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Rewriting a Software Product After Quitting a Job?
hi_caramba_2008 writes "We are a bunch of good friends at a large software company. The product we work on is under-budgeted and over-hyped by the sales drones. The code quality sucks, and management keeps pulling in different direction. Discussing this among ourselves, we talked about leaving the company and rebuilding the code from scratch over a few months. We are not taking any code with us. We are not taking customer lists (we probably will aim at different customers anyway). The code architecture will also be different — hosted vs. stand-alone, different modules and APIs. But at the feature level, we will imitate this product. Can we be sued for IP infringement, theft, or whatever? Are workers allowed to imitate the product they were working on? We know we have to deal with the non-compete clause in our employment contracts, but in our state this clause has been very difficult to enforce. We are more concerned with other IP legal aspects."
The can absolutely sue you, but they'll lose. If they can't take two blocks of code and say "he stole this" they have nothing. I assume you didn't sign a non-compete agreement though cuz then you'd lose.
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...but the hardest and most important part of running a software product company is selling the product. Your new, better designed, better documented, better implemented product has to compete with the same feature set - you said it yourself - with a more established product. What advantages will your product give the customer, making it easier to sell and possibly making the customers switch ?
As for the legal issues, IANAL.
Oh, I can't help quoting you because everything that you said rings true
First off, don't ask "can I be sued for this?" You can be sued for eating a ham sandwich. The important question is whether you'll face legal action over this, and only secondarily whether you'll prevail. Court process today is so messed up that paying for a lawsuit, in both time and money, is often more ruinous than the final judgment against you.
Being in the legal right does not insulate you from lawsuits. It never has. You should be more concerned with pre-emptively preventing a lawsuit from being filed, not whether you would prevail in court if one were to be filed.
One of the reasons why so many people say "get a lawyer!" is because, believe it or not, lawyers are very good at this sort of thing. Lawyers are excellent business negotiators. Talk to a lawyer, explain what you want to do, explain that you don't want to be sued. The odds are very good the lawyer will be able to get you a way in which you get to do what you want to do without worrying about a lawsuit being filed.
A good lawyer wins lawsuits. A great lawyer prevents lawsuits from being filed in the first place.
Good luck! :)
1 - Copy your ex employer product
2 - Get sued into bankruptcy
3 - ????
4 - Profit ???
You probably have nothing to worry about.
It's all cool.
Does this mean windows 8 won't suck?
Why get a lawyer when you can get unbiased and reliable advice here on /.?
You could save the money on a lawyer.
You'll likely get sued regardless of whether they have a case or not. If you have the money to fight it, it will drag on for some time.
If you ever need to raise money, no VC will invest in your company if they know you have a potential legal liability.
Depending on the nature of the software (more likely to happen if its expensive / low volume), your previous company may try to harass your customers too.
It sucks, but its the nature of the game. Unless the current company that you work for isn't willing to do anything quasi-legal to preserve their business.
A friend of mine did this about 10 years ago. The original company accused them of theft of sourcecode (which they hadn't done) and made criminal charges as well as suing them. Fortunately one of the new company's founders was a Lay Magistrate. He got the court fatstracked to court and swore under oath that they did not have any source code, which was enough for another judge to throw the case out!
They also brought a civil case for stealing intellectual property, but most of what they included was standard (It was Travel Agent's software), so they put together a brochure of various other solutions and shown that there was nothing that their "old" company had uniquely developed.
The old company then made a big mistake. They wrote to all their clients telling them not to deal with the company my friend and colleagues had set up because their software was "no good" and "ripped off", and that they would not support anyone who even looked at the software. They had 50 enquiries that week, and went from having three large customers (which covered costs and paid a quarter of a years salaries) to 20 in six months (which meant that they were pretty well off)!
Why not come up with a fresh idea? Spend your time coding instead of in court.
That will never do. Its completely incompatible with the legacy angst and frustration layers they have spent so much time developing.
I think you underestimate just how much I just dont care.
"Anyone can be sued for anything in this day and age."
I'm going to sue hellion0 for not translating his post into Chinese. Think it will get dismissed before we even hit the door? How about any lawyer laughing you out of his office?
Shai Schticks:"You don't make peace with friends, you make peace with enemies"
I have "re-written" a few programs in my time. Here is what you need to do: 1) Plan on being sued. You can't avoid it (the big guys use it to keep you from competing). 2) Work around the system. To sue someone, you actually need someone to serve papers to. This the first thing to attack. Form two S-Corps. One where you transfer all the money (off shore account is a must) and one with all the debts and oh yeah - your public face/address/etc to the world. 3) Use a post office drop box. To be served papers, they have to hand you the documents. Kind of hard to hand them to you if they can't meet you. 4) Having been "served" (which can take them months - talk about some pissed off lawyers). It is time for the next step. Offer them a couple hundred bucks to buzz off (if they have sued you before, they'll take the money - if not, time for a lesson). 5) Don't send anyone to represent the S-Corp in court. Ignore them. 5) They win a default judgement. Yawn. Ignore them. 6) The lawyers involve the county sherrif. He'll serve you notice they are seizing the property (bank accounts, property, etc) held by your debt laden, assetless S-corp (depending on where it is served you have a number of days to vacate etc). Yawn. Great. Give it to them because it is worthless. 7) Form a new S-corp, give load it with debts and your new public face and off you go again. Rinse and repeat as often as necessary. Oh yeah, one more thing - don't forget to pay your S-Corp taxes. IRS can come after your personally for back taxes. But, civil lawsuits can't.
I think your biggest obstacle to success will be your attitude towards salespeople!
As fabulous as you may think your software is, selling it is rather important!
Disclaimer: I am not a lawyer and this is not legal advice. So, yeah, get a really good lawyer and get some good legal advice before you do anything.
Over the past 10 years, I have served as an expert witness in a number of IP-related software lawsuits, many of which have a fact pattern pretty much identical with what you've laid out.
Yes, they can sue you on (at least) two different grounds: copyright violation and theft of trade secrets.
The case Computer Associates v. Altai established the concept of non-literal copyright infringement of source code. Even if you rewrote the program from scratch in another programming language, the AFC ("abstraction, filtration, comparison") test could be used to find similarities, and your (former) employer could argue copyright infringement, not just on source code grounds, but on architecture, design, database schemata, and data file structure.
Even if you go one step farther and use a "clean room reverse engineering" effort to rewrite the code, you could still be sued (and lose) for theft of trade secrets. Your employer would need to identify those trade secrets, show what steps it took to protect its trade secrets (typically such actions as IP and/or confidentiality agreements, some measures of physical and electronic security, etc.), and argue for the value of those trade secrets. You would have to show that those "trade secrets" can be documented outside of their history at the company you're leaving.
Note that if any one of your group of "good friends" is seen as having a significant position in your large software company, they can also try to come after you for "breach of fiduciary duty".
In any case, they might well name each of you individually as defendants along with whatever new company you set up to develop this software.
In short, there are major risks to what you are describing and not a lot of upside without an explicit release. It can be done, and done successfully, but lawsuits are expensive. ..bruce..
Bruce F. Webster (brucefwebster.com)
If you do get sued, just print and cut this out and give it to the judge and you can go home.
________________________
| . / SLASHDOT
|
| This card may be kept
| until needed or sold.
|
| GET OUT OF JAIL FREE
|_______________________|
Or how about just linking to the article (here) instead of making us jump through hoops?