must maintain a distance precision of 1:10,000. As discussed in the first article in this series unless you are still doing tran-sit and tape surveys, the observed horizontal distances must

Charles Ghilani, PhD, teaches surveying at Penn State Wilkes-Barre. He is PSLS member.

be reduced. So why let the a 1930s decision to main-tain a precision of 1:10,000 between the geodetic dis-tance and the equivalent mapping distance have any bearing on the decision of how to design our state plane coordinate system in this new millennia. In the 1980s Montana did not when it went from three zones to one.

“Originally, the system was designed to maintain a dis-tance precision between the ellipsoid (geodetic distance)

and the map (grid distance) of 1:10,000 or better.”

For more from Dr. Ghilani, attend the 2009 PSLS An-nual Surveyors Conference in Hershey, Pa., on Janu-ary 25! Chuck will share his expertise on State Plane Coordinates.

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The following couple of stories come from the park news called The Granite Journal. Instead of using my words, these best describe the memorial. Memorial for Great MenOn the face of Mount Rushmore in the Black Hills of South Dakota, sculptor Gutzon Borglum carved a memorial from 1927-1941 to our nation’s history with the help of many workers and several influen-tial politicians.

The granite portraits of George Washington, Thom-as Jefferson, Theodore Roosevelt, and Abraham Lin-coln represent the birth, growth, development and preservation of the country. Today Mount Rush-more is host to 3 million visitors each year from around the world who represent many cultures and find inspiration in ideals of freedom and democracy that Mount Rushmore represents.

Inspiration for a Mountain Carving“My plan is to make Rushmore a center in the heart of America so attractive, so comprehending, that the inevitable visiting world will assemble there with something more than curiosity, and go away with something more than wonder.” Sculptor Gutzon Borglum

Four hundred men and women helped create the sculpture on Mount Rushmore. Jobs varied from drillers and black-

smiths to housekeepers. Workers endured condi-tions that went from blazing hot to bitter cold and windy. Carvers climbed 700 stairs to the top of the mountain to start their work day. Winch-men used 3/8 inch thick cables to lower workers over the front of the 500 foot face of the moun-tain in a “bosom chair.” The work was exciting, but dangerous, as 90% of the mountain was carved using dynamite. The powder men cut and set charges of dynamite of specific sizes to remove precise amounts of rock. After this was done, the drillers and assistant carvers drilled holes into the granite very close together. This was called honeycombing to weak-en the granite so it could be removed easily. After honeycombing, the workers smoothed the surface with a bumper tool. In this final step, the

bumper tool would even up the granite, creating a surface as smooth as a sidewalk. Carving of the mountain ended in 1941 after the death of Gutzon Borglum and the beginning of the United States involvement in World War II.

One of the most moving ceremonies that I’ve ever been too was the evening lighting of the Presidents faces of Mount Rushmore. They had every veteran in attendance come down on stage. Four were picked to lower the American Flag and fold. Every vet was asked to speak his or her name and what branch of service they were. My friend was in the navy and he told me that was the most inspirational service he was ever involved with. If you could find the time to visit Mount Rushmore, you will have one of the greatest vacations ever. While there, be sure to visit the Badlands National Park, Custer State Park and Devils Tower National Monument.

Byron W. Rimmer, PLS

The Beauty of Mt. Rushmore National Memorial

My wife, Dottie and I went with friends on vacation to Rapid City, S.D. I al-ways wanted to visit Mount Rushmore because of the saying, “Three Surveyors and Some Other Guy.”

PSLS Surveyors’ Conference 2009

Sunday, January 255:00 – 8:00 p.m. REGISTRATION, Great American Hall in Exhibit area5:30 – 8:00 p.m. RECEPTION, Exhibit area, Great American Hall

Monday, January 267:00 a.m. BREAKFAST (Optional)7:00 a.m. PAST PRESIDENTS and CHAPTER PRESIDENTS BREAKFAST8:00 a.m. – 1:30 p.m. REGISTRATION - Great American Hall (Red & White)8:00 – 10:30 a.m. REFRESHMENTS - Exhibit area8:00 – 6:15 p.m. EXHIBITS OPEN8:30 – 10:30 a.m. FEATURED WORKSHOP– Trinidad Room Boundary Conflict – Case Studies Walter G. Robillard, PLS, Esq. - Presenter11:00 a.m. PSLS ANNUAL BUSINESS MEETING - Trinidad Room PSLS President – Emil A. Bove, PLSNoon LUNCH – Great American Hall (Blue)Noon SPEAKER AND GUEST LUNCH 1:30 – 5:00 p.m. SESSION I: SIMULTANEOUS WORKSHOPS (see Workshop Descriptions list for schedules)5:30 p.m. CASH BAR - EXHIBIT AREA6:30 p.m. DINNER – Aztec and Nigerian Rooms PSLS ANNUAL BUSINESS MEETING CONTINUED AND AWARDS - Introduction of Guests and PSLS Past Presidents - Keynote Speaker: Curt W. Sumner, PLS - PSLS Installation of State Officers and Chapter Officers - PSLS Award Presentations

Tuesday, January 277:00 a.m. BREAKFAST- Great American Hall (Blue)8:00 a.m. – 6:15 p.m. EXHIBITS OPEN8:30 a.m. – Noon SESSION II: SIMULTANEOUS WORKSHOPS (see Workshop Descriptions list for schedules)Noon LUNCH - Great American Hall (Blue)1:30 – 5:00 p.m. SESSION III: SIMULTANEOUS WORKSHOPS (see Workshop Descriptions list for schedules)5:30 p.m. CASH BAR - Exhibit Area6:30 p.m. DINNER - Aztec and Nigerian Rooms - Patrick Lee as Thomas Jefferson - Raffle drawings and Auction

Wednesday, January 287:00 a.m. BREAKFAST- Great American Hall (Blue)8:00 a.m. – Noon EXHIBITS OPEN8:30 a.m. – Noon SESSION IV: SIMULTANEOUS WORKSHOPS (see Workshop Descriptions list for schedules)Noon LUNCH - Great American Hall (Blue)1:30 – 5:00 p.m. SESSION V: SIMULTANEOUS WORKSHOPS (see Workshop Descriptions list for schedules)5:00 p.m. ADJOURNMENT

www.pslsconference.org717.540.6811

January 25-28 Hershey Lodge & Convention CenterHershey, Pa.

Workshops PSLS Surveyors’ Conference 2009

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Featured Workshop: Boundary Conflict--Case Studies with Walter G. Robillard, Esq., PLS

This form may be duplicated for additional registrations. Return form to PSLS by January 23. First name MI Last Name Name on Badge Title (i.e., PLS, PE, Ph.D.) qMale qFemale E-mail Company Address (no. and street or box no.) City State ZIP Business telephone Home telephone I plan to arrive: Sunday qPM Monday qAM qPM Tuesday qAM qPM Wednesday qAM qPM Please supply the following information:I am a member of PSLS: qyes qnoI am a registered professional land surveyor: qyes qno Indicate method of payment:Your payment, in full, must accompany your registration form. Fax registrations must be accompanied by credit card payment information.

qEnclosed is a check made payable to PSLS

qEnclosed is a purchase order, made payable to PSLS or letter of authorization from employer or organization.

q$645 per person for Early-bird registration (postmarked by December 19, 2008)

q$560 per person for Early registration PSLS members only (postmarked by December 19, 2008)

q$695 per person for Late registration

q$610 per person for Late registration-PSLS members only

q$300 for registered full-time student

q$370 for one-day registration qMon qTues qWed (LUNCH is the ONLY meal included with a one-day registration. Break-fast may be purchased for $25 additional. Dinner may be purchased for $45 additional. 1st choice workshop may not be available. qAdd $25 per person if planning to attend Monday Breakfast

qAdd $25 if planning to attend the S.I.T. workshop(I-10) for Fundamentals of Land Surveying required book.

qAdd $25 if planning to attend Principles and Practice National Exam workshop (II-10) for Principles and Practice of Land Survey-ing required book.

Charge the amount indicated to my q MasterCard q VISA Cardholder’s name (please print)

Cardholder’s signature

Charge no. Exp. date (Credit card charges cannot be processed without signature and expiration date.)

If a workshop is more than one session you MUST take ALL SES-SIONS for credit-PARTIAL CREDIT WILL NOT BE GIVEN. Two-part workshops include (I-5, II-5), (II-1, III-1), (II-2, III-2), (II-3, III-3), (II-4, III-4), (III-10, IV-10), (IV-2, V-2), (IV-3, V-3), (IV-7, V-7), (IV-9, V-9) Three-part workshops include(I-9, II-9, III-9) In the blanks below, indicate by number which workshops you wish to attend (three choices per session).Featured Workshop: Boundary Conflict Monday, 8:30-10:30 a.m. ChoiceSession I

Monday, 1:30-5:00 p.m.Session II

Tuesday, 8:30 a.m.-noon Session III

Tuesday, 1:30-5:00 p.m.Session IV

Wednesday, 8:30 a.m.-noonSession V

Wednesday, 1:30-5:00 p.m.

qMy spouse/guest is attending.

Name Please include meal cost for spouse/guest with your check: Breakfast $25, Lunch $35 and Dinner $45 and/or $75 Spouse Activities Program. SEND THIS FORM TO:

PSLSConference Registration2040 Linglestown Road, Suite 200Harrisburg, PA 17110Fax: 717-540-6815

Registration Form PSLS Surveyors’ Conference 2009January 25-28, 2009

This form may be duplicated for additional registrations. Return form to PSLS by January 23. First name MI Last Name Address (no. and street or box no.) City State ZIP

Business telephone Home telephone

Spouse/GuestRegistration Form PSLS Surveyors’ Conference 2009

LODGING: Please make your own arrangements and remuneration for lodging with the hotel. In order to reserve a room, complete the Room Reservation Form and mail it directly to The Hershey Lodge. DO NOT MAIL ROOM RESERVATION FORM TO PSLS.

REGISTRATION AND MEALS: Registration is complimentary to all Spouses attending the con-ference but does not include meals. Please mark the list below for the meals you plan to at-tend and include a check made payable to PSLS.Spouse Meals:qMonday Breakfast ($25) qMonday Lunch ($35) qMonday Banquet ($45)qTuesday Breakfast ($25) qTuesday Lunch ($35) qTuesday Banquet ($45)qWednesday Breakfast ($25) qWednesday Lunch ($35)

SPOUSE ACTIVITIES PROGRAM: Registration for the Spouse Activities Program includes guid-ed tours, all of the following activities and transportation - $75.00 per person.

SEND THIS FORM TO: PSLSConference Registration2040 Linglestown Road, Suite 200Harrisburg, PA 17110Fax: 717-540-6815

MONDAY: 8:00 A.M. – 9:00 A.M. pool aerobics, 9:30 A.M. – Noon Linda Kelly w/Mary Kay, noon we will have a salad for a light lunch , after lunch we will have a demo by a hotel chef.

TUESDAY: 9:00 A.M. meet for a bus trip to tour the Governor’s Mansion at 10:00 A.M., and at 11:00 A.M. visit the Civil War Museum. Then a late light lunch on your own, after lunch we will visit the shops at Hershey Outlet and return to the Hershey Lodge by 3:30 P.M. or earlier de-pending on the weather.

q Yes I WILL attend the Spouse Activities Program q No I do NOT wish to participate in the Spouse Activities Program

I have enclosed a check for $ ______to cover meals, and/or Spouse Activities Program - payable to PSLS.I have included $________ for spouse/guest meals with my registration.

Registrants name

Using actual case oriented problems this session will point out the necessity of the surveyor understanding what the actual problems are so that the surveyor can best understand how to identify and then give possible solutions to solving the impend-ing problems.

This is a 2 PDH credit workshop

2009 PSLS Conference Highlights

Presenter : Walter G. Robillard, Esq., PLS

CONFERENCE BOOKSTORE

We have an extensive selection of surveying and other technical books. Some books are not available anywhere else!

HoursSunday, January 25: 6:00 p.m. – 8:00 p.m.Monday, January 26: 8:00 a.m. – 6:00 p.m.Tuesday, January 27: 8:00 a.m. – 6:00 p.m.Wednesday, January 28: 8:00 a.m. – 11:30 a.m.

Conference Bookstore

Featured Workshop: Boundary Conflict – Case Studies

See the latest in equipmentand other business related exhibits!

Total Stations, Range Finders, 3-D Laser Scanning, Digital Imagery, Data Collection, GPS, Software, Business Insurance, Antique Surveying Instruments

Exhibits

HoursMonday, January 26: 8:00 a.m. – 6:15 p.m.Tuesday, January 27: 8:00 a.m. – 6:15 p.m.Wednesday, January 28: 8:00 a.m. – Noon

Silent AuctionItems provided by Leica Geosystems Inc.5051 Peachtree Corners Circle, Ste. 250 Norcross, GA 30092P:800.367.9453 F:800.294.1541

1. Flexline TS06 w/ DX10

2. GPS Base & Rover

3. Smart Rover

4. TCRP1203+R1000 Complete Survey Package

Conference room rates (meals not included):$126 per room/night plus 11% tax-single or double occupancy[*tax 6% PA State occupancy and 5% Local tax]

Arrival date: ___/___/___ Departure date: ___/___/___

Guest name

Address (no. and street or box no.)

City State ZIP

Person you’re sharing room with (if applicable)

Address (no. and street or box no.)

City State ZIP

Phone Number

E-mailCheck one: qsingle occupancy qdouble occupancy

No. of rooms No. of guests

Cardholder’s name (please print) Cardholder’s signature

Charge number Exp. date

(Credit card charges cannot be processed without signature and expiration date)

I request transportation service to/from Harrisburg Airport (HIA) (with prior arrangements only). A fee is charged.

Arrival time Carrier Flight no. HIA To guarantee your reservation, a first night’s deposit must accompany registration.

Deposit sent: Date Check no. Amount

Or by credit card: q VISA q MasterCard q American Express q Discover q Diners Club q Carte Blanche

Deposit: A deposit of one night’s lodging plus 11 percent tax ($139.86) on the conference room rate per night must accom-pany your reservation request. This deposit will guarantee your reservation and will be applied only for the confirmed day of arrival. Make checks payable to Hershey Lodge. Reservation cancellations: To cancel your reservation and receive a full refund, call the lodge at least seventy-two hours before your scheduled check-in time. When you call, ask for and record the cancellation number and retain this number for three months. Check-in/check-out time: We cannot guarantee occupancy before 4:00 p.m. Check-out time is 11 a.m. Arrangements for credit: Direct billing requests must be made at least thirty days before scheduled check-in and must be accompanied by a letter of authorization written on orga-nization letterhead. The letter must name the person receiving the credit privilege and the organization or person assuming responsibility for payment. It should also supply the complete billing address and name three references. (We suggest you make a photocopy of this form for your records.)

MAIL TO:Hershey LodgeWest Chocolate Avenue and University DriveHershey. PA 17033Phone: (717) 533-3311Reservation Fax: (717) 534-8668

Hotel Registration PSLS Surveyors’ Conference 2009Monday , January 26 , 8:30 a.m. - 10:30 a.m. Hershey Lodge, Hershey, PA

RETURN FORM TO HERSHEY LODGE. Please confirm your departure date. The Lodge charges a $50 early departure fee.

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18Fall 2008

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Based upon undisputed facts, the trial court con-cluded—and the appellate court agreed—that Shav-er had provided the joint venture with an implied nonexclusive license to use Shaver’s schematic de-sign documents. The courts held that the contract between the parties did not address Shaver’s contin-ued role in the project work and provided only that Shaver would provide his schematic design phase documents to the joint venture. Cit-ing the Effects case, the appellate court held that it would be contrary to common sense to hold that the joint venture could not use the draw-ings for which it contracted.

However, the courts do not al-ways find the existence of implied nonexclusive li-censes, even where the infringing architect has acted in good faith. Another important and often cited case that relied upon Effects and Shaver is Johnson v. Jones, 149 F.3d 494 (6th Cir. 1998). This case was also decided by the court before the trial took place. In Johnson, the homeowner, Ms. Jones, hired John-son to provide design services in connection with her envisioned custom-built dream home. John-son submitted two AIA contracts to Jones, each of which contained clauses ad-dressing ownership and use of the design documents. Jones signed neither one of them. Jones’ attorney prepared and forwarded a proposed contract to Johnson; however, the parties did not agree to it either.

While the contract negotiation was ongoing, John-son continued to work on the project because he expected to be under contract shortly. He provided certain design documents to Jones during this pe-riod. However, the parties did not come to terms and Johnson was terminated from the project.

Jones then hired another architect, Daniel A. Tosch, to complete the architectural work on the project. According to the appellate court’s opinion, Tosch expressed concern about the copyright notices af-fixed to the drawings and refused to proceed until

that matter was resolved. Ultimately, Tosch received (incor-rect) advice from Jones’ lawyer that Jones was a co-owner of the copyright and that Tosch could use the drawings. Based upon this advice, Tosch proceeded in using Johnson’s draw-ings.

When Johnson found out about the project, he sued Jones and Tosch for copyright infringement. Tosch argued that under Effects and Shaver. He had an implied nonexclusive license to use Johnson’s work. However, the court disagreed finding that there were very few similarities between the facts in that case and those in Effects and Shaver. Most sig-

nificantly, the court held that because there was no objective evidence of intent for others to use Johnson’s documents, there was no implied license. Accordingly, judgment was entered against Tosch.

Sometimes a determination as to whether an implied nonex-clusive license exists requires a trial and submission to the jury. In Saxelbye Architects, Inc. v. First Citizens Bank & Trust Co., 44 U.S.P.Q.2d

(BNA) 1634 (4th Cir. 1997), the trial court dismissed a copyright infringement action based upon uncontested ev-idence, finding that there was an implied nonexclusive li-cense. However, the appellate court reversed, holding that the undisputed facts did not prove the existence of such a license. Thus, the appellate court remanded the case back to the trial court for further proceedings. It is also important, however, because of the potential that design professionals could end up paying the legal fees in-curred by the other party in defending against your action. The copyright law specifically provides that the prevailing party in a copyright action (whether the plaintiff or defen-dant) may recover legal fees if so ordered by the court. This award does not require a finding of bad faith; the standard is lower. Accordingly, there is a very real possibility that some-one can use your design; you can sue for infringement, lose, and then pay their legal fees.

Copyright continued from Page 6

Why This is ImportantThis is important because design professionals want to protect their designs from infringement, and they want to know the extent of the protection afforded to their design. Where an implied nonexclusive license can be inferred, there is doubt as to the extent of the protection and wheth-er it is advisable to do something when someone infringes.

19Fall 2008

PA Su

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How Do You Protect Yourself from This Mess? As you can see, the law surrounding implied licenses can be tricky, time-consuming and expensive. The best way to pro-tect yourself is to ensure that the original written contract between you and your client is unambiguous in addressing the ownership and use of the copyrighted information. This principle was expressed in the Effects case as follows: Common sense tells us that agreements should routinely be put in writing. This simple practice prevents misunderstandings by spelling out the terms of a deal in black and white, forces parties to clarify their thinking and consider problems that could poten-tially arise, and encourages them to take their promises seriously because it’s harder to backtrack on a written contract than an oral one.

The agreement should contain, at a minimum:A statement identifying who owns the copyright in the design docu-ments. Although the law presumes that the creator (i.e., the design professional) is the owner of the copyright, sometimes the project owner wants to own the copyright or wants a license to use the de-sign in a certain way. The full scope of this should be expressed in writing so there is no misunderstanding about use of your design.

• The full scope of work to be performed should be set forth in the agreement. This will help avoid confusion between the parties about the permitted use of your design.

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• A statement addressing the circumstances under which you will authorize others to use your design will ensure that there is no confusion about the limits of any license or use of the documents.

• Where a license is issued, you should address the scope and limit of an indemnification provision so you are not held responsible for others’ misuse of the design.

• You should also take appropriate steps to ensure that your employees do not take steps inconsistent with these contract provisions.

• Further, where you agree to allow someone to use your documents after execution of a contract, you should ensure that there is a written licensing agree-ment that describes what information is being pro-vided and for what it may be used. This should be issued in writing regardless of whether additional compensation for the license is sought—it will help you avoid any ambiguity about the extent of the li-cense.

Taking these simple steps can help protect your de-sign from use by others. For more information please contact David W. Francis, Esq., Partner, Rhoads & Sinon LLP, One South Market Square, 12th Floor, Harrisburg, PA 17101. Contact him at (717) 237-6738or dfrancis@rhoads-sinon.com Part 1 of this article appeared in the Winter 2008 issue of The Pennsylvania Surveyor. If you would like a copy, contact Kate Sherman at ksherman@psls.org.

Allegheny HeartlandsBucks Delaware ValleyHarrisburgLaurel HighlandsLehigh ValleyMid-StateNorth Central

NortheastNorthwestPoconoReadingSouth CentralSouth PoconoSouthwestSusquehanna

20Fall 2008

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Chapter NewsAllegheny HeartlandsWilliam Nemeth Jr. 2 McCreary StreetJohnstown, PA 15906814-536-6630

BucksDave Bolig, PLS The Crossroads Group, LLC1534 West Broad Street Ste. 100Quakertown, PA 18951215-536-0939

Robert C Moncrief6279 Wismer RoadPipersville, PA 18947215-908-3068

Lehigh ValleyRaymond Feldman, PLSGEOD Corporation24 Kanouse RoadNewfoundland, NJ 07435973-697-2122

NortheastGeorge DavisQuad 3 Group37 North Washington StreetWilkes-Barre, PA 18701570-829-4200

John E. Muklewicz III, SITQuad 3 Group37 North Washington StreetWilkes-Barre, PA 18701570-829-4200 Penn State StudentLawrence L. LaRue RR 4, Box 262AMontrose, PA 18801

Isaiah M. SmithNittany Woodlands Commons48 Nittany DriveDallas, PA 18612

ReadingTrudy Graby31 Clover LanePalmyra, PA 17901717-838-1130

Kevin M. Mohn, PLS1032 James DriveLeesport, PA 19533610-916-8519

South CentralTy MartinCS Davidson, Inc.50 West Middle StreetGettysburg, PA 17325717-337-3021

Member Chapters

Welcome New Members

M id-State has been getting more active over the past few seasons. Our August

meeting featured a fine tree identification talk with Ed Heary.We took a stroll through Penn State’s Laurel Haven Conservation Education Center and gained valuable insight in identifying common and obscure trees found in the Commonwealth. Our latest meeting included a review of the latest in surveying hardware and software from Randy Miller, a local distributor. We have a Holiday Dinner Meeting scheduled for December 10th at Mimi’s Restaurant in Huntingdon.

Dave Archibald, Chapter Secretary

S outhwest meeting was held November 18 at the historic Penn Brewery on

Pittsburgh’s North Side. We welcomed 52 attendees, including several first-time guests.

Kathryn Reed of the Allegheny County GIS Division; spoke about the Pennsylvania Spatial Data Access (PAS-DA) Web site, www.pasda.psu.edu, which is the official public access geospatial information clearinghouse for Pennsylvania. We learned how to access the aerial imag-ery available from the PAMAP program, and where to find information about Allegheny County and GIS uses on PASDA.

The mission of the Allegheny County GIS Group is to provide spatial data and related services in the most ef-fective and efficient manner possible through a number of internal and external initiatives; promote GIS as a deci-sion support and reporting tool for use across the county; foster cooperation with GIS stakeholders to develop and use GIS as a regional resource; reduce duplication of data creation, acquisition, and maintenance through coopera-tive efforts with stakeholders; and make spatial data avail-able to stakeholders.

Precision Laser & Instrument, Inc., sponsored the meet-ing and had staff present to discuss new capabilities, ser-vices, and products. The big news from Precision was the introduction of their PLI-KeyNet GPS Virtual Reference Station System (VRS) network. The system allows users to perform RTK surveys without setting up a base station. It consists of a network of permanent base stations linked via cellular data networks transmitting correction signals to subscribers.

Chapter meetings are on the third Thursday of February, April, September, and November. If anyone has sugges-tions for 2009, contact board members. Visit www.psls-southwest.com for information. Steve Morgante, Chapter Secretary

PSLS Membership Application

Name Home Address If Student, College/University Anticipated Date of Graduation Business or School Address Home Phone w/ area code Business Phone w/ area code Fax E-mail

Preferred Mailing Address: qHome qBusiness Professional Registration If Applicable:State Number State Number

Please list any other professional/technical society membership:

Please indicate the membership grade for which you qualify:q Member………………………………….$165.00 per year (Surveyor licensed in Pennsylvania.)q Associate …………………………………$95.00 per year (Not presently licensed.)q Corresponding…………………………… $85.00 per year (Member of another state society where you reside.)q Sustaining………………………………..$300.00 per year (Firms having an interest in land surveying)q Student…………………………………….$15.00 per year (Enrolled in a Pennsylvania College or University.)

Chapter Affiliation Requested: (Not applicable for Corresponding or Sustaining Membership) Please list names of two PSLS members, if you know any, who are acquainted with your qualifications and will sponsor your application:

Primary Sponsor Sponsor

I hereby apply for membership in the Pennsylvania Society of Land Surveyors and, in doing so, agree that I will actively support the Bylaws, aims, and objectives of the organization. Signature of Applicant Date

Pennsylvania Society of Land Surveyors2040 Linglestown Road, Suite 200Harrisburg, PA 17110P: 717.540.6811 F: 717.540.6815www.psls.org

23Fall 2008

PA Su

rveyor

Pennsylvania Society of Land Surveyors2040 Linglestown Road, Ste. 200Harrisburg, PA 17110

PRSRT STDU.S. Postage

PAIDHarrisburg, PA

Permit No. 1144

NCEES Announces 2009 Approved Calculator List

The National Council of Examiners for Engineering and Surveying (NCEES) has approved the following list of calculators for use in the April and October 2009 exam administrations:

Calculators not meeting the above criteria are not per-mitted in the exam room. Candidates are encouraged to ensure that their calculator is on the approved list before reporting for the exam.

"The 2009 list is the same as last year's, which was well-received by examinees, proctors, and licensing boards," explained Tim Miller, P.E., NCEES director of exam servic-es. "NCEES felt that the list continued to meet the need to protect exam integrity, while still offering flexibility."

The approved calculator list and other exam-related information are available at www.ncees.org.

www.psls.orgwww.psls.org

Happy New Year

from PSLS!

Happy New Year

Articles Welcome!Please send your articles and photos to Kate for the next issue of The Pennsylva-nia Surveyor.

CASIOAll fx-115 models. Any Casio calculator must contain fx-115 in its model name. HEWLETT-PACKARD The HP33s and HP 35s models, but no others TEXAS INSTRUMENTSAll TI-30X and TI-36X models. Any Texas Instru-ments calculator must contain either TI-30X or TI-36X in its model name.