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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."
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.
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.
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
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.
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.
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.
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.
(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.
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.
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 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.
Actually this is incorrect. Unless Daimaou signed the copyright over to the original authors, he retained copyright.
If Daimaou wrote the code after signing the IP agreement than he couldn't release code to GPL as he isn't the owner.
I think you mean "under the GPL", you do not release code "to" a license, you release code "under" a license.
And your statement is true, but is just a technicality - *he* may not release the code under the GPL, but his employer can, and in fact *must* release it under the GPL (if they're releasing it at all.)
Daimaou could potentially be held liable for any damages the company could prove due to the IP release.
Perhaps, it depends on his contract.
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
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
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.
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
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)
I agree that Daimou has put his employer in a difficult position, however, they have also benefited from it. As you say they would have to re-write the GPL'd code in order to by-pass the GPL. They would have had to write it in the first place as well, so really they are no further behind.
However if they instead just use the GPL'd code and have that particular product as an open source, they might start seeing some unexpected benifits. (3rd party compatibility (IBM) springs to mind).
The real sticking point seems to be that the employer either:
1. didn't understand what Daimou was bringing in.
2. didn't understand the ramifications of the GPL.
3. decided that the GPL didn't matter.
4. decided that since they owned anything Daimou thinks of, or has ever thought of (!) they must also own anything he has come in contact with "if it enters the building". From the story.
Daimou is painting the picture as #4. But as we all know there are 3 sides to every story. (his/theirs/truth).
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).
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.
Diamanou does *not* possess the right to license his code in anything other than the GPL. In short, he has limited rights to his code; it is his IP, but has binding restrictons on it. It was the condition for his right to use the initial GPLed code. He has absolutely no right to break that license.
Correct me if I'm wrong, but the GPL only requires source code release if the software is released. If I make a modification to a GPL program, but don't release the program with those changes, I don't need to release the code.
In that case, Diamanou has full rights over the code he wrote prior to joining the company: provided he had never released it, he could keep his IP in whatever way he wanted.
The code written while he was at the company is not his; it is owned by the company, and the same applies to that as above. However, by sharing his previous code with the company, I would argue that he effectively released the code he had written earlier, and thus it becomes GPL code that must be released.
That is obviously in conflict with his employment contract. I don't know which takes priority here, but I suspect that the GPL would take priority, resulting in a breach of the employment contract.
(Spudley Strikes Again!)
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.
Nice that you ignore this, a legitimate counter-argument: "I have never seen a copyright infringing downloader re-sell the latest Britney album as his own creation."
But cite this: "there is a huge difference between for-profit, commercial violations of copyright and personal filesharing."
Which leads me to one inescapable conclusion, based on this post and many others I've seen from you...you're a troll. A well spoken one, but a troll nonetheless.
Boycott everything - they're all trying to fuck you one way or another
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.
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.
There's something a bit more interesting that just the GPL'ed code in question here...
"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;" (note: everything he has worked on in the past enters the building every time he does because it's all in his head.)
The wording concerning "anything in the past" is of real interest. It could be seen as the company trying to claim ownership of things which he did while employed at another company in the past. This, clearly, is not legal as it potentially violates the IP of every company he has worked for in the past and not just the IP concerened in this piece of GPL'ed code...
Just some food for thought.
Everything I need to know I learned by killing smart people and eating their brains.
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
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
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.
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!
IANAL, but by my reading of the OP, he did release the code. Here's the time sequence that I see:
I think the rest of your point is valid, but I'm pretty sure there was a distribution involved, early on. Moreover, it's unclear whether the employer actually owns the ideas behind the patent (i.e., how much of this was Daimaou before he started working there?), let alone the software.
The Busy Coder's Guide to Android Development
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.
Well...
If he wrote if from scratch before joining the company, then he has the right to sell it to them under a different license (say BSD).
It doesn't sound like this is the situation, in which case they would need to go to the authors of the code that was copied, and also get a license from them.
OTOH, appearantly he did "work for hire" modifications to his code after he went to work for them, and they want to get patents on that. This is proably ok, given the USPTO, no matter WHAT he wrote. But they can't distribute the code that is under the GPL under any other license without getting permission from ALL of the authors.
I wouldn't want to be in his shoes. It sounds like he's going to have a lot of trouble getting a reference, and is going to need one. How much is his fault I couldn't guess, but the situation is quite unfortunate.
I think we've pushed this "anyone can grow up to be president" thing too far.
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.
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.
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.
they are not equally wrong. that is exactly why there are distinctions in law.
money is THE issue when calculating the degree of infringement. that is the way the law is constructed. non-monetary infringement wasn't even prosecutable until the net act in 1997, iirc.
you argue points i don't make and ignore those that clearly don't side with your opinion. believing harder will not mot make your reality any more true.
there is an established history of people sharing the music that they love. this should be protected under free use [and was until the *aa orgs started rewriting the rulebooks]. i would argue that the mechanism/medium should not matter and that digital sharing today should be just as acceptable as sharing mixed tapes was back in the pre-burner days.
sum.zero