Slashdot Mirror
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."
...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.