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

The dark side (tm)

[Gewalt]

You can't begin to imagine the power of the dark side.

Re:The dark side (tm)

[ShieldW0lf]

You've been doing work on this project and contributing the results of your labour back to the pool of common ideas. Why?

Did you ever feel pride in your efforts, pride in how they were contributing back to humanity, pride in the fact that you were sharing?

If you did, and you do this, you will be a shamed man. Not to us. To yourself. You'll probably end up using cognitive dissonance to transform yourself into a more callous and selfish individual to escape the dichotomy.

How bad do you need the money? What are you prepared to do to yourself to get it?

Re:The dark side (tm)

[BPPG]

Try to negotiate a little about the non-competition clause. Although if it doesn't work out, it would be reasonable; they don't want you duplicating the work that you do for them.

But if there's any worries, it shouldn't be about the FLOSS project concerned, it should be about whether many other FLOSS devs get "hired away". Is this an increasing trend, or just a special case?

Anyhow, definitely take the money. Even if it is an increasing trend, it could actually encourage more people to get involved in FLOSS projects. Major contributions to FLOSS projects look good on a resume.

Re:The dark side (tm)

[cayenne8]

My first questions was:

How much money are we talking about here??

At the very least...if you're gonna do this, make it VERY much worth your while. Don't go to work for them....contract out to them. Also, don't sign away all your rights, rather, if it is that important to them...have them cut YOU a percentage of profits, or get your name on the patent too if it is a patentable idea.

Sounds like this guy is thinking way too small....if you have to suck up a little pride, make sure you are doing it for the right price...don't think so small as to just sell out to have a normal 'real job' type thing....

Make them pay...

Re:The dark side (tm)

[the_womble]

Surely the same would apply to any proprietary software? Are you saying that he would be shamed by working for any proprietary software company? I have worked on proprietary software, I do not feel shamed. I would have preferred to work on free software, of course, but no job is perfect (and there is no free software in their market either).

I do not see any ethical problem here, as there would be with a company that was stealing GPLed code. Anyone contributing to a BSD licensed project is saying, quite clearly, that they are happy for people to develop proprietary forks.

What it comes down to is whether he prefers the job or involvement in the project.

Re:The dark side (tm)

[Anpheus]

He's obviously already a heretic whose head should be put on a pike and bandied around the halls of the FSF, because, well, duh, BSD licensing is practically the same thing as throwing your code in a junkyard or landfill. It's a travesty.

Now everybody get your torches and pitchforks, and chant "G-P-L," repeatedly if you will.

Re:The dark side (tm)

[PC and Sony Fanboy]

I once heard a story. It was about a man, who offered a woman $1,000,000 to have sex with him.

Of course, she said yes.

Before they started, she demanded the money up front. He handed her $50, to which she exclaimed "What is this? What sort of woman do you think I am?"

To which he replied "Madam, I think we've already established that, what we're doing now is quibbling over the price..."


Also, you could take a hint from dark-alex, of the playstation portable homebrew scene - 'quit' the scene, then release the code as someone else. Sure, you won't get the popularity among geeks for releasing open source software, but any employer can check on your work on the 'official' software.

Re:The dark side (tm)

[t0tAl_mElTd0wN]

Definitely a +1 on this. If they want it badly enough, they'll pay. And then to clear your conscience, you can always donate to the project with your newfound riches.

Honstly, if the code is BSD licensed, the only reason they want you to do this is to get rid of competition for their own benefit, which makes them undeserving of a generous price for your time and reputation. It's not like the BSD license would restrict them from using your project anyway, even for commercial purposes.

Re:The dark side (tm)

[Blakey Rat]

I don't even understand.

Negotiate with the company until the terms are to your liking, or until it's clear they're not willing to give you what you want. Start with insisting they get rid of the non-compete clause. If they keep coming back with more money, you just need to decide whether the amount of money they're offering is worth it.

It sounds like you're asking, "I got an offer from a company, and I'm not aware of the concept of 'negotiation'."

Re:The dark side (tm)

[cliffski]

jesus. Taking paid work makes you 'shamed'?
Any 'community' who shuns someone and makes them an 'outcast' because they took a paying job that helps pay the bills mid credit-crunch is a 'community' you really don't need.

This isn't a job offer to work on the manufacture of landmines or shackles for child slaves. It's a job writing code.

Re:The dark side (tm)

[Zelig]

A non-compete in perpetuity is really really cheap for them; they pay you for ... how long? and you're taken out of the game permanently? No deal. Offer exclusive rights to your project-Q time, for as long as they pay you $whatever weekly, plus a six-month grace period.

Re:The dark side (tm)

[Simon80]

The shame isn't from taking paid work, it's because the work comes with terms that remove his ability to continue to contribute code to a project.

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)

[debatem1]

I would be ashamed, although maybe not for the same reasons as the op.
To my mind, this would be the same as working for a vendor and then taking a job working on their competitor's product. It works, but is it ethical?

Re:The dark side (tm)

[mechsoph]

Wait, when did the Red Cross become evil?

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)

Re:The dark side (tm)

[WetCat]

Actually, a lot of people not aware of concept of negotiation. I do not know about US schools but I have an information, that in Soviet Russia there were absolutely no lessons on contracts and how to negotiate. If such person (and there are a lot of immigrants from the former Soviet block) come into the described situation, he'll have some troubles.

Re:The dark side (tm)

[TehZorroness]

Yes. It places no unfair restrictions on the user of the software and leaves (by the FSF's definition) all four freedoms intact. It differs from the GPL in that there is no copyleft language. The code is provided as free software but you are not required to maintain that freedom when you modify it.

I personally prefer the GPL (v3) but people releasing code under the BSD license are still a huge asset to the free software community.

Re:The dark side (tm)

[sumdumass]

Groucho did a pun on it in one of his early sound movies. I remember the "we've already established that, we're hagling over the price" remark in a couple of his flicks. Or was it a couple of times in one flick. Now, I'm going to have to break my collections out and start watching them.

It is likely that he either coined it or pushed the idea for it out there while traveling around the vaudeville circuit. Of course he would have been impersonating someone else which makes it entirely more likely that it would be attributed to other people. Perhaps the impersonation changes with the times and both Shaw and Churchill were saying it in a skit.

However, I'm just guessing on the origins. If I was able to bet on it, there is where my money would be.

Re:The dark side (tm)

[Mr2cents]

And pray they don't read slashdot, since your complete negotiating strategy will be available online. Way to go..

Re:The dark side (tm)

[_Sprocket_]

jesus. Taking paid work makes you 'shamed'?

You might want to pay attention to the context of the statement. It goes like this:

Did you ever feel pride in your efforts, pride in how they were contributing back to humanity, pride in the fact that you were sharing?

If you did, and you do this, you will be a shamed man. Not to us. To yourself...

The idea here is whether the person could live with their decision or not. It's certainly NOT what the community would think nor the idea that paid work is shameful.

Re:The dark side (tm)

[spire3661]

Is how much really relevant? YOu are asking to put a price on his integrity.....

Re:The dark side (tm)

[fishbowl]

The language necessary to make the non-compete clauses as narrowly tailored as the OP seems to believe they are, my not be as simple as it sounds. I would make the non-compete agreement a fully separate contract, with its own consideration. What is the lifetime value of your contribution to the project? What is the long-term value of the rights (reserved under copyright) that you waive under this agreement? Regardless of the employment agreement (salary, etc.), this non-compete business has a value that may well be higher, potentially much higher than the employment situation. Negotiate it separately. Make sure the non-compete agreement is written by your attorney, at their expense, and don't even consider it otherwise. Maybe this means you walk away from a job. I would, just knowing what the OP told us. The company is approaching the OP, not the other way around. I hope the consideration is already huge. At the very least, I would make the non-compete contract for a fixed length of time, which is wise in any case, if not required. They can renegotiate in one year (with a fresh contract, new consideration, etc.)

Never waive your rights for some lump sum unless it's the last money you will need for the rest of your life. Make them decide on an annual basis if it's still important to them to ask you (by consideration) to refrain from exercising your rights.

Oh, and seek your legal advice from an attorney.

Re:The dark side (tm)

[mcvos]

Honstly, if the code is BSD licensed, the only reason they want you to do this is to get rid of competition for their own benefit, which makes them undeserving of a generous price for your time and reputation. It's not like the BSD license would restrict them from using your project anyway, even for commercial purposes.

That's not necessarily the reason. It could be that they need this project, but also need certain improvements, and perhaps need it to move in a certain direction. Hiring an important committer is a great way of accomplishing those goals.

Problem is, by denying him to contribute future changes to the project, they're effectively demanding a fork that they want to maintain themselves. But is that really in the best interests of the company? Because if there are other productive committers still left on the open source project, they'll miss out on their improvements after the fork, or they'll have to do a lot of work merging those changes with their own forked code.

It could very well be in the submitter's prospective employer's best interest to allow him to commit his most important fixes to the project. Only keep the new features that the employer needs (built in a modular way on top of the open source stuff) to themselves. That way, the employer won't have to maintain their own fork and won't miss out on new fixes by other committers, while still keeping the extra features from their new expert to themselves.

This way everybody wins. And that's always the best open source business model.

On the other hand, if the submitter is the only serious committer on this project, the prospective employer is effectively asking to buy the project. So how much is that project worth?

Re:The dark side (tm)

[cayenne8]

"That exchange is just as frequently attributed to George Bernard Shaw, and occasionally to Groucho Marx. Nobody seems to have a source, though, so it's pretty likely that none of them said it!"

It was me, I did it in a bar awhile back....was hilarious.

Re:The dark side (tm)

[BemoanAndMoan]

Is how much really relevant? YOu are asking to put a price on his integrity.....

Integrity ... wha? He's talking about switching from free work to paid work, not becoming a Nazi for a couple of shiny nickles. How about a little perspective here, please.

He's a developer who's work is being appreciated and based upon that has had a company offering him compensation to continue, albeit in a commercial environment. Did you ever consider the possibility that they *need* to make this kind of demand, i.e. they are a corporate entity with rules of their own? Sure it could be a ploy, but I saw nothing about an after-employment perpetual NDA (which some have speculated at, and which I would absolutely recommend against) so if he gets screwed he could just leave and pick up where he left off.

If he's ostracized by the community, it's only going to be from that select group with the cup in their hands who have never contributed to the code base themselves (of course, that's typically 99% of the people running the code) and of course our beloved fanatics.

Besides, if you're so bent out of shape over it you could always step up and take his place.

Re:The dark side (tm)

[wall0159]

Good song lyric:
"some sell their bodies for dimes, others marry for the houses and the jewelery. It's a real fine line, what you charge for your time."
-Janis Ian

Re:The dark side (tm)

[Nefarious Wheel]

Talk to a lawyer. Seriously. If what they're asking is non-enforceable, you want to know that. If it is enforceable, you'll want to know just exactly how enforceable it is. This is a *contract* you're talking about, and I'd see someone about it.

I'd no more do my own legal analysis than I'd do my own dentistry.

Re:The dark side (tm)

[Ghubi]

Or his negotiation strategy could be to simply point them here and say, "You'll have to come up with a better offer."

Re:The dark side (tm)

[Repton]

Yeah, but Winston Churchill is one of the great attractors of witty repartee. I wouldn't put too much faith in that attribution :-/

Re:The dark side (tm)

[Sneftel]

That was the lamest In Soviet Russia joke ever.

Re:The dark side (tm)

[Eskarel]

Outside the development world, that's essentially what pretty much everyone does.

If you're an engineer, you don't stop being an engineer because you've changed jobs, and if you're a specialized kind of engineer or you have extensive experience in a particular field, then you're realistically going to end up at one of your competitors.

The same is true for doctors, nurses, kitchen staff, scientists, etc.

Pretty much anyone with any level of specialization whatsoever(ie anyone who isn't a PHB or a lemming) will eventually end up taking a job with someone who is/was a competitor(even if they weren't a major competitor) to one or more of their previous employers, its' the nature of the game.

Unless you don't switch jobs, don't attain any level of specialized skill, or are willing to throw away any experience you gain in a specialized area, you're going to do this eventually.

How much is your soul worth?

[Anonymous Coward]

Because that's the real question. Are they paying enough to own you?

Re:How much is your soul worth?

[ccguy]

Are they paying enough to own you?

Apparently they want to own his work on _that specific project_.

On those terms, they could buy any of my projects (I have this and this for example) for a reasonable price.

It's not that I don't value my own work or become attached to my programs, but rather that I always have some ideas for stuff I'd like to do, so I can just move on.

In the end, most of us eventually move to other projects for a number of reasons (boredom, happiness with the current status, other things to do, etc) and I don't think money would be a bad reason.

Re:How much is your soul worth?

[pla]

Because that's the real question. Are they paying enough to own you?

Oh, puh-lease... Right now we have 25 highly-modded drama-queens dominating the discussion on this topic.

I code for a living - I MAKE MONEY for selling the product of my skills. Welcome to the real world, folks.

I also code for fun, because I enjoy doing it. Not often, however, do the two categories overlap... I don't often profit from my for-fun code, and although I find the problem-solving aspect of it satisfying, I can't really say I "enjoy" the code I write to put food on my table (in the sense that I wouldn't do it for fun if no one paid me for it).

We all need to make a living, so this question really boils down to one question, which has nothing to do with "soul", or really anything to do with the specifics of the BSD license (if the FP author agrees with the intention of lawyering up on a technicality, even if he wins, he will lose far more than he will make from this deal):

Does the amount you will make adequately compensate you for the loss of your ability to continue working on a "fun" project?

If yes, then take the offer and find a new pet project. If no, then you already know your final answer (unless you desperately need the money, in which case, you still already know your final answer).

Re:How much is your soul worth?

[FishWithAHammer]

A lifetime ban is almost certainly not enforceable, at least in the USA. This is almost certainly all a bunch of bullshit over nothing.

let me get this straight...

[TheSHAD0W]

So, they're offering to pay you to go fork yourself?

A few things

[TheSpoom]

I wouldn't do it at all, personally, because I'd consider it a violation of my integrity to do so. Kinda like a deal with the devil, if you will.

Also, how are they going to take control of changes you already made? You've already licensed them under the BSD license; someone else could just republish them. You can't revoke things like that.

Re:A few things

[erroneus]

The BSD license is the most altruistic to be sure, but there is no shortage of people out there willing to take advantage of it in ways that weren't intended.

The GPL sees this and has decidedly moved to protect the intent of Free/Open Source Software while keeping the code and the software free.

I find the BSD license particularly damaging to open source progress into technology culture and business.

Re:A few things

[juiceboxfan]

I wonder, would such a non-competition clause extend to after you left the job concerned?

That is exactly how it's phrased;

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.

In six months the company can decide that the changes that they need have all been made and further development is no longer needed. Now he doesn't have a job AND can't work on the open code.

No, I wouldn't go for this.

Re:A few things

[FishWithAHammer]

A non-compete clause like that would be laughably unenforceable.

Re:A few things

[darkonc]

A lot of people who use the BSD license do share his values -- but they see the GPL as being 'impure'. They want the code to be as free as possible but they're not willing to pay the 'price' that the GPL does in putting legal limits on what you can do in order to keep the code free.

GPL gives maximum freedom to the code.
BSD gives maximum freedom to the programmer/corporation.

Re:A few things

[mcvos]

GPL gives maximum freedom to the code.

BSD gives maximum freedom to the programmer/corporation.

I think BSD gives maximum freedom to developers of derivative code, while GPL gives maximum freedom to users of derivative code.

I've never understood what code itself would do with freedom.

Everything is for sale

[Anonymous Coward]

I mean that in a very practical way.

I've never signed a non-compete; they generally are a bad idea unless you have a personal services contract which guarantees you a minimum length of time when you'll get paid, because what's to stop them from firing you the day after you sign?

Also, if the non-compete is broad, and you quit/they fire you, could you find *any* work without competing with them? If the answer is no, then you should seek compensation for your time.

OTOH, if you're a typical coder-monkey who is bright, but your work could really be done by about 1,000 other people (and be honest with yourself) then the whole thing seems fishy to me on so many levels.

I have a feeling you're only asking this stuff because you're not really being honest with yourself. You know the answer to this. Just execute on it.

(I'm anon because I participate in all these talks all the time at a major company and I'd rather not have my name available in this context)

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.

Is it worth it?

[houbou]

1. is the money worth it?
2. will this affect your ability for new contracts?

If the money isn't worth it and/or if it will be harder for you to work in the near future, then don't sign.

It would have to be a really big chunk of change for sure here... Like near retirement money..

Cold hard dirty cash

[Fallus Shempus]

Depends, how good is the offer?

Treating open source as anything but a business that has to compete will make it fail, it's not a moral decision.

Your own moral compasss should guide you....

[cptdondo]

You're obviously conflicted about this; otherwise why be posting to /.?

So... Would the money allow you to do something more than you're doing now? Better house, bigger car? Is that important to you? Is it more important to you than your desire to be part of that particular community?

How critical are you to the success of the Open Source project? Would it die without you?

And, how critical are you to the success of this company's plans? Can they hire someone else for the job?

If it feels wrong, if it feels like it won't work for you, don't do it.

Re:Your own moral compasss should guide you....

[cptdondo]

Morals and ethics are internal. Society may have some expectations, but ultimately the individual must act according to their own internal motivations.

If you are conflicted about something to the point of having to ask a bunch of strangers, then you are at odds with yourself. You may be tempted by the money but are struggling with the morality of the decision.

My own test is simple:

Will I sleep better at night for having done this? If the answer is yes, then go for it. Usually, just the act of having to ask is its own answer: no, it's not right to do this.

I intentionally kept my own opinion out of the original post. I've found it's best to tell the truth, treat others with respect, and live according to my own code of honor, ethics, and morals than to compromise any of that for money.

Now if the motivation is not money, but rather the ability to proceed with exciting, challenging work *and* get paid for it, that's different. It would be especially different if the project in question was struggling due to a lack of time available but that's not what I read into the post.

Do you need the money?

[xzvf]

Do you need the money? Were you working on the project to build your resume and get a job? Will you hate yourself if you do this? If you quit/get fired/company closes, does the NDA allow you to come back to the project clean? I'm solid middle class with a good paying job. I wouldn't work for a company that steals code (legally or not) but bills piling up might change my mind.

Unreasonable terms

[WK2]

Here's my comment from the firehose. Stupid how those don't carry over.

Barring you from working on the same project again (or same field again?) might be unenforceable. Several jobs have non-compete clauses in their contracts, but several judges have struck them down. It really doesn't seem practical, or reasonable, to accept a lifetime ban for a job. Also, how long does your contract with your new employer last? Definitely do not accept if it is an "at-will" employment offer. They'll just fire you the first month, and they have eliminated a competitor with minimal cost. Also this part, "Moreover, they would take ownership of not just to what they'd pay for, but also of my changes leading up to this moment" needs to be crossed out unless they are buying the work you have done so far. Don't give that away for free.

Basically, what you have described are unreasonable terms. If I was offered a job that paid better than what I get now, I would seriously consider taking it, even if it was at the cost of the open source community. I would continue to contribute in other ways. But that doesn't seem to be what is happening here. At worst you are being scammed, and they will fire you when they get what they want, and at best you are getting a bad deal.

Re:Unreasonable terms

[julesh]

Barring you from working on the same project again (or same field again?) might be unenforceable. Several jobs have non-compete clauses in their contracts, but several judges have struck them down. It really doesn't seem practical, or reasonable, to accept a lifetime ban for a job.

Expanding on my last post. IANAL, but I do read a lot of legal stuff, so this is stuff that should provide a good starting point to talking to your own lawyer about this:

* The enforceability of non-compete agreements like this one depends a lot on where you live. If, say, you lived in California (or could consider moving there after you've finished the job), you'd find the agreement was almost certainly totally unenforceable. California state law really doesn't like things that can get in the way of its tech workers helping improve its economy.

* Non-compete agreements have to be very carefully drafted to be enforceable. They must be limited enough in scope that they should not stop you from continuing a reasonable trade. Typically, this means they must only prevent you from competing directly against your previous employer using your knowledge of the work you did for them to gain an unfair advantage. They must be designed to protect a legitimate business interest (e.g. a trade secret) and must not be any stronger than is absolutely necessary to protect that interest. This may restrict the scope of projects they can prevent you working on. E.g., they could legitimately ask you not to work on anything similar to the extensions you are doing for them (as you would have unfair advantage due to knowledge obtained implementing those extensions) or on bugs you have fixed for them (ditto). On the other hand, it is hard to see their legitimate business interest in preventing you from expanding the software in some totally different direction.

* The agreement should almost certainly be time limited. If it isn't, you'll almost certainly be able to persuade a court to read a time limit (typically 2 years) into it. But you don't want to have to go to court, so talk to your potential employer: their lawyers should understand your position and that they can't effectively force you to give up on this project forever. If you push hard enough, they'll put a time limit in.

Re:Unreasonable terms

[5pp000]

Also this part, "Moreover, they would take ownership of not just to what they'd pay for, but also of my changes leading up to this moment" needs to be crossed out unless they are buying the work you have done so far. Don't give that away for free.

This part jumped out at me too. Sounds like you should name a good solid 5-figure price for this work (which is currently your intellectual property!) and stick to it.

Re:Unreasonable terms

[FishWithAHammer]

the booby traps of BSD licenses?

The BSD license is working as intended here. Unlike the stupidly restrictive GPL, the BSD license lets people make choices that you might not like, for the sake of developer freedom.

(Incoming downmods, how dare I question the GPL--!)

Re:Unreasonable terms

[7 digits]

Why do you says "stupidly restrictive" ?

The real wording should be:

"Unlike the restrictive GPL, the BSD license lets people make choices that you might not like, for the sake of developer freedom."

and

"Unlike the permissive BSD, the GPL license lets developer make choices that you might not like, for the sake of code freedom."

You see ? Two faces of the same coin. Neither license is "stupid".

Re:What I would do is this...

[Kjella]

If they did not accept that, I would forbid them to use any code from the project, and bring down the wrath of the relevant copyright laws, if they were not prepared to abide by the licensing terms.

Highly aggressive and completely clueless, not a good combination.

Negotiate!

[Rob Riggs]

All terms are negotiable. Figure out what you could live with, take a position of strength and ask for more than they appear to be willing to give (e.g. you'll do the work for more money than they are offering, will dual-license the work and won't sign a non-compete). Let them know its a negotiation, but that you cannot do it under the terms they proposed.

Re:Negotiate!

[hey!]

That is so true.

I negotiated a contract a few years ago in which the company wanted to have any disputes settled by an arbitrator, that they would name at a later date. I told them that I was fine with arbitration, but that I would be the one to name the arbitrator. They balked because that would be buying a pig in a poke, to which I said, "just so, so let's name the arbitrator NOW."

The situation this guy is talking about is ticklish. He needs a good lawyer because this could be extremely costly to him. What he is being asked to do is to forgo the future economic benefit of his knowledge of the project and problem domain. Therefore, his agreement should reflect a difference between him and a similarly skilled developer with no particular expertise in the project. If he gets the same deal as somebody coming out of a different field he is actualy giving up more.

Therefore, the economically rational thing would be for him to sell the difference in some way. If that difference were worth $500,000, then he could offer it for $400,000, and both he and the company hiring would b ahead. That would be fair.

What I'd do is ask for a severance package, to compensate for the lost future income. Otherwise, they could simply offer him the job, fire him under some pretext, and enjoy the competitive benefit of having his expertise removed from the field. I'd say, why don't you give me $50,000 a year for every year you don't want me to compete? If at any time you feel that my non-competition isn't worth it, simply stop paying and I'll be free to get a job using my domain knowledge?

That's perfectly fair. Maybe (it's not his job to suggest this) the package would be pro-rated by the number of years; suppose he'd worked on the project for four years. If they hired him and fired him immediately, they'd pay him $50,000; after one year of employement (1:4) they'd pay him $40,000; after four years of employment, they'd pay him $25,000.

The important thing to remember:he's giving up future income earned through his past investment on this project. It'd be like handing over some of the value in your 401k to your next employer. He's got to get that gift balanced out.

DUDE, DON'T!!!

[Spy der Mann]

Think of WINE! Remember what happened when the Cedega guys "improved" the WINE codebase? The project's DirectX implementation stalled for years!!

And who says they won't use dirty tricks to keep you from working on Open Source FOREVER?

JUST SAY NO.

You are in a position to negotiate

[cyberon22]

My take? They approached you, and if it is a small project they are unlikely to find someone else with equivalent experience to work on the code base. Their alternative is building the project from scratch.

You would be an idiot to sign any open-ended non-compete clause. It is reasonable for the company to expect you to keep their modifications private, but their way of addressing this is not reasonable. A more reasonable compromise is for you to remain bound to non-competitive terms as long as you are employed by the company. This provides some teeth to your "employment at will" and gives them an incentive not to screw you over once you are working for them. Also remember that anything you sign that restricts your freedom to work on the project will also restrict your freedom to work on a consulting basis with other companies when you leave.

On a final note that comes from personal experience, "providing resources" isn't a tangible promise at all and you'll be lucky to get much of anything. If these guys had resources to throw around it seems unlikely they'd be trying to fork an open source project instead of building from scratch and trying to keep the whole thing proprietary.

Talk to a lawyer

[Anonymous Coward]

Before you make a decision talk to a lawyer that understands the issues. The company may be making demands post employment that aren't enforceable. In any event, you don't want to agree to something you don't understand.

Also bear in mind they want you because of your expertise. Make sure they pay severely for it. If they balk at your asking price, offer to accept lower compensation for laxer restrictions.

Their reality is if they get someone without your experience with the codebase, they'll spend a lot of money on familiarization and even more if they try to merge in features from a fork.

Negotiate! You've got a strong position.

If they want non compete, you ask for royalties

[Anonymous Coward]

Simple, if they want to restrict your ability to write code after you leave, you need to make money every time they use your code, after you leave...

Competitive advantage?

[TheRaven64]

You don't say much about the project, or what the improvements would be. Are they something connected to your prospective employer's core business, and will the give them a competitive advantage? If not, then you could try persuading them that it will be cheaper for them in the long run to contribute the changes back upstream. This model was followed by Yahoo! in relation to FreeBSD.

It doesn't sound like this is the case, however. The next question is, how much of a competitive advantage will it give them? Would they lose anything by releasing the changes in six months? A year? Two? If not, then you should discuss this with them. You should also make sure that they limit the non-compete clause to only apply to specific features and within a fixed time scale.

It's probably a procedural formality

[proclivity76]

explain it to them. They probably haven't thought this through.

Most times it seems like someone is being a complete ass, it's because he didn't perceive his own behavior as offensive. It usually only takes a cool, calm reply noting that you first believe this offending party to be a of good intention (a compliment) then note that you've noticed something that probably needs clarification because you're certain their intentions were honorable. In most cases when presented with high and honorable expectations, the offending party will seek to live up to those high expectations.

Give it a try.

Re:also my changes leading up to this moment...

[sudog]

Yes. You can't relicense BSD code. The *copyright* still belongs to the author of the BSD-licensed code. They want to buy it so they can actually relicense those sections, and then hope that the stuff already released disappears from easy availability.

if("take ownership" == "buying the codebase"){

[jopsen]

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

It sounds like the company is trying to buy the copyright for the codebase... If they want to do that tell them they'll have to pay what it would cost to develop the codebase as is...

Re:Sell out if you want but don't sell out cheap

[MrNaz]

how many of you would look down on him for "selling out" for USD1 billion?

Depends. Are we talking 2009 dollars or 2010 dollars?

Re:Ever?

[schon]

it's so excessive that it's probably unenforceable

Whether it's enforceable or not isn't the issue. If it's in a contract, and you sign it, it's effectively enforceable.

Yes, you could probably convince a judge that it's unfair. But how much will it cost you to do that? Want another job in the same industry? Be prepared to be treated like a leper, because employers won't want to go near you for fear of being sued.

Even if it's unenforceable, are you prepared to get sued and spend thousands of $$$ defending yourself against that 'unenforceable' clause, while you're flipping burgers (because you can't get a programming job.)

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?

Lucky in California?

[OldProgrammerDude]

I have never signed a non-compete either, but I have been asked to. If you are in California, you may be in luck. Back in the late 80's we passed a number of laws prohibiting most terms of non-competes including that you can't sign away your right to compete with your current employer or past one. Recently one aspect of that law was upheld in court. That won't stop them from suing you if things don't work out and you go back to helping that competitive project. Where most people get into trouble is intellectual property (IP). Remember, never take any code home. You own what's in your head (experience) but nothing else. Keep all your old code from the project, so that you can show that you used that IP elsewhere first. If you are serious about the job opportunity, ask to talk an attorney first with copy of it (Beware, attorneys a notoriusly slow about this type of a turnaround).

Re:BSD license, so what's the hangup

[julesh]

Also, since you have been contributing to a BSD licensed project, I assume that you support and encourage this type of corporate behavior.

How did this troll get modded up? In what way does the BSD license encourage anti-competitive arrangements that prevent people from being able to work on a particular project however they want?

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[account_deleted]

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Re:Poster child for why we have GPL

[onefriedrice]

And that is the fundamental, philosophical difference between those who back the BSD/MIT-style licenses and those who are stuck on the GPL.

We don't care if corporations take our project and run with it. The more places our project can used, the better. To us, writing code isn't religion. We do it for fun, and we want our work to be usable and helpful to the most people possible. We're chill. If you modify our code, you can send back your changes. Don't want to give back? That's cool, too. We give our code away with no strings attached to maximize our utility, and to maximize the usefulness of the code. Our license is easily understood by non-lawyer types and has maximum compatibility with other Free software licenses. By keeping it simple and compatible, we avoid boring rewrites and promote sharing. It's great here.

The issue here is not the license, because we can assume that since the original authors of the project used the BSD license that they agree with the ideals I laid out. The real issue seems to be the non-competition clause of the company's proposed contract, not the BSD license.

Use GPL for your next project

[fccoelho]

That's what happens to projects that use the BSD license.... Use GPL fo your next project.

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[account_deleted]

Comment removed based on user account deletion

Sign the contract, then get fired x years?

[kandresen]

By signing this you are selling off something important to you to them. You must also realize that if they should fire you, then you have no more project, and you lost all your work in the project.

An exit clause in the case the company should lay you off is not necessarily enough neither, as they can sell the company / project to a 3rd part, etc. Not to mention the company starting to do something with your work you that goes against your moral, simply to make you leave, or not anymore want to be part of it?

What so ever you do in case of wanting such a contract, you got to talk to a lawyer to ensure all the terms are right, say what matter to you and make sure those terms are there.
- There might be possible to add clauses for a fixed time you require to work together with the company before signing over the rights
- Requirements as to what should happen in case of takeovers of project/company to another company
- In case of layoffs/dismissals.

You really need to consider the short term / long term consequences for you to sell your work to them.

Been there, done that.

[Qbertino]

1) From what I understand, the code you already wrote is out in the wild. If they want locked code from you on top of that, the only way you'll be able to provide it to them without doing anything illegal or the deal being invalid is to write their proprietary part as a patch.

2a) As people have pointed out allready certain Non-Competes may be illegal, so signing them may mean squat anyway. Check the laws on that where you live.

2b) Non-Competes are often rippoffs. A rule of thumb I like to use is the following: Unless you get big time money and can go on an extended vacation to learn a new technology or dive into a project and reach the same level as the one covered by the non-compete or can feed yourself and your family of the royalties from the agreement until it runs out you shouldn't sign it. And if your contractors are willing to do that they probably have enough money to sponsor a rewrite which you can offer to them aswell, which ever bodes best for you.

3) I had a very simular situation where along the run my partners and I would've gotten into a fight over wether they own the code or just the module which I built for them. Even though it would have legally been me owning it without the slightest doubt, I didn't want to spoil the relationship with partners simply because they didn't understand OSS licencing - which is understandable.

I told my next partner in the contract chain something of the following: "Give me the money we agreed on, free reign whilst implementing our product and keep the end customers of my back for a few months and I'll build a modular system that won't require a programmer for each little change. You'll be able to have secretaries do the grunt work using a custom editor that outputs XML config files. You pay me and get all that for free, a dual-licenced code-base with you *and* me both owning 100% and in exchange we GPL the entire shebang, slap a brand-name on it and continue our successfull co-operation into further projects."

He agreed and we went on to have:

A) An open source project that leads the field by far with our companies names attached to it and my personal name attached to it as project lead with the accompaning bragging rights (and User Thank-you emails arriving at my in-box to this very day) ...

B) The largest competitor in our field kicked out of their pitch due to our far superiour open source project and it's custom extensions for the end customer with the big pockets (a Pharmaceutical Global Player) ...

C) said custom editor developed by a third party partner company / our now drinking-buddies for minimal costs as they wanted to leverage the new OSS project themselves ...

D) a dual licenced code base that keeps everybody happy and proves that I put my money where my mouth is and have no trouble moving into the OSS version of our product if I'm cut out of the loop our the partners go out of business / other ways - which is sort of happening right now with everything still fine and dandy between us all - ...

E) ... and after the first iteration all involved noticed what was clear to me right from the begining: People and corporations don't care squat about under which licence you implement your shit. As long as it works and you're there to help middle management justify the expenses in front of the chiefs.

F) A super-pure conscience for me and a great feeling of having done something good. Plus two years of good worry-free living as a freelancer.

Mind you, this is a web project, so YMMV - but that pretty much sums it up for any situation I can think of.

4) / Bottom Line: You've got the strong end of the stick. Be understanding but don't be foolish. Talk to your partners and cut a deal that makes you and them feel comfortable. U

What is the value of your reputation?

[awitod]

You probably got the current offer as a result of your work in the community. If you continue to build that network through good work, you will probably reach a point where you have far more opportunities than you do now if what you are working on is seen to be worthwhile.

Or, you can trade your reputation in to work for the people making you the offer. Do you plan on staying with them long enough to build a new network and for people to forget what you did? It sounds like you know it won't go over well and will burn some bridges.

In my experience, it's a small world and karma is a bitch. So, unless you are talking about a set-for-life kind of deal, it's probably a bad idea.

On the other hand, I don't think you have an ethical conflict here. If you are talking about the chance of a lifetime, you should do it. After all, it is your work and you should benefit from it even if your associates will hate you for it (your friends will understand, set for life is a big deal). You just have to decide if the opportunity is worth the price you know you will have to pay...

My guess is: probably not.

Re:Sell out if you want but don't sell out cheap

[Headrick]

The scary thing is that this should be modded "Insightful", not "Funny".

Re:Step one: Find a good lawyer.

[mcvos]

The big problem with the non-compete is that it's permanent, and includes his previous (unreleased?) work. There are possible problems with the non-compete like: What if the job doesn't work out, and he's left on the streets 3 months later?

A non-compete clause on work you did before you were hired, that continues after you leave the company, is unreasonable no matter what.

I think a clause like that for a regular job should be illegal, and you definitely shouldn't sign anything like that unless they pay for your life after you leave the job, which probably means millions.

You're not just signing away copyright on work done for them, you're signing away your own work experience. Even the experience you acquired before you started working them. Basically, you're signing away your entire career. So they have to pay for your entire career.

If they don't want to do that, the contract is not reasonable.

As to your question: I expect that not that many FOSS developers get hired away like this. Most companies recognize the value that the rest of the FOSS community brings to the project. These guys don't. That's going to discourage a lot of FOSS developers from dealing with this sort of company.

Exactly. An employee who is an active and respected committer of an important open source project is far more valuable than an employee who knows about that project but isn't a committer. A smart but honest employer would allow him to commit bugfixes at the very least, and preferably also new features that he didn't write explicitly for his new employer.

If they don't allow that, they're either stupid, or dishonest. Ask yourself whether you want to be working for a company like that.

Re:What?

[turbidostato]

"The difference is a LEGAL one, not a moral one."

Sorry, but you are wrong.

"t's just as immoral to screw over the community on a BSD project for one greedy bastard's financial gain as it is to do so on a GPL project."

*THAT'S* where you are wrong. On the BSD case, those producing code knew from the very beginnig these kind of things may happen (it is not that the boy has been catched by a subtle legaleese on the BSD: it is all there and quite clear) and, by providing their code to the project, accepting that to be the case. Thus, there's nothing immoral for somebody doing the expectable and reasonable (it *IS* reasonable: if developers didn't like the BSD they could easily chose a different license).

On the other hand, there are some other developers that want things to be a different manner. They choose the GPL so somebody taking apart derivatives for distribution on their sole part won't be something about moral, but upright illegal.

On a civilized society there's nothing "just legal, not moral" since legality is nothing but the written down ethics for such a society. Remember the old roman saying: 'dura lex, sed lex'. Of course, our society is not a perfect one, and there are in fact deviations between the legal system and our ethics. But certainly this is not the case.

Re:What?

[Eskarel]

Well, realistically there's one of two situations here.

Either there's a healthy team of developers working on this project and the loss of one guy and his improvements aren't going to make much difference to the project and he's not screwing over the community anyway.

Or, he's the creator, or otherwise the primary developer of this project and they're buying the project. In this case, yes, a lot of people who use the project will be annoyed, but realistically, they're free to take up the code base(it's not like they can take the already released BSD code off the market) and improve it themselves.

Open Source doesn't guarantee you the right to anyone's time or resources, it guarantees you the right to take over if the person writing it doesn't want to do it anymore, and this hasn't changed.

Realistically what he's doing isn't any different than retiring, the company cannot steal the whole project if the source is already out there, and if the source isn't already out there then it was probably only a feel good open source project anyway, and if the author feels bad he can release it out before he signs the contract.

No one with a copy of that source is under any obligation based on a contract this guy signs, and the BSD licensing can't be retrospectively revoked, so all he's doing is stopping work on the project and going to work on a proprietary fork, all he's taking away is his own effort which he doesn't "morally" or "legally" owe to anyone.

If he's the creator of the project he could relicense any future code from a GPL project as proprietary too, there's no legal or moral difference. You can't undo what's been done, and no one has the moral right to what you haven't done yet.

BSD license

[falconwolf]

BSD licensing is practically the same thing as throwing your code in a junkyard or landfill. It's a travesty.

GPL = user freedom
BSD = programmer freedom

What's travesty is telling programmers what they can and and not do with their code.

Falcon

BSD vs GPL...

[GNUPublicLicense]

... there is no such thing since those licenses define quite different open source development model. The most important is that (young) coders have to perceive on the long term how the license choice will influence the quality of open source software. One of the ways to do so, is to checkout workarounds done by bad companies/people on open source licenses:

• BSD does push for sub-optimal open source version of a software compared to proprietary forks. That what happen with darwin/macos for instance. Since that trend is just taking off, we will see more and more BSD projects having sub-optimal open source versions, and we will probably have to use a proprietary fork.
• GPL, well if a set of authors of an GPLed project want to provide a proprietary version, then can. But the authors have to agree and have to hold rights on the whole code. This can be difficult to achieve on big projects (cf Linux). It happend with mysql/qt/opensolaris/lzo. The latter is interesting because the authors sells the proprietary version which is faster/better/stronger(TM) thant the GPL version! As far as I understood things, coders who choose GPL want the open source version to be THE optimal version. Well seems the GPL is missing some stuff to protect itself against its authors or basically of authors who try to enjoy the GPL aura without playing the game of code with the GPL spirit.

Well, young coder... choose well... let your choice be as enlightened as possible.

Don't do it.

[helgihg]

You might be able to convince them that it's actually in their own interest that you contribute code back to the project, as it's still BSD and they can still use it. In other words, it seems like they don't want anyone to have the improvements that you would otherwise make, even if they don't want to pay for it. A lot of companies have such clauses simply because they don't bother to think about it, and they're compelled to be as mean as possible, since that's somehow supposed to be more grownup behavior. Usually though, those with the most cynical view of open-source software development as competition, even when it suits themselves, tend to know absolutely nothing about it. Use that.