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Beware Employment Contracts
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.
Unfortunately, for us Electrical/Computer Engineers, there is no way around that. They simply won't hire you. Sucks, but that's how it works.
Joe Carnes
But did he have the right to GPL it in the first place?
In a worst case scenario, what happens when you merge all these patches from someone and then two years later some company claims that he didn't have the rights to assign ownership to you? Even if you manage to strip all the patches out, you then need to make sure that the replacement patches aren't borrowing any ideas from the old intellectual property.
Trolls throughout history:
Jonathan Swift
Agreed.
When I started at my current employer, I received a nice plain employment agreement. It was good. I signed it.
Then they wanted to change my conditions, which was also good, because it mean more money, so they gave me a new contract to sign.
It has an ambiguous clause in it regarding IP ownership. I corrected it, signed the new version, and sent it in.
Everyone around me was saying "You can't do that."
Oh yes I can.
I don't think they ever read my version.
I don't really care - I know that what I signed gives them the rights to anything done on their time or their equipment.
That's it.
Read more of this story at Slashdot.Read more of this story at Slashdot.Read more of this story at Slashdot.
One thing I'm glad I was doing (though I never had to use it with my employer) is that I wasn't alone working on my (L)GPL project (see sig). That way, even if my company had tried to claim copyright, they would have had a copyright on only my code, which would make the code useless without the other contributions. It sorts of limits the incentive for a company when it knows that it can't gain much in the (potential) conflict.
Another thing that also helped is that since at one point a part of their software linked to my (LGPL) library, making it "illegal" would also have made their own product illegal.
Opus: the Swiss army knife of audio codec
The lawyers are already onto this. Every small company I've seen requires employees to "waive" this right as a condition of employment.
Somewhat puzzlingly, the larger, more bureaucratic companies do not always require this waiver. I expected it to be the other way around.
Providing some small hope for humanity, I also know of a lot of very qualified people who have left over this very requirement.
That's exactly the reason why the FSF is so adamant about getting copyright assignments for the code they accept in their projects, including a release by the employers of the contributors. Otherwise, you have a non-negligible risk of ending up with this kind of problems...
OG.
I work for a large telecommunications company. I won't mention the name, but I'll just say that it's a 6 letter word which starts with "spr" and ends in "int". Anyway, six months after I got the job, they tried to force one of these employee agreements on me. It was filled with language that basically said that they own everything I do, past, present, or future (it said anything related to this company's current or anticipated future business, but it would be all too easy for them to say some invention of mine was an "anticipated future business idea"). I doubt such a blanket statement would be legally enforceable, but I didn't want to deal with the legal headaches.
When I got the form, I wrote back with all the changes I wanted to see in order to protect my rights without adversly affection theirs (hey, I can understand a company wanting to protect themselves, so long as they understand my desire to protect myself too). A couple weeks later, the company's lawyer came down to talk to me, trying to convince me that I was taking the document too literally and that the company would never really use it against me. Of course, if that were true, he would have had no problem changing the document as I asked, but his excuse is that this was the same document that everybody signs.
I took the document and marked it up with the changes I wanted, and added a disclaimer which basically said "my signature on this document is contingent on me being able to own my own work". Of course, I detailed what I defined as "my own work". After making these changes, I sent the document in. About two months later, I received another copy of the form in the mail with a letter saying I had never signed the document, and they wanted me to sign this one. I never did, and they haven't bothered me with it since. If they were to hassle me with it again in the future, I have no doubts I could find a better job elsewhere.
For every post, there is an equal and opposite re-post.
imagine a person working on code at work then coming home and doing the same thing.
I guess it matters what your interpretation of "the same thing" is. Do you mean "programming"? Do you mean "programming Web applications"? Do you mean "programming Web applications for the oil sector, communicating with G7527 devices"? If someone spends 9-5 contributing for his employer, and then spends 6-11 of sweat and tears on "his big break", then please realize that that is the spirit of innovation, and that's what all societies needs to encourage more: Every big company was founded when someone broke the chains from a restrictive engagement. In an ironic twist, these employers who try to strong-arm their employee's personal projects should realize that most employees bring skills TO work FROM their personal project (i.e. usually people work on wideranging things that they'd never get a chance to in the daily grind, but once they've perfected it they can leverage those skills in the workplace). I'd like retroactive 24-hour a day pay instituted for any organization that feels that it owns its employees. As a sidenote: Organizations that fairly compensate ingenious contributions, product ideas, etc, never seem to have this problem: They realize that their employees are what brings in the paycheque, and if Bob thinks up a $40,000,000 idea while mowing the lawn, well then it might be in their best interest to offer conditions that reward him for it. Instead, most of these companies with unbelievably overpaid upper management, CEOs with golden parachutes (who often sit on dozens of boards at different companies), want to be able to say : YOINK! There, now get back to doing that COBOL code. FUCK THAT.
However, the crux of the matter is this: We live in a capitalist society. Capitalism is an eat and be eaten atmosphere, and it's one where EVERYONE is ALWAYS a free agent : You are always an entrepreneur - No company EVER owns you. This (at least where I live) is not slavery, and no one can conscript you into bondage (well, unless you're into that sort of thing). The fact that anyone would even CONSIDER signing contracts like that (or that they are legally allowable or at all enforceable, or even morally comprehensible), is disturbing. Employers pay an employee for the known work that they contribute on company projects, and they compensate the employee for the work that they contribute: If someone is spending their mental energy on personal projects and doesn't contribute to their employer, then naturally they won't get raises, and they might even get fired : That's the entrepreneurial spirit of a capitalist society. Never would I justify an employee stealing code from work projects (nor do I think anyone else is), or stealing proprietary technologies, but for anyone to claim that the spirit and upward potential of someone is constrained because they have a 9-5 gig disturbs me, and if that's what the idea behind our society is then bring on the revolution. Did I nap through when we warped into the communist regime of the USSR?
My boss (a lawyer) gave me a boilerplate employment contract, basically claiming rights to everything I thought during my employment. I asked him to change it to include only work done during paid hours for the company, and to exclude any code covered by the GPL. After a 5-minute explanation of the GPL, he was a little worried.
Then I showed him to source to the CGI and DBI Perl modules, and told him that we'd have to extend our timeframe by 6 months while I rewrote all that funcionality. Then he got it, and I've had no trouble.
This isn't as much "normalization" as it is "don't take so many drugs when you're designing tables."
HOWEVER if the work you did on your own time was similar to the work you did at your job (i.e. you designed websites for your job and then you design websites on your own time) then they may have a claim. But typically you just need permission from your manager ahead of time ("Can I go hack websites on my own time?" "Yeah sure") to make your work yours again.
When I worked at Microsoft, they explicitly prohibited people from working on open source (this was not in the contract (or at least the one I signed years before), just in an email). The rationale was not to pollute *Microsoft's* code with GPL code that could then result in someone claiming that Microsoft's code needed to be GPLed (i.e. the opposite of what happened in the situation being discussed here).
- adam
On the other hand, often the changes are never even seen by human eyes.
Yes, but by 2872 whatever rights you assign don't affect inventions qualifying under 2870... so the assignment (waiver, whatever) doesn't negate 2870's effects.
IANAL either, though.
I recently signed on with a particular high profile company I'm sure a few of you are familiar with (it was instrumental in the recent Windows trademark ruling, for example). The contract, of course, had a work-for-hire clause. They also included a section from California state law (other states may have similar restrictions) saying that any inventions can only be claimed by the employer if
A. The invention directly relates at time of conception to the employer's business,
or
B. The invention was created at least partially using company equipment.
The law also states that any contract may not override the law.
Check your state's employment and work-for-hire laws (if you work in a different state than the company, usually the laws of the company's state apply). Hopefully this helps people.
Any opinions or ideas expressed herein are solely my own.
A solution to the problem with music today
They didn't hire Zapdos. He only comes out on nights and weekends.
They will never find out who I am without violation of several privacy laws.
Get a free ipod.
This has nothing to do with the doctrine of promissory estoppel. As the name implies, promissory estoppel requires a _promise_. Silence is not the same as a promise. Only under limited circumanstances will a court hold that failure to enforce a right amounts to a total waiver of that right. The scenario you pose is not such a circumstance.
Sorry for not being clear. Many times a direct manager will make remarks indicating that outside work (especially open source work) is perfectly OK. They do this to keep up morale and they know that professional involvment like this is a good thing. Thus, the manager will make an unwritten policy (via private talks in person) that is directly against the work-for-hire agreement. Then, when things go sour, and upper management finds out, or the lawyers/venture capitalist get into the picture the story changes. The middle manager lies about their promise...
I am not a lawyer, but this is *exactly* what promisorry estoppel is all about. The employer (through middle manger) makes a un-written promise, the employee does work (or continues to do work) based on this promise, and then the employer (upper managment, lawyers, etc) go back on the promise. In this case, it is unfair for the employer to take back their part of the deal... even if it was unwritten. The consideration for the promise could be extra overtime or staying with the company or even doing the open source work with the company's email address.
Since no middle manager is going to admit to making the verbal promise (or it's their job) the employee is left hanging. A resonable judge will understand this situation and use the facts as a guide: (a) the manager knew that the employee was doing open source work; (b) the manager didn't do anything in writing to confront the employee about this fact (turns a blind eye). If these are the facts, then I'd say the employee has a good claim that verbal statements were made in private.
As for Silence, this is _exactly_ what the doctine is all about, no? If the agreement was verbal and both parties agreed that there was an agremment you don't need this doctrine, do you? The doctine is for verbal agreements which one party claims didn't happen. Then the judge has to figure out if it is resonable to assume that the verbal agreement did actually occur.
But then again, I'm not a lawyer... perhaps you are. For other info on Promissory Estopple, see Google, in particular Bus477 notes which say:
Promissory estoppel
A doctrine in which a non contractual promise may be made enforceable to avoid an injustice. Acceptable alternative ways of describing promissory estoppel are:
* A doctrine which arises when injustice can be avoided only by enforcement of a non enforceable promise.
* Promissory estoppel is used where, although there may not otherwise be a enforceable contract, because one party has relied on the promise of the other, it would be unfair not to enforce the agreement.
* Promissory estoppel is used to enforce charitable gift pledges where the charity relies on them.
I was offered a job by one of the "big" unix computer systems companies in Silicon Valley. Their intellectual property clause was a horrible blanket statment. I refused to sign it as I was working on some stuff of my own as a hobby. They said "We didn't think you'd sign but be thought we'd it on you anyway"!!! I got a lawyer to rewrite their paragraph (it came out to 10 pages long) and the company lawyers took 2 months to ok it but it the end they realised it was all above board.
So they were happy with that. But a few months later when I was approach by a national TV network to do an interview about my software I checked with my boss about it and word came down the line that if I said anything I'd get fired [shrug] Can't win them all but I guess that was reasonable as my software competed with a product my employer was working on internally (which was one main reason they employed me in the first place, because of my specialist knowledge).
Live and learn.
pithy comment
Actually, I had a situation similar to this a few years back. An employee of mine asked if I wouldn't mind letting her do a project she was working on as a Senior Thesis. The only thing that meant for me was that I, as an employeer, had to be vigilant NOT to take the code and reprogram it for her in the middle of the night as I could get her in trouble with her educators (I also work for an educational facility, so things like that would effect me if it were thought I was helping a student cheat). It just meant that I had to act pretty much as an idiot non-programmer and give her bug reports and things like that, but not the actual code fixes. Hell, I'd end up writing an example code of something different showing her how I would fix the code, just to insulate me from the process and it worked well.
Anywho, a month after her graduation, that school started offering a product line VERY similar to my own...I knew because their department had been licensing the older software from us (as do quite a few schools) and was shopping it around to my other clients.
It ended up being a real pain in the ass, with her professor actually claiming that he came up with the entire idea of this and didn't know she worked for me. He claimed that she was such a bad programmer that he also wrote most of the code (when in fact a good chunk of what was there in the end, was actually my example code...I was a little miffed as I told her NOT to use my examples wholesale for this application, but to do something similar).
So for 4 months, we argued back and forth about all of this, until we got the lawyers involved. The jerk of a prof continued to tell everyone that it was his idea and mostly his programming, when the guy barely knew this language...in the end, he was able to keep a chunk of the software that I paid my employee for and use it in house (which meant I lost their school as a major client) but it was agreed that they would not sell it or let anyone else use it.
So yeah, your company and your educational institution may end up fighting over your code in the end. Make sure everyone who is involved knows whats going on and arrange a meeting with everyone BEFORE you start to use the code (as the employeer I didn't meet anyone til about the time the educator was having trouble using the code...which I let her leave in the stripped down 'Thesis Mode' on my demo server, but he needed it installed on his machine to see how it worked...but didn't even know how to get ODBC set up...yeah it was windows code). If I had met all these people, I would have gotten a signed statement from everyone these saying, "Yeah, I know she's using this for a class and I'm not helping any more than as a mentor, but it still fucking belongs to me as I'm paying for the shit". I would have gotten a signed statement from the educator revoking any right he had to the code and I would have gotten a signed statement from the employee / student saying she understood both of our positions. If ANY of the following did not agree to this, I would have told her to do something completely different that ANYTHING that we were doing in my department.
So, maybe this in some sense explains why employeers have to be nazi's about the whole damn thing.
clif / sonikmatter.com
I resigned over this very issue. I submitted two essays to the Wipout competition on the matter: The Intellectual Slave, and Current Thoughts on Intellectual Property. The first is the more relevant of the two: the only detail that the second adds is the fact that I did resign.
proof, n. A demonstration that a conclusion is implied by certain premises and axioms.
Whenever possible, I simply avoid signing an employment agreement at all. That came in handy once ... I left a company suddenly, shortly after ownership changed hands and the new owner started changing the fundamental nature of the business. The new owner took me to court. The judge didn't simply dismiss his case -- he took 5 minutes to berate the guy first, and then dismissed the case.
When I've not been able to avoid the document completely, I do modify the clauses that imply or state that the company owns or has any kind of right to the products of my non-working-hours labor.
Napster-to-go says "Fill and refill your compatible MP3 player", which is a lie. It's not MP3. It's WMA with DRM.
Hahahahahahah..... I used to think that section of the CLC afforded me some protection, too.
See, I used to work for a company in Cali. In fact, it was a company that was (and is still) producing a Linux distribution. Despite having profited from Open Source for years, the DotCom boom and all the money it brought to the table encouraged management to start making the Great Intellectual Property Land Grab. One of my co-workers came in one day to discover that the company wanted to claim a small perl he wrote on his laptop in his apartment at 2am as vital Intellectual Property. The company's position was that the "relates to company business" exception could be excercised because it was a "software company" (and we were a "linux distributor" when the contract was signed a few months earlier) and his perl script was obviously software.
If he'd been willing to fight, I'm pretty sure that he could have won as I'm pretty sure that the shady stuff they were trying to do wouldn't stand up in front of a judge... but in the end it was easier just to let the company have the damn script and quit the job to get away from the contract terms rather than to fight the good fight in court and try to pretend that management wasn't going to hold a grudge and try to fsck us later.
On a positive note, the company in question has been relegated to irrelevance by the marketplace and is currently struggling to find something to sell that will actually make enough money that they might one day dare to dream of profitability. And all that despite the fact that they own the IP rights to a small perl script. :-)
Kharma's a bitch.
Any rate, point is... Even if it looks like the law protects you, get them to admit that you're protected in your contract as well. "Is this your signature?" is such a damning question that really undermines your argument in court... I'd much rather the other party be the ones that have to answer it than myself.
If he was never authorized to license it out in the first place, then the licence is null and void, and the company can demand that anybody using it stop, and that all copies be destroyed, and that nobody distribute it.
What if the code he wrote was a derivitive work of other GPLed code? In that case his employer can claim the copyright on the derivitive work, but they are required to GPL it.
The ironic thing is that he has the most to fear if he never uses illegal drugs.
About a decade ago the US Government decided to drug test about 8000 senior civil service employees applying for promotions. These are all highly skilled professionals with a lot to lose, so there's very little chance that any will be using drugs at this time.
About 8 people tested positive. Aha!, said the feds, this proves the validity of these tests! We would have never suspected these highly respected individuals were drug fiends without this testing! They actually used the relative handful of positives as "proof" of the validity of the tests.
Not so fast, countered the lawyers. No drug test is positive, and even if have three independent tests with a 10% false positive rate then 0.1% percent will be falsely labeled as drug users. Or about 8 out of 8,000. (In reality, of course, systemic errors such as a forgotten poppy-seed bagel will tend to skew all three tests.) The relative handful of positives, and the context of the test, suggests that these are innocent people wrongly accused.
The case actually made it to the Supreme Court, and as I recall the Supreme Court essentially said that it couldn't be bothered with questions about the scientific validity of tests when *drugs* are involved. The individuals were denied promotions on the basis of these tests alone.
Adding further insult, many mandatory "drug treatment programs" that can be triggered by these false positives *require* you to admit to your "problem" as part of your "treatment." If you do occasionally smoke a joint on weekends, you can cop to it and keep your job. But if you're drug free you're labeled uncooperative and can be terminated for resisting "treatment."
For every complex problem there is an answer that is clear, simple, and wrong. -- H L Mencken
A few hints:
Of course this is all totally unrealistic pie-in-the-sky stuff, because we computer folk are in our infancy politically. However I think that as the vice tightens (SSSCA, etc.) we will be forced to get real about political action. That's another rant, but briefly it means:
Lastly, to those who worry about the effect of such measures on Tilly: I feel bad for Tilly, but I'd happily accept the loss of one coder and some modules in exchange for a high-visibility smack to these corporate abusers. I would like this company to end up as a cautionary tale on the front page of the Wall Street Journal. If we could accomplish that, it would be worth lots of short term pain.I would like to set such an example that corporate decision-makers in the future shy away from such actions as they would from flying a Nazi flag over headquarters. It's not illegal (in the US) but with sufficient effort on our part it could be made very expensive and unattractive.