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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
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.
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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.
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.
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
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
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.