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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.
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
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.
You can cross off entire paragraphs. I've done it... many times. In one case they told me that a particular clause wasn't enforcable, I smiled and said "Great, then we can remove it.". In another case, I asked them to clarify what the contract meant... and we wrote in the "clarification", which was very limiting and granted me the exceptions that I required.
In general, if you are doing open source software that is not directly related to your work; you are seen as someone with initiative... and good employers should encourage this sort of professional involvement in your field. If they try to "own you" and not let you be a "professional" then call 'em on it. They want a professional, a professional does these sorts of things.
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...
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.
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.
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.
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
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
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
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.
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.