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

Just walk into the CEO's office:

[smittyoneeach]

"Mr. Ballmer, I'd like to release some code for the new MS Office under the GPL.
It's some of the UI code that people might really enjoy being able to, you know, work with a little better."
No doubt you will chairish the moment.

Re:Just walk into the CEO's office:

[dave_leigh]

Sure, why not? That's exactly what I did. So they typed this up on company letterhead:

"This letter is confirmation that [Company] transfers to you all copyrights and license rights for the Lotus Notes screens and databases you developed for us in 2002. You are free to use or sell the product at your discretion without fees or royalties to [Company]. In other words, you now own the software. We do ask that you destroy our client-specific data." It is signed by the CEO.

See? No fancy legalese necessary... plain English works just fine.

Your reply sounds like you would expect ridicule for such a move, but nothing ventured, nothing gained. The best thing that can happen is you get the code. The worst is that they say no. It takes a heap of cowardice to turn down copyrights for fear of one two-letter word, IMHO.

In my case the sales pitch was simple: "You're not going to use it. But I've invested a lot of effort in this and would like to see that not go to waste. Give me the code and I'll continue to improve it and fix bugs. And in the event that the new system doesn't work out for you, I'll license the improved code back to you royalty-free in exchange for the copyrights you transfer to me now. This mitigates the risks of your conversion. It's the best insurance policy you can have, and it costs you exactly nothing."

Re:Just walk into the CEO's office:

[dave_leigh]

Yeah, I agree with you. I rather expected such a clause and was mildly surprised not to find it when I received the letter. However, you have to keep in mind that I'd already said my intention was to open-source the code and I had a history of delivering on promises. They kept a copy of the original code and would not have had to come back to me for it. Add to this the fact that they really were abandoning the code and thus probably didn't fully appreciate its value. This adds up to low perception of risk on their part, and they didn't include the clause.

So I guess I should amend my earlier comment: the best that can happen is that you get MORE than you ask for.

IMHO, the simpler the agreement the better. Every additional word adds the possibility of loopholes, which is probably why the FSF's suggested copyright waiver is so tiny. IANAL.

Re:Just walk into the CEO's office:

[reebmmm]

I have to admit, I rolled my eyes when I saw the text of your letter agreement. I hope that no one else uses it.

First, your agreement might fail if there were a dispute since there appears to be no consideration for the assignment of rights. There's not even the nominal $1 token-consideration (even if that would have worked). Without consideration there is no agreement; no agreement means no assignment of rights. That said, you could probably argue that your offer at the bottom would be parole evidence of consideration, but that's outside the four corners of your letter agreement. However, like most attempts, your letter agreement fails to get the business deal right and probably fails for that reason.

Second, from a writing perspective, it uses a funky tense and lacks timing. Is this the agreement or was the agreement sometime prior and this is just a follow up letter (this letter is confirmation). That's just sloppy. If this is just a confirmation, which terms would govern? And, when did the transfer actually occur?

Third, you make a very common mistake sometimes called "elegant variation." Is this an assignment [first sentence], a license [second sentence], or a sale (transfer of something tangible) [third sentence]? Those three things are not necessarily synonymous.

Finally, while I do agree that nothing fancy is necessary to effect a transfer, you haven't done it very well.

Re:Just walk into the CEO's office:

[Lumpy]

The best thing that can happen is you get the code. The worst is that they say no.
Actually the worst that can happen is that you have to redesign it again.

They dont have copyright on your idea, so if they say no, do a complete rewrite in a different language or direction. It's different they cant sue you or squat.

I did that on several projects I created, I sell them though, It's boring vertical market stuff for large sales forces and of zero interest to the community.

Re:Just walk into the CEO's office:

[homey of my owney]

What a load of horse shit. You write this as a lawyer, and post as an AC. Because you have no real idea that this is in fact legal. You think in your perfect world that it should be.
Risk your on finances, thanks.
My advice is to write up something like "You don't feel there is value in this, I'd like to post it and work on it on my own time." Present it to your boss. You and they will feel good about your honesty and straightforwardness.

Re:Just walk into the CEO's office:

[reebmmm]

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?

Re:Just walk into the CEO's office:

[dave_leigh]

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

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....

[BitZtream]

Who modded this flamebait? Its the reality of the situation, its not 'his code' it is 'the companies code' if he wrote it under what would be considered time they paid him for. If he did it completely off work resources and outside the scope of work, its another story, but it was obviously written with knowledge of a work requirement since they were using it, that implies work resources were put in on it even if its nothing more than 'my company needs this' because he had inside knowledge. If you don't like these terms, don't sign the employment contract or negotiate the right to do your own work outside the company under your own license. Thats what I did. The only catch is that my company has the right to use any code I develop while I work for them (but outside of work) for their own products, including modifications. Which works entirely fine by me as it means my CVS repository is backed up on servers at my office as well, the versions stay in sync because I make sure that any changes that need to be made to my code get done in my free time and imported back into the repository at work. We both benefit. They get free code, I get to work on things without fear of being hassled about it later. I must admit though, the owner of the company I work for treats his employees as if they are his own children, so this is probably not your typical setup at but its been that way at the 4 small companies I've worked for.

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....

[samkass]

According to the original poster, the company is developing new code to replace the same function. So it's like asking the company, "Would you like the code you paid for to be competing against your new product?"

Re:you answered your own question....

[drooling-dog]

why not give me permission to open source it? It will make the company look good. Well, I can think of one reason why not. He said the code was supplanted by other code that performs the same function. That seems to imply that the company's new product may one day be in competition with older code that it paid to develop, and that its author continues to work on despite being an employee. Sounds like a tough sell to me!

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.

Re:you answered your own question....

[dedalus2000]

according to the original poster the company is replacing the original code with a new product that replicates it's function. which seems to mean they are replacing custom code with a purchased solution.

Re:you answered your own question....

[adamkennedy]

"Insightful"?

It isn't anything at all like "Would you like the code you paid for to be competing against your new product?"

He mentions nothing at all about the code being income-generating, something the company actually cares about, or that they are developing new code to replace it.

They are going to "abandon my code for another product that replaces its function" by which he probably means he wrote some code to solve a back-end problem that has nothing to do with what the company does to make a profit, and now they are scrapping his pet project for a product from a vendor.

He believes enough in his solution that he wants to keep it and doesn't want to see it die.

Re:you answered your own question....

[Firehed]

That's only the case if the software/code in question is sold by the company. Say it's used to make part of the company intranet or something - while they could be 'making' (read: saving) money by having that code in place, it's not being sold. Releasing it for anyone to use wouldn't be at all in competition with the company. I suppose it would allow some of their competitors to gain a similar advantage in regards to their own operations, but that's quite situational and isn't necessarily a bad thing.

Re:you answered your own question....

[kripkenstein]

According to the original poster, the company is developing new code to replace the same function. So it's like asking the company, "Would you like the code you paid for to be competing against your new product?"

You make a lot of assumptions there. Perhaps all of this code was meant only for internal consumption (like the vast majority of code written in the world), so competition is irrelevant? Or perhaps the reason for replacing the code is that requirements have changed, and the two projects are in fact substantially different?

Perhaps the original poster can clarify. Meanwhile I wouldn't jump to conclusions.

Re:you answered your own question....

[Bu11etmagnet]

why not give me permission to open source it? It will make the company look good. Well, I can think of one reason why not. He said the code was supplanted by other code that performs the same function. That seems to imply that the company's new product may one day be in competition with older code that it paid to develop, and that its author continues to work on despite being an employee. Sounds like a tough sell to me! Bringing up this argument against open-sourcing the old code is tantamount to not trusting their new code to be better.
Here's an example of proprietary software released as open source, which benefited the original "owner": URL:http://ceps.sourceforge.net/

Re:you answered your own question....

[dfung]

Actually, I think the situation is actually much worse than this.

There are lots of reasons beyond code quality that a company might choose to outsource some program functionality of variable degrees of goodness. Perhaps there's better support, perhaps it's cheaper than developing and maintaining it internally. Perhaps the new module has similar functionality but the vendor provides it as a part of something with greater overall scope (in my past lives, a lot of internally written code existed to provide a subset of functionality of something that would have been prohibitively expensive to license because of all the stuff we wouldn't have used!).

If I had developed function x for a company and that module was being replaced, it's not a far stretch of the imagination that I would continue to work on code in that general area. Depending on how "black box" the new functions are, I might even see the internal workings of the licensed code. Even if I never saw the implementation, I would certainly see the interfaces and architecture.

If that's the case, then my involvement with a similar open source project is potentially quite toxic. The open source project is tainted by contact with somebody's proprietary work. Certainly, the external vendor isn't going to be appreciative of what's going on, despite any statement of good intent on the part of the programmer.

And this programmer is still an employee of the company that's bought the license, almost certainly including terms to honor the intellectual property. So, it's not only a matter of the external vendor being mad at an individual working on an open source project, this person is an employee of a licensee, and the licensee granted permission and transferred copyright on what is becoming a competitive product.

On top of that, if the employee wants to continue to actually work on the open source project, they're in continued violation of their contract because what they develop belongs to the company.

This one is so easy that it's a total no-brainer. If they release the original code for somebody to open source, then they are open to liability and litigation. The well-meaning but naive employee will probably lose their job. Or they can just say "no" and have no hassles.

The only way that you'll get this sort of copyright release from management is if it's dead-ended work - the company isn't working on it anymore and nobody else is either. And, I imagine that most companies would probably go even farther than that and say that the employees that worked on this code probably can't work on the open source project anymore either.

Now, if it meets these criteria - it's really being cut loose for the benefit of previously uninvolved parties, then it really has the possibility of being positive for the company without downside.

Re:you answered your own question....

[doktorjayd]

I'm a business owner. Been one for over two decades, with employees. I know how employers think. heh, and if you're like most of the 'business owners' i've ever met, you probably think you're the only one who knows how to do things, and everyone else smokes crack!.

If you never never go, you'll never never know will ya?

+1 take it to the company and try your luck, they can only say yay or ney, right?

(BTW, only a truly terrible employee would be worried about mentioning this to a coworker, Harmonious Beach, let alone worry about mentioning to co-workers. and if it made an employer uneasy, probably time to get the fuck out of whatever business Harmonious Beach runs... do you run your business as some kind of fiefdom? or would you be happy to surround yourself with yes-men like the emperor with his new clothes? ( http://en.wikipedia.org/wiki/The_Emperor's_New_Clothes ) )

Re:you answered your own question....

[mattpalmer1086]

I did something similar a few years ago, for a company I felt equally warm about. I hope you have got all of that in writing though.

When our little company got merged into a bigger one, their lawyers tried to take my code. I pointed out my modified contract, and told them no way! They came back and said they would keep using my code, but only if I accepted liability for their use of it. I told them they were still welcome to continue using my code, but at their own risk, or, of course, they were free to strip it out entirely if they weren't happy. If they hadn't agreed at that point, I was going to request full commercial licensing fees from them (they had been using it for free up to that point, and I had sold commercial licenses to many other firms). They agreed :)

Anyway, moral of the story is that no matter how good your relations with the company, you can't guarantee you will always be dealing with the same people, so get it in writing!

Re:you answered your own question....

[Basje]

Hey, another lawyer :)

But I concur. There is too little information to go on to give any counsil beyond general observations.

That said, business reasons include a lot more than just money. Worker satisfaction is another reason, often overlooked. If pitched right to his company, an essentially worthless (to them) piece of code can have a positive effect on morale.

It can also be used for free publicity: require a "sponsored by [company]" tag somewhere in exchange for releasing the code. However, never attach the name of the company to the software without their express consent!

Re:you answered your own question....

[CmdrGravy]

You seem to be under the impression that nothing in the world ever changes, this is an observation which is obviously incorrect. For example if Hertz initally have the best deal for rental cars there's no guarantee that in a years time Avis won't have improved it's offerings and be able to do you a better deal.

Blindly assuming that one is better than the other and discouraging anyone in your company from actually finding out if thats the case is a a good example of moronic stupidity.

Re:you answered your own question....

[Harmonious Botch]

...if you're like most of the 'business owners' i've ever met, you probably think you're the only one who knows how to do things... That should be modded insightful. Seriously. Yes, every business owner does think he knows how to do it better than the other guy. That is why he started the business. And it can't be otherwise.
Please consider the possibilities here: when starting a business, you can do it worse, or the same, or better. Nobody in his right mind will start a business with the belief that he will do it worse. Nor will anybody start a business to do just doing the same as the other business, for the other business is established and thus has a head start. You only start a business if you believe that you can do it better in some manner...a better location, a cheaper supplier, a better product, more efficient software...whatever it is, the owner believes that it is better. If he is right, he makes money. If he is wrong, he goes broke.

It is a self-reinforcing process. A person starts a business with a certain idea, and if it makes money, he concludes that it does so because he was right.

Thus all businesses are founded on some proposition. They all have some core belief that defines who or what they are. It is just the inevitable result of the process by which they come into existence. It is almost like a religion.


I'm rather surprised at the vehemence of the responses to my original post, as if the responders thought that I was in favor of businesses being the way they are. I'm not - and never said that I was. I merely described how things are. Sorry if you folks don't like it, but please don't shoot the messenger.


About my business: Among my peers - other business owners in the same type of business here in the same city - I'm known for being the most flexible, and the easiest to work for. That is because I know that I have my biases and beliefs that underlie my business philosophy, and I know that they may well be irrational. And I tell my employees when I offer to hire them that there are certain ways we do things here, and that alternatives are heresy. So they know from the start what can be argued and what cannot.

The really dangerous boss is the one who thinks that he doesn't have a bias, who tells you that he will consider any alternative. Then, when you do say something that challenges some core belief that he didn't realize that he had - or does not want to admit that he has - he turns vicious.

Re:you answered your own question....

[Viflux]

The biggest problem with what you posted is the assumption that being right in the past (about how/when/what to launch as a new business) inherently makes your future opinions more likely to be right.

Re:you answered your own question....

[FuzzyDaddy]

at your next job interview, ask the owner if he posts as Harmonious Botch on slashdot.

Admitting to reading slashdot in a job interview isn't probably a smart move in any event...

Unusual?

[nurhussein]

"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.

If you wrote it for them, it's not usual that it belongs to them, is it?

Re:Unusual?

[Entrope]

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.

Re:why

[tepples]

[why] are you asking people from Slashdot. Why don't you approach your company and ask them what they think? Because AC is asking Slashdot how to best approach the company.

Sometimes they are worried about liability

[EmbeddedJanitor]

As parent says, they own the code. If they want to abandon it they still own it and don't automatically abandon rights to the code.
Ask them if they are prepared to release the code and if not, why not.
If their major concern is laibility, then get the code signed over to another party who will shield them from liability. THis might be yourself or EFF or whatever.
If they still won't well you're screwed as it is theirs.

Simple, maybe?

[BitZtream]

Print the code you want to release, pedantic I know, but legal folks like paper. Draft a simple document that says the attached code is going to be released under XXX license (whatever you can agree on with them) and that the company agrees to the action and that any derivation/modification to the released code is copyright the respective author going forward (your choice of license probably will take care of this for you).

Affix the license, the document, and the code. Have a legal officer of the company sign the document, initial all the pages of code and the license in front of a notory, and have the notory do their thing and seal it.

Should work for any trivial amount of code. As was joked about in another post, I doubt you'd want to try this with Ballmer and the Office code base, but if you think your company will let you get by with it in the first place, its probably enough. The key thing is that you've got their sig and its notorized properly so you can't be sued later for releasing their IP into the public spotlight without permission cause lets face it, once the code is out there, they aren't going to put it back in the bottle, they at best will sue you for releasing it.

And you came to /. with this problem?

[rhadc]

You need a laywer, sir.

Re:And you came to /. with this problem?

[pvcf]

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.

Re:And you came to /. with this problem?

[QuantumG]

You must be an American... what is *with* you people always reaching for the lawyer every time some little conflict with another person comes up. Stop being a pussy and fight your own battles.

All he has to do is ask his employer if he can have the code. Get the agreement in writing, yes. Hire a lawyer? What the fuck? If I was his employer and he hired a lawyer, I'd fire him.. and don't say I couldn't, I'd find a reason.

Re:And you came to /. with this problem?

[Neoncow]

So is it safe to say that lawyers are like XML?...

Re:And you came to /. with this problem?

[tknd]

what is *with* you people always reaching for the lawyer every time some little conflict with another person comes up

My entrepreneurship teacher put it best: "people come after you the second you have lots of money." The reason why everyone says "ask a lawyer" is because if you happen to make lots of money and some big business guy comes at you with a lawsuit and wins, you're fucked. Even if they don't win, as long as they have deeper pockets than you, you will lose the court game or they'll sink you with lawyer fees.

People don't like lawyers because it is an ugly game where the only winners are the lawyers.

Now sure, if you bother to read all the documents you sign and actually understand them as well as the boatload of BS laws in the US, then you can cover your own ass without legal advice. But it's pretty damn clear this guy isn't sure about a lot of those laws therefore asking others on slashdot is a poor alternative. That's like going to a bar and asking some random dude how to start a business.

This situation is probably as simple as taking a copy of the GPL and asking the company if they're willing to release the source under the GPL license. But the most likely answer from the company will be "no" not because they want to be a dick to you, but because their allegiance is to investors or the owners of the company. So if 2 years later the GPL'ed source code happens to turn into something like Linux, you can sure bet there would be something like chairs thrown at people that were once managing the company (or worse).

Re:And you came to /. with this problem?

[StrixVarius]

"You must be an American?" You serve as an excellent example that not all computer geeks are smart guys. Did you just use the term "you people" in stereotypical fashion? Cheers, H

Not yours

[BalanceOfJudgement]

Sorry dude, you're out of luck. The code is still theirs. Their ownership of it is not predicated on whether or not they actually decide to use it.

You can always ask them if they'll give it to you. I've done this successfully. If they really have no interest in it, they might be willing to discard it.

Explain that it lower your costs

[snowtigger]

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 :)

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.

Re:There's an example accompanying the GPL

[pete-classic]

I searched the replies to this story desperately, praying that someone else had actually read the freaking GPL.

It appears that the GPL v3 still carries the admonition to get a copyright disclaimer, but has had the "Yoyodyne" boilerplate removed.

-Peter

Re:There's an example accompanying the GPL

[STrinity]

Ty Coon, President of Vice"

That's racist.

Copyright transfer agreement

[itsybitsy]

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.

Talk to your manager

[SSpade]

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.

That depends

[caller9]

Why was your project dropped?

Politics / Good 'ol Boy / Politics

-OR-

Bad UI / Past due date / Hard to modify / Poor interaction with existing systems / Can't talk to financial systems / not profitable to deploy / No audit logs / whatever.

If the former, keep plugging at it but get a lawyer. If the latter, save everyone some time and refocus your efforts. Tough love, sorry but serious.

You can prevent it happening in the future

[nano_sprite]

I would suggest starting any project by building on another project that is already open-sourced therefore the GPL or whatever license would mean that your new project is automatically in the public domain.

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.

Re:why

[cyphercell]

Oh, come off it man. There's all kinds of stories posted on slash relating to IP and the Law. Plus this guy obviously doesn't know anymore than the rest of us, so maybe he's just looking for another goob that's been there. I think there's been some good advice around here. Personally, I'd go to a paralegal, but I don't think he's looking to spend any cash. So, someone that might have personal experience is really the next place to go. If you don't like it why not just GTFO?

I do this regularly, but...

[adamkennedy]

I do this all the time, in fact most of my open source code was done on someone else's dime.

Your situation is going to be tricky because you (I assume) don't have a precedent of doing it (they didn't hire you based on your other open source work) and don't have any agreement in place. I also assume you are a permanent employee instead of a contractor (it can be easier to open source work as a contractor in some countries).

The above stuff isn't critical, but it smooths the process.

What's tricky for you is there aren't any good BUSINESS reasons for them to do it either.

If either your code, or the code that replaced it, is profit-impacting then forget it. No sane company would open source a profitable codebase, nor will they risk releasing an old product that you could then take and create a competitor.

The best arguments for open sourcing in a company that isn't a software company are:

1. Having other users means free testing, free reports, maybe some free patches. In rare cases, it means you become the industry standard/leader in an area (and control is good, from a company perspective).

2. Because you will continue working on the project after you leave them, they in effect continue to retain you as an employee without having to pay you.

Those are the direct benefits, there's more reasons (mostly more subtle).

Sadly, neither of these apply in your case.

You are in effect dumpster-diving in their repository, asking for charity. And your work on that codebase could well distract you from your new one.

It might be possible, but it's going to be damned hard.

Good luck though.

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".

Bad luck

[bennnose]

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.

Re:why

[ilikepi314]

Perhaps its a new reader trying to get involved with the community (and perhaps asked several places to try and get the most eyes)? It is true that these things have been discussed liked crazy on /., but largely only in terms of lawyers and copyright laws. I don't recall anyone recently posting how to interact with their bosses on the matter. I'm sure there needs to be some level of documentation, but what does that consist of exactly? You'd want to make sure its documented so that if it is open-sourced and becomes popular, no one can come back and say "I didn't authorize this! It's all ours!". But what sort of documentation? Was it a long process, or was it as easy as getting someone to sign one paper saying "Program X is hereby released under the GNU GPL -- signed, The Big Guy, Some Company" and so took all of 30 seconds? Someone here may have dealt with it and can offer some advice that may be more reasonable that someone on the GPL forums, whom only knows what the license says but has never actually bargained with a boss or CEO to get something released.

And if nothing else, its polite to give help when you can. Responses such as yours are a big reason people don't like to learn about Linux or technology in general; whenever they attempt to get involved and learn, they just get yelled at for being newbies and told to go elsewhere. The open source community may have lost a genius member just now because you decided to be a jerk and therefore put off the asker from even wanting to write open source software anymore.

Just remember this next time you have a question about anything (which is inevitable). I don't want to hear it when you're stuck with no answer because everyone yelled "Get lost! You should know the answer."

Just ask?

[bunyip]

So, here's a theory - how about just asking?

I work for a large software company (about 10,000 employees) and have released a couple of things into open source. We use Linux / MySQL / Apache / Spring / etc in a big way. A colleague and I wrote some MySQL utilities and some other bits and pieces, but the code we wrote didn't really give away competitive secrets, so I went to my management and asked - and they said "yes".

My company has contributors to at least a half-dozen open source projects that I know of. For example, se use Apache Camel and we contribute. It makes sense for us to share, because the sum of what we get back from the community is more than what we put into it individually (and we give away no secrets).

Now, if the code you wrote is something a competitor could use against your company, don't both asking, you already know the answer.

Alan.

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.

It might not help a competitor

[EmbeddedJanitor]

If fact it could even hurt a competitor.
If the company decided to dump a project because they are moving out of that business arena, but the competitor is still staying in that arena, then opening up the code will dilute the competitor's position.

Re:It might not help a competitor

[neonmonk]

Meh. Personally I would just do it. But that's because the companies I've worked for have been so clueless that they wouldn't find out about it ever anyhow.

Re:You're screwed

[harlows_monkeys]

NJice rant. Too bad it has nothing to do with the question at hand. The questioner specifically said the code was written for work.

When was it conceived

[JWSmythe]

More than likely, your idea is property of that company. Not only the code you wrote while you were there, but any ideas that you formed during the same period.

    For example, I had an idea while working for one company. It was to be an internet monitoring software, that would watch multiple points across as many providers as we could manage, map out the traceroutes, and show not only the common peers that those traceroutes passed through, but would effectively show when any peering point was having problems.

    They grabbed hold of it, and offered me 5% of the "profits" of the company. That's the day I stopped working on it.

    Technically (if they remember), they still own the idea. If I were to start working on it again for a commercial venture, they could lay claim to it. It's not a matter of what was written, but the idea behind it.

    You may win in court, but it will be a long drawn out court battle that you probably can't afford to gamble with. If you win (which you may), you may win a lot. If you lose, you're going to lose a lot. Not only your legal fees, but their legal fees, and whatever the judgment is against you, as well as your intellectual property.

    My advice is, when you have another great idea for something, STFU. Don't tell them anything. Wait until you're no longer under any sort of contract, and then "start" your development on it. You can start working on it on the side, but be very very careful that there's nothing to document that you were working on it during the period that your contract with another company is under effect.

    You may want to re-read your contract too. It may not cover just what you conceptualize while as their employee, but anything for a period (6 months to a year, I've seen in various contracts) belongs exclusively to them.

re-write it and open source it

[jb.cancer]

Your company only owns what you wrote for them using their resources, the stuff that's on their drives. They don't own what's in your head. My advice: Re-write it and open source it.

Ask them

[kaszeta]

Well, if you signed a contract[1] that says that even the stuff you wrote in your spare time is theirs, well, there's exactly one way forward....

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.

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.

Just get them to license it to you

[iabervon]

Assuming you want it to be purely open source (and not sell proprietary licenses to it, like MySQL, for example), just ask them to license it to you under the GPL or BSD license. Either of these gives you, as licensee (it doesn't matter that you wrote the original code) the rights that you want, and they're well-understood documents. If they can't understand those licenses, they really have no business licensing their software to customers. And if they're not okay with licensing the software to you under those terms, they won't be okay with any document that effectively allows you to get that license to the software (and may also transfer copyright).

As far as whether you should try to get the copyright, having this company own the copyrights and only license it to you under the GPL and then have you work on it and only license your changes under the GPL means that nobody can change the license, since neither of those two copyright holders are likely to agree on a change. This can be preferable for end users over having a single copyright holder who could legally take future versions closed-source.

Why bother open sourcing the old code

[Orion Blastar]

when you can write a different way of doing it with new code that uses a different way of doing it on your own time, that isn't like the old code or the code they replaced it with?

I am sure that over time your coding has improved, and you might be able to find a different way to do the same thing that isn't the same as your old code or the code they used to replace it.

That is unless your employment contract states that even coding you do on your own time still belongs to the company. If so, wait until your contract is over, or the employer changes the contract to allow you to write code on your own time that belongs to you and allows you to open source it.

As long as the new code you write doesn't use code from the old code or the code that replaces it, nor is it written on company time or the contract doesn't somehow prohibit you from writing it so it isn't the property of the company you work for, you should be able to write open source code.

The old code can't be that good, as they replaced it with different code. Chances are that you can find a better way to do the same thing with different code that doesn't violate any contract you have with the company.

Anyway I agree with others, you should be talking to a lawyer instead of Slashdot.

Re:Actually, his question was somewhat different..

[jhol13]

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.

It's just the ol' Prisoner's Dilemma

[zippthorne]

The problem is that 'Lawyering' has achieved critical mass. It's pervasive enough, and effective enough, that if you choose to forgo an advocate in any dispute, you lose. period. The other party is going to lawyer up and in the contest of lawyers vs. no lawyers, you're not going to win. Even if your case is obvious, you're still going to lose because you can't articulate its obviousness in the language of the court.

Therefore, if you know you're going into a situation in which there is a nontrivial chance of a dispute developing, it's unfortunately necessary to consult an expert to make sure you're not exposing yourself to unnecessary risk.

Re:Dear Penthouse

[1u3hr]

Has anyone else been in this boat

Actually, in Hong Kong the last week there has been a huge "sex photo scandal". A male pop singer, Edison Chen, had a string of actress and pop star girl friends, and apparently had the habit of taking their photos in bed -- very explicit photos too, as became public knowledge when he took his laptop in for repair...

Here's a forum with the (NSFW) photos and some background.

And unlike, say, Britney or Paris, these girls had squeaky-clean teen-idol images did not benefit form the publicity. As for your question, the guys who leaked the photos have been charged and some arrested, though it's not really clear why these images are any worse than a billion others you can find online, except of course they involved celebrities.

You've got it all wrong.

[raehl]

The company needs to retain copyright, but release the code under the GPL, and have their employee continue to work on it until it is so good that the competition has to steal it. Then they wait until their competition has sold their closed-source product with the stolen code into critical application areas of their customers, then sue the competition for copyright infringement.

Much, much cheaper than developing a complete product on your own.

At least, that's what any smart attorney for your company who bills by the hour would tell your company to do.

Used to be in the boat -- now it's my boat

[holophrastic]

I used to be a programmer for someone else, and I too was under the same restrictions -- as one would expect. When I started my own company, I decided to change things a little bit. I don't like restricting my programmers from owning their own code because it does an excellent job of eliminating their passion and the loyalty that programmers tend to have for their own programs. I legally own my car, but it's my mechanic who really owns it. Same goes for programming -- the programmer is the one that really owns it, independent of the legal ownership.

So my employee contracts adjust that infamous clause to say something to the effect of: "any code entirely written by you is yours to use any way you see fit, forever, for as long as you don't restrict the company from using it". It amounts to the programmer granting the company unlimited usage rights, and does not stop the programmer from using it or selling it or doing anything else with it.

The big condition is, of course, that the programmer have written it alone. If two programmers work together on a feature, then neither gets it. But a) that's rare: I don't think that two programmers should be coding the same thing -- extreme programming doesn't count as that's more supervisory than co-programming; b) individual functions and algorithms are not complicated enough to warrant multiple programmers; and c) my product is the entire package, not the individual functions, algorithms, and subroutines; so if my excellent custom e-mail client has an amazing sorting algorithm, my product is the application, not the sorting algorithm; in cases where my competitive advantage is indeed the sorting algorithm, then I promise that not only did it not rest in the hands of a sole programmer, but that I too was a part of its inception and design.

Get the copyright

[Yvanhoe]

If the code is abandonware, tell your company that you are willing to maintain support on your free time if you can get the copyright on this obsolete code. IANAL but if you get the copyright, I believe it gives you the right to change the license and it may be easier to agree on than an open source licence that most IP people ignore or dislike.

Why these questions are on /.

[JavaRob]

I love these two sentences together:

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 [...] In other words, this isn't the right place for your question... BUT yeah, you're getting actual feedback from a professional lawyer who works regularly with IT/IP issues.

Why do people always say these questions don't belong on Slashdot? This question is the perfect example of how Slashdot *actually* works vs. how people *imagine* it works.

The question: I want to open source some code I wrote for work that the company is scrapping.
Expected Slashdot answer: Just do it! Don't ask The Man, he'll only push you down... OSS FTW!!1!
Actual Slashdot answer, overall: It's possible, but you definitely don't have the rights to that code, and it's probably not in the company's best interest to give them to you... so it probably won't hurt to ask, but chances are you'll need to find another project.

Included in that actual answer: details from other developers who've been in the same situation, and comments from actual IT lawyers who work with these issues.

So -- wrong place?

Yes, none of this is "official" legal advice (though about as close as you can get for free & online), and if the questioner wants to try something risky, he should pay to get that legal advice... but now he knows what "risky" even means in this situation (he didn't know before) and has some idea of if it's worth pushing for it (probably not).

So: can we just hash out a new feature for Ask Slashdot postings? Have the editor just flag the question as "responses might contain legality discussions"... and automatically include regular disclaimer text saying "reminder: comments in this discussion are not legal advice." Or add a checkbox to the reply form, next to "No Karma Bonus" and "Post Anonymously", called "Include Not-Legal-Advice Disclaimer"?

Then we don't need to fill the comments with all of these disclaimers and warnings, and the actual lawyers don't have to worry about someone pointing back to their comment as "rendered legal advice" and holding them responsible for it being a complete and accurate answer. And (this is not a response to the parent) we can start smacking down the people who always post "Don't ask Slashdot - get a lawyer!" to every single Ask Slashdot story, looking for cheap karma.

My $job rocks

[BigLug]

I wrote a perl library for work that has nothing to do directly with the business we're involved in. (Imagine we make car parts (we don't), this library makes it easy to add text to PDF files (it does))

I felt that the work I'd done might help other people, and as we use many pieces of open source software, I felt it might be nice to "give back". So I asked the boss if there was any way they'd consider open-sourcing the library.

He went one step further and said not to bother putting the company name on it at all. He understood completely that as we use open-source software all over the place, opening something that wasn't business critical made good sense.

Maybe the OP's boss would see the same logic -- or even retain the copyright but GPL the code for the OP to work on in his/her own time.

Didn't you guys take English in HS?

[Bobb Sledd]

I bet you guys actually did real work in HS English class. Did you not learn how to properly plagiarize?

10 PRINT "Hello world."
20 END

*** BECOMES ***

13 REM \\\This code originally created by ME!
16 MESSAGE_PART_ONE$ = "HELLO"
17 MESSAGE_PART_TWO$ = "WORLD"
21 MESSAGE_CONCAT$ = LCASE$(MESSAGE_PART_ONE$) + " " + LCASE$(MESSAGE_PART_TWO$) + "."
25 MID$(MESSAGE_CONCAT$,1,1) = UCASE$(MID$(MESSAGE_CONCAT$,1,1)
28 OPEN "TXT.OUT" FOR OUTPUT AS #1
31 PRINT #1, MESSAGE_CONCAT$
33 CLOSE #1
36 SHELL "TYPE TXT.OUT"
39 GOTO 500
500 END

Guess what you open source. Let someone else make it efficient again, and it becomes original code and if it happens to look identical to what you had at the company, you have version differences to back up that you came up with it on your own.

It's a very BASIC skill, really. :-)

See, in copyright law, it is perfectly fine for two people to have a copyright on exactly the same text, so long as they came up with it independently.

Now a patent is another ball of wax...