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?"

Comments

you answered your own question....

[russ1337]

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.

Then it's their code. You may as well be asking them to open source code you didn't write.

Re:you answered your own question....

[fm6]

Not a good analogy. The company doesn't know that the code has commercial value, only that it might.

This is the usual IP hoarding scenario, and there's no point in running through all the issues yet again. Except maybe this one: SLASHDOT IS THE WRONG PLACE TO GO FOR LEGAL ADVICE.

Here's some practical advice: go to your boss and say, "OK, you don't want to this code, why not give me permission to open source it? It will make the company look good." They might well say, "Hey, that's a good idea! Go over to the legal department and have them do the paperwork for you, so you don't get in any trouble."

Re:you answered your own question....

[schi0244]

I'm a lawyer who has to deal with many IT/IP issues on a weekly if not daily basis. This is exactly the wrong place to ask for or have legal advice rendered, and what I say below is NOT to be construed as legal advice either.

As stated earlier, and in other posts, you have essentially answered your own question. The answer depends on how persuasive you are. Management is not going to allow even antiquated code out to pasture in this manner if you cannot rationalize a business (ie: MONEY) reason that they should permit it. Without knowing your industry, product or application I have little to go on, but management in my company (including myself) would rather play it safe & not cannibalize their market by permitting the world access to something they paid for.

Finally: If you don't get the answer you like, don't contravene management. You will pay for it in some fashion.

There's an example accompanying the GPL

[RGRistroph]

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.

Open sourcing what you don't seem to own

[NetSettler]

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.

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.

You didn't read the summary.

[HappyEngineer]

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".

Try this instead ...

[tomhudson]

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. They get some publicity out of it, and maybe some interest in their other products
2. If it eventually gets really interesting, they have another revenue stream as THE ones to go to for support, feature requests, etc.
3. It can give them a relatively painless way to test the whole open-source model

Three things you need

[gujo-odori]

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.

Actually, his question was somewhat different...

[PaulBu]

Hi (or she? :) ) just wants to TRY:

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 :) ), 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.

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.