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Open Source Code In a Closed Source Company
An anonymous reader writes "I have code that I've written for my current company that I'd like to open-source. The only problem is that my company has the usual clause that says that anything I write belongs to them. Now that they've decided to abandon my code for another product that replaces its function, I'd like to continue working on my project as well as open it up to the world. The easy part is cleaning it up and posting it on SourceForge and Freshmeat. The hard part is making sure that I am free of any legal complications in the future. I've looked online to try to find a legal document I could present to my employer to get them to sign off on it, but I'm not having any luck. Has anyone else been in this boat or can refer me to some legal documentation that may help out?"
are you asking people from Slashdot. Why don't you approach your company and ask them what they think? I have a friend that did just that with a app he developed, the company let him take it Open Source. If they own what you create then you need to make sure that they are going to release it.
Cyberbite Networks - Web Hosting, Dedicated Servers & Colocati
Why don't you talk to the person in charge of software ? That might be easier than dealing with the legal team....
:)
One approach is to explain that by releasing software components to the open source community, you'll get other people to improve and test your software. This reduces your costs and people in charge tend to like that
If you look in the file usualy attached to any GPL'd code, for example /usr/src/linux/COPYING on many linux distributions, you will see that part of the file is the actual GNU Public License and part is an explanation and philosophy and so on. If you want to open source your work, I'd hope you would have read that file at some point . . . but in any case, here is the relevant portion:
"You should also get your employer (if you work as a programmer) or your
school, if any, to sign a "copyright disclaimer" for the program, if
necessary. Here is a sample; alter the names:
Yoyodyne, Inc., hereby disclaims all copyright interest in the program
`Gnomovision' (which makes passes at compilers) written by James Hacker.
<signature of Ty Coon>, 1 April 1989
Ty Coon, President of Vice"
I like that copyright disclaimer because it is short and simple. No doubt someone suffering from the brain damage of a legal education could provide you with a longer one.
What you need is a clear transfer of all copyrights, patents and trademarks in the specific program from them to you. Look for a copyright transfer agreement, they are quite particular.
If you wrote it using their equipment on their time they might have a problem releasing it unless you can convince them of a good reason. They could really benefit from your work being open sourced.
If you wrote it on your own time with your own equipment and not on their premises then they really shouldn't have any problem writing you a release of any of their possible copyrights, patents and trademarks in the work - since it wasn't a work for hire. You might need to state that you didn't incorporate any lines of code from their work into your code. You'll also need to clarify if their work has any of your code in it - that could be a sticky point (a.k.a. SCO) if it's not clarified now in writing.
However it's complicated by them having a similar program that they are commercializing.
Really you should consult a lawyer rather they us fiends.
You can't release it without management buy-in. Your manager knows vastly better than you whether that could happen, and how to get it to happen.
If your manager agrees with you that open sourcing it might work, he'll know how to do so. If not, it's not happening anyway.
Best advice in this whole thread so far.
You mentioned something about another project. Note that there is a difference between development you do on "your" time versus stuff you do on "their" time. If you used any of the company's resources, or spent any time doing work on the project while you were being paid by the company (with respect to normal work/office hours as stated in your employment contract if applicable). Then they own at least a portion of it and need to be considered in any decisions with respect to the dispensation of the code.
Get yourself a lawyer. Really.
Signed,
Been there, done that.
F U NE X N M? Son: "Dad... How do you spell 'hourly'?" Dad: "0 * * * *"
I'm not a lawyer but...
It sounds like they've paid you for this work. That probably means they are the copyright owner. Copyright does not transfer by accident. So if you haven't got a document in hand by someone who is a principal of the company that unambiguously identifies you as the new owner of the software, you should tread very carefully.
Also, you're talking about having them 'gift' it to you, effectively. You apparently did work they paid for and now you want to own it. That can't happen by magic, and most companies don't give away assets. You might want to try 'buying' it since then there would be a contract you could point to, and you would know who sold it. (I don't know if that makes it better. Ask a lawyer. It just seems to me like it might make a better paper trail.)
You don't say whether the other product is one your company is making or buying from outside. If the company maintains a competing product, your non-compete agreement may be in play.
You might consider writing it again, clean, on your own time and machine, logging the intermediate versions so they can be shown to be different than the backups the company has of its intermediate versions. That may not be enough even. It might address copyright but not non-compete or trade secret.
You might consider getting the company to open source it instead of you. The difference (I think) would be that it would be they, not you, who retains the right to make amended agreements with different conditions than the basic license. In that case, all you need is that they open source it in a way that gives you the necessary rights of use, which may be easier to establish than ownership. Also, in that case, you can probably get the company's lawyers involved in making the license, and all you have to do is worry about whether you can use the license that is finally created. In that case, you've evaded the worries about whether you transferred ownership right, and you're down to just "did they pick a good license.
Did I mention I'm not a lawyer? You should not use this message as a guide to what you can do. Mostly you can take stuff like this that people like me write as conversation starters when you finally get serious and talk with someone who is legally competent to advise you properly.
And, by the way, if you make a mess of this and publish something you don't have the proper rights to, you make a problem for people downstream in the user chain. There was a recent Slashdot article where something vaguely of this kind may have been in play. Even if not the same root cause, it illustrates a scenario you don't want to find yourself in.
Kent M Pitman
Philosopher, Technologist, Writer
You seem to have missed the point. The author is asking for a document he could give to his employer that they could sign that would open source the code. It's right there in the summary: "I've looked online to try to find a legal document I could present to my employer to get them to sign off on it".
Cow Cube
They paid you to do a job - they own it, thats what you agreed. Legally and morally. If you want to develop code on your own time and fund the exercise yourself - then you can own it.
Since they've moved on to another project, tell them that it would be a shame if they couldn't at least get some value out of the code. Then say that if they were smart, maybe they could attract some publicity, etc., if they open-sourced the code they're not going to be using any more, and created a site for it, along with links, blurbs, etc., for the other stuff the company makes.
Benefits:
1) Your employer's approval, at the appropriate level of management. Because this involves transfer of a company asset to you and without compensation to the company, "the appropriate level" is going to be senior management. Of course, start with your immediate manager, and work your way up from there. If your immediate manager opposes the idea, it might be best to forget it. The political cost of fighting that battle without your manager's support is likely to be high (as in "career-ending"), and you are not likely to succeed.
2) A tech-savvy lawyer, once you have procured approval. Your lawyer's job will be to review the contract giving you ownership of the code. That contract will probably be drawn up by your company's legal department, so your lawyer will be making sure nothing is left out and that you aren't getting screwed in some way
3) A very accommodating attitude. If there are any costs to your employer to do the transfer, you may be asked to pay them. If so, and you can afford it, suck it up and do it. If you can't afford it, thank everyone sincerely for their time and approval and effort on your before, and explain that you can't afford to pay that much, and walk away from it. And of course, if they say no, regardless of the reason, be gracious and thank the appropriate people for considering your request.
You have to ask them for permission. But don't just ask, make a good case for it. Explain what the cost to them is (including lost opportunity cost, which sounds like nothing for this case). Explain the benefits (mostly soft and squishy stuff, like contributing to the community and giving your company a good name, etc). Really pitch it.
I know this works on occasion, since I've done this myself: asked for, and received permission, to release programs I've written both internally and for paying customers as free software (in the latter case, our agreement with the customer allows this). You can go download it yourself: JavaSock.
It was simply a matter of talking to our commercialization director, pointing out to him that realistically, we probably wouldn't make much revenue off of selling this code, but would make several people (including the client that paid for it) happy, and it might give us some good press in certain circles. They agreed, and we uploaded it to sourceforge.
But don't try to do an end-around. Many things can happen, and most of them aren't good.
I'm not being high and mighty here, my contract says the same. I don't mind, they compensate me well for it. If I didn't think this was a workable deal, well, I'd go find someplace else.
Hi (or she? :) ) just wants to TRY:
:) ), one of the original advocacy documents (could it be appendix to GPL itself?) specifies a (boilerplaite) waiver to present to your employer in just such a case.
:) ).
I've looked online to try to find a legal document I could present to my employer to get them to sign off on it, but I'm not having any luck.
The answer to that is simple for us, old-timers: search FSF.org (or, your tarfile of GCC source
No, they do not have to sign it. Yes, they might (depending on how hip they are and programmer's status in the company -- who wants to keep your star programmer unhappy, after all?
My $0.02 ($0.1, adjusted for inflation).
Paul B.
Even without signing that piece of paper, most software would be considered works for hire anyway, meaning copyright would initially be owned by the employer. In the software world, the core requirement for this is that the employee's writing of the software is "within the scope of his or her employment" (17 USC 101). Courts have set forth guidelines on determining whether it is within the scope of employment, most of which are hit on by a post farther down: being done on company time, guidance from the employer (in terms of requirements, management, or others), using tools provided by the employer, and so forth. Having a signature on paper removes any doubt and should help the employee understand the issues of ownership.
Maybe I've been lucky, but I only had really objectionable terms in one contract when joining a company. That company was small enough that they listened -- and changed the contract -- when I said I worked on unrelated open source software in my free time and wanted to retain ownership, rather than having every thought in my head automatically owned by the company.
Another waiver could be found from Java, OpenOfficeOrg or OpenSolaris. I think Sun requires such a waiver before your code is included into any of those.
I respond to the troll.
Look, a vast number of disputes don't occur because of the lawyer--though, admittedly, some do. A good lawyer is a value adder, and getting a lawyer up front can go a long way to avoiding a much more costly dispute down the road.
The only reason that people seem to "hate" lawyers is because they're usually brought in at the time that people are already fighting or there is already a dispute. Most lawyers aren't in the business of making disputes; they're in the business of resolving disputes for clients that are paying them. Again, the point of getting a lawyer up front is to avoid those later disputes.
Also, as I said, I have no problem with plain language drafting. In fact, I'd prefer that people use simpler language. The fact is, though, that using plain language can be difficult. As with anything, making something simple means knowing the issues the more legalistic language was crafted to avoid. In the posted example, it took me all of two minutes to spot a number of issues, and all we saw was a single paragraph.
I could come up with more: the paragraph only deals with the software, does that include documentation and source code? What are the terms of the delivery of that stuff (presumably if the software was owned by the Company, the developer probably shouldn't have a copy of it anywhere after the services were complete). What are the terms of under which the company can request that license? It says royalty free, but royalty free doesn't mean free? What if the developer sells it to a third party, does that license persist?
It's not a contract, it's a transfer of copyright, which is a VERY different thing (as SCO learned to their ruin). The transfer would be valid if it were written on the back of an envelope. There is no requirement for consideration... a copyright can be transferred as a gift, or bequeathed in a will for that matter.
http://www.copyright.gov/title17/92chap2.html#204
But if it makes you feel better to treat it as a contract, you can use this form:
http://www.copylaw.com/forms/copyassn.html