6 ms·

This thing has been bugging me the first time signed an employment contract years ago. So from what I understand is that everything I do on conpany property (t

by _6lik 5y ago

This thing has been bugging me the first time signed an employment contract years ago. So from what I understand is that everything I do on conpany property (that includes coding in a pub but on the company laptop) belongs to the company. So what I do is to first code it (any new idea that I'm working on) at home on my personal setup (including cloud an all). Then I release everything on a Apache V2 + MIT combo with CC BY SA 4 (for pics, vids etc) that I think covers everything. Then I host it under a github organisation (I am the admin of the org but the code is not hosted directly in my profile). Then I go back to the office next morning and ask one of the junior team members to fork it. In my head, I'm thinking that yeah well, I wrote something in my personal capacity somewhere and then somebody from the company forked it, so that's not my problem. So far so good... And the department is too much dependent on me so avoids any confrontation anyway. But I have always wondered, if this is fool proof? Can somebody find any loopholes in this approach and make it better...

Mandatum 5y ago
... Yeah I don't understand this at all, and I'm not going to try. Ever since my employer's started putting in that IP clause I stopped writing public/open-source code.
- _6lik 5y ago
  You can still do it in your mom's name, iykwim... but yeah such "shower clauses" are an abomination.
Uehreka 5y ago
IANAL, cannot comment on the legality, but as far as I’m concerned the comment about the department being too dependent on you is the most salient point of your entire post. There’s a whole universe of lawsuits and actions that can be filed and are not filed because companies calculate that they’ll extract a better return from a “live and let live” approach. There’s probably an ocean of open source that is in a work product gray area, and the companies just don’t care enough to do anything (think “I saw Alex working on a 2D physics game library after successfully deploying our latest healthcare platform feature. It will be of no use to us, and Alex is a good dev, let’s let it slide.”) A lot of copyright infringement goes un-acted on because it just doesn’t matter to the rights holders. But if they’re in a jurisdiction where they can enforce their work product agreement and then management changes, a new greedier manager might decide to claim Alex’s 2D physics engine on the almost-zero chance it becomes useful to them in the future. Probably not the smartest move, possibly a totally legal move. (But what do I know, IANAL)
- _6lik 5y ago
  hehe. Yeah that is indeed a salient clause there. Especially since I'm highly underpaid. Both me and my employer knows that finding my replacement is going to be tricky. Sucks money wise but gives me a great work life balance. :-D
leeoniya 5y ago
you really should check with an attorney. to me this doesn't pass the sniff test. i work for an open source (AGPL) company, that uses one of my open source (MIT) projects as a core dependency. before i joined, i made sure that any code i write for my library continues to be MIT-licensed, no matter when and where i am writing it. additional code i write for the company also often starts out as a demo/PoC in my MIT repo, but is then adapted and extended into our AGPL codebase. this, however, is likely a different arrangement than what you're describing as a loophole.
- _6lik 5y ago
  Actually that's why I release the code on Apache/MIT combo. This way, I get to keep my code open source without forcing my company to release the modified code. Also there are no patent related issues as Apache handles that beautifully. This way, both of us get to be happy. All I want is that the original piece of my code is 1) mine for ever. Attribution wise. 2) open source for ever 3) every contributor to the code is always attributed for their work. 4) my company can make proprietary (the reason why I avoid LGPL) profits and take royalty on its modified part but my original piece must remain in the wild for me or anybody to be used freely.
  - leeoniya 5y ago
    no matter how clever you think you're being, if you have not consulted an IP attorney about this, be prepared for some unpleasant surprises.
    - _6lik 5y ago
      Don't have money for that. May be an IP attorney here on HN can help us out?!
      - leeoniya 5y ago
        > Don't have money for that. and how about money to defend a potential lawsuit? you're gambling with more than just your job, honestly.
ChrisMarshallNY 5y ago
That sounds like the standard employment contract; not necessarily the "shower clause." It makes sense that the employer (or contractee) can claim that all work, done on their paid time, or on their equipment, is theirs. i.e., if I use my employers' laptop to develop OS software, and they can prove it, then they have a strong (and, basically, legit) claim on my work. Same with time that I'm being paid for, and supposed to be doing work for them. That's one reason why I brought my own personal laptop, many years ago, instead of using my employers' computer for my personal stuff. I'm not sure, but it may not even be required to be in the employment contract. I think that basic employment laws may enforce that. The "shower clause," on the other hand, says that all work and ideas that occur during your term of employment, belong to the company; regardless of whether or not it occurred on their paid time, or using their equipment. i.e., if you come up with an idea for a great Web site, while out on a date, or while taking a shower; whether or not it has anything to do with the corporation, the corporation can lay claim to it. It's pretty damn evil.
- _6lik 5y ago
  Oh, did not realise that. thanks for the clarification.
- _6lik 5y ago
  FWIW, I just found out that shower clauses are unenforceable (at most places) if it did not occur in paid time notwithstanding the fact whether you signed such a contract or not. There has to be a payment in lieu of your services otherwise such terms are deemed to be void.
  - ChrisMarshallNY 5y ago
    Thanks. I know that my company's HR had some clearly unenforceable stuff in their various contracts, noncompetes and NDAs, but they banked on folks not having the means to fight it.
White_Wolf 5y ago
Personally I don't use the comp laptop for my own stuff. I remote into my machine/network at home from my personal phone. DP over usb-c works wonders with a BT keyboard. As a side note: I don't publish anything. My wife on the other hand does. It's been like that for over 10 years now. EDIT: Forgot to mention that I ended up doing this after a previous employer wanted to grab a load of VBA modules. Big pain the back side. My luck was that my wife actually did work with me on them. Saved my back side big time.
- _6lik 5y ago
  Your charged your phone in your office? There, Gotcha! You used "company resources". Believe it or not, lawyers will put arguments like these and the judge will accept those as valid reasons. btw, I have a similar setup (I don't work on it during office time inside the office, though) with a minor difference. I vnc/ssh to my aws setup rather than my home. This way my laptop lives longer and wife doesn't bicker about electricity bills.
  - White_Wolf 5y ago
    that charging thing... I didn't think about something like that :( christ. It's becoming absurd but you made me realize that there might be other things I missed.
comex 5y ago
It depends on the exact wording of your employment contract. If it only covers work you did with company property, you're lucky. As far as the law goes, in California (per Labor Code section 2870), employment agreements are allowed to assign the employer IP rights (including copyrights and patent rights) to inventions that satisfy any of the following: - "[Use] the employer’s equipment, supplies, facilities, or trade secret information" - "Result from any work performed by the employee for the employer" - "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" For my part, the employment contract I signed is maximalist: it basically paraphrases the above language and says that anything satisfying any of those conditions is assigned to my employer. The third condition is really the kicker. If you want to use your code at work, then the code probably "relates to" your employer's "business" or "actual or demonstrably anticipated research or development". If your employment contract is as maximalist as mine (and there's a good chance it is), then that's enough to make it not yours, regardless of who (if anyone) forked it. In my case, my employer is large enough that it's hard to imagine software that doesn't somehow relate to its business…
- _6lik 5y ago
  Ohh yes.. These contracts are always maximalist. That's why I never touch areas where my company can even remotely claim involvement. But these are extremely important points that must be always keep in mind by everyone who wants to contribute in open-source.
  - lolinder 5y ago
    What you describe in your original comment is that you write code at night with the intent of it being used by your company the next morning. I can't see how that doesn't "relate at the time of conception or reduction to practice of the invention to the employer’s business".
    - _6lik 5y ago
      Oh it's not like I am trying to steal its IP from my company. I don't do that shit for everything I do. But only for the ideations that I know are great and think I am going to use later. In that regard, programming can be easily generalised. Let me give you some examples. 1) Let's us say my company wants me to create a full stack dashboard that helps you visualise the inventory. I can just create a corona dashboard and then adjust the db tables and models in the office whereas keeping my original idea still free. 2) I create a library to easily log my programs with proper gears suited to my needs. 3) I write a DB script that helps me do active passive backup easily. 4) I write an FPGA library with vLL but enforcing an encryption. I provide a use case for astronomy (whereas my company is for retail, let us say) My point is there's always a way out.
GauntletWizard 5y ago
Your example is foolproof, but there's always a bigger fool? How do you prove that your commits weren't made on company time? How do you prove that they weren't made on company laptops? How do you prove that you didn't include trade-secrets in your implementation of these libraries? You can show that your commits were made at hours outside of office hours, you can show that the commits were made with your personal e-mail address, but lawyers can dispute it - Git commits are cryptographic proof only that someone (or if you signed them, someone with access to that private key) attested to those statements, and you do both those things on the company computers. You can show that all of the code is obvious, but lawyers can dispute it. A sufficiently foolish lawyer can dispute literally anything. Don't work for places where you'd have a problem with this - Get explicit approval for you to spend company time working on open source libraries that are the proprietary interest of the company, but that you as an individual have a copyleft license to (Iff you don't care that you can't take them private later). Or work for a company that doesn't have such onerous terms in their employment contract.
- _6lik 5y ago
  yeah... somebody needs to always make sure not to be the bigger fool... 1) Git commits have timestamps. 2) Proving I did on company laptop is their onus. Innocent until proven guilty. ;-P 3) I do that. Along with randomisation of sample data. but yeah, you make a very important point in general. 99% of people get screwed on such things. 4) If I do something using company laptop, it is bound to be logged somewhere. All my git visits are also logged and archived for 10 years as per law. So proving I did it using company laptop is easy and it is them who have to prove it. And a foolish lawyer is a dream come true because then I can keep dismissing his every argument as wasting the learned court's time. But yes, keeping things straight forward is always a better idea.
  - deleted 5y ago
    [deleted]
  - GauntletWizard 5y ago
    git commit --amend --date="Wed Feb 16 14:00 2011 +0100" --no-edit Certain proponents of Fossil and Mercurial will tell you that this is an advantage of those systems - They're fooling themselves, because you can make those edits, there's just not nice tooling for them.
_6lik 5y ago
This

by _6lik 5y ago

Mandatum 5y ago

... Yeah I don't understand this at all, and I'm not going to try. Ever since my employer's started putting in that IP clause I stopped writing public/open-source code.

_6lik 5y ago
You can still do it in your mom's name, iykwim... but yeah such "shower clauses" are an abomination.

Uehreka 5y ago

IANAL, cannot comment on the legality, but as far as I’m concerned the comment about the department being too dependent on you is the most salient point of your entire post. There’s a whole universe of lawsuits and actions that can be filed and are not filed because companies calculate that they’ll extract a better return from a “live and let live” approach. There’s probably an ocean of open source that is in a work product gray area, and the companies just don’t care enough to do anything (think “I saw Alex working on a 2D physics game library after successfully deploying our latest healthcare platform feature. It will be of no use to us, and Alex is a good dev, let’s let it slide.”) A lot of copyright infringement goes un-acted on because it just doesn’t matter to the rights holders. But if they’re in a jurisdiction where they can enforce their work product agreement and then management changes, a new greedier manager might decide to claim Alex’s 2D physics engine on the almost-zero chance it becomes useful to them in the future. Probably not the smartest move, possibly a totally legal move. (But what do I know, IANAL)

_6lik 5y ago
hehe. Yeah that is indeed a salient clause there. Especially since I'm highly underpaid. Both me and my employer knows that finding my replacement is going to be tricky. Sucks money wise but gives me a great work life balance. :-D

leeoniya 5y ago

you really should check with an attorney. to me this doesn't pass the sniff test. i work for an open source (AGPL) company, that uses one of my open source (MIT) projects as a core dependency. before i joined, i made sure that any code i write for my library continues to be MIT-licensed, no matter when and where i am writing it. additional code i write for the company also often starts out as a demo/PoC in my MIT repo, but is then adapted and extended into our AGPL codebase. this, however, is likely a different arrangement than what you're describing as a loophole.

_6lik 5y ago
Actually that's why I release the code on Apache/MIT combo. This way, I get to keep my code open source without forcing my company to release the modified code. Also there are no patent related issues as Apache handles that beautifully. This way, both of us get to be happy. All I want is that the original piece of my code is 1) mine for ever. Attribution wise. 2) open source for ever 3) every contributor to the code is always attributed for their work. 4) my company can make proprietary (the reason why I avoid LGPL) profits and take royalty on its modified part but my original piece must remain in the wild for me or anybody to be used freely.
- leeoniya 5y ago
  no matter how clever you think you're being, if you have not consulted an IP attorney about this, be prepared for some unpleasant surprises.
  - _6lik 5y ago
    Don't have money for that. May be an IP attorney here on HN can help us out?!
    - leeoniya 5y ago
      > Don't have money for that. and how about money to defend a potential lawsuit? you're gambling with more than just your job, honestly.

ChrisMarshallNY 5y ago

That sounds like the standard employment contract; not necessarily the "shower clause." It makes sense that the employer (or contractee) can claim that all work, done on their paid time, or on their equipment, is theirs. i.e., if I use my employers' laptop to develop OS software, and they can prove it, then they have a strong (and, basically, legit) claim on my work. Same with time that I'm being paid for, and supposed to be doing work for them. That's one reason why I brought my own personal laptop, many years ago, instead of using my employers' computer for my personal stuff. I'm not sure, but it may not even be required to be in the employment contract. I think that basic employment laws may enforce that. The "shower clause," on the other hand, says that all work and ideas that occur during your term of employment, belong to the company; regardless of whether or not it occurred on their paid time, or using their equipment. i.e., if you come up with an idea for a great Web site, while out on a date, or while taking a shower; whether or not it has anything to do with the corporation, the corporation can lay claim to it. It's pretty damn evil.

_6lik 5y ago
Oh, did not realise that. thanks for the clarification.
_6lik 5y ago
FWIW, I just found out that shower clauses are unenforceable (at most places) if it did not occur in paid time notwithstanding the fact whether you signed such a contract or not. There has to be a payment in lieu of your services otherwise such terms are deemed to be void.
- ChrisMarshallNY 5y ago
  Thanks. I know that my company's HR had some clearly unenforceable stuff in their various contracts, noncompetes and NDAs, but they banked on folks not having the means to fight it.

White_Wolf 5y ago

Personally I don't use the comp laptop for my own stuff. I remote into my machine/network at home from my personal phone. DP over usb-c works wonders with a BT keyboard. As a side note: I don't publish anything. My wife on the other hand does. It's been like that for over 10 years now. EDIT: Forgot to mention that I ended up doing this after a previous employer wanted to grab a load of VBA modules. Big pain the back side. My luck was that my wife actually did work with me on them. Saved my back side big time.

_6lik 5y ago
Your charged your phone in your office? There, Gotcha! You used "company resources". Believe it or not, lawyers will put arguments like these and the judge will accept those as valid reasons. btw, I have a similar setup (I don't work on it during office time inside the office, though) with a minor difference. I vnc/ssh to my aws setup rather than my home. This way my laptop lives longer and wife doesn't bicker about electricity bills.
- White_Wolf 5y ago
  that charging thing... I didn't think about something like that :( christ. It's becoming absurd but you made me realize that there might be other things I missed.

comex 5y ago

It depends on the exact wording of your employment contract. If it only covers work you did with company property, you're lucky. As far as the law goes, in California (per Labor Code section 2870), employment agreements are allowed to assign the employer IP rights (including copyrights and patent rights) to inventions that satisfy any of the following: - "[Use] the employer’s equipment, supplies, facilities, or trade secret information" - "Result from any work performed by the employee for the employer" - "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" For my part, the employment contract I signed is maximalist: it basically paraphrases the above language and says that anything satisfying any of those conditions is assigned to my employer. The third condition is really the kicker. If you want to use your code at work, then the code probably "relates to" your employer's "business" or "actual or demonstrably anticipated research or development". If your employment contract is as maximalist as mine (and there's a good chance it is), then that's enough to make it not yours, regardless of who (if anyone) forked it. In my case, my employer is large enough that it's hard to imagine software that doesn't somehow relate to its business…

_6lik 5y ago
Ohh yes.. These contracts are always maximalist. That's why I never touch areas where my company can even remotely claim involvement. But these are extremely important points that must be always keep in mind by everyone who wants to contribute in open-source.
- lolinder 5y ago
  What you describe in your original comment is that you write code at night with the intent of it being used by your company the next morning. I can't see how that doesn't "relate at the time of conception or reduction to practice of the invention to the employer’s business".
  - _6lik 5y ago
    Oh it's not like I am trying to steal its IP from my company. I don't do that shit for everything I do. But only for the ideations that I know are great and think I am going to use later. In that regard, programming can be easily generalised. Let me give you some examples. 1) Let's us say my company wants me to create a full stack dashboard that helps you visualise the inventory. I can just create a corona dashboard and then adjust the db tables and models in the office whereas keeping my original idea still free. 2) I create a library to easily log my programs with proper gears suited to my needs. 3) I write a DB script that helps me do active passive backup easily. 4) I write an FPGA library with vLL but enforcing an encryption. I provide a use case for astronomy (whereas my company is for retail, let us say) My point is there's always a way out.

GauntletWizard 5y ago

Your example is foolproof, but there's always a bigger fool? How do you prove that your commits weren't made on company time? How do you prove that they weren't made on company laptops? How do you prove that you didn't include trade-secrets in your implementation of these libraries? You can show that your commits were made at hours outside of office hours, you can show that the commits were made with your personal e-mail address, but lawyers can dispute it - Git commits are cryptographic proof only that someone (or if you signed them, someone with access to that private key) attested to those statements, and you do both those things on the company computers. You can show that all of the code is obvious, but lawyers can dispute it. A sufficiently foolish lawyer can dispute literally anything. Don't work for places where you'd have a problem with this - Get explicit approval for you to spend company time working on open source libraries that are the proprietary interest of the company, but that you as an individual have a copyleft license to (Iff you don't care that you can't take them private later). Or work for a company that doesn't have such onerous terms in their employment contract.

_6lik 5y ago
yeah... somebody needs to always make sure not to be the bigger fool... 1) Git commits have timestamps. 2) Proving I did on company laptop is their onus. Innocent until proven guilty. ;-P 3) I do that. Along with randomisation of sample data. but yeah, you make a very important point in general. 99% of people get screwed on such things. 4) If I do something using company laptop, it is bound to be logged somewhere. All my git visits are also logged and archived for 10 years as per law. So proving I did it using company laptop is easy and it is them who have to prove it. And a foolish lawyer is a dream come true because then I can keep dismissing his every argument as wasting the learned court's time. But yes, keeping things straight forward is always a better idea.
- deleted 5y ago
  [deleted]
- GauntletWizard 5y ago
  git commit --amend --date="Wed Feb 16 14:00 2011 +0100" --no-edit Certain proponents of Fossil and Mercurial will tell you that this is an advantage of those systems - They're fooling themselves, because you can make those edits, there's just not nice tooling for them.

_6lik 5y ago

This