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Ask Slashdot: How To Own the Rights To Software Developed At Work?
New submitter ToneyTime writes: I'm a young developer building custom add-ins for my company's chosen SAAS platform as a full time staff member. The platform supports a developer community to share code and plug-ins with an option to sell the code. While I don't plan on having a breakthrough app, I am interested in sharing the solutions I create, hopefully with the potential of selling. All solutions are created and made by me for business needs, and I aim to keep any company's specific data out. I have a good relationship with management and can develop on my own personal instance of the platform, but would be doing so on company time. Going contractor is a bit premature for me at this stage. Any advice, references or stories to learn from?
Let me get this right, you want to be paid by your employer for your work, but still own everything you produce. You are putting nothing into this other than the time you are spending to produce the code, and that time is being paid for by somebody else.
So where is your skin in this game?. Sounds like you want somebody else to finance your enrichment.
That doesn't matter. As an employee of the company the work you do for the company belongs to the company unless you have a contract that says it belongs to you and not the company.
If you have such a contract, it doesn't matter where you do the work.
Most companies will try to get you to sign a contract that says any work you do that's even remotely related to the work you do for the company belongs to the company, even if nobody at the company asked you to do it.
For some people, freedom to own your work is way more valuable than pay. If that's you, you need to negotiate a different working relationship and probably employee is not what you want.
This is very easy. By default, anything you create - or even imagine - during business hours or in execution of your duties is 100% owned by the company. In fact, if you produce something at home and you can't show clean room separation between systems and code between your personal code and your work code, you're not likely going to keep the rights to that either.
You know that part of the employment process where they ask you to list all your prior works? This is them giving you a chance to CYA. Granted, the legalese on that page usually states that you're allowing them to use it for free in perpetuity if you include it in any of your work at the company, but that makes perfect sense Think utility libraries you carry around with you from job to job. They don't want to own them, but they can't risk having their products 'poisoned' by arbitrary licensing.
In fact, there's even a case where a guy had an idea, spoke to a co-worker about it, discussed it with his immediate superior and they decided not to follow up on it. After he quit the company, he started work on it himself, and was getting ready to finish/sell it, when he was sued by his prior employer. Because it had been 'developed' (thought of, even if it was never written down) on company time, the judge sided with the company and full ownership was given to them. He had to finish the program and deliver it and the mechanisms required to build and distribute it to them, without malicious sabotage Forced to write code for free, for a product the company didn't even want.
So! The only way this is really going to work for you is if you speak to your legal team and management.
I have, in the past, approached my manager(s) and asked permission to work on side jobs which were clearly and 100% outside of the scope of my current job; working on banking applications while I was writing automobile inventorying software, and was given permission. Got a signed statement, and I was good. Did open source work on the side as well, for a game engine, again, no problems.
However, it's extremely unlikely that anything you do at work will be allowed to be owned by you. No company likes giving away potential revenue and adding competitors with insider knowledge. I mean, really unlikely. Like, I can't even comprehend how you think it's a real possibility. Getting the company to go along with an open source thing might be one possibility, but an employee getting ownership?
Think of it this way: You work as a mechanic in a garage. You have access to all the tools and equipment there. You decide that you'll start your own business, in that garage, fixing cars, but you'll keep all the money instead of giving it to your employer, while still using his equipment and space. You still expect him to pay you for the hours you're working there.
Can you really see this happening? If so, you may need to lay off the cough syrup, cause we're all worried about you.
Where do I start with this? You signed an employee agreement. What rights does it give you? The company is paying you to develop code, provides the compute infrastructure, provides the business motivation based on their own research and enables you to improve your knowledge and skills. You are unwilling to leave your job, so you don't accept any risk. Yet, you ungratefully want all of the benefits of the code. You don't even seem willing to share a possible new revenue stream with your company. You are quite the piece of work.
Since you're doing this on the company's nickel, it's known as "work for hire." You have no ownership rights. Also, since you're developing this using their resources on their time, why would you expect to be able to resell it when it's clearly their property? That would be like being hired to make donuts, making a batch with your boss's ingredients and tools while being paid, and expecting to keep the profit.
This might qualify as one of the 10 dumbest "Ask Slashdot" questions going. If it's a troll, it's working.
"Transparent" is a shit show that trades on every stereotype going. A man in drag is NOT a transsexual.
Every consulting contract I've signed has an IP assignment clause. So, even if you do consult, make sure you negotiate your terms wisely.
You should be fired.
The company is paying you a salary, benefits, possibly sending you to training classes, etc. Everything you do on their premises belongs to them. Period.
If you are preoccupied with trying to figure a way to profit from THEIR software (that you write on THEIR dime), then they aren't getting what they are paying for.
Quit and start your own business.
In fact, that is great advice regardless. Take the chance now before you knock up some unfortunate woman and are saddled with a mortgage and child rearing expenses. You can live with your parents, friends, or your car if necessary, your family can't.
Anyway, as there are a couple of people contesting this already I though I would link the actual rules on copyright and work for hire.
http://copyright.gov/circs/circ09.pdf
Note that falling under (b) requires that it pass that test AND there be a contract stating so. The tests in (b) have also been found to be exhaustive, so it MUST fall under one of those scenarios.
This means that even in many cases where there is a contract stating that the party paying for the consulting time owns it, in reality the consultant still owns the code. The only common one where code is not owned by the consultant is when the work will become part of another existing work.
I'm a signature virus. Please copy me to your signature so I can replicate.
It isn't vague at all, cerberusti is exactly correct and the AC is a maroon.
"Work for hire" means employee. It doesn't matter what you want it to mean; look up the legal precedents. Contractors are exactly what is _not_ "work for hire," it is business to business contracted work. Basically, the opposite of "work for hire."
There is no ambiguity; you have to have an express assignment of copyright for it to transfer. The contractor owns all their own IP. What the client gets is an implied unrestricted license. That gives them certain rights; you can't stop them from using what you made, because they paid you to make it, but that isn't the same as granting copyright. And a copyright assignment that is buried in the contract is actually not enforceable. You have to have a separate document that is only the copyright transfer. You have to have a signature that is just for the copyright, or else it is not expressly agreed to, it is just an unenforceable extra condition. The copyright assignment can require another document to have been signed in order to take effect, though. So that is how it is done, and that is why there is more than one thing to sign when you have a lawyer do this stuff for you.
The funny part, yeah, consulting contracts often do claim to state the ownership, but that isn't a valid place for it, and the contractor actually still owns that code. It doesn't come up very often, though, because if you try to use that to screw somebody over, you'll be engaging in an unfair business practice and that will preclude you from bringing an otherwise-valid lawsuit regarding the matter.
The easy way to remember it if you don't want to learn the details, the copyright designation is based on who the legal employer is, not who paid for the work. Paying for the work just means you have to be allowed to use the thing that was made for you. If you want to also own the copyright, you're buying that separately the same as if it was made for somebody else.
Just wiki "work for hire" before trying to get pedantic and "stepping in it."
But in the article, as an employee there is no way for him to end up with copyright. Even if it was done at home, since it is clearly related to his work, they own it.
My advice for him, if you're not ready to be a contractor, and you're not ready to start your own company, just write these ideas down in a notebook. You're not in the right situation to be writing speculative for-profit apps that take advantage of your employer's platform, because you're also writing those for your employer. If your company actually wants you to do this, they'll give you the documentation you need, but make sure you're really well trusted by management. If you're just a regular Jr developer, don't even ask. Just write your ideas down so that you can think about them more later, and learn about which still look good later.
I linked the actual rules in a reply to my post.
The way I dealt with this as a consultant was to incorporate my consulting company. That pretty much shuts down any argument over work for hire before it begins. I still occasionally had someone contest it and lawyer up, but they always backed down pretty quickly as there was zero chance of them winning a suit.
I suppose you could try to do it contract by contract, but not only is that annoying for small contracts, it is also still open to debate as transferring copyright is not as simple as having a line in your contract.
I'm a signature virus. Please copy me to your signature so I can replicate.
This is correct. Anyone claiming that you can work for a company - paid by the hour - and own ANY rights to the product of your work is full of BS. Sure, if you can negotiate a contract that says so, the do it. But absent that written agreement all work is for-hire, and there is AMPLE common law that follows that principle.
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