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Open Source Developer's Agreement
ajv writes: "We've just released our open source developer's agreement. The OSDA allows companies or employees to negotiate into their employment contracts the certainty of owning IP they develop under clear guidelines. This will help all the people out there who develop open source software but are afraid to release it, or more likely, are afraid their boss will react and ask for it to be taken down or ask for a cut of the (non-existent) action. Get it on the main Web site, or on SourceForge."
After all, anyone developing software whilst they should be working is wasting their employer's time and resources, and if they're lucky enough not to be sacked then anything they produce is certainly the property of the employer - this is only fair. If you work in McDonalds and you take some ingrediants and make a burger, you sure as hell don't own that burger, why should open source software be any different from that, or even from closed source software. Just because you release the code shouldn't give it some magical status over any other program.
This seems another example of how open source advocates are pushing too hard to gain acceptance of open source and free software as a valid option for programs. Yes, open source should be taken on an equal footing as closed source, but it shouldn't be given any special rights or status, because that makes it appear as though it needs the help to compete with closed source software. And trust me, the more people try and get things like this for open source, the more that stubborn CTOs are going to resist it in favour of the latest technology in Computer Weekly.
well, i'm about to graduate from college, and have already signed a NDA/Non Competitive/Development Agreement with my first employer. I've lent a hand to a few open source projects, and have a couple other things of my own going on. I wish i had language like that before to ammend the document i signed to protect my interest in developing for "not the corporation". OSDA is something i support, and hope others endorse it as well. Hopefully I'm the last crop the has to put up with these sort of IP enslavements, and maybe in the first batch able to have our IP rights recaptured.
I don't understand all this stuff. I'm just a poor coder. What is all this legal stuff ? I go to a page and instead of a piece of C I find some contract kind of thing.
Are we coders or lawyers ?
Get busy !!
Developing open source may be a noble aim, but it also means that your employer forgoes the chance to make money from your effort. So while you may be able to pester your employer into agreeing to a developer's agreement such as the one proposed here, don't be surprised if your employer to chooses to recoup its losses by reducing your bonuses or salary. And is the option to release software under the GPL really worth watching your children starve for?
You don't seem to have read the article, it does mention as a clause in any potential employment contract:
developed independently by the Employee on their own time and equipment
Which, to apply your example, would mean that if I worked in McDonalds and then went home in the evening and cooked a burger on my own cooker, using meat that I bought myself, it would belong to me and not McDonalds. In the current IT environment (certainly in the UK), this burger would belong to McDonalds, which certainly can't be right!
BTW, my burgers taste better that McDonalds anyway! ;-)
If you walk up to your employer, right now, and handed them this "contract" and asked them to sign it, they probably won't. At least not right away, I mean, put yourself in your boss's shoes, here you have this programmer type walking in your office and handing you a contract for you to sign. personally I'm gonna wonder what the hell is going on.
Then I'm gonna start asking some hard questions, a lot of people don't know te answers to these (bosses are like this, they like to ask really hard qustions that neither of you know the answer to). Then I'm gonna tell you than use that uncertainty as a tool to postpone signing this contract. You (the programmer) are going to go off and try to find these answers.
Meanwhile, I'm gonna put an ad out for your position. Really.
Of course, this is all hypothetical. I know where I currently work, I prenegotiated so that it was clear that I work on OSS projects (and that they could benefit the company, and vice versa if the company decided to open any of their apps).
Hammer of Truth
This is good because it specifically acknowledges that the employer owns everything they pay you to do, but you can work on projects outside of work, and not be concerned that your employer can assert ownership over them.
If you are modding me down because you disagree with me, use the "Flamebait" category, not the "Troll" one.
on your own with your company resources check your boss. Come to a understanding and if possible have a agreement signed. This should be common sense. I ask my job if they would not mind if I work some homework assignments(off the clock) at work before I do. I take nothing for granted.
A few years ago, friends and i had started building an OS from scratch. Dubbed Pandora, we have a kernel that boots more machines than current Darwin can (you guessed it: PowerPC Macs).
I was responsible for the UI part (I claim no credits to the kernel, which also has a MacsBug-like debuger).
When I started working for my current employer (which also supports Linux for it's commercial apps), I wanted to make sure that my UI project ("Moira") was safe from any corporate entanglement. I had them sign a "copyright disclamer" wich specifically specifies that my employer disclaims any copyrights and interest in the project, thus protecting it.
On the other hand, this only covers this project, and I must ensure anything else doesn't go against the company's NDA (which I signed).
Both parties therefore are protected in what I feel is a mutually equitable agreement.
Karma karma karma karma karmeleon: it comes and goes, it comes and goes.
If this is about code written on company time, I can't see how it can be justified that the developer owns the IP.
However, if the software is being developed outside of the employer, on a machine not owned by the employer, with software not owned by the employer, then I could see how this might be useful. There are quite a few companies out there that have policies stating that any software developed by an employee is IP of the company. Personally, I have worked under three different policies:
While I was in the USAF, I took a part-time job with Computer City, a CompUSA clone owned by Tandy the parent company of Radio Shaft, to make ends meet. Computer City required employees to sign an agreement signing over IP rights to Tandy for anything developed while a Computer City employee. I explained to the store manager that I couldn't sign the agreement for 2 reasons: 1) I had philosophical problems with the agreement. 2) Tandy would have a few problems claiming IP rights on software developed for the Air Force, especially when it was classified as Top Secret. The manager waived the agreement, and I was able to continue working for the company without it.
My next job was with a bank that had the same policy as Tandy. As a condition of my employment, I demanded a signed waiver stating that the policy would not apply to me. I basically told them that unless I maintained IP rights for anything I developed on my own time, I would not work for them. They had no problem with with waiving the agreement, and I got it in writing.
My current employer has it written in the corporate policy that employees own IP rights to anything written on the employees time. It is also in the employment contract. My employer is enlightened enough to know that people have lives outside of the company, and has acknowledged it.
Basically it comes down to how much you want to work for a particular company. If it is important enough to you, demand you IP rights in writing, and be prepared to refuse to work for them unless you get them.
My work hours are flexible and indeed I do come in at all hours of the night. (today I showed up at like 1.00a) I can tunnel home from work or to work from home. From either place I can compile a file at either place on either box. At what point does the work I am doing become my employer's?
Trees can't go dancing
So do them a big favor
Pretend dancing stinks!
I've seen some comments on working in the boss' time on OS projects, I don't think that's what this agreement is for. It covers that, yes 'you can work on an open source project similar to a project you work on for your business.' This clearly is useful.
My company, like any other likes it's intelectual property and would not want it be thrown out on the street. But when I asked my boss's position on me working on similar projects (which I don't do at the moment) in an Open Source environment, his reaction to this was that it would probably be useful for my personal skills and insights. "go right ahead" is what he said.
Now, this maybe because I work for a small company, I dunno.
I developed a web based hardware inventory program for my previous employer. Even though I developed it on their time the software held little or no value to them as a company other than by it's use. My boss at the time was easy enough to convince that the software should be open source and away we went.
I don't think an employer should be forced into releasing software as open source but if the employee wishes to contribute s/he should discuss it with their employer at the get go without the bad will of a legal document.
If an employee demanded that I sponser his/her open source project with a legal document and it was outside the company's best interest I would be sending their resume out to head hunters for them!
Despite your clear ability to make a better hamburger than McDonalds, the labor and equipment costs involved in producing millions of these prevents you as an individual from becoming a competitor. Employers realize there are no such production costs associated with IP and that a single individual can become a dangerous competitor. Developers need a usable defense against corporate encroachment into their personal mental space. In this case, the distinction between hamburger design and hamburger production is a significant one.
Any company using open source should be aware that once you are in, you are never out of this ideal. If you are going to trust the work of others to run your company it is only right that the street go both ways.
$ man reality
Obliteracy: Words with explosions
If I code on my own time at home, isn't that my property? What law gives my employer possesion of my free time? why do they assume they own my creativity when I am not being paid?
In the USA I believe there are laws that forbid employers from gaining ownership of employees creations when generated outside the place of employment. Although these laws might be smashed to bits by now, just like almost every one of our rights of ownership are being destroyed....
Hmmm, and people think that slavery cant return...
Do not look at laser with remaining good eye.
People seem to be missing the point here. Of course, if you are employed, the work you create for hire, to get your salary, is the property of your employer. What is annoying, is when your employer insists that work you do unpaid, on your own time, is theirs as well.
My employer does this, apparently for no reason since no one in HR could come up with any reasonable excuse for keeping that clause in the contract. I negotiated an exception when I hired on without much trouble.
In my view an employment contract is a negotiation like any other. Employers seek someone (maybe you) fulfilling their requirements, and you set your conditions under which you take on the job. If you are good at what they want you to do, then you can demand that they be good at letting you do it the way you like it.
I also believe that a piece of software developed by a paid programmer is often just a tool enabling the business processes to change for the better. The real benefit will come from the changed process and not from being able to sell the developed piece of SW. So it should often be a workable relationship that the programmer remains the owner of the SW (and makes it open source if s/he wishes so), and the employer uses the product to improve the business. No one's children should starve to death in the process 8^).
Maybe the burger example was a very bad one, but my point is that my employer should own what I do in my spare time (unless they're willing to pay me for creating it).
As long as there is not a conflict of interests with the software that is developed during office hours and that developed at home then I don't see a huge problem.
For example:
If I was developing a web enabled widget ordering system for my employer during office hours and at home working on my Open Source Embedded Perl project, Oyster, there should not be a problem.
But...
If at work I was being paid to develop a whizzy new DBMS and going home and rolling those same ideas into an Open Source DBMS, then I'll be in severe trouble... and no doubt jobless!
Have you ever wondered about the following?
When your company asks IBM to develop code for them, your company will have to sign away all the rights to the resulting sources. Most likely, they'll only get binaries anyway.
When you develop sources for your company, it's the other way around.
No matter how hard you try to rationalize this, there is only one possible explanation: IBM is better at negotiating and in a stronger position than you are.
I personally never sign NDAs. Why ? Because I always manage to get contracts without them. And if the customer insists on an NDA, I usually say ok then, but it will be at a different rate altogether.
Sorry. Life is hard.
But this goes further than that. It explicitly codifies what such things are, protecting the coder. Furthermore, there's a whole 'nother aspect to this: the company that recycles Free (as in FSF) anf Open Source software in the products it produces.
Where I work we aggregate a great deal of code with Free software (specifically, major portions pf Red Hat [GNU/]Linux). Sometimes we extend GPL code (and will have to release our changes when we ship product). We've actually had RMS here to address our developers on the GPL and sensitize them to the fact that we take complience with it seriously. But, once you start using the fruits of the open and free sofware communuties, even if you ensure GPL complience, there's somewhat of a moral pressure to give something back, i.e. release your own original code as GPL, or otherwise open.
With this in mind, I've been striving for us to take the position that code we develop is either strategic to a product or product line, or not. If not, I argue that it should be GPL for two reasons: First, it helps make us good free and open software community corporate citizens. Second, it often represents overhead code that doesn't generate direct revenue through licensing, but requires support nevertheless. A community of people who can also use and extend it, is therefore a benefit. Sometimes we produce code that is stillborn: it would have to be released under the GPL if we distributed binaries, but we have decided not to make it part of a product. Why let such code rot? Why not give it away, in the hopes it might find a home?
Often, other than legal GPL complience, the effort to do these things is not justified by the company. an appropriate OSDA agreement would empower employees who feel this way, to release such code themselves, without fear of reprisials. That can only be a good thing.
You could've hired me.
Hardly. Take a look at a previous post on the subject. My experience has been similar - out of the last three positions I've held, two employers were very amenable to removing these restrictions from the employment contract, and the third required as part of the NDA a listing of outside projects that the employee had contributed to/been involved in that were not to be covered by the NDA.
On the other hand, these were all software companies. I wouldn't be surprised if more traditional companies (public utilities, financial industry, etc.) would simply refuse to alter a standard contract, if only because they lack a clear understanding of what they are asking for.
"Great men are not always wise: neither do the aged understand judgement." Job 32:9
Cool, that's my sister's name !
bau
I was once asked to sign an NDA after the fact (my employer was bought out by another company). The new company asked for rights to everything (the old one had only asked for rights to what I was employed to work on). I responded by sending them a letter saying I would be glad to sign the agreement if they gave me an exemption for poetry and musical compositions (I am a published songwriter, now, but then it was strictly wanna-be). Of course, I knew that the exemption would have to be appoved by a VP (they told me that to try and discourage me from asking for an exemption) and that the legal department would look like absolute idiots asking a VP to sign such a thing... I never signed the NDA and I never heard another thing about it.
Ever since then, I make sure I read those things before accepting a job. Most places will accomodate independent work (open source or otherwise) as long as you are up front about it when you are hired and you make sure they can tell you are producing what they are paying you to produce. The personnel people get brownie points based on how many people they hire, not how many they scare away, after all. If they aren't willing to talk about this, I would drop them like a hot potato because this demonstrates that the organization is inflexible. They probably won't last long and you don't want to be dragged down with them.
An engineer who ran for Congress. http://herbrobinson.us