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."

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....

[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....

[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: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.

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.

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".

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

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.

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.

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.