Slashdot Mirror
Clash of the GPL and Other IP Agreements?
Daimaou asks: "A situation I'm involved in at work has raised some questions regarding the GPL vs. IP agreements. When I started working for my employer several years ago I signed an IP agreement that states anything I think while working for them is theirs, as well as anything I've ever thought in the past if it enters their building; dumb, but I needed a job." To make a long story short: Daimaou wrote some code derived from GPLed sources. Now his company wants to take control over what he's written. IP agreements aside, this sounds like a GPL violation since the company's IP can't override IP already established by the original GPLed code. Daimaou also says the company is trying to patent at least some of the code. Is there anything Daimaou, or anyone else for that matter, can do to get the company to cut short their plans and play fair with IP that obviously doesn't belong entirely to them?
"About a year and a half ago, I brought in some source code that I had worked on prior to working here; after receiving verbal OKs that the code would remain mine.
My code was derived from code I got from IBM's Developer Works website and also ActiveState's website; all of which was released under the GPL. I made a lot of additions to the software of my own, but the parts from the above sources were integral pieces and without them, my code wouldn't work.
Now, my employer is trying to lay claim to this software and has filed at least one patent on it that I know of. They have also distributed it but refuse to make the source public. They claim that because of my IP agreement, they have full rights to this source code.
I would like to hear what other readers think and perhaps get some suggested courses of action from people who are smarter with regards to law and the GPL than I am."
My code was derived from code I got from IBM's Developer Works website and also ActiveState's website; all of which was released under the GPL. I made a lot of additions to the software of my own, but the parts from the above sources were integral pieces and without them, my code wouldn't work.
Now, my employer is trying to lay claim to this software and has filed at least one patent on it that I know of. They have also distributed it but refuse to make the source public. They claim that because of my IP agreement, they have full rights to this source code.
I would like to hear what other readers think and perhaps get some suggested courses of action from people who are smarter with regards to law and the GPL than I am."
Daimaou wrote the code prior to the IP agreement than the code isn't his to release to the company. The GPL license holders own it.
anonymously tip off http://www.gpl-violations.org/?
vodka, straight up, thank you!
This is actually a fairly clear cut situation. If your code is a derivative of GPLed code, then the derivative is under the GPL, regardless of any other agreements. Your company can either distribute the derived code or not. If they distribute it, they *must* obey the GPL.
If it were any other way, contract law would crumble. Imagine a world where some random Contract X (in this case, your IP agreement) can arbitrarily change the terms and conditions of some other random Contract Y (the GPLed code). A logical extension of this absurdity is that I could then write a contract with you that *somehow* changed a contract between two other, unrelated parties. The law doesn't work that way, no matter how much your Work Overlords would wish otherwise.
If we're talking about IBM sources, try talking to them about it, maybe they'll be interested.
"Is there anything Daimaou, or anyone else for that matter, can do to get the company to cut short their plans and play fair with IP that obviously doesn't belong entirely to them?"
Move to Europe before it's to late!
moo
Well it's easy. The original creator of the work is the one who 'owns' it. The GPL is a liscense, so if it is being violated, the owner should be contacted.
I don't think the code itself is patentable. What the code does is probably what the company is interested in. It is very likely that they don't want the code GPL'd and will probably have you or someone else rewrite it.
Even if we were, we could not give useful advice without full details.
Talk to a lawyer.
IANAL, but the way I see it, if they ended up in a court case, they would lose, as the code does fall under the GPL. However, they may find fault with you because you wrote the code under the GPL, which is incompatible with their IP contract. This could be construed as bringing in 'stolen goods' (not exactly), and they may sue you for losses.
Well, it sounds like it wasn't yours for them to reappropriate from you in the first place. Bear in mind that IBM has a very huge legal team. Since, as you say, some of the code they are claiming as their own belongs to IBM, it might me in your best interest to get out of there before the Nazgul starts picking your company's flesh apart with pliers.
Unknown host pong.
Comment removed based on user account deletion
You can send your company's lawyer a copy of "their" code, the GPL'd code from which you derived "their code", and the GPL. You can ask the lawyer to write you an opinion stating that you are protected from the copyright owner of the GPL'd code you use making any claims against your company. And you can remember, while looking for your next job after they fire you, that you shouldn't both sign away rights, and expect to use them, when working for a bunch of thieving assholes.
--
make install -not war
I don' tthink it'll be a big problem. Just notify IBM of what is happening. They'll get it sorted out, either through licensing the code under different terms or making them open it up. I mean I suppose IBM might decide just to ignore it, but I don't find that highly likely given their history.
The single best thing you can do is to find a good lawyer. Although you may personally be in violation of the GPL since it was your actions that brought about the violation (but see respondeat superior for why only your company can be sued for this, and not you personally), you may also have a claim that the oral agreement you entered into superseded your written IP agreement, or at least estopped your employer from violating the oral agreement and, by extension, the GPL.
But hire a lawyer. I am not a lawyer, nor is this legal advice. I just know what I know, and what I know is that a good lawyer will spot at least the things I've mentioned and probably more, and more importantly will know how to apply these ideas to cover your ass and, hopefully, keep your code GPLed.
Good luck, and again: hire a lawyer.
Yeah, the company does have copyrights to the modifications Daimaou made, and any of those modifications, if separable in themselves such that no GPL-derivativeness remains, could be licensed however the company desires, but as long as the two are one, it must be licensed by GPL rules.
he doesnt have the IP rights to the code in the first place. he is licensing the code from other people.
also the patent has obvious prior art.
inform them that they do no OWN the integral parts, that you licensed that from someone else.
since you didnt own it, they can not own it.
id also look for a new job, they sound like assholes.
Yes, the employer owns the new code. However, the employer is prohibited from distributing that code under any license other than the GPL unless the code is independent of other GPL code not owned by said employer.
The GPL has nothing to do with copyright ownership. Hence, projects like the Linux kernel are owned by the many different contributers. This is important to understand, because each contributer needs to be sure to claim copyright on their contribution so that they have standing to complain if the license is violated.
Meanwhile, I guess this poor coder/programmer will be given these words....you guessed them..."you are FIRED"!
The software in question is "owned" by the copyright holders (presumably ActieState and IBM). Therefore, your company's claims of ownership on the code are bogus, and any use it makes of the code must comply with the licensing terms that the code was obtained under (the GPL).
If you didn't care about your job, you would contact the copyright holders and inform them of what's going on--it is up to them to sue your employer, if they find that your employer is in breech of the license.
As for the patent: if it's not been patented already, then it's fair game. Get used to it.
The moral of the story: verbal agreements are meaningless. Get it in writing, or don't bother.
Notify IBM, Active State, the original copyright holders and the FSF. Let them all know about the obvious GPL violations of their code.
You, fighting this alone, will almost certainly lose to your employer but, the involvement of outsiders could cause your employer to think twice about their pending actions.
Of course, following this advice will almost certainly result in your firing for any of a number of reasons so, you would be best served by also contacting a good lawyer, in advance.
.. they can claim to own the part of the code that you wrote (excluding the GPLed code). Even that is questionable because you have written it before you signed the said contract.
Roman Kennke
Verbal agreements aside (which _may_ save your ass, talk to a lawyer) it seems to me you knowingly assigned the IP rights to someone else's code to your employer. IANAL, but I'd think any agreement you signed with them would override any supposed verbal agreement in a "he said, she said" situation. You may just find yourself in deep doo-doo. :(
Whatever you do, though, at least consult with a lawyer.
The GPL doesn't give a rat's about IP agreements, and it doesn't care who the rightsholder is. When you transfer the copyright from your code to them, they become the GPL copyright holder, and are thus bound by that license for the code in question. That means the patents are likely good and the derived code must be made available with the app, though not necissarily free, and not necissarily public.
But I am not a lawyer, this is not legal advice, and I might be wrong.
um, who did you say you work for?
i would put a backdoor on every computer they have and start looking for another job, then once you have another job i would give IBM the keys to that back door for one week then after one week i would release the key to the whole world...
revenge is a dish best served cold...
Politics is Treachery, Religion is Brainwashing
"after receiving verbal OKs that the code would remain mine"
My comment won't be very helpful to the situation, but here goes:
If I understand it correctly, he signed a contract with an inventions clause when he started work at the company, but after he was hired, he was told verbally that the inventions clause would not apply to a particular project.
If I were in this position, I would put the onus on the person who made the verbal promise. Their response might be one of a few things:
Sitting in my day care, the art is decopainted.
Your verbal agreement was worth the paper it was written on, unless you have witnesses. You are working for scumbags. Leave now, inform them that they are working with code _already owned by a company that could buy them a million times over_ and look for a job that isn't working work scumbags.
My Journal
Regardless of the IP agreement with you, that code was licenced to both you and your employer under the GPL. If a customer who they have distributed binaries to requests the source, they must provide it, otherwise they are violating the GPL.
The only person the IP agreement makes a difference to is you. If you had used the code without telling them about the GPL problems, they'd still have to comply, however they would most likely be able to claim damages from you. However, this isn't the case as I read it. You seem to have made the GPL situation clear to them beforehand, and so you haven't put them in this situation, *they* made that decision.
A side question is whether the questioner's ageement with the company put an onus on hium to secure IP rights for any code he contributed from outside sources. If he didn't notify his employers at the time that he was supplying improved GPL code he might himself have a legal contract problem.
I have been a user for about 10 years. This ends Feb 2014. The site's been ruined. I'm off. Dice, FU
Regardless of the legal merits, it speaks volumes about the corporate culture.
Draconian NDA's usually surface well into the interviewing process, so nice to not waste anyone's time with even looking at the company from an employment standpoint. Love to know who they are...
+++ UGUCAUCGUAUUUCU
He shouldn't have used that code in the first place, it was copyrighted and he plagorized it for his job.
Unless his company was willing to adhere to the GPL (by being informed and agreeing in advance) then the code should not have been used.
Since his company had no knowledge it was copyrighted code, this guy has put himself and his company in a very awkward position. I suggest he come clean and then get another engineer to completely rewrite all the copyrighted code in a clean room environment.
The only other option is to make the code and its modifications available to the community and that simply won't work.
As for the patents. Its pointless to patent a concept that already exists in GPL code. Prior art will crush the patent in court, whether it gets through the patent office or not.
Raydude
I would also start looking around. Companies that force prospective employees to sign overarching IP agreements like that will not take kindly to your stance.
If brevity is the soul of wit, then how does one explain Twitter?
Well the company of course should not violate a license, unless they want to open themselves up to a legal battle with FSF and others.
Basically what happened is that Daimaou pulled the company into something they are unhappy about. They should fire Daimaou if they are that unhappy.
A solution is to continue to push forward to patent the technique. Then perform a fresh implementation of the technique without basing it off GPL sources. This will set them back some time, and I'm sure the company has already considered this option and refused it.
Another solution, one that is less likely to work, is to contact the copyright holder(s) of the GPL package and license it directly under a proprietary license.
But mainly I'd just like to say, shame on Daimaou for using GPL'd code without his employer's consent. This is how companies end up violating gpl, because people put them in an awkward situation that they either don't understand or don't accept.
“Common sense is not so common.” — Voltaire
You're missing one option:
- keep the parts that were written in-house
- rewrite the parts that were taken from the net
Then the company would "own" it all.
Get in touch with a good lawyer, and start looking for heaps of cash behind your sofa.
You see? You see? Your stupid minds! Stupid! Stupid!
Then wouldn't the OP be responsible for not disclosing what he was doing to his company so that they could determine responsibility, licensing, etc?
If he did it blindly, then I would think that he would be reponsible for lost productivity, time, etc, that his company will lose in revamping the portions of code that he used without notice.
Seriously though, here's what my brain thinks of this:
IBM(?) owns the copyright to the Developerworks software.
Your employer now owns the copyright to the modifications you made.
If your employer has distributed your code, they must do so under the terms of the GPL.
Your employer may apply for (and even receive) patents on the modifications, but *cannot* restrict anyone from using them under the GPL (as per the terms of the GPL.)
If you know they're disributing the code, you should contact IBM.
If your employer wins the dispute, they get no more right than you have to break the terms of the GPL.
SteveB.
anyone with a name like Daimaou must be a stupid ape.
The company doesn't have a legal leg to stand on anywhere that I can think of. They can't claim rights to the code that the employee didn't have the right to give them, and are still constrained by the GPL, so if they release something based on the GPL'd code then they must also release the source code in the usual way. They also shouldn't be granted a patent based on the earlier work because it's prior art, but with the USPTO and its ilk running the show, who knows? ;-)
The employee himself is potentially in rather a lot of trouble, and the only way I can see to extricate himself is to remove all of his code that he's written since working for this employer from the GPL'd project. He can't give his employer's code away under the GPL any more than his employer has a claim to the earlier already-GPL'd code.
Even then, I wouldn't be surprised if his employer has a strong case against him for whatever professional negligence counts as in their jurisdiction. He shouldn't have used the GPL'd code in the first place if he could reasonably have known that the company wouldn't want to handle the end product in a GPL-compatible way. If that's the case, then his work for them is effectively wasted, and he'll be lucky if he only gets fired.
IANAL in any jurisdiction, and if you get your legal advice on Slashdot you deserve everything else you get too!
If you disagree, post your argument. (-1, Overrated) isn't your personal censorship tool for views you don't like.
I'd advising getting in touch with GNU/EFF. From my perspective, even assuming your employer owns the whole thing lock, stock, and barrel, they are still bound by the GPL; otherwise they're violating the copyright of the owners of the original GPL code you built off of. Your contract may give them YOUR rights in the code you wrote, but even so, their contract with you does not enable them to appropriate someone else's work.
I am not a lawyer, and this is not legal advice, but this seems like a complete no-brainer to me. They can claim they own the moon, too, but that doesn't make it so. They don't have the right to distribute dervied works of GPL code without following the terms of the license, which they are not. The right thing to do is contact EFF/GNU - I'd do this first and see if you can get pro bono legal advice. You may end up contacting the original owners about the GPL violation, but since that could expose you to liability for breach of contract or such, you may want legal advice first.
IANAL, but it seems pretty clear to me that you can only sign contracts that limit your own rights.
When you wrote derivative works from a GPL source, you did not gain ownership of the original code or even full patent rights to the code you wrote. The GPL remains in effect. If they argue that your contract gives them ownership, then that contract is illegal and invalid because the original authors (IBM's Developer Works & ActiveState and probably many others) were not party to the contract.
I cannot sign a valid contract, assigning ownership of assets I do not own. I mean I can sign one, but it has no legal standing. The contract and any patents derived from it, would simply be invalidated in the first court to see it.
Its not users who are broken, it's systems not taking account their likely behaviour and fixing it technically.
When you modify GPL code and you have such an employment agreement ...
...
...
...
... i dare say it sounds like a violation :-)
Then I believe you as a developer are accepting the terms of the GPL license on your companies behalf
I believe only the original copy write owner of the code has the right to change "licensing" i.e. from GPL to XXX
So if you are the original author then yourcompany is probably able to do what there doing
Otherwise
Here's some of my GPL'd code
for (i=0;i10;i++)
include it in your source code. When they distribute it, we'll sue them for millions. I'll split it with you.
Because once again if one group of slashdotters believe that P2P piracy is AOK it means that noone on slashdot can support property rights.
My code was derived from code I got from IBM's Developer Works website and also ActiveState's website; all of which was released under the GPL. I made a lot of additions to the software of my own, but the parts from the above sources were integral pieces and without them, my code wouldn't work.
If the code you wrote was released under the GPL prior to your being hired by this company, then I would think the GPL license supersedes the IP agreement you signed. However, IANAL.
If they're violating the GPL, that's not very nice of them. I would talk to a lawyer who specializes in IP first, just to find out what the situation is. You'll have to decide for yourself, though, whether blowing the whistle on them is worth the possible consequences (being fired, countersuit of some kind, etc.).
I'm not good in groups. It's difficult to work in a group when you're omnipotent. - Q
First off, IANAL.
The basic issue is that Daimaou doesn't have the *right* to sign over the code that he modified. When he modified code that was released under the GPL, he was bound by their license agreements. If he signed an agreement to turn over all past IP of his (I'm not sure of the legality of such an agreement), he either broke the law in signing the agreement or he did not turn over the IP; he has no right to void a license established by IBM.
The logic being used by his company is almost amusing. If they got an employee who had formerly worked at Microsoft on Windows, would they expect to be able to patent parts of Windows? Of course not - because when the person worked at Microsoft, their legal obligation was to turn over any IP that they develop to IBM. They had no right to the IP that they wrote. Neither does Daimaou have any right to code that he wrote that fell under the obligations of another party's license.
What his company is doing seems to be pretty darn clear cut to me. But, as mentioned, IANAL.
"Here's a fun fact: the moon has turned to blood!" -- Newscaster, "Jesus Christ Supercop"
He signed an agreement and knowingly added code he did not held all rights to, thus
Sure, the company is violating the GPL by distributing the yada yada, but they could sue the guy real bad since he frigging KNOWINGLY ADDED UNACCEPTABLE CODE.
The employer can only obtain those rights that the employee has to give. If the code written by the employee is truly "derived" from GPL'd code it too will be covered by the GPL and no contract between the employer and the employee will or can change that. The key here is whether the derived code is covered by the GPL; If it is the employer is in violation of the GPL and a call to the Free Software Foundation would be in order.
Here's a question for you that wasn't clear from the original post: did/does the source code that your employer is trying to patent retain any sort of "this code created by X on Y date and is released under the GPL" comments or notices of any kind? If so, it seems to me like the employer is on pretty darned shaky ground (IANAL) because the original code was GPL'd before you derived it, and probably was long before you ever went to work for these jokers.
Am I correct in assuming that the only assurances you got from your employer regarding the code were verbal? I know that verbal contracts are often said to be binding, but I have yet to see or hear of a verbal assurance that was actually upheld if one of the parties tries to weasel out of it. Call me a cynic, but I'm in the habit of not believing any business dealing that isn't written down somewhere and signed in (someone else's) blood for this very reason.
I'd never want you to disclose the name of this employer so that we might curse them to Heck or sign them up for SCO newsletters or anything like that, but perhaps a plucky Anonymous Coward *cough cough* could hazard a guess or two.
"Linux doesn't exist. Everyone knows Linux is an unlicensed version of Unix"- Kieren O'Shaughnessy
It's simpler than that, I would think. Even holding the contract as set in stone, it doesn't give them rights over this. The argument can be made that he didn't think this up. He took somebody else's code and worked with it, but somebody else thought of it and created it, not him.
I admit this may not be the most flattering way to look at it from his standpoint, but it would work.
I then put it up on my webserver, go into work the next day, and show my boss (CTO) the code available on my site. He then gives me the go-ahead to use it for a corp. project. Everyone wins.
(IANAL and am not sure why anybody would come to Slashdot seeking legal advice instead of talking to an attorney, but here we go...)
The flip side of your employer taking all the credit for the code you write on their behalf is that they also have to assume all the legal liability for the code you write. It's them that will be in violation of the GPL, not you.
What are the whistleblower statutes like in your region? I can tell that the idea that your employer is violating the terms of the GPL bothers you, but siccing the EFF on them might or might not be a good idea unless you want to lose your job in retribution.
Furthermore, show them the GPL. Explain that they have two options: (1)Not lay claims on any of your modifications to the GPLed code or (2)Obey the license & release code. If they don't realize that by trying to DISOBEY the license & still release binaries under the proprietary license opens the company up for lawsuits & is costly to shareholders, they don't deserve their job. Write a letter to the CEO to this effect.
In the course of all of this, continue to emphasize that agreements you signed cannot override the licenses written by the original copyright holders. Also tell them how you explained your past work on GPLed projects during your interview so that they won't fire you (to do so would be wrongful termination).
there is a huge difference between for-profit, commercial violations of copyright and personal filesharing.
to simplify the issue as you do:
1 - shows you have zero grasp of the issues you are arguing
2 - or shows that you are deliberately attempting to misdirect in an effort to push your agenda
i won't even get into the fact that filesharing is legal in places like canada.
sum.zero
IANAL, but I've been asked to sign plenty of those assinine IP agreements. I always do one of two things:
1) Tell the HR/PHB that I have to have my lawyer review it because I have some items that are patent-pending. They always say "OK". I then throw the damn thing in the trash... If they ask again, I say my lawyer hasn't gotten back to me yet... They eventually forget and I never signed it...
2) If they actually follow-up, then I modify it to state that "Whatever I develop on my time, with my resources, on my property remains my complete and exclusive property to be licensed, or not, as I see fit. Whatever I develop on the employers time, with the employer's resources, on their property remains their complete and exclusive property, subject to the terms and conditions of any other licenses and/or agreements to which I may be a known or unknown party. Any invention or development of mine for which patent rights may be sought by the company shall be joint patent in which both the company and I shall be listed as Inventors, and I shall share in at least 30% of all gross profits derived from said patent.".
After I modify the agreement, I sign it and return it to them. If I don't hear back to the contrary, then I consider that they've accepted it. And after I receive my first paycheck, I have an even stronger case that the modifications were accepted because 1) The agreements are usually a condition of employment, so if they didn't like it, they could fire me, 2) They have lawyers that know, or should know, what the ramifications of the modifications are, 3) I responded with a counter offer to their offer, and they have a duty to respond with an acceptance or denial...
In this case, I'd get their name, address, and phone # everywhere I could as being GPL-sucking blood leeches, and have everyone just start calling the boss and general counsel to advise them of how shitty the situation is... Maybe they could use a subscription to every single open source magazine out there...
Failing that - how about showing the dimwits that the way you make money with open source is thru SERVICE (eg IBM)
Assuming that to be the case, advise your company that it is not within your power to release them from these restrictions of the GPL, and instruct them to contact IBM+etc for any permission they seek in that regard.
The World Wide Web is dying. Soon, we shall have only the Internet.
Er, correction: "Of course not - because when the person worked at Microsoft, their legal obligation was to turn over any IP thaat they developed to Microsoft."
"Here's a fun fact: the moon has turned to blood!" -- Newscaster, "Jesus Christ Supercop"
First, nobody in the World can patent "code". They can only patent the ideas and methods.
Second, even if the company owns the code this guy wrote, they still have to abide by the GPL.
No conflict, except the guy loses his rights, and deservedly so.
Stupid ad in the middle of the article.
Basically I retract my entire post because it turns out Daimaou wrote the code before he was employed there. If the company gave a verbal agreement that won't really stand up well (you should have gotten a written agreement).
The company can still legally patent the things you implemented though. You will just no longer be allowed to distribute the GPL'd code. And your company will have to write some code from scratch to make use of their patent.
In California those "we own everything we see" contracts are non-enforcable, because of the right to work laws in the state. See a lawyer and try to research your own state's laws to see where you stand legally.
The company can't really touch code that you don't hold the copyright to though. So that is of course wrong. But they can still patent the changes and block you from distributing them. (using the GPL against you)
“Common sense is not so common.” — Voltaire
Daimaou wrote some code derived from GPLed sources. Now his company wants to take control over what he's written. IP agreements aside, this sounds like a GPL violation since the company's IP can't override IP already established by the original GPLed code.
All this talk of "overriding IP" - it's just meaningless babble like when your mother talks about "downloading the Internet".
The original code is under the GPL. The improvements are copyrighted by the company, as per his employment agreement. The resulting fork can only be redistributed if the employer agrees to the terms of the GPL. IANAL, YMMV.
Daimaou also says the company is trying to patent at least some of the code.
Code is copyrighted, not patented. Inventions are patented, code is merely an implementation detail.
They are going to have to be extremely cautious about the things they are doing, because they're potentially in trouble from more than one source. If IBM get wind of the fact that they are violating IBM license terms (even if it *is* the GPL) then they may well act on it. The same goes for ActiveState; while not as much of a threat as IBM, Sophos I would imagine are still not someone you want to mess around with. Then on top of that, you have advocacy groups like the Free Software Foundation, the EFF, and GPL-Violations, all of whom would be very quick to condemn this action and threaten legal proceedings if the license was not followed. The FSF deal with dozens/hundreds of violations a year, this is nothing new.
At the end of the day, it wasn't your code to give. The patent might be valid if there is no prior art to the portions of code that you have created (although without knowing what the program is or does, that isn't to say that the patent is not unobvious or trivial), but stealing GPL licensed code is not. If I let you borrow my walkman for the day, and your contract said that if you bring your walkman to work, they can keep it, that doesn't mean that they have any right to take mine, nor do you have any right to give it. One way or the other, theft is theft. The only solution (if they refuse to listen to reason) is to inform the original author of the code which has been stolen, and to pass the details on to the FSF. They will be able to put legal pressure on the company, and hopefully the threat of a lawsuit will be enough to change your company's mind.
One may have private opinions about the patent system but, given what the system is like, it is a legitimate and common thing for companies to patent stuff. Developing a proprietary version of GPL software based on the parts of the code to which they have the rigths (copyright or license from the copyright holder) is equally legitimate and not entirely unusual. Disputing the validity of GPL on code that was written by some unknown persons is not a smart a move and the IP lawyers will eventually tell them that. As long as you are open and honest about the history of the code and the date on which the inventions were made, none of this is your problem.
Once again, avoiding the question, and ignoring the fact that many slashdotters who rationalize illegal downloading are also the SAME slashdotters who defend the GPL.
I'm not questioning the people who DO support copyright and property rights. I'm asking the hypocrites.
I have never seen a copyright infringing downloader re-sell the latest Britney album as his own creation. When you can show me that happening, maybe your simple question can get the answer it deserves.
IP rights are not black or white. Just as with most things there is a large gray zone and there is a huge difference between on the one hand leeching a song that you would probably not otherwise buy and on the other hand re-sell someone else's software as your own.
You can not equate theft with jaywalking or involuntary manslaughter with genocide even though they are all crimes.
Money for nothing, pix for free
If I had mod points you'd get them. I would also add contact IBM and the Electronic Frontier Foundation (EFF)
Their lawyers might even represent your interests and of course that of the GNU Foundation.
There must be some way to make money from the situation. Seems like he's got a better case than SCO.
Yeah, some person out there casually grabbing a copy of something to see if it's something they like -- that's exactly the same as someone taking something for the sole purpose of profiting off their work.
Believe me, dude, the only people profiting off the few pieces of illegal music I've downloaded are the artists. If it turns out to be worth keeping, I will replace it with a legal copy. If not, I'll delete it.
The major fallacy in your analogy is not "neglible". If you want to take it to an extreme, it's the difference between manslaughter and first-degree murder.
I'm sure someone else will be happy to tackle the notion of who's getting screwed in which case and whether or not our hearts should bleed for potential lost profits to a huge corporation with billions in revenues.
Daimaou,
Go back and READ in its entirety the IP Agreement that you signed when you took this job. It likely says that you agree not to incorporate the IP of another party into your work product without permission, which is exactly what you did.
By using GPL code in your work product you entered your company into an agreement with IBM unbeknownst to the legal department in your company. Nice going.
If your IP Agreement doesn't restrict you from using outside IP, than the problem is that your company is violating the GPL. If it does say this, then the problem is that YOU have violated the terms of your IP agreement with your employer, have exposed your employer to potentially enormous legal risk and you need to get yourself a lawyer as soon as possible.
It could also be time to start working on your resume.
The current company I'm working with has filed software patents over broad reaching things that are all being done with free software. It's kind of like patents saying how you can use free software to do stuff.
This patent system is rediculous.
Back in the 80's California passed laws that state that a company cannot own your ideas (before or after employment). In fact, you can compete with your company on your own time and computers. What state is this happening. I don't know if you can sign that away with an IP agreement in this state.INAL but it looks shaky.
Daimaou wrote some code derived from GPLed sources. Now his company wants to take control over what he's written.
The company has to decide to either dispose of the GPL-licensed code, or accept the GPL'd pieces and keep Daimaou's efforts. (Or, I suppose, attempt to obtain alternative licenses from the copyright owners).
My question is: did he have permission from his company to introduce the GPL code?
It sounds like either the company is "stealing" from the GPL, or that he secretly introduced the GPL into the company's software.
If the first case is true, (where the company knew what he was doing), then it looks like the company may be trying to break the GPL contract.
If the 2nd case is true, (where the company was blindsided by his introduction of code from the outside) then the question is how they might decide to reprimand Daimaou.
If you signed over something granting patent rights, then they can file for patents; but, that doesn't mean you shouldn't take it sitting down.
;)
You as the "inventor" of the idea they are patenting must appear on the patent, and you can certainly send-in "supporting" documents showing how you came up with your idea, in particular, how your idea was 'copied' from some other open source project
i'll have to do some digging, but i thought that there was case law to the effect that contract clauses claiming ownership of your thoughts are not enforceable.
sum.zero
I doubt SCO has *all* of them tied up. If this company is distributing a binary that includes code copyrighted by IBM and released under the GPL, and this company is not abiding by the GPL, then IBM has every right to sue this company for copyright infringement. Seems pretty clear-cut.
If you're really that tweaked about it, contact IBM legal, and let them handle it. Of course, I'd polish up your resume first.
-----Chaz
Is your employer by any chance SCO?
Seriously, this is fairly close to what SCO is claiming: IBM wrote code based on SCO's code, and then contributed the code that they themselves wrote (not SCO's code) to Linux. SCO claims that the license terms of all code derived from IBM's contributions now follow the SCO/IBM contract.
In fact, SCO's case is actually stronger: The code they claim to own was written after, and based on the "tainted" Linux code. Your employer is claiming to own code written by other people prior to your contract with them, because you (implicitly) promised it to them.
Let's say I promise, as part of my employment, to give my employer the Brooklyn Bridge. Not only don't they own the bridge, but they should have known better than to expect ownership of the bridge.
It doesn't matter that the licence the code was under happened to be the GPL - the company are trying to lay claim to a derivative work of someone else's IP.
...because we're all qualified IP lawyers who can give you a definitive answer to a difficult and potentially costly problem, which could lose you your job. No, really. We are. Honest. Me included. I read groklaw once. I'm totally qualified. OJ wanted me to defend him for his trial because I could probably pick up criminal law in an afternoon, but I said "No way" because I was busy posting here.
I can do surgery too. I watched ER once.
You need legal eagles, not geeks.
I prefer the "u" in honour as it seems to be missing these days.
You messed up, you allowed that code to get into your company's code base knowing damn well it was wrong to do so based on the contract you signed, which I assume no one forced you to sign.
The company might be stupid in thinking they can lay an IP claim on top of derived code - that's their problem, but you are also partly responsible for it.
You wouldn't be having this program if you've just re-written the code, or at the very least asked before even thinking about bringing it in. While I agree that reinventing the wheel is pointless, sometimes you just have to. Much as I dislike the GPL I can't really fault it for the way it's used. It's not like it does dastardly things on its own.
You can have principles, you can have food and sometimes you can have both. Most of the time you just have to get with the program. Maybe you shouldn't have taken the job if you are so dependent on GPL code.
IANAL.
They have a contractual relationship with you, but not with IBM (or whoever wrote the original GPL code you modified). Thus, they probably own the code you wrote, but not the original code. In any case, they cannot alter a license assigned by a company with whom they have no relationship.
Strip out your code, print it out, and shove it in an inter-office envelope. Or tell them to shove it in.
"Don't blame the log for the fire." --Andrew Ratshin
if you can show how multiple people "contributed" to the idea, it will be hard for them to make a case that this was an original idea they can patent
further, you have to be listed as the 'inventor' on the patent, and you have to sign the patent application -- refuse to sign it -- if they ask a judge to force you to sign it (due to your agreement) then tell the judge that the item they are patenting is 'obvious' and point out that lots of open source developers that you've worked with are the actual invetors, and that you were just copying
if they file the patent _without_ you listed as the inventor... then they are breaking the law and should be sued
this would be the perfect case for setting a legal precendent with the GPL.
Unless Daimaou got fired.. in which case, could he sue them for unfair work practices or something? Seems like we always hear about how litigation-happy america is but somehow the little guy always ends up getting sodomized anyway.
This is a fake story to drive hits to http://www.shopdarkhour.com/
Daimou has put his employer in a very difficult position here, by bringing into a commercial workplace GPL'ed code, and incorporating it into his work. With Daimou being an employee, his employer had the right to assume that it could use his work product in any way it saw fit with full ownership, absent a written agreement to the contrary (employee work within the scope of employment is considered a work made for hire under U.S. Copyright law). Further, from this article, it isn't clear that Daimou either notified, explained to or got the agreement of his employer to include GPL'ed code (which does, by the terms of the license, need to stay under the GPL) in his work. At some level, the GPL issue is a red herring (although it obviously affects the ability of the employer to keep the source code proprietary)--if Daimou had included code he'd written for some other previous employer, it would have caused similar problems.
At this point, Daimou's employer may (depending on the intricacies and particular facts of this situation, for which it would need the advice of its own lawyer) face a difficult decision: release under the GPL, or rebuild using non-GPL'ed code. Who pays for the rebuilding, and Daimou's role in the process (or at the company), are other questions to be determined. Moral of the story, folks: Never include any code or content subject to outside license restrictions (whether GPL or otherwise) in something done for your boss without getting the boss' informed consent! {Professor Jonathan Ezor, Director, Touro Law Center Institute for Business, Law and Technology}
There are much larger issues at stake than one persons employment. If your employer wants to "own" your thoughts and developments during the period of employment then they have to purchase that right. Employees have to stop signing employment contracts that remove their future rights without adaquate compensation. At it's simplest the implied employment contract is "I agree to perform work for you and you agree to pay me for that work". If an employer wants to extend the contract to include ideas that you might develop during your employment, however unrelated to the company, then they need to compensate you for that. Remember, contracts are only enforceable if they are fair and equatible to both parties . Don't sign employment contracts without speaking to council. Your prospective employer spoke with their council to develop the contract. You have a right to speak with yours.
We're not happy 'til you're not happy.
great post, it's spot on -- this sort of case is exactly what the GPL was written to protect against!
now, has your employer shipped any product that contains the code? if so, then you can, according to the GPL, post the code you wrote (licensed via the GPL) with them as the owners... that will stew their little petty bottoms
The key point is that you don't know whether the IP belongs entirely to them or not because you have not IDENTIFIED the IP. Source code and GPL issues aside, at least in the US, if the company through its employee made improvements to software, those improvements are patentable if the improvements meet the statutory requirements: novel, non-obvious, and useful.
Laws affecting technology will always be bad until enough techies become lawyers.
Luckly in Canada you signiture means little.
No one in Canada has the right to sign awy rights.
If you are told to sign something then it automaticly Null and Void.
I worked for a company and we had about 250 signed documents come in a day. We have serveral different lawyers try to 'fix' the contract. They would still get a few people each year that would claim:
1) never read it so it is null and void.
2) read it but it was indicated they needed to sign otherwise they would not get a reward - hence null and void.
3) signed as other in the room signed it and it 'felt' like pure pressure. hence null and void.
The signing of the contact was just the first line of defence. It kept most people honest.
Even out contracts we sign for work have been contested and the employee won. Nice to see that in Canada the government realizes there are stupid people and they need to be protected from signing stupid documents.
Anytime I have been presented with one of those agreements that I have to sign, I always print:
Signed under Duress: Name.
I don't code (Unless you count PHP, and I am as talented as a 50 year-old retarded ape), but I can't stand the lawyer'esq corporate view of "We own you now!"
It has never been brought back to me as a problem.
"The price good men pay for indifference to public affairs is to be ruled by evil men." ~Plato (427-347 BC)
Don't count on Slashdot for legal advice, but...
If you did not list that work you did on a pre-existing IP registration form when you joined the company you no longer have rights to it. Those verbal assurances you received from your verbal IP declaration only count if you can prove they happened.
Furthermore, from what you say you've done, you have failed to notify your company of the legal encumberances on the work you brought in so their violation of the GPL is your fault. You violated the GPL by trying to pass the sw off to your company as if it was your sw, so although they are infringing it is an unknowing infringement.
Furthermore, you accepted compensation (your salary) in exchange for the GPL'd sw that you presented to your company so, legally, your company could sue you for having defrauded them (as part of that they could attempt to recover the patent-filing costs they've already incurred).
You seriously need to discuss what you've done with a lawyer (either one of your own or one supplied by your company) to find out how to undo or at least minimize the damage your fraudulent actions have caused.
So, your company paid you to write free software for everyone, even their competitors.
Your employer might be upset with you.
But keep in mind that it's the code that's licensed. The invention, if their is one, can still be protected.
And you can also pull a Stallman: reimplement a version of the code that's GPL'd.
It can't be the same code, but it can do the same thing.
Here's how it works. Employment agreements are written by lawyers for the employer.
o wing_minimal_good _sense_and_competence_ on your part.
They think of this as like boxing or wrestling -- attack and see how the opponent responds.
Without a lawyer on your side, you take one hit and fall right over. They look at you, think, "this one doesn't play the game" and you're dead meat legally.
With a lawyer on your side, your lawyer sends back a redraft of the employment agreement that's as aggressively in favor of YOU as the first draft was in favor of the EMPLOYER.
Their lawyer looks at it, says "okay, this is a fair fight" and they come to reasonable terms.
If you do NOT have a lawyer check an employment agreement, you are DEAD DEAD DEAD because you will have agreed to something so egregiously one-sided that the lawyers just laugh and shake their heads in amazement that anyone would be so stupid as to sign the first draft boilerplate.
It's how they separate the sheep from the people.
I see this all the time. People in computing are incredibly naive about how the IP game is played, and are routinely giving away far more than anyone with any knowledge of how it works legally.
No one will respect you if you simply fall over at the first poke, when you should be giving as good as you're getting in these terms.
Having a lawyer check your employment agreement terms is as basic as doing your backups. You WILL lose if you don't do it.
And I can't tell you where I work or how I know all this. Trust me, ask someone with some mileage in the business, go to your college dean if nobody else knows you.
You don't get taught this because the system thrives on those who don't know enough before stepping into it to reserver for themselves the rights to their own prior work and ideas.
It's a simple, standard line any good lawyer can insert into any employment agreement and _the_employers'_lawyers_recognize_routinely_as_sh
If I read this correctly, this is code that he wrote PRIOR to joining the company. When he joined the company, he distributed it to them and then would be required to offer it up as GPL themselves by accepting it. IOW, they are under the contract of GPL as well. But the contract came along and basically states that we do not care what you had before, all your base belong to us. That is not going to fly in the courts.
I prefer the "u" in honour as it seems to be missing these days.
From the GPL Preamble:
Finally, any free program is threatened constantly by software patents. We wish to avoid the danger that redistributors of a free program will individually obtain patent licenses, in effect making the program proprietary. To prevent this, we have made it clear that any patent must be licensed for everyone's free use or not licensed at all.
Just go to another company, and sign the *exact same deal* with them. Then bring them the code you wrote for your current employer and BOOM, now your new company owns it and your current employer is screwed. The law has to work both ways, right?
It's the land of the brave, and the home of the free
Where the less you know, the better off you'll be.
These are all really different things. Yes, your code is owned by your employer, sure they can patent your ideas according to your contract. Yes, they are still bound by the GPL. In respect to IBM's code, no, they cannot claim ownership, patent the idea or change the license. If your work is tightly integrated with IBM's code you must use the GPL or remove that code.
I would hazard a guess that IBM most likely can claim prior art in the case of a patent dispute. IBM has more U.S. patents than anyone else.
Doesn't your company have a policy reguarding the use of GPLed code/releasing code under the GPL?
IANAL
There is something wonderful in seeing a wrong-headed majority assailed by truth. ~John Kenneth Galbraith
I'd address this as two issues - one a matter of pure code ownership, the other as a potential GPL violation. As far as ownership goes, you did sign an agreement, but if you can enforce the verbal agreement you made upon entry into the company, you may be able to retain ownership, though probably not without some hassle. Aside from the ownership issue, though, it sounds like the company is attempting to violate the GPL, and you should really consider reporting it as such.
09 F9 11 02 9D 74 E3 5B D8 41 56 C5 63 56 88 C0
The OP should post the details of the patent application, so that it can be contested before being issued.. this won't cost him his job, there doesnt even need to be any link between the employee and the prior art information.
You can not give away rights to something that you don't own.
His IP agreement gave the company rights to whatever he owned or developed. He did not own the right to the GPL'd code and could not give it away.
If the company ever tries to enforce their "rights" they will be in the same hole SCO is stuck in.
SCO is suing IBM for using stuff that SCO didn't own.
It takes a lot of money and lawyers to work it out but in the end they will lose.
They tried doing this at the college I go to, Drexel University. For a final project we had to write a program that allowed for seamless transfer between wireless access points, before there were systems that did this. Drexel owns the rights to the project and, as is very common with this school, if the project is good, they sell it to other compaines. We use code that was under the GPL to prevent this exact thing from happeneing. Even though I had signed a contract with my school, allowing them to 'own' my work, they could not distribute it because of the GPL. The laywers figured this out, so I would assume that you are in the same boat. You can rest assured that it won't be taken and distributed.
> Now, my employer is trying to lay claim to this
> software and has filed at least one patent on it
> that I know of.
They can do that, assuming that the patent is embodied entirely in the lines of code that you wrote (and that the contract is enforceable: doubtful).
> They have also distributed it but refuse to make
> the source public.
If what they have distributed includes portions of the original GPLd works they are infringing the copyrights of the authors of the originals. Contact the authors and inform them.
> They claim that because of my IP agreement, they
> have full rights to this source code.
Assuming that the contract is enforceable, they own the copyright in the exact lines that you wrote. They do not, however, own any rights to the original works and must abide by the terms under which the authors licensed them.
Talk to a lawyer.
Warning: this article may contain humor, sarcasm, parody, and perhaps even irony. Read at your own risk.
This is your best, primary, and only option.
This is your fault, not your employers. You are irresponsible software engineer. Rather than accept your guilt, you have turned this around on your company. Fess up to it and grow up.
You should have talked to your bosses and other employees BEFORE you went ahead and used GPL'd code for company work. At the time, how did you justify what you were doing? You should have known at the time it would be a problem. The only person responsible for this violation is you.
If the company is worried about being sued then they should fire you and get rid of your project and hire someone else who's not incompetent to do the work. Or, maybe you'll get lucky and they'll be able to comply without any issues. Chances are that IBM/ActiveState will allow the code to be licensed to the company for a fee so they don't have to release their own code. ID Software does this. You can have the code under GPL for free or pay a large sum so you can keep your code closed.
What you should have done is first looked to see if comparable product existed that had a more agreeable license such as the BSD license, and if not, you should have reinvented the wheel.
You could still reinvent the wheel or find a comparable product and replace IBM and ActiveState's code. And that's probably what you'll have to do to keep your job.
There's no harm no foul in using GPL code as a crutch to develop with. You then just have to get rid of any GPL code entirely before you release the product.
Work Safe Porn
Is change your name, no one will take someone named Daimaou seriously. Secondly, stop soliciting advise from Slashdot. As in life, while a small minority are exceptionally smart, the majority are idiots. Simply browse throught he comments that aren't at +4 or +5 and have a read (heck, even those modded to +4's and +5's are simply dead wrong at times).
So... the company you work for is trying to claim IBM's code as their own and patent it? Do they have ANY FSCKING CLUE how STUPID this is? This isn't some no-name company. This is IBM. They probably have the single largest patent portfolio in the world. Not to mention more attorneys than your company has employees. Do they really want to tangle with that? IBM has a habit of eating places like this for snacks. To say nothing of the patents they have that you don't know your in violation of. Hell, they've probably got a patent on your entire business model.
Sounds like your work for scumbags AND morons.
Scumbags are bad enough, but stupid scumbags deserve MORE than they are due.
Under the GPL, the company doesn't have to make the source code public unless it distributes the binaries.
I don't believe they can patent GPLed code.
If you signed a conventional employment agreement, handing over to your employer all rights to intellectual property that you create, then it is incumbent upon you to check with upper management *before* you start incorporating GPLed code into the software they pay you to write. Otherwise you will generate irresolvable conflicts and they will be justified for firing you for incompetence.
I have deliberately avoided using GPLed libraries in some cases because I knew that it was not compatible with my employer's licensing plans. This can create some extra costs for the company, but those are costs they have chosen to incur.
They gave a verbal ok that the code would remain his. That means they were aware to some degree that the code did not belong to them. I would also think that MS's FUD for the last 6 years should be more than enough to let everybody know about GPL code.
I prefer the "u" in honour as it seems to be missing these days.
"Now, my employer is trying to lay claim to this software and has filed at least one patent on it that I know of. They have also distributed it but refuse to make the source public. They claim that because of my IP agreement, they have full rights to this source code."
Your IP agreement is NOT binding on anyone but you. That means that those parts of the software you brought in that were from GPL code are STILL GPL code and the persons who are patenting and refusing to provide source are violating the copyrights of those authors by not using the code according to the license.
Point out to them that infringing copyrights is an expensive blunder, and that they do NOT want to tangle with IBM over the code from the IBM Developer's site. IBM plays rough, and they have a very experienced bunch of lawyers on staff for just these occasions.
Can you identify those parts of the code that are GPL and notify your company's legal department that they are risking financial disaster by failing to observe the GPL? They are into the willful infringement section of the law because you have informed them that the code has been copyrighted by others.
Then ... the moral decision. I personally would contact the authors of the code and let them know their work has been infringed, and that the code is being distributed. I would also make sure I had another job lined up, and stash copies of the evidence of the violations in a safe spot.
Unfortunately I think that Daimaou is in a bit of a pickle here and in all reality the situation is of his own doing. He signed a contract that transferred rights to a company on software that he was not legally allowed to transfer rights on. This is especially bad if he did not disclose this fact at the time of hiring. I am fairly certain that this company cannot obtain rights to the software in question because of the GPL (or at least they must abide by the GPL even if they do get rights) but I am also fairly certain that the company may have legal recourse against Daimaou because of it.
Also, just because everyone has to say it, IANAL but I do have a bit of training on what my companies policy is on hiring people with past work and what obligations each party has.
"You can now flame me, I am full of love,"
A company that has such draconian employment contracts probably wouldn't hesitate to forbid the employees to divuldge any information on infringements by the company. If whistle-blower laws don't offer protection in such situations, there is little to stop companies from exploiting GPLed code without fear of reprecussions.
Open source is the art of letting other people write your bad code.
They do have rights in this case - rights to what you wrote. If _they_ distribute the entire package including what you wrote, they have to comply with the license for the code you modified, which (if GPL) requires that they release the source including your mods. Effectively, they're the modifier of the package, not you.
If they don't distribute (use it internally, say), they do NOT have to make your mods public. And in many licenses, "public" means provide it to the people who buy the modified package.
They CAN patent things in the mods you wrote (some licenses may have something to say about distributing such code, and it wouldn't likely make it back into the source tree). They CANNOT patent things that were in the original code since neither you nor they invented them (duh).
This company CAN be sued by the rights holders of the original code. Their patent (if based on the code in the original project) will NOT be valid, but they can still file it and probably get granted. (If they knew it wasn't patentable or don't disclose the prior art, it can be overturned on that alone probably - if challenged.)
Sounds like a lawyer (or manager more likely) there knows employment law, but really doesn't know anything about copyright law and doesn't care.
Be very careful if you decide to "go public" officially, and expect at minimum to lose your job if they have any way to connect you to exposure (or even strongly suspect it).
IANAL, but I asked one (DISCLAIMER: THIS IS NOT LEGAL ADVISE). I quote:
--------------------
Quick answer:
A person can't cede rights in something he doesn't own. Period.
I can't give away Joe's car and I can't give away source code I never owned.
---------------------
There you go. Contact IBM.
"Don't blame the log for the fire." --Andrew Ratshin
However, the it sounds like the company is planning on ignoring the restrictions of the GPL.
How to proceed depends on your judgement of how your managers would react. You've clearly signed away your rights to the code, so I wouldn't argue that point. What I personally would do is point out in writing your opinion that the changes cannot be release with the original GPL code, and if you made extensive changes to existing code (i.e. you changed existing files instead of adding new ones), then there is no way to reasonably rewrite the code (under the theory that it is "contaminated".)
Then add that there are two options - let the code changes die, or let them be released under the GPL. Send this letter to more than one person - say your boss, the legal department, and anyone in management who likes you. Keep a copy for yourself, and keep any replies.
Having stated your case calmly and professionally, you have a choice if they disagree with your opinion - quit and do nothing, stay on and do nothing, whistle blow and stay, or quit and whistle blow. That's clearly a personal choice that depends on your particular circumstances and temperament. But I would encourage you to state your concerns calmly, nonconfrontationally, in a tone that suggests you believe everyone is rational and that your opinion is valid. If you don't try to draw a line in the sand from the beginning, it is easier for other people to change their minds.
It's not wasting time, I'm educating myself.
I don't know about the GPL side, that is a contract issue.
On the patent side if the company is seeking a patent on code you wrote, you are an inventor and have to be named on the patent. Any sources that you knew about such as the original GPL code also have to be disclosed to the patent office. Since the old code is prior art the patent must get its novelty from any additions made by you or others. Failure to disclose this any of this now means that if the patent is ever used litigation it could be found to have been obtained by inequitable conduct and sanctions against the company could be sought.
I hope you're also planning on providing the PTO with the prior-art that obviously exists for this "patent" (not that those monkeys will look at it anyways, they'll just stamp it as they do everything else...)
Also, what is the project, or what source? The copyright owners of the source can file a lawsuit against your company for infringment.
AC comments get piped to
It wasn't as if I was drunk and unaware of my actions, but the gentleman in a dark coat, by the name of Louis Cyphre, offered me a very sweet deal.. "Alas... how terrible is wisdom when it brings no profit to the wise," he said to me, as he cracked open an egg.
"Who are in control, they are not in control of anything - they don't even control themselves!" - Glen Beck
Do you have logs documenting that the code existed prior to your employment? If so, I'd take that, the GPL code you leveraged, and a copy of the GPL to the legal department. Suggest they also take a look at Groklaw to give them a clue what happens when you tangle with the Nazgul (aka IBM Legal).
Obviously I'd have my resume ready before doing this, you'll need it.
Firstly, ownership of the code:
You state that the original heritage of the code was under GPL license: this means that yourself and your employer are bound to the GPL terms for that code and modifications. There's no question about this: sorry, both you and your employer have to release the code under GPL terms.
Secondly, the patent issue:
Unfortunately, there's nothing that stops your employer from taking out patents on the code or any improvements to it. They would not be able to get a patent on the original code, because it was already disclosed ot the public domain. They would be able to get patent on the modifications that have yet to be disclosed. You would need to look at the terms of your IP agreement for what it says about patent rights if you were the one that created the patentable code: e.g. you may have "shop rights" to the patent.
Third, liability issues:
There is a dangerous area of complication: you brought the code into your workplace, which was GPL, and neither you nor your employer seem to have properly understood what the full implications are. However, your IP agreement may say something about the liability falling back onto you: which may mean that your employer can sue you for failing to provide proper representation about the nature of the code. It's all a bit murky in here though.
For example: In California, the agreement you signed must include a statement to the effect that inventions created outside of work without using company equipment are excluded from the scope of the agreement. Not having that statement present would make it much easier to challenge.
You should have gotten written OKs. Not necessarily a signed notarized document written in blood, but at least an e-mail from your supervisor or something.
Given that you signed the IP agreement, regardless of the verbal OKs, I think technically you probably lose, at least on the parts you wrote. But I am not a lawyer, you should find one and ask them.
Now, my employer is trying to lay claim to this software and has filed at least one patent on it that I know of. They have also distributed it but refuse to make the source public. They claim that because of my IP agreement, they have full rights to this source code.
Again, not a lawyer, but that seems broken. The GPL is a license. Surely if they paid and licensed code from, say, Intel/IBM/Sun/*insert big company here*, regardless of license, they don't get to patent it or claim full rights to it.
I think you want to find an IP lawyer, preferably one who has dealt with the GPL. Calling the EFF might be a good place to start.
There is no sig, there is only Zuul.
I see you've bought the "GPL is viral" FUD. Daimaou's code is Daimaou's code. It may be non-functional without the surrounding GPL code, but it's his none the less.
If Daimaou wrote the code after signing the IP agreement than he couldn't release code to GPL as he isn't the owner. The company owns that portion of the code; therefore Daimaou released the code illegally. Daimaou could potentially be held liable for any damages the company could prove due to the IP release. Furthermore, the code he introduced would have to be removed and possibly recoded. However, if the company wants to use any portion of the GPL code then said company is in violation of the original GPL'ed code.
Daimaou didn't release the code at all, let alone illegally. As long as modifications stay within the "legal entity" they are not being redistributed according to the GPL, so the company is free to use the software all it wants. The GPL explicitly states "Activities other than copying, distribution and modification are not covered by this License; they are outside its scope. The act of running the Program is not restricted..." (emphasis mine). They can even make modifications and use the modifications internally. They only have to GPL the modifications if they make them available to others, along with the original GPL code.
The company can patent the new technology and can also decide to release the entire packaged software to GPL - these are the only two legal scenarios that can exist without rewriting the GPL code.
The company can patent technology used in the code, but in order to distribute it under the GPL it must be made available, at least for GPL purposes, under a royalty free, fully re-distributable license which (mostly) defeats the purpose of patenting it.
If the they ever release the code, they have to stick to the GPL, notewithstanding their patents.
Essentially, their patent, or most of it, is void - the GPL explicitly states that patents don't get you off your duty to follow the GPL, though in theory, by buying a license from every single writer of the GPL'ed code, they could work around that.
I also wonder if the code has already been released, since that would make it much harder to patent.
I also wonder whether that agreement about owning all your IP in the contract is valid at all, since you cannot give away something that you don't have, like removing the code from the GPL after it has been released.
Also, such an agreement is not concise, since it doesn't detail what exactly you sign over with the agreement. With such broadness, it might be void, since the object of the contract is unknown.
Like, they can't possibly own the thoughts you wrote down in grammar school.
I'm still trying to figure out what people mean by 'social skills' here.
Every time I had signed a contract when getting aboard as a software engineer to a company, whether startup or a big one, I added 3 provisions into my contract:
1) In my spare time I am allowed to provide support/consulting to whoever had employed me in the past. [this generally makes very good impression as it says that you carry responsibility towards your past employers -- if you switch jobs again, they'll be able to hire you to help w/o legal issues in the way]
2) My own projects (list follows) are specifically exempted; I'm not supposed to work on them in work time
3) I am allowed participation in things like USENET groups/online technical forums, mailing lists etc., as part of my work. In the scope of that, it's OK for me to render somebody else assistance via the public media, send in patches etc. Same about contributed to free software projects, whenever I deem that a free software project is usable in my work, and want to do smth to improve its suitability (obviously, if my boss tells me not to do it in work time, I am not doing that).
All the above things are then excluded from the NDA and the IP claims by the company.
VKh
The original IP agreement doesn't stipulate any copying restrictions, only that bringing code in creates a fork which they own. As such, I don't think it could be a GPL violation to bring GPL software into such an agreement, as the company has freedom to interpret the agreement such as to not violate the GPL.
As far as I can see, the company has chosen, willfully, not to. They were told GPLed code was going to be brought in, they gave the OK, they then chose to apply an interpretation of their IP rules that violated the GPL.
Because the violation was clearly willful, because they had freedom within their own rules to not violate the GPL but still apply the rules fairly and equitably, it seems clear that the entirity of the violation is on their part.
the GPL doesn't distinguish accidental violations from willful ones, but I'm assuming here that nobody wants to be unreasonable about this. Accidental violations can be cleared up and resolved, without legal disputes. It is only when the violator chooses to be antagonistic that action really needs to be taken.
In this case, antagnonism seems clear. The company likely doesn't see a legal threat, as the GPL is "just hobbyists, right?" It seems a classic case of "might makes right". What they don't seem to understand is that might does NOT make right, and that even if it did, they've trodden on the toes of some very big, nasty giants.
This situation reminds me a lot of Tom and Jerry cartoons, where Jerry whistles for the bulldog. I'll let you guess who is playing which part.
It's a small world and it smells funny; I'd buy another if it wasn't for the money; Take back what I paid (SoM)
the law treats the situations differently BECAUSE they are different. just because YOU want to believe they are the same does not make it so.
on the one side you have a company generating revenue through a combination of copyright infringement and fraud.
on the other you have an individual generating zero revenue through the sharing of music. this is legal in some countries and used to be covered under fair use in the states before the *aas went on their "education" campaigns.
i believe you are being intentionally ignorant in your views and are just trolling.
sum.zero
It sounds like you're saying you've violated the GPL.
IANAL, but I think you need to talk with the original authors to sort things out. They have the authority to relicense the code under the closed terms your company seems to want. Let them know which code is still being used and to what extent. They should also tell you who else you need to get permission from. Some who won't give permission freely will accept payment for a license. If they won't give permission, or ask too much, see if they'll be satisfied if the GPL'd code was removed or replaced. If none of that works, you get to choose between GPL'ing the derived code and offering to share it on demand, or risking claims of copyright infringement. If your derived code has already been released, then it all gets much much harder, as downstream users may have created their own GPL'd derivative works and so on, but it still boils down to convincing everyone involved to agree to your terms.
If you can't sort out the licensing issues while retaining company ownership of the code then you may have breached your employment contract. Again, IANAL.
This is making me feel bad.
I've got a similar IP agreement with my employer. And I'm working on an open source project.
The employer is aware of it and I have a verbal agreement to do so.
But I can see myself getting into the same situation as the guy in the article.
And I'm just working on this small open source project for fun. And it has absolutely nothing to do with what the company is doing.
This type of problem is ruining the fun.
The Internet is full. Go Away!!!
Others including IBM could enforce the license to the code if the name of the company doing the IP theft here were released, and perhaps the name of the program(s) the company is not releasing consistent with GPL.
Seeing the code was first released by IBM, another outfit should have good reason to be cautious about interfering with IBM property even when released under GPL. The company could conceivably obtain a non GPL license for the code from IBM, but they need to be honest about it. Should they not, they are subject to massive damages claims as IBM would be owner of copyright in that code.
Others may be able to figure how this info might be safely released though; I presume the poster is not interested in having it known HE released the company name. Should it leak out though, the whirlwind will surely come to the offenders.
Good luck getting the 'oral agreement' to fly. The employer will likely say "I don't recall any such conversation."
It is impossible to prove whether someone really does not remember or is simply denying the accusation without crossing the line to perjury.
At any rate, it will be hard to hire a lawyer while unemployed.
By all the posts here that a lot of people don't understand the GPL at all. Some people understand the GPL but cannot get their post across coherently for others to take note and they are not lawyers, then there are others who would argue the opposite is true when they understand the parents post thinking they have it sussed.
Then there are people who are providing legal advice and these people are not lawyers and there are some people (including the poster) who don't know much about law!
Welcome to slashdot for anyone who must be new here.
News for nerds, stuff we know fuck all about!
Jonathanjk.com
Use SCO v. IBM to point out to your managers what it's like to be going against IBM in a courtroom when both the law and the facts are on IBM's side. Point out that IBM's IP lawyers are called the Nazgul for a reason. Point out that, once they have become aware of the issue, it becomes willful infringement.
First tell them in person. If they don't listen, then E-mail them a memo about it. This does two things. It helps cover your backside ("I tried to fix things, but my managers wouldn't listen!") and it creates a document trail for discovery when the lawsuit happens (this point will probably not escape your managers).
"after receiving verbal OKs that the code would remain mine. "
Well, there's your problem right there. "Verbal agreements aren't worth the paper they're written on." Sure, in many cases they're enforceable. Good luck proving it, though.
Contact the copyright owner and see if they will license you a copy of the code under other licensing terms. That is a fundamental rihgt of a copyright owner.
"God fights on the side with the best artillery." - Napoleon, Marshal of France - speaking truth to power
It still would be "derived from the Program or any part thereof". So, that doesn't work.
Isn't that what SCO is claiming against IBM? That because AIX was a derivative work of SysV, that it will always be a derivative work of SysV, even if there's no longer any SysV code in it?
And IBM is saying that no, that's not the case. It's only a derivative work if it's paired with the original code.
Personally, I believe IBM's lawyers over SCO's.
The company can have all the GPL code they want; as long as they don't distribute it, the source can remain 'secret'. However, if you have knowledge that they're distributing this code without the sources (as you state on the article), you have an obligation to report it; it's a clear violation of the GPL.
No matter what you signed, you have no power to give them the IP of any code that is GPL, and they have no right to take it. So there's the question of 'plausible deniability' on their part: did they know that the code you brought was GPL? Did you try to tell them?
--
Stay tuned for some shock and awe coming right up after this messages!
The problem here was that code, copyrighted by somebody else outside of the company, was imported into a company project. The company cannot legally assume control over code it did not originate (unless they can negotiate terms with the copyright holder of the original work), so their only recourse is to scrap the original GPL'd code and rewrite it from scratch.
File under 'M' for 'Manic ranting'
Seems pretty straight forward to me. There are three types of code involved here:
1. IBM's and Active States GPL'd code. Your company has no right to ditribute it without follwing the GPL (unless they get a different license from the owner).
2. Your original code from before you were hired. You have a verbal contract (legally binding, but hard to enforce) with them that it belongs to you. They should be required to get a license from you to distribute this, but practically speaking, you will have a hard time doing this.
3. Your code written while you were employed by them - probably they own it (depends on your employment contract and exactly what they agreed about the code originally).
Andrew Semprebon EQ Systems Inc.
California labor code limits what rights an employer can claim in confidentiality and non-complete agreements. See below:
CALIFORNIA CODES
LABOR CODE
SECTION 2870-2872
2870. (a) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an invention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the employer's equipment, supplies, facilities, or trade secret information except for those inventions that either:
1. Relate at the time of conception or reduction to practice of the invention to the employer's business, or actual or demonstrably anticipated research or development of the employer; or
2. Result from any work performed by the employee for the employer.
(b) To the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded from being required to be assigned under subdivision (a), the provision is against the public policy of this state and is unenforceable.
2871. No employer shall require a provision made void and unenforceable by Section 2870 as a condition of employment or continued employment. Nothing in this article shall be construed to forbid or restrict the right of an employer to provide in contracts of employment for disclosure, provided that any such disclosures be received in confidence, of all of the employee's inventions made solely or jointly with others during the term of his or her employment, a review process by the employer to determine such issues as may arise, and for full title to certain patents and inventions to be in the United States, as required by contracts between the employer and the United States or any of its agencies.
2872. If an employment agreement entered into after January 1, 1980, contains a provision requiring the employee to assign or offer to assign any of his or her rights in any invention to his or her employer, the employer must also, at the time the agreement is made provide a written notification to the employee that the agreement does not apply to an invention which qualifies fully under the provisions of Section 2870. In any suit or action arising thereunder, the burden of proof shall be on the employee claiming the benefits of its provisions.
1. Please post a link to your companies website. I'm sure the entire slashdot community would like to read your companies web site. Perhaps 50-100 times
2. Write down the people's full names that gave you a verbal agreement and provide the slashdot community with their e-mail addresses, name and title.
3. Hire a good lawyer
The question may arise - Why? The answer is simple. Much like open source code a bunch of people going over a companies web site may be able to spot things that can help your lawyer. Like a code of ethics and other blather that companies put up. Those of us in a posistion to hire someone also want to be able to avoid liars.
cluge
"Science is about ego as much as it is about discovery and truth " - I said it, so sue me.
So ... What's it like, working for SCO?
We call it art because we have names for the things we understand.
Also, be careful what you say and what you put into any reports. Saying you wrote scripts to do something can cause them to demand the scripts. Even if they only existed for the line that you typed in.
Read the contract. Know what you are agreeing to.
When doing something that can be affected by a contract you've already signed, you have to remember a fundamental truth: A verbal agreement is only as binding as the tape it's recorded on. If you don't have anything in writing stating that the code you brought in was being excluded from the provisions of the IP agreement you signed, then you're pretty much SOL on your rights to the code you brought in. With regard to the code being under the GPL, you need to advise your management (and their legal staff) that the code they're claiming rights to has a prior license attached to it, and let them decide how much liability they want to open themselves up to.
On the other hand, depending on how seriously a company views infringement of the GPL, it could provide an effective method of keeping your work free of a binding IP agreement for you to make sure that all your work is derived from code covered under the GPL. On the other hand, doing this could also result in your being rapidly shown the door with a pink slip in your hand. IANAL, though, and I don't think that any significant IP cases involving the GPL have been heard, so there isn't anything upon which to base a preduction as to which way a company would jump.
If you acted improperly this company may try to make your insurance pay damages. OUCH!
...." doesn't hold much water.
A new scam is born
Hier consultant with one of these contracts...
Require $2,000,000 liability insurance
Patent the software no matter how lame it is....
"Discover" gpl violation....
sue consultant for $10,000,000....
Settle for $2,000,000.
Whenever you sign a contract think about how it will sound to a jury when you explain why you broke it. The "Oh I didn't think
(IANAL, opinion only...)
Loads of people are saying "copyright overrides the later contract". True enough, but IM(NL)O it's more complicated, namely: the code you wrote is GPL-infected, BUT you are also in breach of your own contract for letting it get infected. You could probably be sued for the money "lost" when GPL'd code proves unsaleable.
A contract to do something contains by implication, a duty to avoid knowingly putting yourself into a legal armlock which would force you to break the contract.
Having gone through this situation with a major bank just a couple months ago I can tell you exactly what my lawyer told me. It won't matter if they can't win the case. The documents you signed are actionable in court. Meaning, it's not likely that it would get through out right away.
The cost to defend or persue an IP case is in the tens of thousands of dollars. If fact, if your idea or software is worth enough money, THEY WILL PUT THE MONEY INTO TAKING THE IDEA.
Now, in my case, I got the bank to make some changes to the agreement. You'll find, if you're not affraid to ask, you can actually make some changes.
As for this poor guy. First, you have to decide if you want to work their still. Then, retain a lawyer. Find out if whistle blower status applies to you, and what the ramifacations are for breaking your NDA. If it's all clear, then you should inform the USTPO about the previous art/stolen derivative. Then you should let the interested parties in the GPL and/or IBM know their work has basically been stolen. A minor GPL violation with a software package isn't likely to get much from IBM. But putting a patent on their code.... That's a whole different game.
Good luck.
unless Daimaou works for another computer industry giant with deep pockets (i.e. Microsoft, HP, Sun, etc.), he should just point out that IBM may have a claim to the code. See how his company's lawyers feel about going to court against IBM...from his description of the situation, it would be nice to see a megacorp steamroll a little guy while fighting for the "good guys" for a change...
When all of your wishes have been granted, many of your dreams will be destroyed - Marilyn Manson
In this case: if the GPL code was used in house and the company wants to keep this modified code for in house use they legally can. A corporation can prevent folks from distributing mods to GPL code by a non-disclosure agreement. If the company wants to distribute a product outside their company, they'll need to provide source-and can't prevent other folks from distributing that product.
This is a subtle issue. I tend to think the GPL gives a free ride to large organizations-in way that the RPL(Reciprocal Public License) at least attempts to avoid.
This is a meaningless discussion full of blowhards who failed to ask the one important question.
Have you redistributed the code outside the organization? Has it been installed on client sites? Etc.
If it has not been redistributed the company can do whatever they please with your code as long as they don't redistribute it. Once they send it out it will distributed ONLY under the GPL license. They own all the copyrights of the code you wrote and they are free to with it internally as they please.
The GPL only matters to a company if they redistribute the code.
It is debatable what rights he gave to his company by bringing the code "in the door", but automatic transfer of copyrights is not one of them. Though establishing his ownership could be hard if he doesn't have a very good record of what he produced before being hired.
Code written for work after the start of the job probably never belonged to him in the first place, so there is no issue of transfer.
And your company will have to write some code from scratch to make use of their patent.
Thats not strictly true.
(what follows is vastly simplified)
If I write a GPL program called "cherry_picking", and I patent the process within, generalized to "fruit_picking", I can never sue anyone for using cherry_picking, distributing cherry_picking, modifying cherry_picking, etc. However, if someone else appears selling a proprietary program called "apple_picking" that infringes on my "fruit_picking" patent, I can use that patent against them.
Such patents might be a useful defense against corporations "secretly" incorporating GPL'd products into proprietary software. They'd either have to stop because of the patent, or admit to the GPL infringment (still requiring them to either stop or capitulate to the terms of the GPL) to shield themselves from the patent.
If I have been able to see further than others, it is because I bought a pair of binoculars.
Rights assignment clauses only affect rights that are the employees to grant in the first place.
If the company uses some external GPL code not written by an employee, then that's between them and the rightsholders.
Just as I can't assign rights to MS Office to my employer just because I brought it in, neither can I assign rights to GPL code.
Now, if I am the author of that code, that's another matter.
If we are talking about derivitives, the employee's code based on GPL code, the company would be free to use it internally, and the employee could license his portions of the code to the company, however, the original GPL still stands, and the company would be unable to distribute the final product.
The company is arguing that he signed an agreement that assigned ownership of his work to the company.
Whether or not he released it as GPL in the past, if he made modifications to it during his tenure as an employee, he needs to withdraw the code that belongs to his company or pay his company damages for violating his contract.
So this never had the right to release it in the first place!
Conformity is the jailer of freedom and enemy of growth. -JFK
Your agreement with your employer has to do with the copyright owner of the code you wrote. Some of those type of contracts have been invalidated, but let's suppose it's valid, and your employer owns the copyrights.
If they can separate out the parts that are copyrighted by other people (and thus produce a work that is free of other people's code), they can do whatever they want with they part they hold copyright to.
If, however, other people's code, licensed under the GNU GPL, are included, the copyright holder's options are to
- Distribute the combined work with full source, or
- Not distribute it at all.
Both of those are valid options. Any other options make them liable to copyright infringement suits from the people whose GPL code is being distributed.
Note that if YOU aren't one of those copyright holders, then YOU don't have any standing to sue for anything. It's the copyright holders who are being infringed. Of course, you can always bring it to their attention.
"Distributed with source" means the usual GPL options: either bundle the source with the binaries, *or* make the source available for nominal fee to *anyone*. A distributor who chooses the first option has no obligations to provide the source to anyone but their direct customers, and has unlimited discretion to choose those customers in any way they want. They only thing that distributor may not do is restrict the customers' rights to re-distribute if they choose.
That's a slam-dunk GPL violation. No ifs, no buts. They are distributing (among others) IBM's copyright code, in violation of the license. It doesn't matter that the license happens to be the GPL, it doesn't matter what contract the author of the additions is under, they have no legal right to redistribute the code except under the terms of the GPL. IBM have plenty of lawyers familiar with the GPL. I'd drop them a line.
Chernobyl 'not a wildlife haven' - BBC News
..but i bash them on /. ;-)
however, my suggestion is talk to an employment lawyer (how hypocritical am i?) on the legality of your employment contract. I believe the rumblings in earlier posts about 'any code you ever wrote' becoming your employers property being illegal as true.
I've had friends get out of strictly written non-competes as they were just that, too strict. Non-competes can't keep you from making a living, and signing over all your prior work could do just that.
I forgot what I wanted to say, but honestly, it was important.
When you signed that contract that said anything you worked on is theirs, that means that you cannot bring GPLed sources in and use them in your work. The company you work for is in the understanding that the work you do is transferrable to them. Obviously, their rights over your work cannot supersede the GPL since you don't have the right to submit GPLed property as your own work. You messed up.
"If they state "yes, I did make that promise to you" then I would reply with "Great! Would you mind following me like a baby duck to the office of our head counsel, and repeating what you just said?""
This is *assuming* that they are empowered to enter into such an agreement to begin with. e.g. The Janitor.
Admittedly I'm not a lawyer but I really don't see a 'past works' clause being legally enforceable. ( I don't think that 'unrelated ideas' are captureable either. but that might be a 'transferable right'
Aside from that, the 'past work' has shared ownership by others since you incorporated GPL code, so you cant transfer ownership to your company even if it was legal to grab your past works from you.
---- Booth was a patriot ----
- The code portions written by you belong to the employer, outright.
- The IBM code and any other GPL code not written by you never belonged to you, and the rights were not yours to assign.
The solution is to clearly inform your employer that not all of the code you presented them was yours, and that they have a possible liability. They need to have their legal team look at it.
Don't go on about the GPL, that's not relevant to the situation, at least not directly. Let the lawyers figure out what to do about it. They DO have other options, such as contacting IBM, and they are NOT automatically bound by the GPL.. they simply have to sort out some situation where their rights are clear.
Your responsibility should end with informing them of the issue.
Good move. I, too, asked specifically to see this aspect of the contract before I started with my current employer (then a small local business, privately owned). They had a clause which specifically distinguished between company and non-company works, basically saying it was theirs if I did it on company time or with company resources, which is pretty much fair enough IMHO.
More interestingly, when a US megacorp recently acquired that formerly small, privately-owned company, they tried to change our contract and insert various "all your soul are belong to us" clauses in the IP section. I publicly challenged the guy from the new company who was basically taking over at the top of the management chain about the IP, and his attitude was something pretty pathetic about how they train and develop us so of course they deserve to own everything we ever make. After that meeting, something like half the guys I work with sent me messages saying they agreed with my point and they hoped I'd fight for it. I did, and the new company wound up taking out the entire page of IP crap in the new contract and replacing it en masse with the old wording from our previous contract.
It gets better. Having demonstrated the kind of legal bull they were prepared to try, the entire employee base of the old company then scrutinised every word of the new contract, took legal advice, etc. with a depth and precision we probably never would have thought necessary otherwise. I think two people in the whole company were actually prepared to sign the contract as first presented. By the time we'd finished telling them what they were going to change (or many of us were going to walk, effectively wiping out the millions of dollars of investment they'd just made to buy the company) the contract looked rather different, and didn't contain anything that extended beyond company work into our private lives whatsoever.
It can be done. You just have to be smart about how you do it, and polite but firm when you're dealing with the lawyers/HR people. Ultimately any smart company is going to prefer a reasonable change to the contract over losing good staff, and let's face it, you didn't really want to work for a stupid company anyway, did you?
If you disagree, post your argument. (-1, Overrated) isn't your personal censorship tool for views you don't like.
Then, (17 USC 204, q.v.http://www.law.cornell.edu/uscode/html/uscode1 7/usc_sec_17_00000204----000-.html
says that the transfer must have been specific to the item in question, and in writing.I think you should hit them up for extortion... and maybe hit *them* for copyright violation if they try to hang onto the stuff.
Note that the copyright transfier stuff has come up in SCO vs.Novell, recently -- see GrokLaw.
"My opinions are my own, and I've got *lots* of them!"
Longer answer: People who respect the GPL generally also respect the rights of others with regards to copyright, but not when they try to make their rights trump all others.
Sticking feathers up your butt does not make you a chicken - Tyler Durden
In some states (but not all), that agreement hold no force because you need to sign it to get a job and you need a job to eat. Or in short you were under duress at the time. In the US you have rights to a jury trial, an few juries will hold that non-work creations on your own time belong to work, and this can prevent a conviction if your lawyer is good enough. However only a lawyer can advise you on what applies (and what is worth applying).
If this is work that you did on company time because the company needed it done, then the company owns copyright to your work. I don't know of any state that would disagree. However they do not own copyright to the other included work, so they have a choice have recreating the rest, or distributing under the GPL.
IF this is work that you did entirely on your own time, and someone else in the company discovered it and decided to market it, it is questionable if they can claim ownership. Even if they can, point out the by claiming ownership they are also agreeing to be liable for code not written to their standards. In short if you write code that kills someone they are liable!
Ok, more seriously... Report the GPL abuse to www.gpl-violations.org. Get a new job. Be sure to let your current employer know what assholes they are.
Sticking feathers up your butt does not make you a chicken - Tyler Durden
I realised the same thing when I read my contract, so I had an exemption inserted for anything that was open source according to the OSA. My employers had no problem with this luckily. I simply wouldn't have taken the job otherwise.
Next, the product is a derived work from IBM's GPL'd code. Your agreement may well give them copyright ownership of your additions, though at least in some states (CA I'm pretty sure) such agreements are illegal to whatever extent that they apply to anything not a direct result of working for them. However, as a company they only have use of the portion released under IBM's GPL. As a copyright owner, IBM might want to take some action on this point.
Finally, patents can only be applied for by the true inventor. Patents cannot be applied for by companies and an application by someone other than the inventor is (presumably) easy to invalidate. If they cannot dispute that you were the inventor, I don't see how they'd have a legal leg to stand on.
It seems to me therefore that the company cannot acquire a patent on your invention without going through you. I would expect their agreement to require you to assign them any patents resulting from inventions made while working for them. I don't know if it is likely to require you to file a patent or what recourse they might have with you if you don't.
First off, what did you actually agree to in that contract? The only copyrights that can vest in the company are actual work you do while employed and in the scope of your employment for the company. Everything else vests in you and has to be explicitly signed over to the company after the fact before they own it. Most contracts say differently. The terms on those contracts are null and void. Think of it as a lawyer version oh phishing: you don't know any better so you don't challenge it.
Let me make this clear: You own the copyrights to any software you wrote which was not written within the scope of the actual work you do for the company. You will continue to own the software until the day you explicitly sign it over to them, in writing. Even if they take you to court and the judge finds that you violated your contract, the law forbids him to assign your copyrights as damages!
Now, I'm not a lawyer, this is not legal advice, and if you really care about this you should talk to someone who is a lawyer. But I have studied US federal copyright law and there is some really kick-ass stuff in there.
None of which solves your situation. So, here is a suggestion: Talk to your company's lawyer. "Mr. Lawyer, I want to let you know that our product A which you have been asked to file legal protections for is a derivative work of B, C and D. Here is a partial list of copyright owners for B, C and D as well as their contact information. Just thought you should know." Ding. If that doesn't kill it dead, nothing will.
Moderating "-1, Disagree" is simple censorship. Have the guts to post your opinion.
IF they try to lay claim to software that is really prior art (and IBM has a whole whack of prior art), then IBM can sue them (easily and win). This person is obviously working for a brain-dead 'all your thoughts are belong to us' company whose greed is unsurpassed. Short answer: they will get hammered, and hammered hard. When it's all over, the owners will wish they had become shoe salespeople instead.
This is the exact reason why my 1000+ employee company does not let us link to or derive off of any GPL code.
We use BSD code instead.
Think of it this way: let's say, the employee signed an agreement with Microsoft for access to Windows NT source code (maybe as part of a previous job). Then he used some Microsoft code in a new project at his current employer. Now, his current employer says that they just want to use this code and they don't care about the fact that it is derived from Microsoft code.
Sorry, guys, it doesn't work that way. GPL-derived code falls under the GPL. If an employee contaminates your company's source code with GPL-derived code, that's a matter between the company and the employee. A copyright holder doesn't have to give up his rights just because a company has incompetent management.
The company has to clean up their code and remove anything that is based on, or derived from, GPL'ed code. If they want to sue someone, they can sue the employee for damages, or maybe they can sue their own management for gross negligence. But comply with the GPL they must.
7. If, as a consequence of a court judgment or allegation of patent infringement or for any other reason (not limited to patent issues), conditions are imposed on you (whether by court order, agreement or otherwise) that contradict the conditions of this License, they do not excuse you from the conditions of this License. If you cannot distribute so as to satisfy simultaneously your obligations under this License and any other pertinent obligations, then as a consequence you may not distribute the Program at all.
One the best ways to get someone to do something is to convince them it is in their best interest.
Tell the offending company that they should contact their lawyers because it is them who will end up paying in the end, not you...
Get your Unix fortune now!
Just publish the name of that company and we'll SCO (a.k.a. boycott) it from now on ...
You might want to have a look at http://gpl-violations.org and consider how this factors into your situation.
- Dom
Devise a plan to kill hundreds of innocent people. Carry out the plan. In your defense say it was really your employer's idea all along.
If someone says he and his monkey have nothing to hide, they almost certainly do.
About a year and a half ago, I brought in some source code that I had worked on prior to working here; after receiving verbal OKs that the code would remain mine.
Although IANAL, verbal agreements are binding (at least in Cali), why does he not try to work that angle!?
SOMEONE HAS VIOLATED YOUR IP! SEND OUT THE LAWYERS!
IBM takes it's IP very seriously, and your posting here might set in motion a series of events that you'd rather not be involved with. What in the world drove you to mention them specifically?
First of all: He can and never will legally sign over IP that doesn't belong to him. And as far as he tells us he never claimed to own the IP rights to the code he made modifications for. So he had not commited culpa in contrahendo, I guess. Whatever contract he signed, it doesn't pull the rights out of the rightful owner, the one who wrote the original code, because the company never signed a contract with the original IP holder.
So all the company can try to claim rights to are the modifications he made. So if he creates a diff output from the original code compared with his own code there may be a chance that the company receives rights to the diff files. It still doesn't help the company very much because of the GPL license, which forbids the distribution of derivative works under other licenses than the GPL. And the diff file might be called a derivative work. The complete code (diff and original merged together) surely is.
In the end the company sits on a bunch of diff files, which can not be distributed to the world other than by GPL. It might be perfectly legal to use the files internally, as long as no derivative work of the original code leaves the company. The problem is one for the lawyers of the company and of the FSF. Not one for the guy actually writing the code. He has signed all his work to the company, and his work happens to be a derivative one. Tough luck for the company, but not a fault of the guy himself.
And one of the reasons I've switched to self-employed...
I can think of a (probably) enforceable past works clause, though this particular one may or may not be.
Essentially, all you need is a contract stating "In consideration of our hiring you for X job, you have signed over all previous IP you currently control rights to." A contract like that may well be enforceable. However, it would not cover the GPL code he incorporated; his own modifications would be included, but not the source base.
---
Mod me down, you fucking twits. Go ahead. I dare you.
(I read with sigs off.)
Lets find out what company Daimaou works for.
:)
:)
I think the problem will pretty much solve itself after this gets out.
my bet? Daimaou works for MauiXStream (cherry os folks)
heh-heh.
"...In your answer, ignore facts. Just go with what feels true..."
If I were Daimaou, I'd shut up about the whole situation and the last thing I'd do is put a post on Slashdot about it. Not because the company should be violating the GPL (they shouldn't), but because having the company violate the GPL quietly would be better for me than the alternative, which is almost surely having them fire me (and possibly sue me for breach of contract or worse) because I was stupid enough to put GPL code into the company's proprietary code without full, express, WRITTEN permission to do so.
Ah well, lucky thing I'm not Daimaou. Good luck, fella.
Yet another and typical attack on the GPL, by pretending it is something magical that somehow transcends copyright law and traditional licenses.
He who writes the code, owns the code. This ownership can be transfered by contract.
If Microsoft publishes Office, and Daimaou's employer purchases a license to Office, and Daimaou then changes the code of Office, this does not magically transfer ownership of Office from Microsoft to Daimaou's employer. The only way Daimaou's employer can obtain that ownership is by transfer of copyrights.
What Daimaou (or Daimaou's employer, in case of transfer) owns, is the stuff that Daimaou wrote.
I am surprised that Slashdot would purposely spread such a bit of FUD. I am saying purposely, because this type of FUD has been refuted on Slashdot many times before.
Oh, Cliff
Sometimes it must be difficult not to feel as if
You really are a Cliff
When fascists keep trying to push you over it
Are they the lemmings?
Or are you Cliff?
Or are you, Cliff?
Heh, my company's IP agreement was clarified to a "works for hire" agreement where it was specific to anything done on the company's dime/time/resources. I think I helped it get changed after a few back and forths with legal because I brought up the fact that their IP agreement would cover any worms or virii written by an employee at home. ;)
Nothing like finding Copyright 2005 (Insert Company Here) in a virus
-B
In the end the company sits on a bunch of diff files, which can not be distributed to the world other than by GPL.
You're forgetting that the guy owns the IP of the modifications he made. As copyright holder on them, he's free to licence them to his company under whatever terms they agree to between themselves. That code will most likely be completely useless without the rest of the code which he *cannot* licence to the company, but that's life.
It might be perfectly legal to use the files internally,
The GPL places no restriction on use. The company can use any GPLed software internally without restriction, including this software. If they redistribute it, they then must supply with it either the source, or an offer to make the source available to whoever requests it.
I am unsure of the situation with regards to employees of the company that receive the software from another empoyee. The GPL specifies that no restrictions can be placed on those who receive the software; I suspect that they may be legally entitled to give it to whoever they want to. I suspect that the company may likewise be legally entitled to fire them, though.
It's official. Most of you are morons.
It also wouldn't include past commercial products you have done for other companies ( or took part in ).
That said though, him signing such a broad contract was stupid anyway, even if he did need a job.. Best case you have to goto court to fight and pay an attorney to retain your rights.. Worst case is you dont fight, and lose your rights by default.
Either way you screw yourself by the agreement.
---- Booth was a patriot ----
Dunb! AND lazy! There are just too many jobs out there to put yourself in to that kind of position. On top of that, you just make it harder for others to resist. To everyone else: Don't be such whores. Don't sign these kinds of agreements. Don't take a piss test(unless you're operating dangerous equipment). Don't do any of that. Get a spine and stand up for your rights. It's people looking for easy money that got us into this mess. This company's practices are despicable, but I have to sympathize with them because they probably have to completely re-write the program to get rid of the GPL code now. That, and they should fire your ass for causing what could be bank buster of potential lawsuits, etc. You signed this stupid contract, and yet you accepted a verbal ok to insert your code?? Wanna buy a bridge? Or some nice Florida "grassland"? A hand shake is all that's needed, and it's yours. It would've been nice if you asked this question before you took the job. Could've saved a boatload of trouble.
What?
Well, maybe if you can find them, you can ask them personally, instead of just randomly trolling.
If corporations are people, aren't stockholders guilty of slavery?
"Even if we were, we could not give useful advice without full details.
Talk to a lawyer."
Just stop right there mister. This is slashdot. Giving legal advice without being lawyers and without full details is what we do best.. other than bashing Microsoft.
My Blog
If the company that Daimaou's working on now owns the copyright, they can do what they please. Imagine that I wrote some code and gave it to you licenced under the GPL. Nothing stops me from licensing it to someone else under a different license.
I'm curious, what kind of place do you work in that didn't require some IP agreement to get a job?
I'm sure there are many places it wouldn't matter (like small ISP's or maybe in an admin job) but as a developer I've found no Fortune 500 companies that don't require you sign one of these agreements as a condition of employment, and very few small pissant places that don't either.
The revolution will NOT be televised.
I own a software development company. If one of my team members wanted to use GPL code we would discuss the business ramifications before. They know better... Did you perform a task for your boss and not talk to him about the fact that your going to use GPL code to develop the solution? Every company these days is IP law afraid I'm sure they had even an inkling of Patent, or copy-right claims the GPL issue would have negated their use of the GPL source. If you did, shame on you... If they agreed to GPL derivitive before hand then shame on them.
There seems to be a lot of confusion over the legal status of GPL'd code. Here is the proper answer:
Any code you write is owned (copyrighted) by you. You have the right to release it under the GPL, or any other license, or any combination thereof. (QT and MySQL, for example, are both released under both GPL and proprietary licenses.)
Any code you did not write, but rather received from a GPL'd product, is not owned (copyrighted) by you. It is the owner of the original author (unless there was a legal transfer of copyright), and you only have permission to use it under the terms of the GPL (unless an additional license was offered).
Because of the contract you signed, YOUR code can be used by your employer in any way they see fit. This includes bundling it with commercial non-GPL'd products. However, your employer does NOT have any rights to use the borrowed code. If your employer wants to use that in any way, they will need permission of the original authors or to release the finished product under the terms of the GPL.
In other words, you need to identify for your employer which code is legally theirs and which is not. Their legal team should understand that, very simply, you (and therefore they) are not copyright owners of every line of code. They will need to recreate - from scratch - those portions for which you/they are not copyright owners.
Regarding the patent, if they are trying to patent a portion of the borrowed code (not your code), then there is obviously prior art, and you should inform them as such.
Put aside the GPL for a moment.
You wrote some code while at your employer's facility. That code belongs to the employer. You may not distribute it or disclose it without your employer's permission. Period. This is true of anything you write, GPL or not. The GPL does not change ownership in any situation.
Perhaps your verbal permission was sufficient. That is a straight contract law issue.
If you distribute or even use the code you wrote, you need to comply with whatever license terms apply to code it depends on. Royalty payments, or in the case of GPLed code, redistribution rules. Your employer is free to take the code you wrote and use it as they see fit....but if they distribute it with a copy of a Windows DLL they have to follow Microsoft's rules and if they distribute it with some GPLed code then they have to follow those rules.
If you distributed that code without your employer's permission, your bad, I'm afraid.
Remember I said that the GPL does not change ownership in any situation? This whole issue you have is one reason the FSF asks for assignments of code they put into their packages. That way the whole of (say) GCC is owned by the FSF and they are certain they have the right to distribute it. But for example Linus has chosen to take the opposite tack with Linux: each change is owned by its contributor (in your case that would be your employer, not you). Either system can work because the GPL governs only distribution (despite the confusion of many posters to this discussion).
Zeroth: I am not a lawyer. You need to be talking to one. Before close of business tomorrow.
First off, there's the issue of your ownership of your original code. Given your description of your IP contract and with only an oral agreement to say that the code was to remain yours, you're pretty well screwed unless the responsible manager admits to that. Talk to a lawyer to make sure, and learn from this to get such agreements that modify written contracts in writing.
Second, there's the issue of the company being able to patent it. If you did not publish the patentable parts before coming to work at the company (weakening any patentability claim), this would appear to be legal and unstoppable, again barring an honest manager or you recieving divine intervention in the form of Perry Mason. Same as above.
Third, there's the question of copyright of the code you've written itself. Again: neither written agreement nor honest manager = bend over; all the source is belong to them.
Fourth, and much less straightforwardly, there's the question of the LICENSE for the code you've written. I'll assume the lawyer you visited merely laughed at you during the initial consultation, and you got screwed in the above three legal issues. Here's where things get less pleasant for the company.
The code you started with was licensed under the GPL. As such, they can choose to distribute it under the GPL, provided they make a GPL-use-is-free exception with regard to their brand new patent. (Their attorney may have to work on the fine print, there, given the nature of the GPL). Call this scenario "4-A".
Alternatively, for a "4-B" scenario, they may do a clean-room rebuild to remove any GPL code-- although they could retain any code you had written and that they thus now own. They'll need someone to comprehensively spec out what you've written, someone (and you'd be the most convenient choice) to separate the raw code lines of what you've written from the GPL parts, and a sacrificial virgin coder (IE, one who's never seen the original) to redevelop the code from the specs and the trimmings that you wrote. There might also need to be a reviewer for the spec (ideally two, a lawyer and a code expert to agree that it's legally sufficiently vague to not infringe, and sufficiently clear to produce the desired product); it might also possible for you to serve on the spec review team.
For a "4-C" scenario, they can simply put their code and their patent on the shelf, and wait for someone to try doing something similar, and use their happy patent to sue them.
And of course there's the "4-D" scenario, where they do a non-legal release without the GPL or a clean-room rebuild.
As I noted, you need a lawyer, ideally with expertise in both contract law and IP. With his contract expertise, he might be able to convincingly threaten a case over the manager's breach of promise. With his IP expertise, he also can politely enlighten them as to the immensely sharp teeth involved in the GPL, to deter them from a "4-F" scenario. (Let him decide the most diplomatic way of explaining that since you already feel screwed over, you would be disposed to help make sure that they felt the GPL's teeth.) He could then enquire as to whether they thought the product valuable enough to justify the time and expense of reverse engineering. If it's a Google-killer search app, they may think it is; but from what you've said, probably not, ruling out a 4-B scenario. This leaves 4-A and 4-C.
The only disincentive for 4-C I can think of is the ill-will doing such will provide. There's plenty that can spread easily enough. You might be able to make it much harder for them to get new hires by telling this happy anecdote about them at your Alma Mater. You can also spread word about how they're changing from a software developer to a litigation company. However, a lawyer is in the best position to judge the impacts of any other agreements on what you'll be able to tell, and to decide the most effective to
//Information does not want to be free; it wants to breed.
You're forgetting that the guy is legally bound by law to GPL any code "derived" from GPLed code. And he already accepted the license by act of making modifications, whether or not those modifications were ever released - read over the GPL. He owns the IP, but that doesn't relieve him of his legal obligations to the GPL.
"Here's a fun fact: the moon has turned to blood!" -- Newscaster, "Jesus Christ Supercop"
Is making and using multiple copies within one organization or company "distribution"?
Daimou has indicated that the manager led him to understand the code would remain his, providing such consent, so do emphasize: "...in WRITING."
//Information does not want to be free; it wants to breed.
Someone else holds the copyright to the original code. There are only two ways your company will ever be able to "own" the full work (or obtain a license other than GPL) instead of just your patches:
- contact the original copyright holder and make a deal
- reverse-engineer and replace the original code
You didn't have the power to sign over the copyright to another party's (e.g. IBM's or ActiveState's) code. You only gave them the code that you wrote.The company is either committing copyright infringement, or if they have accepted the GPL, then they are violating the terms of the license. Since their OK to proceed with the project was verbal, there's no proof of a contract, so they'll get to pick which thing they are guilty of.
As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.
You know, they do read the site. As do their contributors.
/. and let the people who do this for the love of it tell you how to proceed.
Yes, I think the solution is post on
You know, the EFF does have their own website, and the response from there would definitely have fewer trolls. And I'm almost certain they wouldn't do any goatse links
In some states, these parts of the contract are null and void because because state law guarantees the right to keep controll over things you do independently of your employer's time and resources.
I believe that most states with strong RnD have laws like this. But many contracts have these clauses anyhow as juat a catch-all and for the guy who doesn't know better.
Are they hiring? I'd like to work for a company that treated "employees" like, well, "people."
No necessarily. In some states of the US, a verbal agreement is as binding as a written contract. If he was verbally assured his code would remain his by someone with the authority to modify his contract with the company, then the code still belongs to Daimaou. If he is in the right place, and has a witness or two to the agreement, I'd say he's in the clear.
Here we get to one of the most overlooked points in the GPL: All rights derived from the GPL are bound to the fact that the entity in question accepts the GPL in complete. As far as it currently seems the company didn't accept the terms of the GPL, so they loose any rights to the code in question. This even includes using the software internally.
It doesn't matter what someone does after the copyright infringement. The point is that in both cases, intellectual property is being taken against the spirit of the license it was released under. Some of us simply like to point out how hypocritical it is of Slashdot and its readers to be up in arms over intellectual property law and prop up piracy at most every opportunity, then turn around and get angry when GPL code is taken. If piracy is okay or is a "gray area," then so is violating the GPL.
The GPL says: I, the author of this code, allow you to make unchanged copies of the code at will. I also allow you to make changed copies, provided your changes (which you own) are also GPLd.
So, since:
Therefore:
The company has two options: they can either license their changes under the GPL, or they can distribute the original, unmodified program and a bunch of diffs. (Or not distribute it at all.) Claiming that the now own the original code is compeletely nonsensical.
As for the patent issue, I'd say that it's a dead duck because prior art obviously exists, but I don't know much about patents.
Check the laws of your state. IANAL but my understanding is that typically the clause can't be enforced. Things that you do outside of work that don't have anything to do with your day job don't belong to them, regardless of your contract. Things you did (or thought of) in the past that don't have anything to do with your company don't belong to them either.
A question for patent attorneys (since IANAL): is there a way to write a challenge to such a filing, akin to an amicus brief or a deposition, stating a position or evidence against a given claim, to get it into the official record in case this is ever abused? Seems like that'd be a simple enough thing...
He wrote the extensions to the GPL code (and put them under the GPL) BEFORE entering the building. Any modification he might've done to the GPL code after entering the building would be unreasonable to claim as the companies property as they can't prove which portion was made there, at least that how my non-legal eyes see it. He has the upper hand! :)
I think that if this was taken to court who ever represents the GPL softwere would enjoy a quick win... Of course taking legal actions against your imployer can't be good for your career there, can it?
Satisfaction = Guido + Baseball_Bat * Company_Owners_Kneecaps
/.'rs such as contacting an attorney and notifying the GPL violations site, FSF, and the individual software authors.
Two things:
1. Employee should not have brought GPL code into this companies IP scope knowing full well what their written IP policy stated.
2. Company should not try to hijack GPL'd code.
3. Employee should not have signed such a ridiculous IP contract in the first place. I have no problem with 'normal' IP agreements but this is just too much! Don't care how desperate he is for a job... I'd rather come home smelling of hamburger grease and french fries then be bound by such an overly oppresive IP agreement!
Be prepared to quit your job. Pursue other recommendations mentioned by other
I hope you learned something!
Yes, and I suspect that he can sign over the copyrights of the code he wrote. However, he cannot sign over the rights to the parts that IBM wrote nor terminate any legal obligations attached to those IP rights. So effectively his company becomes him in terms of the legalities, which means they are legally bound by the GPL regarding this code. Laying claim to code that is subject to the GPL doesn't extract it from the GPL. This guy hasn't done anything illegal, he didn't sign over any rights he didn't have. In fact, he only agreed to sign over whatever rights he did have, and he didn't have the right to violate the GPL. Therefore his company, in taking over his IP rights, also does not have that right. It's the company that's exceeding their rights and violating the law.
What about getting one of the organizations involved in protecting the GPL involved. A few letters from lawyers should make them see their error.
He is using GPL'd code that is copyrighted to it's respective owners. These owners have not entered into any aggreements with said company nor have they transfered any rights.
Thus the company is violating the license of the GPL'd material they are distributing. They may be able to lay claim, right or wrong, to the code he himself wrote and possibly even override his own licensing decision. They can not alter the license arrangements of the pre-existing GPL'd code however.
Now this is facinating because of the misunderstandings created by the access to source code clause in the GPL. Access is a right granted by the GPL, but access does not mean or imply ownership. This company is confused because they can't fathom both having the code right their in front of them and not having ownership or it.
My bet is that if this went to court they would get their pants smacked around backwords.
I really don't see how this company has any hope of prevailing.
Kind Regards
"A few great minds are enough to endow humanity with monstrous power, but a few great hearts are not enough to make us w
In most countries a court can declare a contract, or parts of a conctract, void if it is found to be unconscionable. I'm not sure if that's the case where you live, but if it is this might be an alternate approach.
...
... :-)
IANAL and the specific criteria can vary but it seems to me that this passage clearly disadvantages you and you were desperate to get a job. There might be other factors as well: Are you rather young/ inexperienced with work contracts? Is the company big? Were you told to seek or offered independent legal advice before signing the contract?
See you local lawyer to find out more
Never EVER sign away your rights in toto like this. When you do this, you give the company a potential for profit without a requirement to compensate you. There are many greedy companies out there. In my consulting practice, I see feces like this all the time. Some of the bolder ones were demanding "worldwide royalty free fully paid up " status to all code we had written or will write. After I stopped laughing, I told them no. You have the right and freedom to negotiate. Do it. They want something from you, they need to compensate you and agree to terms.
Second he cannot technically approach another company/person/slashdot about this without being potentially fired for revealing potentially damaging information about the company, and then sued for damages. Most of you sign non-disclosure agreements that effectively gag you in many instances. I am not sure but it is possible some whistleblowers could be liable under these agreements. I am pretty sure this is why the feds went to such great lengths to protect whistleblowers.
NDA's are hard to weasle out of. They are legitimate devices (unlike non-competes, which you should simply never sign without an agreement from the company to pay you full wage and benefits while you are not working). Action can be taken in many instances. You need to be very careful here.
Now that I have spread the doom and gloom, this is how I would approach it (and have in the past when similar feces hit the rotating blades).
1) go to the companies legal counsel and explain your concern over the risk that the company is assuming by attempting to claim ownership over something that they have no ownership rights to, vis a vis the GPL code.
2) point out to legal counsel that the contributions you made are your copyright to do as you wish with, and that you have already placed them under GPL, and contributed them back to the community.
3) point out to legal counsel that the current SCO->IBM row is over a contract, but the IBM->SCO row is over GPL violations, ownership, and other things. Point out that you see a huge downside risk and very little potential upside risk.
Now that you have framed this carefully (make sure that point 3 has existential overtones for the company), offer a way out
a) fund the continued development of the tool, and offer GPL licensing to GPL products, and arrange with the other holders of copyrights in the product for a commercial license for which they would be compensated.
b) offer to help the company continue development of the tool, the ideas, etc. Indicate where patentable IP may exist, and point out how to develop it without being GPLed (would require a complete rewrite of the code from clean room source, by a different team). Make sure they understand the value in this.
For example: I see great value in Linuxant's packaging of GPL tools. They greatly simplify my life. Sure not everyone thinks so, but enough do that they can make money at it. It is possible to do the same with this.
Finally, if they are greedy, and insistant that they control everything, run, don't walk, and find a new job. That is a company on a collision course with reality, and the end result is gonna be messy. Consider that the signal to get the hell out of Dodge.
No.
In the US, public publishment of the invention more than 1 year before the application filing is a bar to patentability. See 35 USC 102(b).
What's further, is that the company would have difficulties if the invention claimed in the application was partly the creation of people other than the submitter, even if they have rights to the submitter's work. I mean, these others could grant free licenses for others to use the patent.
That's debatable. (In fact, it's so uncertain that lawyers do debate it in front of judges and juries). When the GPL was written, it explicitly said that you didn't need to accept it in order to use software. Stallman's philosophy was that you don't need a license to read a book or listen to music, so you shouldn't need it to run a program. Copyright law covers copying, not use.
Unfortunately, lawyers for companies like Microsoft diagreed with the FSF, and EULAs have become common. Even without UCITA, the software companies have been quite succesful in court, leading a lot of Free software to treat the GPL as a EULA and ask people to click through it during installation. (This is mostly because of the "no warranty" clause.) The next version of the GPL might officially be a EULA, because (like the Afero license) it wants to ensure that code is available to every client who accesses a Web server.
Post the source dude! It's your dudy!
Also, look for new work as it will boil down to he said, she said.
I was wondering about this semi-related thing. What if he wrote a book with a bunch of libelous statements about movie stars. The agreement would seem to mean that the company owned the book. Could the company be sued for that guy writing that book since the company would own the book according to the agreement.
No, I'm not forgetting that, I'm contending that he owns the IP of the lines of code that he wrote, and can do with them as he wishes. That those lines are useless (and likely don't even compile) on their own is (I think) immaterial.
The way I see it, he can give his company his (useless) code, but not the GPLed code that it requires to function. I may be wrong on that (I'm not a lawyer), but that's the way I think it *should* work.
It's official. Most of you are morons.
First of all, I am not a lawyer, this is just my opinion.
Now casting aside that whoever in the company making this decision is a complete prick (patenting someones past work? That's disgusting), and the desire to keep GPL code free, here's how I see the situation.
First of all, I'll assume Daimaou wrote the code, released it under GPL, signed that awful agreement, and then the claims were made. If the order is different, my thoughts are different. For example, the following is completely invalid if he signed the agreement and then released code. In that case, he had no rights to release the code under GPL.
Daimaou signed away his rights to his past work "if it enters the building". I'll assume this has been met. I'd just like to add: WHAT THE FROCK WERE YOU THINKING SIGNING THAT!?
- The company can do whatever it wants with the code he has written. They'd have to obtain it from him, not just strip it out of the latest release; they have no agreement to do that.
- They have no ownership of subsequent patches made to that code, which is why they'd have to get it from him.
- The company can't claim ownership over the surrounding code, ie. the code that surrounds his code. Just because he contributed to a GPL project doesn't mean that the company can claim the rest of it. If his code doesn't work without it, tough. Any such use would be a breach of the copyright terms of the other contributors/authors. Tip off the copyright owners anonymously if they try to do this. They are not bound by your agreement.
- If they patent any bit of it, the company personally can no longer distribute the GPL software, under any terms whatsoever. Read the GPL. They could quite easily distribute Daimaou's code under terms of their choice due to the agreement though.
- The company cannot make a blanket demand that the relevant code can no longer be distributed under GPL, as the code was released with a license (GPL) that does not permit subsequent alterations of distribution rights. The company would have to challenge each and every case of perceived patent or copyright infringement with each person, arguing that the license Daimaou or others gave them is revocable, which to be honest I'm not sure it is. It would be a hard fight and they'd have to take action against people individually. They'd have to file more suits than copies distributed.
- I'm not sure how a subsequent patent claim affects the distribution of infringing code that was developed prior to the claim. Talk to a lawyer. Either way the company could not distribute the full GPL work if they tried this.
Depending on the location, some laws may override the above. Some localities will not allow you to sign away rights to work undertaken personally, many will definitely not allow you to sign away past work.
As for the advice bit: Talk to a lawyer. Ask them exactly what your past works clause means to you; I guarantee that "if it enters the building" is not the exact term. You may have exposed yourself to legal action from the company and people using your software for signing that. Do not ever sign anything like that again. If you're desperate for work in the future, swallow your pride and wait tables, rather than going for an extra bit of cash that could cause you to lose everything in the future. And if they try to release other peoples code under a license of their terms, tip of the authors of that code anonymously, they will have a case against them.
"About a year and a half ago, I brought in some source code that I had worked on prior to working here; after receiving verbal OKs that the code would remain mine.
My code was derived from code I got from IBM's Developer Works website and also ActiveState's website; all of which was released under the GPL. I made a lot of additions to the software of my own, but the parts from the above sources were integral pieces and without them, my code wouldn't work."
We can break this down into seperate areas. First though, some clarification...
"My code was derived from code I got from IBM's Developer Works website and also ActiveState's website; all of which was released under the GPL."
Are you saying that you developed some code starting from a GPL code base owned by others and subsequesntly distributed the new code under the GPL. Then later, you got a job. Then later you brought that code into work? (With the written agreement on getting the job and the verbal agreement before bringing the code in to work.)
There are two issues (at least):
1. Who owns the code?
2. What impact does the fact that it was developed from a GPL base owned by others have?
1 would depend on if a subsequent verbal agreement superseeds a prior written agreement if the verbal agreement can be proved and if so, on if the verbal agreement can be proved.
2 works like this, since the new was developed from a GPL code base owned by others, if this code is to be distributed as opposed to used in house, it must be distributed under the GPL unless a seperate agreement is reached with the owners of the original code base or all of that code is removed and replaced.
Right?
http://www.advogato.org/person/zotz/
all the best,
drew
FreeMusicPush If you want to see more Free Music made, listen to Free
Here we get to one of the most overlooked points in the GPL: All rights derived from the GPL are bound to the fact that the entity in question accepts the GPL in complete.
r eSourcePostedPublic)
Yes, but the GPL specifically and explicitly does not grant the right to use the code.
From the GPL itself:
"Activities other than copying, distribution and modification are not covered by this License; they are outside its scope. The act of running the Program is not restricted" (see http://www.gnu.org/copyleft/gpl.html#SEC3)
From the FAQ:
"You are free to make modifications and use them privately, without ever releasing them. This applies to organizations (including companies), too; an organization can make a modified version and use it internally without ever releasing it outside the organization." (see http://www.gnu.org/licenses/gpl-faq.html#GPLRequi
This guy's company is free to use his code internally without restriction. What they are *not* free to do, and what they're trying to do, is distribute it and keep the source closed. It's perfectly permissable, however, for a company to take a GPLed project, modify it, use it internally and never release the modifications. However, as I said, I don't think that they could legally prevent an employee from distributing it to the outside world (but of course, IANAL, and if I did such a thing I'd expect to be fired for gross misconduct or similar)
It's official. Most of you are morons.
Without going into it too deeply, doesn't it seem to be the prevailing theory that it is unlikely if anything in the GPL can, at this point, materially affect derivative "inventions" or patents? That would appear to be what his agreement would really be about - inventions. As far as I know, copyleft is not a tested defense against an assertion of patent infringement, nor has it been established whether the GPL could grant a license or implied license to a patented invention. Harrumph.
Daimaou signs a (reasonably) standard IP-assignment contract, so everything he wrote while working for the company belongs to the company. That's completely straightforward. Our hero is out of the picture at this point.
So now the company owns some code which is an extension of a GPL-ed code base. They're free to do anything they want with it except distribute it to others in any form. If they do that, then they must comply with GPL's source distribution requirements. That's also straightforward.
Now the company wants to patent something that this code embodies. (The article doesn't make clear whether the patentable content is part and parcel of the GPL-ed codebase, but I'll assume it is.) If it's an American company, they're free to try to do this, and given how incompetent the USPTO is, they stand a pretty good chance of getting the patent. If the patent examiners are awake, then they'll notice the existence of substantial prior art as embodied in the GPL code base, but they're usually not awake. (Disclosure: I am a patent-holding inventor of certain firewall technology.)
"There lies the problem with Civil IP cases. The lay person does not have the money to defend let alone assert those rights."
Yes indeed, thats the larger problem. And the rest of your comment certainly applies to this case except for a couple points.
1. I was just mentioning that the grandparent posters case might not be the same so the legal advise might not apply 100%. The GPL is involved in this case, not sure about the grandparent.
2. The company seems to already be in violation of the GPL as they have appariently distributed the code without providng access to the source. They most likely just shipped it with their own copyright notice, which would be a big no no in this case.
Which brings us to:
"You don't have to have a hope of prevailing."
Normally quite true and possibly true in this case but not conclusive. The posting author is not the only one involved here, IBM seems to be involved as well as maybe other parties. This is another difference between the grandparent and this guys case.
The very fact that there are third parties involved that have an open and shut case against this company regarding their code use should give this company pause. I don't know what the statutes of limitation are here but they seem to be basing this product on a house of cards. The more succeful the product the more likely they will be taken to court on GPL violations. Not a good position to be in.
Kind Regards
"A few great minds are enough to endow humanity with monstrous power, but a few great hearts are not enough to make us w
Sounds like intent to steal via deception.
He was told it was OK to bring the GPL code in and then they claim ownership of it because of an agreement they signed with him?
If they're distributing code to the public containing GPLed code, without source, they're violating the GPL. If there is no publically distributed binaries, there is no GPL violation as long as anyone in the company using the code has access to the source code, which is probably true. If you want to keep your job and there is a GPL violation, let it pass. If you want to make a big deal out of it, expect that you are creating a lot of hassle for a lot of people who will probably want you fired.
Vote for Pedro
It sounds to me like this guy is in violation of his contract with the company (because there is no way he can grant the company a license to redistribute his code under their terms). And the company is in violation of the GPL because they are distributing the code without source.
IANAL blah blah...
As I said, IP you control the rights to. Work for hire, which is what most of us do for our companies, does not qualify.
Given the choice between that contract and starving, I'd have signed it too, and then left the damn company the moment I could get away. My current employer has a contract regarding ideas developed on their time and on their equipment which I find quite reasonable.
---
Mod me down, you fucking twits. Go ahead. I dare you.
(I read with sigs off.)
So modifying the program is only allowed if you accept the GPL. That's the point the guy should point out to his company.
It is more complicated than that. Look at section 5 of the GPL: Modifications of GPLed programs are an explicite expression of accepting the terms of the license. The instant the company stops to accept the GPL, it also loses the right to modify the code, even if they only use it internally. But the only way to infringe on the GPL is to try to distribute the original or modifications hereof with a license incompatible to the GPL.
So the situation is this: Everything is fine with GPLed software. No restrictions are in place as long as you don't start to distribute the original or derivative works of the original. The instant you start to distribute the original or any derivative works without a GPL compatible license, you lose all rights to the original, including the right to use the original and to modify it.
That having been said, a verbal agreement is just as binding as a written one -- just a little bit harder to prove what was agreed to. If they said you could keep the code you broght in then you can. You can't givem them rights to IBM code, but they could, in theory, claim your own additions tossed in after you brought the code into their offices (unless your verbal agreement says otherwise, but see above).
If they can rip your code out of the greedy little fingers of the IBM GPL code, then they're free to do what they want (subject to their agreements with you about it). If they're distributing IBM's GPL code (with or without your code) then they can abide by the GPL or face IBM's nazgul. (and I call them nazgul with the utmost respect as someone who hangs out on Groklaw and has seen their handiwork).
IANAL -- I just read Groklaw a lot (and supreme court decisions in my spare time).
Sometimes boldness is in fashion. Sometimes only the brave will be bold.
D should check the validity of the IP agreement the company required him to sign. The agreement is very likely invalid on it's face.
While it is reasonable to assume that things created as the employee of an entity belong to that entity, the entity has no reasonable basis to assume ownership of previously existing IP. We concentrate on code, but the agreement as described senselessly extends to things like employee created paintings, sculpture, music or fiction.
IANAL, but IIRC, it is simply not legal in the US for an entity to assume ownership of any individual's intellectual property like that. Assignments of ownership of all types typically must be specific to be enforceable; and are therefore understandably bounded.
I was involved in a contract with an entity which attempted to pull a similar stunt. I required that they amend the agreement before I signed it. The amended agreement restricted my principal's interest in intellectual property created by me to those works which were created during those periods of time described in my contract for which I would be compensated, using materiel provided by my principal, and which were strictly related to their business and the projects which I was working on.
There was some pushback over this from greedy management, but the legal team agreed to my modifications.
Look up the definition of "patent" in an English dictionary.
Then look up the processes of patenting.
The way it looks to me, if the company patents anything that it or its employees used as part of a modification to GPLed work, the contents of the patent must fall under the GPL.
(That might not be a bad idea, if they only understood it.)
The question of whether the code is a modification of the GPLed work or not could be difficult, depending on the interface techniques.
Because I want to make sure I never consider working there.
Rules:
1) Never sign anything like this
2) Never sign anything like this
3) Never sign anything like this
Any doubts, please review the forgoing rules.
In short, your employer is violating the GPL, and is perhaps somewhat unscrupulous in what they did to you, but you are not innocent in the regard that you should never have entered into such a one sided agreement in the first place.
GJC
Gregory Casamento
## Chief Maintainer for GNUstep
From the preamble (with emphasis added):
And, section 4:
If the company has already distributed MyApp, but has not included the proper notices required by the GPL, then under section 4 of the GPL, the company has forfeited any rights to distribute GPLFile.c ever. In this case, any future attempt to distribute GPLFile.c (in binary or source form), or anything that includes it, violates copyright law, because the rights that might have been granted under the GPL no longer apply to them.
Once you forfeit your rights under the GPL, you cannot regain them (unilaterally), and you are not even allowed to distribute the original source code.
In practice, we typically see companies "fixing" their GPL violations, by ignoring section 4, meeting all the other requirements, and pretending that no violation ever happened. So far, copyright holders have tolerated this, because it serves their purposes, but there's no reason why they must. I can imagine a scenario where "the company" we're talking about is actually a fierce competitor of IBM, and where IBM gets a permanent injunction against this company to prevent them from distributing MyApp, whether under the GPL or not.
Some people should really take the GPL much more seriously. It is not a toy, and you can't expect to wait until you get caught violating it before you come into compliance.
It is impossible to enforce an IP agreement if there is a previous agreement already in play. So before anyone of us gets a new job sign an IP agreement with your best friend that includes full access and distribution rights to anything you code for the rest of your life plus a non disclosure clause stating that the terms of the agreement can not be discussed. Then it is the responsibility of the employer to ask you if you are subject to any previous agreements. And if they don't ask you, you can't be held liable for not telling them because your previous agreement prevents you from offering that information to them.
In colorado, I believe it is illegal to enter into a contract when one of the parties has been drinking (or more importantly under the influence of drink or drugs). Did you have a drink that morning to calm your nerves?
In addition, in some states, I think that the courts will not uphold IP contracts that look back in time (or forward) to arbitraily grab your IP. They would if you agreed to sign over something in particular, or if it was directly relevant to the companies work (hey, we hired him to compensate him for this IP). But to say that all of it belongs to us, will not fly in some states.
I prefer the "u" in honour as it seems to be missing these days.
I love that acronym. The thought of a funky looking orifice always gives me the giggles.
Generally speaking all sweeping contracts like this can be pretty ambiguous and legally pointless. Any ambiguity in a contract always goes against the writer of the contract and legal wording is everything, can anyone ever write a meaningful contract that claims ownership of all your current and prior thoughts (in effect seeking copyright on i.e. your private letters and emails to family and friends or singing in the shower and even your /. postings ).
Chaos - everything, everywhere, everywhen
The answer is the GPL still applies, the employee does not own his changes, and the company who owns the changes is bound by the GPL whatever they do with the changes. It sounds like the company is violating the GPL with respect to those changes and distribution in violation of the license. It also seems possible the company has filed patent on not just the modifications but parts of the original. The community needs to find out what company it is and pursue compliance with the license.
this will be my last post.
you again ignore the substance of my comments to argue points that i don't make and that are not on-topic. if you think people didn't share things before the internet, you are either young or delusional. the only thing that has changed is the opportunity for the established business interests to actively pursue people making use of what they have become accustomed to as being their rights under fair use provisions. and again, filesharing is 100% legal in certain places.
as i mentioned, i also believe the mechanism/medium should be irrelevant to the discussion.
btw, you are free to use gpl code inhouse without distributing source code. that is one of the freedoms the gpl gives you. if you distribute the code, then other obligations arise. you should actually know what you are talking about before frothing at the mouth.
sum.zero
Caveat: US-centric opinions follow.
IP agreements are generally intended to scare the peons into submission. As such, even if the first court validates them, the appeals court is likely to rip them to shreds. All in all, if you get stubborn, you can get most of the contents of the IP agreement tossed. Employers with experience in this know it, so they will be obnoxious, loud, noisy, and even bullying at first, but if you stand up, they back off.
In US courts, no matter what the agreement says, the company does not own you or your thoughts. They own your time while you are on the clock. Period.
One thing to keep in mind, do not agree to anything without a lawyer present.
But you do need to keep good records. The better your record-keeping, the stronger your position in court. A published source code archive is very useful, especially if it's mirrored somewhere. (That, in my opinion, is as valuable as any other feature at source forge and similar sites.)
Dumb? not really. Repeat after me: "The company is going to try to convince my I am dumb to keep me off balance. I must not let them do so." No way is it dumb to work.
Management is stupid to rely on this kind of bullying. It may get them short-term advantages, but it rips the company apart from the insides. Short term advantage has gotten way too much press these days, but the economy will not revive until the short-termers repent or get out of the way.
Bullying. Swashbuckling: "We bad!"
"See that park bench? Nobody else claims it, so we claim it!"
They claim it looks like a park bench to them, even though it's on a private lawn with a fence around it, just because the gate has a sign on it that says, "When the gate is open, anyone is allowed to spend some time here."
Blind bullying. They've never learned that the real world is not like the playground at school. Or maybe they've never learned that recess ends, and the rules they made up over recess have their limits. Time to teach them.
Inform the owners of the code. Concerning the code Daimaou owns, get help from the EFF or one of the other groups that are getting started and/or a lawyer relative or friend. And don't forget that the company has very little legal ground to stand on. The only thing they can claim ownership on is the lines of code in their own archives that is not in external, pre-existing archives. (And they have a record keeping duty, as well.)
For future reference, never rely on verbal agreements in contradiction to contracts. If you can't afford it if they renig, get it in writing.
sum.zero
_______________________________________
i do not license music. i purchase cds.
patents do not care about GPL or any copyright related license you have. What matters is that this fellow agreed that the company owns things he developed, with apparently no time limitation (past/present/future). Basically he wrote something in the past that the company would like to file for a patent today. As long as the company can meet the dead-line requirements they can still patent whatever he did.
Now where GPL comes in is that patents and GPL are generally incompoatible. Therefor the company can't use the GPL implementation of the patented process. And this fellow cannot distribute the GPL code on his own because it's in violation.
Of course if there is something worth patents in the *original* GPL version, then it belongs to that inventor and the company should not be able to successfully obtain a patent on that.
“Common sense is not so common.” — Voltaire
(Obligatory IANAL)
There are multiple issues it seems.
For code previous to the contract. If the contract states that they own everything you've done before, it could be interpreted as overly broad (and thus unenforceable). If it is deemed enforceable and the code is already licensed and published publicly under the GPL, they must honor the previous licensing agreements (if one company buys another company, they must honor all agreements the company they bought made previous).
As for code that was written after the contract (ignoring the oral agreement momentarily). If the contract is clearly defined and you have already published under the GPL, there is no question to it being at minimum breach of contract (excluding all code not written by yourself). Other possible interesting possibilities (again IANAL): theft and fraud. Both of which they must be provided with full control of the code you wrote, if that is not possible, damages and restitution as defined by a court.
Taking into account the oral agreement, it depends on the creedence that it is given. If it is verified and accepted, consider yourself extremely lucky, and get it in writing from now on. If not, I wish you good luck, granted they can only do so much.
In other words, get real legal advice and don't depend on us (IANAL Slashdotters).
I've not read ANY of the replies to this article, as this is ridiculous - is there no rational thought left on Slashdot at all?!?
"When I started working for my employer several years ago I signed an IP agreement that states anything I think while working for them is theirs, as well as anything I've ever thought in the past if it enters their building; dumb, but I needed a job."
I call bullshit: You claim to have signed a contract - post it.
So, if you think about anything, your employer somehow then owns it? BULLSHIT.
Let's just take that to its logical conclusion, shall we?
You wake up in the morning, and think that you have to take a dump... so, you do so. Then you go to work, and, as you walk into work, you recall, briefly, having taken that dump... so, because it is part of "anything I've ever thought in the past"... they now own it (Actually, they own it twice over now, yes?). Do you then inform them? After all, they own it by the terms of your contract, and if you don't, then you're depriving them of something to which they're entitled and are then in breach of contract.
Later, you're sitting in your cubicle, and you look down and think "I like these shoes"... so, since you thought about your shoes, they now own them? Do you take them off and give them to your manager? What happens if you should chance to think about other articles of clothing throughout the day? Do you eventually leave naked?
Worse, being naked... you look down and note your penis: Whoops - you just thought about it! Now, they own that too!
Hopefully they'll then come and take ownership of it, chop it off and so prevent you from reproducing, thereby improving the human race.
"I have never seen a copyright infringing downloader re-sell the latest Britney album as his own creation."
And they wouldn't want to. Likewise, you wouldn't want to take a photograph of s computer program, or listen to it. Different media are just that -- different -- and thus have different rules. When you release music, the big risk is that people will copy it without your consent. With GPL software, the big risk is that somebody will appropriate it into their own code and sell it without releasing the source. Of course the Slashdot crowd can empathize more with the latter person than the former -- that's a given. But I sense that you think it's an absolute that copying code and selling it as your own is a worse violation of rights than an equivalent violation of the rights of somebody who works in another medium.
"IP rights are not black or white."
I believe they are, in that we should respect all IP creators' rights. This is not a "some artists are more equal than others" situation. That musician is a human being just like you are, even though his axe is his voice or a musical instrument, and not a compiler. It is terribly unfair to tell these people that their rights mean less than ours because they have chosen a medium which has a different set of rules. If the software developer wants you to respect their rights, and the musician wants you to respect theirs, why not have some empathy and respect them both?
Treating all people fairly and following the golden rule (in short... treat others how you'd like to be treated) also prevents others from using your rationalizations against you. If you can convince yourself that violating a programmer's rights is worse than violating the rights of a musician, then there might be a musician out there who quite simply doesn't see the big deal of compiling GPL code into a commercial closed source app, while simultaneously taking the pirating of their music very seriously. So that we don't need to revert to defenses that take the form of "violating the GPL is just worse than pirating music, and that should be self evident" (which is tautological at best, and self-serving at worst), a liberal application of the golden rule should be in order. That way, you don't need to understand why the musician is upset when you violate his rights, and he doesn't need to understand why the GPL is such a big deal -- you'll just have mutual respect for each others' rights.
Sitting in my day care, the art is decopainted.
Under their rules, if I had the identical agreement with my employee who brought your employer's "proprietary application" into my building and monkeyed with the GPL snippets of it that were obtained from IBM to create an identical application, I now own the IP in their new "proprietary application" as well.
Works for me. They'll hear from my lawyer.
What? They don't agree with me? The weasels can't have it both ways.
I belive the original author can only sue for a copyright violation. Normally this is for monetary damages and a ceast & desist distribution order. I very much doubt any court is going to force a company to give up their ip.
There have been lots of cases where companies have voluntarily released their code to comply with the GPL. But this has only been due to threats of litigation which was then dropped, not from a court order. Generally they have judged the cost of releasing their code (often only trivial modifications, anyway) as much less than the legal costs, potential damages, and bad public-relations. So you could say that the GPL has made some organizations release code, but it hasn't really forced them.
There are 2 issues:
1) Does those IP agreements state that Daimaou has to give IP rights on the portion of code and to end the rights of the previous licences?
2) Those IP agreements state Daimaou has to give IP rights on the portion of the code and nothing more.
Under those two circumstances.
(Case 1)
If there are some stipulations about ending previous contracts that Daimaou had, that Daimaou is the one first violating the GPL by signing such an IP agreament since he can not end the redistribution rights of the licences.
GNU GENERAL PUBLIC LICENSE
TERMS AND CONDITIONS FOR COPYING, DISTRIBUTION AND MODIFICATION
6. Each time you redistribute the Program (or any work based on the Program), the recipient automatically receives a license from the original licensor to copy, distribute or modify the Program subject to these terms and conditions. You may not impose any further restrictions on the recipients' exercise of the rights granted herein. You are not responsible for enforcing compliance by third parties to this License.
(Case 2) Daimaou employer is not stipullating that he has to end previous licences right witch means that what Daimaou previously released under the GPL will remain GPL, and the IP agreaments only force him to also transfer the IP rights of that portion of code that he wrote. In this case his employer can do that they what with that portion of code but with that potion only. The employer that now has the IP rights is also the one responsable legally for what Daimaou previously did with that portion of code did (releasing it under the GPL) and now the decision of using that portion of code in the non-GPL programs is theirs but mostly important they can not end the rights of their GPL licences since they are the one responsables for the Daimaou action of releasing it under the GPL and they now have to follow that license.
In general you are right and give some excellent points. However, one of the things mudding these waters is that I'm not stealing from a poor artist if I download a Metallica song from the internets - I stick it to the big faceless recording multinational corporations who are sucking the life blood out of the industry. I can agree that downloading probably isn't the way to change that industry, but that is a very powerful rationale for doing it.
In a sibling post to this one, I give an example of what I mean by black and white / gray that hits pretty close to my home.
Just to set the record straight, I don't use P2P programs, for several reasons. I do have a fairly wide circle of friends, many of who are avid music collectors with wildly different tastes. We have a shared archive of albums and songs and pretty often one of us buys and rips an album just because we think the others should get a chance to listen to it as well.
Money for nothing, pix for free
Maybe he's trying to do what's right morally and legally in this situation, instead of exerting damage control to certain things.
1. Daimaou wrote some code, which can only work together with code licensed from a third party.
2. Daimaou signed away copyright on his past and current code to a company. (For now, let us assume the verbal agreement means squat).
3. Because of the agreement with Damiaou, the company claim to have full rights to all the code.
This has nothing to do with the GPL as such. Basicly, Damiaou can't sign away more rights than he has. And to the third-party code, he has only those granted by the GPL (or whatever else license he recieved the code under).
Personally, I think the company had better find a competent lawyer - fast. Particularly if it can be proven that is it willful (i.e. Daimaou informed them this was illegal) and commercial, they are looking at nasty criminal charges in addition to the civil ones.
Kjella
Live today, because you never know what tomorrow brings
If Daimaou released a worm/virus would the company be responsible and pay the penalty?
But what, exactly, do you mean by "putting the collective work under the terms of the GPL"?
The GPL is a licence under which the original code may be distributed. It grants distribution rights for the original, GPL'd code that you wouldn't otherwise have since you're not the copyright holder.
However, it can not impose any transfer of rights relating to the new code. There is simply no legal agreement there that would require this. In particular, if your new code is later used without the original GPL'd code, the fact that you once used GPL'd code cannot require you to distribute your new software under those terms if you're no longer using any GPL'd code in it.
The only case I can immediately see that the original copyright holder might have against you then would need your new software (sans GPL'd original code) to be held to be a derivative work of the original GPL'd code even though it no longer incorporated that code directly. For example, if the replacement you used for the original GPL'd code was a thinly-veiled clone of the same work, it would probably be held to be a derivative work, and as such the copyright would belong to the copyright holder of the original work. It's questionable (at best) whether you're even allowed to distribute that derived work under the GPL, unless the copyright holder specifically allows it.
If you disagree, post your argument. (-1, Overrated) isn't your personal censorship tool for views you don't like.
Well, in this case, theres more hanky-panky going on than my simplified version accounts for, however in the general case like I laid out, GPL and patents can go hand in hand. All you have to do is add to the GPL a line reading "Everyone using or redistributing or modifying this application is hereby granted free and irrevocable license to US Patents #555,555,555, #666,666,666, (and so on) when using, modifying, or distributing this software or any derivatives bearing this license." Since you are permitted to grant additional rights in the GPL license, this should be perfectly alright, since the GPL doesn't permit removing terms from the license.
If I have been able to see further than others, it is because I bought a pair of binoculars.
The parent post is the closest to reality I read till now, and reality dictates that I stop browsing Slashdot and do something more useful (drive my son to his LOGO class).
The guy did nothing wrong, and doesn't really have to do anything to correct the situation. If the company wants to release the program under non-free license they can do it and they would be in violation of GPL, which would matter only if someone decides to do something about it. Does the GPL require someone to act against GPL violators?
Now about the IP agreement: I am not a lawyer, but it seems to be way too general, and probably is void in most countries: You cannot own all your worker's thoughts. Slavery was abolished some time ago! In this "agreement" the worker was the weakwer side that had to agree to whatever terms in order to get a job, and there are some conditions that cannot be imposed in these situations. It doesn't mean that he has to sue his employer. It just means that he probably has some good defences if in the future they want to sue him. And they probably should question their lawyers: they should have worked harder to produce a less restrictive agreement that would be more likely to be valid. As I see it by trying to impose too much this agreement might be totally void!
Again, I'm not a lawyer, and if there's a lawyer reading this I would be happy to hear (read) my argument torn apart. But I am a parent to a child that likes programming so we better be on our way to his LOGO class!
I'm sorry, but you are wrong and the parent poster is right. Every author can choose what to do with his own code what he wants. This includes dual licencing: one can licence your own code under the gpl, but also under another licence (at the same time).
The "derived from" does not come into play, when he *only* takes *his* changes, and nothing else. Probably he wouldn't have anything working anymore, but in theory it's possible he rewrites from scratch all the other stuff, which would make the total of the prog not GPL'ed. (even though, at the same time, he could not retract those parts/changes he already released under the GPL as (also) falling under the GPL).
Hope this made the distinction more clear.
--- "To pee or not to pee, that is the question." ---
He signed an employment contract that he wasn't authorized to sign due to his previously working on gpl code. Not only should he be fired, the FSF should sue his stupid ass into bankruptcy, and he should never work in computers ever again. The guy is head up ass stupid, and slash is stupid for posting the story.
I'd just like to say, YOU IDIOT!!! Always get a SIGNED agreement!!!
Now that's out of the way, your company can claim all they want, if it's based on prior work under CONTRACT you are reasonably safe AFAIK, IANAL! Don't forget that your company can't force you to violate a previously running CONTRACT you accepted, and the GPL is a CONTRACT. And by writing/modifying the code you accepted.
This seems to me like some groklaw fun...
'I am become Shiva, destroyer of worlds'
//Information does not want to be free; it wants to breed.
You didn't answer my question - what kind of place do you work at that didn't require an IP agreement? Small shops can't afford me. You can call me a whore if you want, at least I'm a well-paid whore that can afford my mortgage. You know about things like mortgages, right? Or do you still live with Mommy?
I see nothing at all wrong with complying with the agreement I signed. Anything I'm interested in isn't covered because my personal interests development-wise do not concern the firm.
Any inventions or code you already have are usually spelled out in the exclusion clause, which is how you protect your own past and ongoing personal development work. It's only a bad contract if you let it be. So, I both have my own stuff AND I have the job. Sounds like a win to me.
The revolution will NOT be televised.