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When Personal Projects Start To Conflict w/ Work?
Yhcrana asks: "I am preparing to start a project at the company I work and I have hit a small snag. Over the past 6 months I have been developing a product in my spare time for commercial use and it is nearing completion. The problem is that one of the clients they work for wants the EXACT product I am producing in my spare time. I have held this product from their knowledge on purpose since I was going to be first to market on it. I am about 50 hours away from completion of the project and they now want me to produce the EXACT same thing for them. My question is what should I do? If I complete this product on their time they will want to have some sort of part of the licensing and this is my idea." Similar to an older Ask Slashdot this question approaches the issue from the opposite direction, that of dealing with your job while still trying to complete something you've been working on that may mean a lot to you. What would be the best way for Yhcrana to not only finish his project and retain the rights, but to help his firm's clients as well?
"This product was going to support me in my down time between jobs as I have a couple of clients who are eagerly awaiting its completion and it would net me a good profit just from these clients. I am completely unwilling to just give this hard work to the company I work for.
I want to complete this project, but my working on this product while on company time would probably cause some sort of problem within the company. I have had the idea of perhaps signing some contract with them which lets them know that even though I am completing the product for their client I own all rights to the product. Perhaps offering them a small discount on licensing on the product equal to the amount they paid me for working on it on their time."
What you did is probably some form of fraud based on the fact that you had potentially conflicting interests that you did not disclose to your employer/customer. The company that employed you and license your solution/product might say that you misrepresented yourself to gain financial benefit.
To clarify, you had two interests which the company, who was your employer via your employment contract and your client via the license agreement, may have felt were in conflict. The first interest was via your employment, where you had the responsibility and/or authority to suggest a solution to meet their needs. The company would assume that you'd look out for their interests because your employed by them. The second interest was via your software product/solution. You had a financial interest in "Brand X" and you didn't disclose this to the company and thus they didn't know there was a potential conflict of interest.
First, have you signed anything saying, for instance, that work related to things the company does becomes theirs? That would figure prominently. If you haven't, come to the company and explain that you've been doing a project very similar to this on your own time, tell them how long it took, and suggest that, in all probability, the best deal would be for them to license it from you at a reasonable rate. Don't get greedy, and if it's enough cheaper and faster than development costs would have been, they may be pretty happy.
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It sounds like he may have known in advance that his company was going to want to do this work. If he did, then he may also have a problem, even if the work was done on his own time. If he had known that the client was going to want it, then he may have done it just to get in ahead of his own company on getting the money from the client. In this case he would have effectively been trying to "compete" against the company he works for, which would put him in the wrong, even if the work was done on his own time and own equipment. If done on work time, it definitely belongs to his employer. If done on work equipment, maybe. If your employer asks you to do a task, and you go and do that task *on your own time and equipment*, then your employer usually still has rights to that work under the law, tough luck for you, but this is because this is usually a case of the employee trying to screw the employer. The terms of his contract could make a difference though.
All your project are belong to us.
Communication is the key here. Stupidity might get in the way though. Not to sound like an echo here, but you:
* Cannot accept the project as-is, in any case.
* Must tell your boss about your side project and that you won't work on their project due to a conflict of interest (you don't want to compete with yourself) - but that once you complete the side project, it's a possible licensing solution to look into.
* Reassure your boss that you didn't touch this project on work-time, and that you're not willing to at this point because of the IP issues.
* Pray that your boss doesn't fire you, reprimand you, come up with a cheesy solution that screws you over, order you to quit working on or hand over your side project, sue you, etc. Not that there would be any grounds or fairness in these actions, but managers are... managers.
* Cannot tell your boss that you can't do it and then do it for the client company behind your employer's back. Highly unethical.
It all depends on how your boss reacts, really. You HAVE to say something. You're entitled to, you could benefit greatly from this situation, and it's just plain unfair if you have to silently hand over the rights of your personal work to any company because of a situation like this. Don't try to sneak anything past anyone, it's too risky and you stand to lose a lot if your employer finds out.
Also, take some time to make your side project really spiffy. The upswing of that would be that you can perhaps impress all your clients, your employer's client, and your employer as well... so that not only does everyone benefit, but you may be in line for a promotion as well. So don't make any spelling or grammar errors! ("You have no chance to survive make your time" for example)
Excellent post by russh347.
The company has entered into an employment arrangement from hiring that probably laid it out to the employee - what they work on without regard to whose "time" it is while employed belongs to the company, who can decide to pass on it.
There's nothing that stops the employee from working on anything they want to, but they knew their IP relationship up front, and shouldn't expect the company to back down. This is particularly in a case like this - by virtue of what the employee does as their job, they probably see the opportunity and techniques to realize a solution.
All that said, if the project is distinct from the employee's explicit job responsbilties, it behooves him to disclose this to his management right now. A moral company (and that's not a ridiculous statement) can recognize that work that could be valuable to them might have been done outside of the bounds of work responsbilities and decide to compensate the employee for that work. Doing so benefits the company in that they can more quickly respond to a customer AND they can keep an employee who's clearly demonstrating that he's tuned into the technical and business environment.
If the company doesn't want to recognize the workers contribution, they you're still better of with disclosure now - the company is not going to let the employee take the work anyway, at least not without a fight that the worker is very unlikely to prevail in.
The worker could try to play dumb on the new project, leave the company and try to approach the client directly , but this is potentially disasterous. If you sold your package to somebody who might have been a company client but you got to them first, nobody would be the wiser. If the company loses the contract of a client that had come to them for specific expertise, and lost the contract to an ex-employee who happened to know their requirements and happened to have been working on such a product in their personal time, there's no limit to the amount of doo-doo that will rain down. And if any of the techniques, knowledge, or god forbid, source code of the employer is discovered in the private work, this whole thing will turn into a very serious matter.
If the employee leaves the company, and finds that it's hard to land "clean" customers with his own package, then he'll probably see why the company had him sign the employee IP agreement in the first place. There's a lot of aspects beyond the technical in providing solutions - sales, marketing, and support are just a small part of it all.
First of all, never ever ever work on this personal thing when you're on your employer's clock or equipment. It will most likely be legally theirs if you do.
Second, you make it sound as if you have 2 or more clients of your own lined up to take advantage of this thing. Call them A and B. Now, your employer is getting Client C, who could also benefit from what you're doing.
My advice would be to excersize some vacation time so you hear nothing about client C. Focus your energy on clients A and B, if you really are a week or so from completion. After some discussion with them, you may find it prudent to leave your employer and just forget client C.
Or, you might be able to work out a licencing agreement with your current employer, where C pretty much gets your solution with your employer's "brand," and you get a fatty check for this agreement. Of course, your original employment contract might not allow for this, and you might have to either leave your current employer or never speak to C. Speak to a lawyer, for sure.
And I'm not talking about as a sysadmin at the company headquarters. I'm talking about as a $6/hour clerk who pushes cell-phones and takes addresses. Three years ago, when I got hired by Rat Shack, there was an inventions clause in my contract that prohibited me from writing software in my spare time . Any software that might be written in spare time would immediately be the property of Tandy Corporation, and I would receive absolutely no compensation for it. The scary thing was that in way did my job relate to software except that I sold computers that run software (as computers tend to do). This is completely ridiculous and I'm surprised it's even legally defensible. Needless to say, I've moved on to greener pastures in the last two years. But I'm scared that one day, even people who go to work for McDonalds will have inventions clauses in their contracts. "Oh, I'm sorry. You work a deep fat frier, so I'm afraid we're going to have to confiscate the high performance, multi-threaded web server you coded. Have a nice day".
This product was conceived, started, shelved, restarted and shelved before I worked for this company. I recently re-started the project (3 months ago) when I was able to find time to write more code and had learned more about the product market I was producing this for. The biggest point about this post is that this product was started before my working for this company so in my opinion it should be mine. I have debated on taking the time off to work on this, but the company is a little cranky about their sysadmin taking a week off. Hell they yell at me if I am 2 minutes late being back from lunch when the other employees get back 20 minutes late with no management complaints.
Long story short I feel no company loyalty or obligation. I would quit right now if i had a small amount of money saved up, but I don't think I could find a job in the 2 weeks I would have left of my last paycheck.
Yhcrana
The voices in my head don't like you
Quickly go get yourself a business license and then tell your company that there is already a product on the market that does what they want it to and suggest they use that rather than re-invent the wheel in house.
At this one company that had kiosk machines in every store, they were having a very difficult time getting machines updates since only techs had the know-how to apply patches from a floppy. I developed a way to use a Ghost image to update the system from a bootable CDs. I planned to offer it to them after my contract expired.
While working for them, they asked me if there was any way to make the update process simplier. Using an old business license, I told them there was a company Brand X that offers just that sort of product. I had a friend of mine contact them on behalf of Brand X and pitch it to them. They agreed to buy a enterprise-wide license for $10/system. At that point I used the business license to cash the check for Brand X and came in the next week and started deploying the CD based system.
It was a Dr. Jekyl/Mr. Hyde kind of development thing, but I thought it was the best way to handle in since the only thing I did at work was see how inefficient companies are.
- JoeShmoe
-- I wonder which will go down in history as the bigger failure: the War on Drugs or the War on Filesharing
See a lawyer. Then negotiate, with the help of the lawyer. The goals are (1) to maximize the total benefit to all parties, and (2) get a reasonable share of that benefit. Don't be a pig, but also don't let yourself be run over.
The company you work for knows how long it takes to write a program. Now is the time to tell them that you have been creating this product on your own time to be marketed under your company name. bring in the binarys and demo the product. Ask them if they are interested in reselling it. Finish up on your resume, if they say you need to write the same product for them, then give them your notice, look for another job, finish your product, and sell it! You may be burning up a letter of recomendation, but if you believe in what you created it will be worth it!
I see pleading ignorance as a really bad option.
labor should not be alienated, you all know the best projects for anyone come when you are motivated to do them whetehr paid or unpaid.
Goat sex free since 2001
It never fails to amaze me that people ask such complicated questions which have obvious legal ramifications, and potentially serious ones at that, of the people who hang out here.
Half the people who hang out here are either teenagers with no professional experience (though some may have), or complete twits, or both.
The other half of the people who tend to hang out here are geeks, with little or no legal expertise. This does not preclude the possibility that you will get insightful advice from someone who has been in your situation, or someone who IS a lawyer. But, do you really want to depend on the answers you get here? Your job, your career, or even your life may depend on you getting good, sound advice.
Even if the advice you get from people here is based on real-world events that actually happened to them, you must remember that a) the laws may be different where you live; b) the terms of your employment may be different than theirs; c) if you end up in court, the judge you get may not see the case the same way.
The way I see it, if you care about this project that you've been working on, you only have 3 choices:
1) See a lawyer ASAP
2) Explain your situation to your manager, and see a lawyer ASAP
3) quit your job, and see a lawyer ASAP
For your own sake people, Don't "Ask Slashdot" for legal advice! Get a clue from someone who has a clue. Go get professional legal council, and do it NOW, before you screw yourself over.
That said, this kind of issue is complex, and bleeds between the legal and the technical. You may want to contact an organization such as the EFF (www.eff.org) who has experience with this sort of legal trouble, so that you can (hopefully) receive help from lawyers who DO understand the issues that you face. Or, at least, make sure the lawyer you speak with has experience with computer-related law, or can recommend someone who does.
Here's what I did: I went to my employer and negotiated a deal with them. In the deal that I negotiated, they bought a license to the tool and we split the revenue from the tool that I built 80-20 when we licensed it to the third party. The revenue split and license deal worked out well but there are, however, two things that I learned: the first is that in my case, the tool addressed about 90% of the clients needs, therefore to tool had to be modified. This led to somewhat of a debate about who should modify it and when - and what the resulting ownership of those mods was going to be. The second was ongoing upgrades etc. Even though my employer was really cool about the whole thing, I always felt that they were doubly on the lookout about what I was doing - I presume to make sure I wasn't working on that tool (or others) on their time. Both are fair but sticky issues. The way that I opened the door to negotiations was to approach the most easy-going (cooles) of my supervisors on a non-official basis (lunch or something) and feel him out about it.....ymmv however if your company is a bunch of tight-asses.
Why don't you read the post, just cause it is a first post does not mean it is off topic.
I believe that people should try to get into a work life where all their work is motivating for them, and where they and their employer have a common interest, if they have an employer. Thedre shoudl not be this kind of situation where a boss is going to lift the creative work of an employee just because it happens to fit into the boss's firm's business plan.
Pro creativity workspaces enable people to produce value for both the firm and for themselves. There is no need to create a false dichotomy here.
Fuck you, moderator who jumps to conclusions.
Goat sex free since 2001
What did Stallman do in this situation? Well, I was reading about it a few months ago, and what he did was resign. Of course you can't do this, but it seems to me that you have a straightforward choice.
1)Resign, and save the integrity of your own project.
2)Refuse to do the work project. This could result in similar consequences though.
3)Hand over the liscences for your own project, and keep your job and security.
There is no easy option in a situation like this. I work as a graphic artsist, and sometimes I have faced similar issues. One job I left because they told me that my home done Pop Art could be liscence infingements, as I was influenced by the companies advertising campaign, which I helped design. Stuff like this is really hard, and I hope you find an easy way out! I couldn't, but I don't think my situation was anything like as bad as yours :)
--Anticipation of a New Lover's Arrival, The
...and if I can summarize the posts this far, they generally split into:
/., but because (emphasis mine)
/. either fail to post *as lawyers* or post in very broad generalities. Remember, we get our asses sued if we give faulty advice, and our insurers can raise our premiums beyond what we can afford. Discretion quickly becomes the better part of being able to continue to practice. I own my own firm, and I can tell you I am more worried now about fscking up on advice than when I was a simple associate.
(a) "I ain't no lawyer, but here's my utterly uninformed legal opinion. Also, my tips for how to take out your own appendix using perl and dental floss..." and
(b)"Get your ass to a lawyer".
In my view, this article is simply trying to elicit specific legal advice, as several other posts have done lately, and hence should never have been posted.
Please notice the lack of advice posted from actual lawyers. It's not because we don't read and post on
the law requires you to feed facts into law
before you can get useful advice out the other
end. In engineering terms, signal only over-
comes noise when you have a proper set of
readings and an experienced understanding of
the situation.
Without knowing the jurisdiction, the statutes of that jurisdiction, the case law, the written and oral agreements and the substantive facts of the case, much less which Justice that you're likely to appear before, the best you can give is what engineers in other contexts call a WAG (wild ass guess).
As real lawyers are aware of this, due to the ongoing efforts of their insurers, most lawyers on
About a year ago, I began posting that unless you are knowledgeable about a subject to either acknowedge that or cease to post. And the noise level continues to rise...
like a troll. In fact, I think it is. But I'll bite.
He isn't working on it on his employer's time. He doesn't WANT to work on it in his employer's time. He's just in a conflict of interest because his employer wants him to work on exactly the same thing now.
I won't respond to the 'open source = theft' argument. Give it a rest.
As for how to prevent employees from doing this.. it's called MANAGEMENT.
Management should know the amount of work it expects out of it's employees... you're PAYING them for soemthing. It's up to management to maximize it's use of employees, which includes keeping them happy. You keep them focused on the task at hand by having reasonable goals and deadlines, a healthy work environement, and making sure people who don't hold their weight get cut out.
If you end up with one hidden genius who you find out has been delivering everything on time, yet has still worked on something else while at work... DON'T GET MAD. He delivered what he was asked to deliver. If you feel he should be producing more.. PAY HIM MORE, he's WORTH IT.
If the whole group goofs off all day, on the other hand, you aren't managing very well.
I'd think this is obvious to any real manager.
A lot depends on exactly what your employment agreement says. Depending on how it's worded, your employer might have - or, just as importantly, think they have, a claim on this work you present as your own. Obviously if any part - repeat: any part - of your project was done on their time or equipment, you're practically guaranteed to be SOL. If you have a copy on your machine at work, even if you never worked on it there, that's almost as bad. Even if none of these apply, they could go after you on intellectual-property grounds, non-compete, non-solicitation, or any other basis. Find out what they're likely to think and/or do. Talk to a lawyer, show them your employment agreement (don't just describe it), etc.
Another thorny issue, even if your employer doesn't have a claim on the work, is that they do have a claim on your time. If you refuse a job-related assignment, even if it's due to conflict of interest, they can simply fire you.
I think the idea of trying to set up a business and get them to buy your product as they would from any other vendor (never mind that it doesn't exist yet) is a sure loser. If they know the vendor is you it won't be treated any differently than if you'd negotiated directly, and if they don't know but find out later they could call it fraud. You need to show good faith. Negotiate with your employer openly and honestly. Only consider other options if they insist on being assholes about it. Bear in mind that most other options would involve you going into court bearing the burden of proof that you were not in violation of your employment agreement, did not steal any of their intellectual property, did not derive the idea from contacts made as their employee, etc. If you're not absolutely positively convinced that you can prove all of that, you might not have any other options. Sorry.
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Very often, you will have signed away all intellectual rights to inventions which could be useful to your employer if developed on company time.
I say: DO NOT TOUCH THIS CLIENT PROJECT. DO NOT. The potential legal entanglement is frightening.
Do not hear about it, do not get mail about it, don't share a pizza with the people working on it.
If you're about to be finished yourself, and you say you are just about one work-week from completion, take a two-week vacation and get it done. Surely that's not too much to do for your long-term project.
Sig: My Latest Censorware Essay:
What Happened To The Censorware Project (censorware.org)
Nice sentiment but this is not the situation that is being described in the Ask Slashdot. He's halfway through writing an application and his boss coincidentally asked him to write a similar app for a client. If he simply finishes his application on company time and gives that to the client then the work beklongs to the company after all that's what they are paying him to do. I personally see two options:
- Excuse himself from writing the application for the client stating the reasons why. This should forestall any future lawsuits but may make his work life difficult once his boss realizes he is writing software in his free time that competes with his company and also there may not be any other project for him to work on.
- Reimplement the product for the client making sure not to use any of his previously developed code which will mean more work but then there won't be any copyright issues to deal with. This does not guarantee however that his boss won't take issue once he releases a similar product.
Quite frankly both options seem fraught with peril so the best advice I can give is talk to a lawyerturn them down and explain why you can not work on the project. Review all you contracts and see what they layed claim too, then have everything you've done at home documented so you are protected from and legal action.
Also hire a lawyer since you've asked for legal advice, and as far as I know, there is only one lawyer here on slashdot, and I'm not him (or her).
If the company is cool about you having writen program foo, maybe they be willing to license a copy of it from you for this client only, with the understanding that you own the code.
Good luck!
III.IIVIVIXIIVIVIIIVVIIIIXVIIIXIIIIIIIIVIIIIVVIII
If you have signed an employee agreement giving them rights to your IP, you're probably screwed. If not, taking a vacation and finishing up the project might not be such a bad idea. Its kind of hard to negotiate with an unfinished body of work. Once its finished, offer to sell it to the company. Maybe in lieu of a fixed amount payment for it, you could cut yourself in on the GP they will make from the customer. If its something that can be sold to more than one customer, then you could negotiate a portion of the GP on all sales of this product. In any case, you really should speak with a lawyer about this for the best advice.
Not to offend anybody, but most Slashdot readers are teenage code monkeys who don't know a damn thing about contract law. I understand your call for help and your need for assistance in this matter, but if you take any of these people's advice, you're going to be asking for trouble. Some of the stuff they're saying sounds good, but most software companies have quite powerful legal teams that you probably don't want to mess with without taking the necessary steps to prepare yourself first.
Do yourself a favor, and go get yourself a lawyer that specializes in contract negotiations or software liscensing agreements and don't pay a damn bit of attention to the so-called "professional advice" these script kiddies are telling you. Do you really want to make a major career move that could affect you for the rest of your life based upon some tips from an anonymous reader named "L1nuXR0x0r5"? Most of these people seem to be under the impression that you should give away all of your code, and I'm pretty sure you don't want to do that. So, go out, hire an attorney, prepare yourself as best you can, and then go talk to your employer.
Good luck.
-atrowe: Card-carrying Mensa member. I have no toleranse for stupidity.