Getting Paid To Abandon an Open Source Project?

darkeye writes "I'm facing a difficult dilemma and looking for opinions. I've been contributing heavily to an open source project, making considerable changes to code organization and quality, but the work is unfinished at the moment. Now, a company is approaching me to continue my changes. They want to keep the improvements to themselves, which is possible since the project is published under the BSD license. That's fair, as they have all the rights to the work they pay for in full. However, they also want me to sign a non-competition clause, which would bar me from ever working on and publishing results for the original open source project itself, even if done separately, in my free time. How would you approach such a decision? On one side, they'd provide resources to work on an interesting project. On the other, it would make me an outcast in the project's community. Moreover, they would take ownership of not just what they paid for, but also my changes leading up to this moment, and I wouldn't be able to continue on my original codebase in an open source manner if I sign their contract."

Comments

Re:Everything is for sale

[Martin Blank]

The value of a non-compete clause varies by state. In Maryland and Virginia, the courts have deemed that they must be of reasonable length, usually no more than three years, and several decisions have limited the duration to two.

In California, non-compete clauses are simply invalidated by the law. They have little (if any) power here.

They can't really do that:

[argent]

Moreover, they would take ownership of not just what they paid for, but also my changes leading up to this moment

If it's been released under the BSD license they can't do that in any meaningful way. The only rights *you* retain in the code you have released under that license is:

* The right to release another version under a different license.
* The right to be acknowledged as the author of the code.
* Some protection from misrepresentation and lawsuits.

You don't have the right to withdraw the code from distribution by anyone that already has a copy, and I don't think you have the right to remove your name from those copies, so what exactly do they imagine they would own?

Re:The dark side (tm)

[debatem1]

The original story has the man as Sir Winston Churchill, going something like this:
Churchill: Madam, would you sleep with me for five million pounds?
Socialite: My goodness, Mr. Churchill... Well, I suppose... we would have to discuss terms, of course...
Churchill: Would you sleep with me for five pounds?
Socialite: Mr. Churchill, what kind of woman do you think I am?!
Churchill: Madam, we've already established that. Now we are haggling about the price.

Thank you, wikiquotes!

Re:The dark side (tm)

[darkonc]

IF you take their offer, I would split it up into two pieces: One would be the value of the non-compete agreement, and the other would be the value of your time going forward. Among other things, ask them for a bulk fee for taking your previous work off the market. and the non-compete agreement.

I can see two paths for this: One is that they're on the up and up and want to hire you for years to work on this project. That's fine, as long as you're willing to walk away from the people that you're working with in the Open Source world, their contributions, etc.

The other is that they hire you for a few months or a couple of years, cite 'creative differences', and then terminate your contract -- but hold you to the permanent non-compete.
This would allow them to torpedo your contribution to the project, leaving you without access to the OS community (and vice versa). They torpedo the project for cheap, and you get left holding the bag.

This is a bit different from a normal non-compete situation (for most programmers) where you go in, do their work and then agree to not compete with what they have you do. In this case you are effectively selling them your previous work. Charge them as if you'd been working exclusively for them for the entire time -- at a high consulting rate, because they already like the work you're doing (i.e. they're not paying you on spec, like is normally the case).

Remember: Until you sign the contract, everything is negotiable. You can ask for a house, a car and a weekend with the CEO's daughter. Whether they give that to you is an entirely different matter.

• Once you put your signature to the contract, things are only negotiable within the confines of what you've put your signature to. (that works both ways)