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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
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*
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
Amen! That's the clause in my employment agreement. When I started doing open source development, I pulled it out and double checked. If I create it at work it's theirs. If I create it at home, it's mine.
Of course, I just have to be careful not to use any of my open source code for anything at work. That would make it very easy for them to claim I worked on it at their expense. If you've written something you want to use at work, right up a separate contract and license it to your employer for one dollar, just to keep everything clean.
A Government Is a Body of People, Usually Notably Ungoverned
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.
I'm the big fish in the big pond bitch.
No reason. }:>
Computer Science is no more about computers than astronomy is about telescopes. --E. W. Dijkstra
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
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...
Dude, I think your employer owns your Perlmonks rant, too. I hope they don't change it.
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
They should only have ownership dibs on stuff you did explicitly for work, and or on their equipment. Tell your boss straight up. I wrote a piece of software at home that would make this easier, I'd be more productive, but I'm not bringing it in until I have, in writing, that I own the software.
I'm the big fish in the big pond bitch.
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
Don't forget to keep a photocopy of the modified contract!
An even better solution: many such contracts have a space for exceptions (e.g., in case you are already bound by the terms of a previous employer's contract). Just put in something like "excluding work on software distributed under licenses (GPL, etc.) that would otherwise conflict with the terms of this contract."
If they object, just ask (with an innocent face) "do you really want to get the company's IP tangled up with the GPL? I think we should keep them seperate, don't you?" Ten gets you one they will shudder and agree to the exclussion.
If they try to say you can't work on open source projects, put the innocent look back on and say "is it really company policy to prohibit employees from doing community service on their own time? I find that rather...unusual."
-- MarkusQ
I don't buy that the company couldn't do something... If I wrote a chunk of code, slapped a GPL license on it, and released it out to the public, does that mean that the code is actually under the GPL license? not necessarily... The question is really, "Who originally owned the code?" If it was me, then I can put a GPL license on it. If the company actually can legally claim ownership of the code (such as an employment contract clause), then the code is the company's and it was wrong if not illegal (stolen intellectual property, blah blah) for me to release the code. Usually, even if there is such a clause, the company can and will make an exception if you detail to them what it is you want to do (work on open source stuff on your own time). Just get it in writing. For example, Steven Wozniak (inventer of the Apple computer), approached Hewlett Packard about the design to the original Apple. If he didn't, they could have sued both him & Steve Jobs because until HP actually OWNED the rights to the Apple computer until HP decided it didn't care about such a "toy". Apple History: http://www.apple-history.com/history.html If you don't know what your company's policy is, then you better ask. jason
No one has seen what you have seen, and until that happens, we're all going to think that you're nuts. - Jack O'Neil
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've worked for several small companies in California whose agreements tried to grab everything they could from me, and if they could have gotten me to "waive" section 2870(a) they would have. Instead, the employment agreements and IP assignments specifically said stuff under 2870(a) wasn't covered. The paragraph that I typed in came verbatim from where it was quoted on one of my old employment agreements that I pulled out when I saw the /. article. Any employer who fools around with that needs to be reported to the labor board.
It's evident on Perl Monks that Tilly has no practical choice but to: stop contributing Open Source, and, this is worse, not to leave his company or face having his work pulled from CPAN. He's being blackmailed -- and can't afford to leave for the sake of his wife. This is outrageous behavior on behalf of his company. Damn that company!
-- @rjamestaylor on Ello
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? ;)
LedgerSMB: Open source Accounting/ERP
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.
"Accept that some days you are the pigeon, and some days you are the statue." - David Brent, Wernham Hogg
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?
I often thought that if I really wanted to quit and didn't care about a good reference, I'd take my camera to the local zoo and shoot several rolls of, er..., animal droppings, then lay out a book of photos of these, er... products of nature. And, since the company has all IP rights, put them down as the author.
It'd all be worth it when HR got the pre-press of the glossy coffe table book of Products, by Joe's Software, with the big picture of a turd on the cover.
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
In the interests of helping to spare our beloved Monastery further merciless Slashdotting, here is the whole of tilly's post:
This post is somewhat long, so I would like to start by saying that this is very much relevant to PerlMonks even though it is not about Perl or programming. It is also very relevant to CPAN, perl, and the broader open source community. This is about aspects of being an employee which generally get ignored, and really, really, really shouldn't be.
I will talk about New York State's laws, since that is what I know best. However in discussions with legal types it appears that New York's provisions are not unusual, and therefore what I say is applicable in some way to most of the US, and likely in many other countries as well. I should also disclaim at this point that I am not a lawyer, nor is this legal advice. But the general outline of what I am saying has been verified to me by both lawyers, and people who are merely interested in the legal profession. I have also been told that this is bound to become a huge issue for the open source world.
Enough advertising.
In New York State there are three basic classes of employee:
- Hourly employee: If you show
up at work, punch a clock, and are paid overtime, then
you are an hourly employee. Factory workers are commonly
hourly employees. As an hourly employee the company owns
the hours you are at work, and has no other claim on you.
I believe it is uncommon for programmers to be hourly
employees.
- Contract worker: In this case you are working
per defined contracts. The work you do on that contract
is (barring specific contract provisions saying otherwise)
owned by the company that has hired you. They have no
claim on your time or energy when you are not working on
the contract. Many programmers work this way. But if you
are (for instance) hired by a consulting company to work at
clients, then your employment with that consulting company
is not contract work, see the next option.
- Professional employee: This is the rest of us.
Professional employees have employment that is not defined
by a clock or by a contract. In fact under the law their
productive output belongs to their employer, 24x7, 365 days
a year (366 on leap years). It is customary for these terms
to also be spelled out in employment contracts very clearly,
though truth be told most people read these, sign them, and
have never given the contents of those contracts much in the
way of thought.
This brings me to intellectual property law. Intellectual property law in general assigns the rights to intellectual property to the creator of an idea, work, or implementation. That creator gains delimited control of their creation. In theory the reason for this is to encourage potential creators to create new things, and for them to pass into the public domain. Or at least this was the reasoning that Thomas Jefferson used (and he got it from French thought on copyrights), though the reality in this century has not matched theory very well.But who is the creator?
One would think that the creator of a work is the author, the person who actually produces it. But the realities of life are not so simple. What if one person conceives of an idea, and then gets multiple people to implement it? Is it owned by the implementers, or the person who thought it possible and paid for it to be done?
The legal resolution is the doctrine of a work for hire. A work for hire is a work that you produced for someone else, and they own all rights to any potential intellectual property that might arise from that work. (Including, obviously, both copyrights and patents.)
Now what happens if you combine these two legal areas?
The answer is unambiguous both in theory and practice. All work covered under your employment terms belongs to your employer. In the case of professional employees, this is everything. If you go home and write something on the weekend, you do not own it. You might be unaware of this issue and naively put a copyright notice on it, then distribute it. That was your mistake.
Now let me make this personal.
I am a professional employee. I signed a routine employment contract while I was still pretty much of a novice as both a programmer and an employee. As is common, 6 months later I had completely forgotten about the terms of the contract and was blissfully unaware of the laws I live under.
My bad.
Over the course of this job I have slowly become more and more involved in open source work. I write software for fun and release it. I have put code into posts here, released stuff on CPAN, and even contributed a core perl module. All of which I thought I had the right to do, but as it turns out none of which I did. There isn't even a legal issue to contest, I simply didn't know better.
My very bad.
As of today here is the status. This came up from an incidental issue about a month ago. I have been told that if I wish to continue being employed, I cannot post code. If I continue being employed, then I will be admonished for the code I have released so far. If I leave my employment then the decision about what happens with any and all of the code of mine that people here have seen is not mine. (Stupid comment removed.)
I live in NYC. It seems likely that my wife is going to have no option about moving any significant distance for at least a year. I am carefully considering my employment options. I have a likely job prospect near Philadelphia which would allow me to work on open source stuff. That is farther than I want to commute, and the pay cut would be painful, plus it does not resolve the other issues. I have not seriously searched for any potential jobs which are closer.
Now my food for thought for everyone is this. How many more people are in the same position I am, and are not aware of it? How much open source software has been put out there by authors who thought they owned rights that they do not? If you are an employee, are you one of them?
These are, as I have just learned, extremely non-hypothetical questions.
UPDATE
There is, considering the circumstances, only one choice for me to make which is not abysmally moronic. Do not expect to hear much from me in the future.
"The best we can hope for concerning the people at large is that they be properly armed." - Alexander Hamilton
You're in favour of random drug testing?
Let me tell you a story about my boss at GS. (Whose name shall remain anonymous, because he'd kill me...)
He was the most highly rated analyst in Europe at sector X. His calls as to when a stock would go up, or down or just round-and-round were always spot on. In every survery of investors he was rated best in sector.
One day the head of research asked him: "So, Joe, why don't you become our X analyst in the US, you'd earn a lot more money?"
Answer: "You drug test in the US."
The moral of this anecdote: you don't employ people to be crack addicts, you employ them to do a job. If they can do the job better than anyone else despite (insert impediment here) then any *rational* employer would hire them anyway.
Anyway, my boss has given up worrying about those pesky urine samples (by leaving GS) and good on him...
*r
--- My dad's political betting
When we could boycott Adobe, we can boycott these morons as well. Right? There are many posts that say how to prevent it or how the company is short-sighted, but what about some direct impact. Who is the employer? And why don't we - programmers - organize a little more. Where is the black list of employers that don't treat us well?
If programs would be read like poetry, most programmers would be Vogons.
Here is my take:
1. We once were sent to a convention. At the convention we were told that we were on duty 24/7. So I asked for 24/7 compensation. They shut up and left me alone after that.
2. I have always marked out, struck through, and changed any documents which a company has given me when they were considering me for hire. I've always signed them, made copies, and keep the copies with me. No one has ever had a problem with this except one company.
As I do not wish to be sued - I'll leave company names out of this: I did not go to work for one company because they said sign the contract or don't work here. I had gone through a headhunter company and the job looked really great. Lots of money, great benefits, etc.... The only problem was that the contract basically said everything I'd ever done belonged to this company. Even things created prior to joining the company belonged to them. I've helped a lot of people and written a lot of code so I was very concerned and even brought it up to both the headhunter as well as the company. When I had finally decided not to accept the contract I let both parties know and I even went over with both of them why I had decided to turn down the offer. The headhunter company became very nasty. Even going so far as to threaten me with a lawsuit if I didn't take the job. I told them I couldn't. The terms were so terrible that I just could not "Sign Zee Papers" (If there are any C&C fans out there.) So then, curiously, I could no longer get a contract with anyone. No contract or perm for a very long time. Only after a year and a half had gone by was I able to get another contract.
So my thing is - there is a very real threat to contractors (and even people looking for permanent positions). Sometimes they blacklist you if you do not sign and there isn't much you can do about it. So what do you do? I was lucky - I had a friend I could live with. But someone else might not be so lucky. Then what? Do you go ahead and say "Sure - take everything I've ever created" like this guy is having to do? I believe there has to be a limit to what a company can claim as theirs. We aren't slaves but we are being treated as such.
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.
For example, the Bern convention states:
Article 6 (bis)
(1) Independently of the author's copyright, and even after
transfer of the said copyright, the author shall have the right
to claim authorship of the work, as well as the right to object
to any distortion, mutilation or other modification of the said
work which would be prejudicial to his honour or reputation.
So, they can take away your copyright, but they can't do with it as they please. And if these grim goons follow through with their threath, leave them this paragraph as a parting gift. Maybe they find out that the easiest way out is to give the code back to the community.
-- Another senseless waste of fine bytes.
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 have seen this happen to people I know. The standard contract has these provisions. When people ask about them the company says they're just protecting themselves and not to worry about it. Yet they are given the legal authority to hold it against you and sometimes do.
For almost every problem I've seen engineers face, someone says, "Well you should have negotiated that with your contract". Well, I know a lot of engineers and the number I know who work full-time and have intellectual property or overtime issues negotiated in their initial employment agreement I can count on my hand. The reality is, if they're handing you something to sign from their lawyer's boilerplate, instead of vice versa, they have the upper hand.
Most professions have professional organizations that look out for their interests, lawyers have the ABA, doctor's have the AMA. Who looks out for IT workers? There are some ancient associations which are more-or-less owned by the industry employers (IEEE, ACM). The professional associations that truly look out for the modern IT workforce - the Programmer's Guild, Washtech and whatnot, are new, small organizations. They do not have the history and well-funded organization of the ITAA, the IT employers association. The ITAA has not only rammed through H1-B legislation but legislation which overturned FLSA so that computer workers don't have to be paid overtime. Section 1706 was lobbied into the IRS tax code to drive independent consultants into body shops. Because the professional organizations are still small, most engineers don't even know this, and know the ITAA is attacking their livelihood down in Washington.
What do most engineers say? Well, they always think they're the smart, hard-working ones who are unaffected by the laws of supply and demand. In some ways, they are a bit of the engineer stereotype, putting their personal self-worth into how "skilled" they are, and think being skilled is a panacea for everything. Luckily for them, this requires no backbone as the boss has no problems with engineers spending what spare time they have improving their skills. Unfortunately, laziness is endemic in the profession and a few engineers will have to deal with these issues, defending against the ITAA's attacks on the profession while a lot of other people lazily sit around and criticize them. Hopefully there will be enough counter-force, I'm not too optimistic however. I think in 15-20 years there will be a lot of carpal-tunnel afflicted (another bill the ITAA killed) guys who have spent the last 20 years working 60 hour weeks, oncall 24/7, and who are burned out, having problems with their families who they don't spend time with and are over-the-hill and less and less employable. I see this because this is what I see now with a large percentage of 40+ programmers today. Luckily everyone I meet thinks they're a unique super-genius who is too smart for all of this, lucky them. We're so smart we don't have to organize like doctors and lawyers do, so we don't even need an organization warning us about the ITAA like the Programmer's Guild and CESO and Washtech do. I'm afraid as time goes by, I am becoming more concerned about the thick headedness of American programmers and that the ITAA will succeed in making everyone a low scale wage slave, I thought this recession and widespread wage freezing, cutting, long hours of unpaid overtime, 24/7 oncall, unemployment and so forth would do it. I'm actually planning a professional exit strategy while I'm still in my 20's as being an American programmer 15-20 years from now looks like a bad deal, I'll be fighting the good fight 2-3 more years however hoping things will start looking like they might turn around until then though.
Anyhow, here is my web page on this:
http://www.geocities.com/oncallguild
Under the "We own your life 24/7/365 contract" that most people sign - even these Slashdot postings belong to your employer - since any creative work you do belongs to them. This means that they can censor what you have to say here.
This is - of course - manifestly wrong. The reason that companies get away with this sort of thing is horrendous case law; beat up somebody in court who doesn't have the financial resources to fight you and you have established a precedent to use against everyone.
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.
Vintage computer games and RPG books available. Email me if you're interested.
dh003i checking in:
Release the code anonymously, if your worried about nazi employers. Release it stating that the author's anonymous, and providing some way by which the author can identify he in fact is the true author later on. When you feel the cost is clear, claim you wrote it.
For this particular prommer, I suggest he start doing that. Release the code anonymously.
As for the code already released under the GPL, that's GPL'ed permanently for everyone (though for the company, its effectively under public-domain). The company can't stop it from being distributed, and can't stop others from redistributing. When WE download a GPL'ed code, there's an implicit understanding on OUR part that we have the freedom to redistribute according to the terms of the license; irrelevant of anything else, we have the right to demand our side of the legal bargain.
Even if the company can somehow get a ruling prohibiting others from distributing it under GPL, that won't stop them from doing it. One, such a order would have to be federal. A court in one state can't have jurisdiction over the other states. Only a Federal Court can. Two, such an order would be unenforcible. Proof? Despite us constantly complaining about the nazis who decided the DeCSS case, DeCSS' distribution hasn't been halted since the judge ordered its distribution stopped. In fact, its increased.
Now, here's something this guy can do. Claim he isn't the author of the programs. He didn't write the programs. How can the company prove that he did? If he wrote these things out of work, there's no way the company can prove he's the author. He simply wipes the files, and there's no proof.
social sciences can never use experience to verify their statemen
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
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.
Your entire post regarding the situation where the manager made either an explicit or implicit promise is correct. The result would be same in the other situation you describe-i.e. where the manager lies. However, the situation you describe is not silence. Rather, that's just one person lying. The judge/jury is just deciding that the promise was made, but someone was lying when they denied that they made a promise.
Silence falls under equitable estoppel. This is a related but different doctrine than promissory estoppel. The requirements for equitable estoppel are quite strict, and generally require that any silence be misleading. For example, if a manager knows about misconduct, knows that it is a breach of an agreement, and turns a blind eye to it without a word to the employee, it may or may not be misleading. It definitely would be silence, and definitely would not be a promise to the employee. Depending on the circumstances, it may or may not be misleading and a court may or may not enforce the agreement.
BTW, I am a lawyer who deals with IP/employement issues. Don't take this to mean I think the quoted contract would be upheld. It seems a little broad to me and most courts would be skeptical of something that broad. (And this is not legal advice blah, blah, blah.)
There is, considering the circumstances, only one choice for me to make which is not abysmally moronic. Do not expect to hear much from me in the future.
That should involve sending resumes out as fast as he can, taking extended lunch breaks, sick days and vacation until he lands another job. His company has jerked everyone around and deserves no better for themselves. A whole module? That took time and people at his job knew what he was doing. So they let him do it, let others link into it, then sprung this kind of shit? That's bad faith, NOT HIS BAD. Is there other people's work in that module? Does they company expect to extract money from every distro out there that ever rolled it up? Shit on them, they have acted in bad faith to all and deserve to be lied to and ignored.
Legal is not always moral. Never work for or with people who are not moral. Working with people who are out to screw others really is moronic.
Friends don't help friends install M$ junk.
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.
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.
You need to be careful when your 'work' and your 'hobby' and your 'recreation' all tend to have a lot of overlap.
There are some nasty pitfalls ahead.
Yes, everything might be rosy now, you are on good terms with your boss and upper management, but just wait until your hobby project shows some commercial promise, you upset somebody higher up the food chain, or any other event or change upsets the delicate balance...
A lot of very bright people have been caught in this trap, the most common outcome is that your 'personal, hobby project' becomes the intellectual property of your employer.
When I applied at Motorola, part of the application asked that you detail every potentially valuable idea you had ever had on your personal time, with the understanding that any other idea you came up with from that point on would be the property of Motorola.
(No, I didn't accept the job.)
I do not deploy Linux. Ever.
That's interesting how you got the promissory estoppel definition correct, but then totally mangled your example. Promissory estoppel occurs when a promise is mead without consideration. The one who was promised then reasonably takes actions based on the promise to his detriment. Silence, or the lack thereof, has nothing to do with it.
In this case, if a manager or other agent of the company orally or verbally agreed to let the worker work on open source projects without consideration, then you could claim promissory estoppel. If there was consideration, whether oral or written, then there's a contract which would amend his previous one. The only argument then would be if the manager or agent of the company was acting for the company or not.
As for silence constituting agreement, there would have to be some sort of discussion beforehand to that effect. If, for instance, the worker approached management and they discussed open source work, but did not come to an agreement-and then later the worker, with management knowledge, writes and posts OSS, and management does not complain, you could argue that silence constituted an agreement. I say argue because it would be dependent on the prior conversations, and would probably be a pretty weak case.
In this instance, I'd say it's a pretty weak case altogether. It's common in R&D fields to sign over all projects whether directly or indirectly related to work. I'm not a programmer, so I don't know if this is common or not in programming fields. The one saving grace may be if the OSS was a totally different field than work software.
Depending on the original contract, he may be able to claim joint ownership of the OSS work. Without an express agreement to the contrary, patents are awarded to the individual that invented it, with the employer receiving shop rights-a royalty free, non transferable license to use the invention. Of course, the caveats there are that he can't be employed in inventing, can't have signed away rights to them, and can't have been assigned to invent. That's patent law...copyright law may be a bit different on that matter.
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:
Nonsense. Microsoft, like every other employer in the world, needs to accept the fact that they don't own their employees and have absolutely no right to tell them what to do or not do after they clock out and go home.
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Friends don't let friends enable ecmascript.
The problem is that the constitution is only a limit on the power of the government over its citizens. The government cannot enact laws or contractually obligate the citizenry in such a way that the constitution is violated. This doesn't apply to corporations.
Corporations, unfortunately, have been endowed with all the rights of a citizen. The Supreme Court ruling that established this is possibly the greatest ongoing threat to the rights of individuals. Because of this ruling these corporations can engage in contracts as any citizen would but of course they have substantially more power. They are not boun by the limitations of the constitution. As the power shifts out of the hands of government and in to the hands of corporations, this situation only looks to get worse.
A constitution doesn't mean jack to people if the chief influence on their lives ceases to be government.
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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.
Note that in California, such a contract is void and unenforceable. The Labor Laws state that any work performed outside the scope of employment belongs to the employee, and *even if* an agreement stating otherwise is signed, it is against the public policy of the State of California and cannot be enforced.
That said, I'd never sign such an agreement anyway. Employers have no claim to time outside of work.
Actually it can be. I don't know how US law works, but over here in the UK the basic principle is that there must be some "meeting of minds": both sides must understand the same things about the agreement. The writing is evidence about what was agreed, but it is not absolute.
Normally this works to help the little guy. If you are in dispute with some company and they point out some clause you didn't read written in Flyspec 3 on the back of the invoice, you can reply that you didn't know about that clause, didn't agree to it, and therefore it isn't part of the contract. If its routine stuff like promising to pay within a certain time then they can still claim that you must have expected that such a clause would be there. But if its "unusual or onerous" (such as punitive charges for returning hired goods late) then they have to draw your attention to it, e.g. by putting a bold print warning on the front of the contract.
However in this case the rules are reversed. If you hide a modification to a contract in the middle of several pages of legalese and don't draw their attention to it, they can reasonably claim not to have known about your changes, and therefore not to have agreed to them. At this point things become seriously murky. In a dispute the Judge might decide there was no contract since there was no meeting of minds, and hence the default rules apply. Or s/he might decide that you were being deliberately deceptive and rule against you.
Disclaimer: I am not a laywer.
Paul.
You are lost in a twisty maze of little standards, all different.
That's actually precisely not true, that's the good thing about constitutional rights, they are yours and even you cannot take them away from yourself. No contract claiming you surrendered those rights would be considered valid (well at least that part of it) by any court, that includes the (sadly) common clauses regarding limiting your litigation options. It's that they usually go unchallenged, that's the problem.
Your children are an entirely different thing, but you rights, at least in theory, are yours to keep, whether you like it or not.
sic transit gloria mundi
Sure, right now, in the middle of a down patch. When things pick up in a few months, maltreated employees will be out of there like rats of a sinking ship, and the scumball employers will lose out bigtime. What goes around...
Speaking as someone who just gave a list of "no way" employers to his agent, based on the way they've treated friends of mine in the recent past, I disagree. I work in a high-tech city, and it's a small world. Employers who try to take advantage will find the best employees leaving, or just not applying in the first place. Employers who treat their staff as people to be valued and not "human resources" do much better. The past few years provide several shining examples of each type.
Yep, a fair and reasonable one. Inserting the kind of contractual terms we're discussing does far more to telegraph what kind of employer they are going to be. The kind of employer who objects to such alterations, or, say, rules you out because you have the audacity to ask how long a typical working day is during interview, is not the kind of place I'd work anyway. If they get evasive or uncooperative, they just confirm my initial impression, and save me wasting any more time.
If you disagree, post your argument. (-1, Overrated) isn't your personal censorship tool for views you don't like.
Okay, not quite ALL the rights, allow me to clarify. Originally corporations operated under charters which narrowly defined the ground rules for their operation. During the 19th century, the power of corporations grew substantially, and in 1886, the Supreme Court ruled in Santa Clara County v. Southern Pacific Railroad that a corporation was deemed a "natural person" under the US Constitution. This effectively extended all constitutional protections to a corporation as thought it were a citizen.
It is this Supreme Court ruling that set up the basis for the campaign finance mess we are in today. Since corporations have the right of free expression, and since spending money is a form of expression, there's not a whole lot that can be done to limit their political influence. We'll see what happens with the new campaign finance law that looks to be passed shortly, but it's likely much of it can get struck down in court.
No, clearly corporations don't have EVERY right of a citizen. As you point out, they cannot vote, and clearly, since they are owned by people, they could be considered slaves. But where it counts they've been given a lot of constitutional protection that was never intended for them.
As for being bound by the limitations of the constitution, I disagree. Through contracts, a corporation can require it's employees or other contract signers to waive just about any right. While a contract cannot directly violate the law, they can limit the free speech of citizens quite readily. Most of the rights we traditionally think of can easily be signed away to a corporation, but a government agency has no such power over us.
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This is why major contributors to GCC who are also employed as a programmer must get a disclaimer signed by their employer, stating basically, "We don't really give a rat's ass about this work and promise not to try and hijack it in the future."
Without such protections, there wouldn't be much of g++ these days: the employer of the original author tried to make it a proprietary product once he was mostly done with it. Fortunately it was too late for them.
I wonder why the Perl folks don't require such protection of themselves.
You cannot apply a technological solution to a sociological problem. (Edwards' Law)