Beware Employment Contracts

elfdump writes "Tilly, one of the Perl Monks, has been threatened with lawsuits from his employer for performing open-source development. His company claims ownership on all of the GPL'd work he has performed since he was hired, including rights to portions of the Carp and Exporter modules. In addition to his code being pulled, Tilly's revolutionary ideas on regular expression engines (1, 2) may now never be fulfilled. In this statement, Tilly warns open-source developers of the dangers of the "work for hire" provision in contracts, which entitles a company to all of its employee's intellectual products, regardless of their applicability to the company or whether or not the ideas were developed on work time. Definitely something to consider if you perform OSS development." One thing to clarify: your employer does not own everything you do by law - only by the contract you may have signed. Brief rant below.

A lot of people think they have no negotiating ability. You do. When you're thinking of signing on with some company, and they send you a boiler-plate contract to sign, don't just sign it and send it back. Read it carefully. Alter it as you see fit, striking out sections, adding sections, and initialing each change. Then sign it, make a copy for yourself, and send it back.

Where it says:

company owns the rights to all work produced during the term of employment

Just strike it out, and change it to:

company owns the rights to code written during working hours and in direct furtherance of any tasks assigned by the company

See how much nicer that reads? Now, when you do this, there are two possibilities: either the company will ignore it and hire you, or they will object to your alteration of the contract. In the second case, if they stand firm on the boiler-plate contract, I suggest you simply ask for more money - for instance, if you were expecting an 8 hour/day job and their contract asserts that they own what you do 24 hours/day, then you'll need at least three times as much salary to compensate.

And if you and the company cannot reach an agreement, well, maybe you didn't want to work for them anyway. If they're already screwing you before you've even signed on, that's not a good omen.

There's already some good advice in the comments on the perlmonks story, so I'll leave it at that.

Comments

Promissory Estopple

[ClarkEvans]

If he was clearly doing these things in public and his superiors _knew_ that he was doing this stuff and doing it with a GPL, then the employer may not be able to retroactively re-claim copyright. If they confronted him (in writing) *as soon as they found out* then his license to us is invalid, and people should refrain from using the code he licensed to us under the GPL. *sighs*

Scary

[jgerman]

That's scary, and I worry about it all the time. I'm pretty sure my contract did say that only work in the company's field was owned by them. I guess what it boils down to is I'll double check my employment agreement before I ever do a major release of sofware under GPL. Hell, I'll release it anonymously if I have to. Maybe that's the next step, coders forced to release projects under psuedonymns to avoid draconian employment contracts.

OK, so what about....

[pjdepasq]

So what about if you go back to school part time to work on a Master's or PhD. Especially with respect to software developement for your degree, (in my case, software for my PhD). Do they think they own my software and ideas central to the PhD?

At my school (and many others define a PhD this way), PhD work has to be new, original work that adds to the discipline. Almost certainly anything that you do under the PhD banner would be something a company might claim falls under such a contract. Regardless if the work relates to the company's products/goals/ideals, this does not seem right and fair to me.

I am not in this situation, but know others that are. Just wondering...

One thing-- overtime

[einhverfr]

For those of us who work hourly work, there is one think called "overtime" which is usually provided for in state law. This means that if my employer wanted to claim my work via contract, I would claim large quantities of overtime... If they claim that they own the work, then the time I put into it was work for hire, right? ;)

This only hurts the employer in the long run

[WIAKywbfatw]

This kind of "we own you and everything you do" approach only hurts the employer in the long run. Here are a few reasons why:

1) It pisses off the company's current staff.

When an employer treats you as a piece of property then there's very little incentive to treat the company as anything other than a source of income. Why devote your life to the job when you get no respect back?

2) It hurts the company when it's recruiting.

A lot of jobs are filled by recommendation, word of mouth, etc. If your friend's constantly telling you how badly his employer's screwing him would you apply for a job there?

Or, if you were offered two similar jobs would you take the one that wants to own you a third of the time or the one that wants to own you all of the time?

3) It discourages staff from furthering their knowledge and experience.

Pop quiz: if you were the boss, which would you rather have?

a) coders who care are in it for only the money, who switch off at 5.00pm sharp and spend their evenings playing on a PS2; or
b) coders who live and breathe code, who actively take part in open source development, learning new tricks and techniques in their own time and come to work with fresh ideas and more experience under their belt everyday.

Tough one, huh?

I'm amazed this company has the balls to treat it staff so badly. Let's face it, treating your most valuable employees as little more than street urchins, turning away potentially brilliant hires because they refused to be shackled 24/7 and discouraging your employees from broadening their programming horizons and skills is incredibly short-sighted.

Ultimately, company's that persue such restrictive terms of employment are only shooting themselves in the foot.

Re:You CAN'T waive that provision

[Wanker]

I need to go look at those old papers again, especially since the following is also part of California law:

[2870] .... the part included in the original post ....

(b) To the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded from being required to be assigned under subdivision (a), the provision is against the public policy of this state and is unenforceable.

2871. No employer shall require a provision made void and unenforceable by Section 2870 as a condition of employment or continued employment. Nothing in this article shall be construed to forbid or restrict the right of an employer to provide in contracts of employment for disclosure, provided that any such disclosures be received in confidence, of all of the employee's inventions made solely or jointly with others during the term of his or her employment, a review process by the employer to determine such issues as may arise, and for full title to certain patents and inventions to be in the United States, as required by contracts between the employer and the United States or any of its agencies.

2872. If an employment agreement entered into after January 1, 1980, contains a provision requiring the employee to assign or offer to assign any of his or her rights in any invention to his or her employer, the employer must also, at the time the agreement is made, provide a written notification to the employee that the agreement does not apply to an invention which qualifies fully under the provisions of Section 2870. In any suit or action arising thereunder, the burden of proof shall be on the employee claiming the benefits of its provisions.

It's quite possible that the "waiver" is really "an offer to assign" under section 2872 there. Talk about an offer you can't refuse...

But then again, I'm no lawyer so I have no idea how this should be interpreted "correctly".

Re:Does anyone know...

[SuiteSisterMary]

Tilly read the contract, agreed to it, then forgot that he did. That's his bad, pure and simple. He even admits it. It wasn't obfuscated, or overly legal-speakified. He ignored something he agreed to, and he got spanked for it.

Re:slavery

[Catbeller]

Sigh. Yes, you can sign away your human rights. 1st amendment, 4th amendment. You can sign away your children, legally, if you try hard enough. Same for rights protecting you from unreasonable search and seizure. Free speech.

People who have been sued by a rather famous litigious SF cult, for instance, have frequently had to sign agreements stating that they can never write, speak, or complain about their legal tormenters for the rest of their lives. And at that, some of those same people were still hounded by the nutballs -- but could not sue or even discuss the matter with other people. Because to do so would be a breach of contract that could get them punitively fined, or imprisoned. A contract can say anything.

Justice Scalia of the Supreme Court, just this last Tuesday likened public school to a prison: a student has no constitutional rights if the parents or school board so desire. That case, the suit of a former high school student who is trying to challenge mandatory drug tests as a prerequisite to participation in off-hour school activities, is doomed to be tossed out by a court majority who literally snarled at the concept of constitution rights applying to "druggies" infesting the schools. Just a step away is the tying of waiver of one's constitution rights as a prerequisite to attend school at all -- or later, to be employed.

If a citizen demands their rights, the only option left to them might be to live in a forest subsisting on nuts and termites.

Rights are useless if ideologues in both business and governement tie the ability to get an education and a job to your surrender of those rights.

I'm beginning to think that, broadly, a new judiciary that does not recognize Jeffersonian rights of man has been intermittently installed since '80. They recognize sweeping powers for the right to do business -- yes -- but the old standbys of speech and security in home and person are, as another justice said Tuesday, part of the past, not applicable to the new world we live in.

The pendulum has swung far too far away from classical constitutional thinking. The present atmosphere is not "conservative". It's something else entirely, something new and hostile to ideals we've held for over 225 years.