4 ms·

Especially since, under California law, what you do with your personal time on personal hardware is yours, regardless of employment contract.

larkost 7y ago
Citation needed. That is not Apple's lawyers' opinion. It is also not the interpretation of this San Jose law firm: https://www.sacattorneys.com/san-jose-intellectual-property-firm-explains-assigning-rights.html https://www.sacattorneys.com/san-jose-intellectual-property-... The relevant quote is: "It is legal to require an employee to assign intellectual property created in the employee’s own time if it required any of the employer’s tools, facilities, or intellectual property, or if that intellectual property relates to the employer’s business or research and development." Since Apple operates in a wide swath of the IT world, it is very likely that most OSS developed by Apple employees could reasonably be considered "relate[d] to the employer's business". That is certainly the position that Apple takes in most case (source: I am a former Apple employee).
- mgomez 7y ago
  I believe the person you're replying to was referring to section 2870 from the California Labor Code: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=LAB&sectionNum=2870 https://leginfo.legislature.ca.gov/faces/codes_displaySectio... "(a) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an invention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the employer’s equipment, supplies, facilities, or trade secret information except for those inventions that either: (1) Relate at the time of conception or reduction to practice of the invention to the employer’s business, or actual or demonstrably anticipated research or development of the employer; or (2) Result from any work performed by the employee for the employer. (b) To the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded from being required to be assigned under subdivision (a), the provision is against the public policy of this state and is unenforceable."
  - wahern 7y ago
    > Relate... to the employer’s business This is the catch-all and I've always been curious what the seminal cases are which apply this language. For example, the charter for most corporations these days usually establishes the business for "any lawful activity", so if the scope of an employer's business is defined by the charter, then pretty much any commercially viable FOSS project could potentially be ensnared by an employer. Any IP lawyers here have some pointers to how "employer's business" is supposed to be interpreted and applied?
    - User23 7y ago
      Yeah, if Judge Alsup got the case it might get a very different ruling than another judge.
esmi 7y ago
Apple is in many states and countries. It’s way simpler to say no then try to manage it on a case by case basis for 1000s of engineers.
- greglindahl 7y ago
  Other big companies, like IBM, seem to do OK with OSS contributions by employees.
  - esmi 7y ago
    Let me digress with a little story about one of my experiences with courts. In the 90s I was a technician at a small computer shop in CA. One day we had a sale for really cheap beige boxes so that we could offload some excesses inventory. A customer came in and want to buy all 10 of them. But I knew he owned a local warehouse and I suspected that he wanted these 10 computers to run proprietary inventory tracking software, and because some of our other clients ran that same software, I asked him if that’s what he wanted them for. He said yes. I told him these boxes won’t work with that software because their chipset is incompatible with it. He will have to buy these other, more expensive, ones. He insisted I was wrong. I showed him some documents we had, as I had ran into this before, he insisted anyway, very rudely. I told him if we sold them I wouldn’t allow a return. He said fine and bought all 10 and I wrote in hand “no refund” on the receipt. I was a teenager then so I thought this was “iron clad” and complimented myself for being so smart. A year later the guy came back and wanted to return all 10. We of course said no. He took us to small claims court and won. We were forced to give a full refund, at the one year old price, even though he admitted to the judge I warned him, showed him documents, and said no refund. His counter argument: he didn’t understand. The judge said this was the best way to make both parties whole again. I lost but learned a valuable lesson, one just never knows with the law. These things are where one starts argument, it’s not where they stop. Lawyers will have to decide how comfortable they are with the risk, and balance it against the reward. It’s totally natural that different entities will come to different conclusions in this environment.
birdyrooster 7y ago
What if they pay for your business class internet that you use to develop that software?

larkost 7y ago

Citation needed. That is not Apple's lawyers' opinion. It is also not the interpretation of this San Jose law firm: https://www.sacattorneys.com/san-jose-intellectual-property-firm-explains-assigning-rights.html https://www.sacattorneys.com/san-jose-intellectual-property-... The relevant quote is: "It is legal to require an employee to assign intellectual property created in the employee’s own time if it required any of the employer’s tools, facilities, or intellectual property, or if that intellectual property relates to the employer’s business or research and development." Since Apple operates in a wide swath of the IT world, it is very likely that most OSS developed by Apple employees could reasonably be considered "relate[d] to the employer's business". That is certainly the position that Apple takes in most case (source: I am a former Apple employee).

mgomez 7y ago
I believe the person you're replying to was referring to section 2870 from the California Labor Code: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=LAB&sectionNum=2870 https://leginfo.legislature.ca.gov/faces/codes_displaySectio... "(a) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an invention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the employer’s equipment, supplies, facilities, or trade secret information except for those inventions that either: (1) Relate at the time of conception or reduction to practice of the invention to the employer’s business, or actual or demonstrably anticipated research or development of the employer; or (2) Result from any work performed by the employee for the employer. (b) To the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded from being required to be assigned under subdivision (a), the provision is against the public policy of this state and is unenforceable."
- wahern 7y ago
  > Relate... to the employer’s business This is the catch-all and I've always been curious what the seminal cases are which apply this language. For example, the charter for most corporations these days usually establishes the business for "any lawful activity", so if the scope of an employer's business is defined by the charter, then pretty much any commercially viable FOSS project could potentially be ensnared by an employer. Any IP lawyers here have some pointers to how "employer's business" is supposed to be interpreted and applied?
  - User23 7y ago
    Yeah, if Judge Alsup got the case it might get a very different ruling than another judge.

esmi 7y ago

Apple is in many states and countries. It’s way simpler to say no then try to manage it on a case by case basis for 1000s of engineers.

greglindahl 7y ago
Other big companies, like IBM, seem to do OK with OSS contributions by employees.
- esmi 7y ago
  Let me digress with a little story about one of my experiences with courts. In the 90s I was a technician at a small computer shop in CA. One day we had a sale for really cheap beige boxes so that we could offload some excesses inventory. A customer came in and want to buy all 10 of them. But I knew he owned a local warehouse and I suspected that he wanted these 10 computers to run proprietary inventory tracking software, and because some of our other clients ran that same software, I asked him if that’s what he wanted them for. He said yes. I told him these boxes won’t work with that software because their chipset is incompatible with it. He will have to buy these other, more expensive, ones. He insisted I was wrong. I showed him some documents we had, as I had ran into this before, he insisted anyway, very rudely. I told him if we sold them I wouldn’t allow a return. He said fine and bought all 10 and I wrote in hand “no refund” on the receipt. I was a teenager then so I thought this was “iron clad” and complimented myself for being so smart. A year later the guy came back and wanted to return all 10. We of course said no. He took us to small claims court and won. We were forced to give a full refund, at the one year old price, even though he admitted to the judge I warned him, showed him documents, and said no refund. His counter argument: he didn’t understand. The judge said this was the best way to make both parties whole again. I lost but learned a valuable lesson, one just never knows with the law. These things are where one starts argument, it’s not where they stop. Lawyers will have to decide how comfortable they are with the risk, and balance it against the reward. It’s totally natural that different entities will come to different conclusions in this environment.

birdyrooster 7y ago

What if they pay for your business class internet that you use to develop that software?