14 ms·

It's one thing to work on unrelated open source software while working somewhere. It's a much more tenuous situation when you're working on OSS in the same dom

It's one thing to work on unrelated open source software while working somewhere. It's a much more tenuous situation when you're working on OSS in the same domain as your commercial software, even if the entire technology stack is completely different. Unfortunately it sounds like the employer's claim might have some legs in this case.

cones688 13y ago
Also when nearly all mid-sized corps and above have in their employment contract that all knowledge/output etc whether on company time or not, is property of the company.
- rubiquity 13y ago
  Does that really hold up in court? I suppose it depends on the state you live in. I hope someday a developer stands up to this, wins in court and scares the crap out of employers all across the country from trying the same. We need a Rackspace/NewEgg of Employer Intellectual Property trolls.
  - Argorak 13y ago
    Never sign this unless you have a lawyer, money and breath to invalidate a clause you thought "does not hold up in court".
- Nursie 13y ago
  Never sign these. They have no right. None at all. It's fair enough to get people to sign something that says they won't leak IP, and even that they won't do other projects that compete with company business. But a catch-all "All your code belongs to us?" No. Way.
  - Xylakant 13y ago
    > They have no right. None at all. Depends on where you are. In germany this is actually enshrined in the Arbeitnehmererfindungsgesetz. The employer has the right, even without the contract clause. Good luck opting out.
    - Nursie 13y ago
      Wow. Remind me never to work in Germany! (It comes up once in a while. I probably wasn't going to anyway, but this is further reason not to)
      - Nursie 13y ago
        Just out of interest, to whoever did it - why the downvote? I think Germany's a great country, there's an awful lot done right there, but it's important enough to me that I retain ownership of my own out-of-hours projects that I would not work there. Is this wrong of me?
      - Xylakant 13y ago
        Why? There's an easy way to solve this problem: Go talk to your employer. The ones you might want to work for are reasonable: I'm not claiming IP rights for unrelated side projects of employees. Now if you get into the area where you're dealing with trade secrets and patents on stuff that directly relates to your work, even if you write the code on the side, you'll probably run into trouble in a lot of jurisdictions. There's no way to effectively draw the line and say "oh, this small idea about the flux-compensator, I had that at work, but this great, patent-worthy-and-billion-dollar idea, that builds on my previous findings at work, that one, that totally came to me in my spare time (exactly at 08:01 pm, just as I stepped into my car)." That's the problems that these regulations try to tackle. It's imperfect, but hey, at least you're entitled to a fair compensation by the same law.
        Nursie 13y ago
        Talking to your employer solves nothing. Many times people will renege on verbal agreements to allow things, either because of inflated concerns about liability or competition, or simply out of ignorance or spite. I don't wish to exposed to those legal possibilities. It's just not acceptable to me.
        Xylakant 13y ago
        > Many times people will renege on verbal agreements to allow things, either because of inflated concerns about liability or competition, or simply out of ignorance or spite. That's what I meant with 'people you don't want to work for', especially the ones that act out of spite. I found all employers that I worked for in my career quite supportive, some would even allow me to work on the side projects during office time. > I don't wish to exposed to those legal possibilities. It's just not acceptable to me. Certainly your choice. Given that a lot of US employment contracts have clauses to the same effect I'd be curious what options remain. European law is fairly well standardized and I'd not be surprised if other european countries have laws to the same effect. Germany tends to be pretty employee friendly.
  - JackFr 13y ago
    What about working for a competitor? Presumably a company can ask that you not actively undermine their product while cashing their paychecks? From that I would argue that by building a similar product in his free time he was effectively working for a competitor.
    - Nursie 13y ago
      I'm not sure that my attitude to "we own all your stuff" clauses is directly relevant to the case at hand, no. I agree entirely that the employer has the right to ask you not to compete while you're still employed by them. I won't sign non-competes that extend past employment, but I don't think it's unreasonable to sign one during employment. Particularly not for products (FOSS or otherwise) that directly compete with the very thing you're working on now.
      - Xylakant 13y ago
        > Particularly not for products (FOSS or otherwise) that directly compete with the very thing you're working on now. But that's the case discussed here. The guy was tasked to build a CI-System at work and built another one in his spare time.
        Nursie 13y ago
        Yes, I know, which is why my comment was specifically about clauses in which employers claim ownership of side projects and other out of scope productivity. Please track back up-thread to see the comment I was responding to.
- JohnBooty 13y ago
  Tip: I've worked at 4 or 5 small/medium companies where I crossed this out of my employment contract before signing it, and had the hiring person initial the modification. I just explain that I have a number of hobby projects that I can't hand over to the company. In my experience most companies don't even know or care that clause is in there and have no problem waiving it. Remember, employment contracts are almost always just prepared by their legal firm, and the legal firm is just copy-pasting most if not all of the contract. You can do this with literally any clause of any contract, by the way. The other party might balk (good luck if you try it on your mortgage papers!) but generally it's much easier than you think...
  - ryandrake 13y ago
    Your mileage will definitely vary on this one. I've tried this a couple of times, and the result was always the same: "Sign an unmodified employer agreement or go find another job."
    - JohnBooty 13y ago
      It doesn't surprise me that mileage can vary; I'm sorry you had to deal with unreasonable companies. Were they tech-focused companies? In my cases, they were companies where software development was necessary but tangential to what they do. For example I currently work at a printing company where I help to automate digital stuff and help drive print sales with online storefronts. I'm not even sure the owner knows what programming is other than the fact that I do it for him and it makes his stuff work. So he's not interested in owning software I write outside of work hours...
- mgkimsal 13y ago
  Usually the clause is more nuanced, giving them an option to own it, or something to that effect. I asked an HR person years ago if they actually wanted to be on the hook for any intellectual property I might create off the clock - I might be in to illegal porn stuff, or security virus work, or whatever. Did they really want to claim ownership of that, without even knowing what it was? "Well, no, we don't want that" was the response.
  - Xylakant 13y ago
    You can't be on the hook for intellectual property. Having the right to the IP you gained off hours does not mean that they're on the hook for your actions in that time, even if your actions were a requisite to gain that IP. The clauses are usually more nuanced because the blanket "we own all you ever create" is - rightfully - considered to broad and unenforceable.
    - mgkimsal 13y ago
      yeah - unenforceable - in that one case I actually got them to modify the language to be a bit more clear as to what they were after (essentially non-competition).
- balls187 13y ago
  Depending on location, those may be illegal. In WA state, only work you do on company time, or with/on company resources can be claimed by the company.
rjknight 13y ago
I would like to know the precise mechanism here. What is the harm that the employer is claiming to experience?
- frankydp 13y ago
  Most likely they would claim a reduction in competitive advantage if the employer CI was internal.
Fuxy 13y ago
I would disagree. What you do in your personal time is none of your employers business he is not paying for that time and he does not own whatever you create in that time. Not unless you signed a ridiculous contract saying something like that which in my opinion should not be enforceable anyway. It's like a construction company saying it owns the house you built for your family just because you happen to work for them and you gained experience by working for them. They certainly didn't supply the raw material which in programming would be time and effort so they shouldn't have any claim on it.
- deong 13y ago
  > They certainly didn't supply the raw material which in programming would be time and effort so they shouldn't have any claim on it. It's this last point where you might well run into legitimate disagreement. What is the "raw material" for a piece of software? If it's the knowledge that goes into writing it, then arguably the employer did supply that. I can pretty much remember what code I wrote during a day. Not verbatim of course, but if I solved a problem at 10:00 AM, I'll be able to figure it out again at 6:00 PM. What is to prevent me from going to work for a small software company, working on their product during the day, cashing their paychecks, and duplicating my work at night? When I'm done, I just quit and sell my version as a competitor?
  - deleted 13y ago
    [deleted]
  - ufmace 13y ago
    If doing that is really practical, I would tend to wonder if the employer has a practical business plan. Shouldn't your employer be adding enough value to your code and work processes that you couldn't make the same product without them? At the job I currently work, our product is for a very specialized domain. I can remember the problems that I've solved, but there's no way I could build or sell a product in the same market without the domain expertise that my employer brings to the table. Maybe your employer is providing capital to fund the salaries of a team of developers to build a product that has no guarantee of any market success, saving you the trouble of risking that kind of money, or convincing somebody else to risk it for you. Maybe you don't like sales, and your employer is going out to potential customers and convincing them to use your product, so you can keep working on the stuff you're really good at. Point is, if you legitimately can't think of some value that your employer adds to your work, maybe you really should take off and do the same thing for yourself.
hyp0 13y ago
He's at least safe from IP infringement because it utilized a completely different approach. I guess it's understandable the legal dept would be upset, because this different approach would be hard for them to see. It's also understandable that some pitch-forks might come out. Perhaps a resoluion is to get independent confirmation of his claim that it is a "completely different approach". Of course, the legal dept's concern might be more on stopping a potential competitor/alternative.
- awda 13y ago
  I'm not sure of that, simply because many employment contracts have a term something like "any employee output of value, even in off hours, is the property of the employer." So even if it was in his spare time, he might not own the IP rights to his creation.
  - hyp0 13y ago
    This may seem like semantics, but I deliberately omitted that case by addressing "IP infringement", and not the contractual issue (of ownership). sigh I guess it's arguable, that the contractual scenario is technically "IP infringement", but I would say it's just a part of it, and not the issue that it turns on. But this argument is not important enough to go into. I could have also addressed the contractual issue, if only in passing, to armour-plate my comment, but it wasn't the point I wanted to make, and thought it would complicate, dilute and confuse it. Also, defensive commenting is not fun. sigh this regularly happens to me online, I wonder if there's any way to prevent it (or accept it, once it happens)? It really bugs me. I may be seeing it from my own point of view too exclusively... Any suggestions?
f0nd004u 13y ago
That would imply that they own the ideas that give birth to the code you write, rather than the code itself, right?
berkut 13y ago
I would have thought so too (and did), but at my previous employer they took over another company which broadened the scope of the products (VFX software) they offered, which then came into conflict with work I'd been doing in my own time. I ended up signing a specific non-compete and agreeing not to open-source my stuff for a year for the opportunely to work on something I wanted to there, but it turned out that up to that point, the managers' interpretation of the contract that I thought would have prevented working on open-source competitors (i.e. blender or something) meant that they wouldn't have been able or had the right to. Which I found surprising, but I guess wasn't really put to the test. So I guess it varies.

cones688 13y ago

Also when nearly all mid-sized corps and above have in their employment contract that all knowledge/output etc whether on company time or not, is property of the company.

rubiquity 13y ago
Does that really hold up in court? I suppose it depends on the state you live in. I hope someday a developer stands up to this, wins in court and scares the crap out of employers all across the country from trying the same. We need a Rackspace/NewEgg of Employer Intellectual Property trolls.
- Argorak 13y ago
  Never sign this unless you have a lawyer, money and breath to invalidate a clause you thought "does not hold up in court".
Nursie 13y ago
Never sign these. They have no right. None at all. It's fair enough to get people to sign something that says they won't leak IP, and even that they won't do other projects that compete with company business. But a catch-all "All your code belongs to us?" No. Way.
- Xylakant 13y ago
  > They have no right. None at all. Depends on where you are. In germany this is actually enshrined in the Arbeitnehmererfindungsgesetz. The employer has the right, even without the contract clause. Good luck opting out.
  - Nursie 13y ago
    Wow. Remind me never to work in Germany! (It comes up once in a while. I probably wasn't going to anyway, but this is further reason not to)
    - Nursie 13y ago
      Just out of interest, to whoever did it - why the downvote? I think Germany's a great country, there's an awful lot done right there, but it's important enough to me that I retain ownership of my own out-of-hours projects that I would not work there. Is this wrong of me?
    - Xylakant 13y ago
      Why? There's an easy way to solve this problem: Go talk to your employer. The ones you might want to work for are reasonable: I'm not claiming IP rights for unrelated side projects of employees. Now if you get into the area where you're dealing with trade secrets and patents on stuff that directly relates to your work, even if you write the code on the side, you'll probably run into trouble in a lot of jurisdictions. There's no way to effectively draw the line and say "oh, this small idea about the flux-compensator, I had that at work, but this great, patent-worthy-and-billion-dollar idea, that builds on my previous findings at work, that one, that totally came to me in my spare time (exactly at 08:01 pm, just as I stepped into my car)." That's the problems that these regulations try to tackle. It's imperfect, but hey, at least you're entitled to a fair compensation by the same law.
      - Nursie 13y ago
        Talking to your employer solves nothing. Many times people will renege on verbal agreements to allow things, either because of inflated concerns about liability or competition, or simply out of ignorance or spite. I don't wish to exposed to those legal possibilities. It's just not acceptable to me.
        Xylakant 13y ago
        > Many times people will renege on verbal agreements to allow things, either because of inflated concerns about liability or competition, or simply out of ignorance or spite. That's what I meant with 'people you don't want to work for', especially the ones that act out of spite. I found all employers that I worked for in my career quite supportive, some would even allow me to work on the side projects during office time. > I don't wish to exposed to those legal possibilities. It's just not acceptable to me. Certainly your choice. Given that a lot of US employment contracts have clauses to the same effect I'd be curious what options remain. European law is fairly well standardized and I'd not be surprised if other european countries have laws to the same effect. Germany tends to be pretty employee friendly.
- JackFr 13y ago
  What about working for a competitor? Presumably a company can ask that you not actively undermine their product while cashing their paychecks? From that I would argue that by building a similar product in his free time he was effectively working for a competitor.
  - Nursie 13y ago
    I'm not sure that my attitude to "we own all your stuff" clauses is directly relevant to the case at hand, no. I agree entirely that the employer has the right to ask you not to compete while you're still employed by them. I won't sign non-competes that extend past employment, but I don't think it's unreasonable to sign one during employment. Particularly not for products (FOSS or otherwise) that directly compete with the very thing you're working on now.
    - Xylakant 13y ago
      > Particularly not for products (FOSS or otherwise) that directly compete with the very thing you're working on now. But that's the case discussed here. The guy was tasked to build a CI-System at work and built another one in his spare time.
      - Nursie 13y ago
        Yes, I know, which is why my comment was specifically about clauses in which employers claim ownership of side projects and other out of scope productivity. Please track back up-thread to see the comment I was responding to.
JohnBooty 13y ago
Tip: I've worked at 4 or 5 small/medium companies where I crossed this out of my employment contract before signing it, and had the hiring person initial the modification. I just explain that I have a number of hobby projects that I can't hand over to the company. In my experience most companies don't even know or care that clause is in there and have no problem waiving it. Remember, employment contracts are almost always just prepared by their legal firm, and the legal firm is just copy-pasting most if not all of the contract. You can do this with literally any clause of any contract, by the way. The other party might balk (good luck if you try it on your mortgage papers!) but generally it's much easier than you think...
- ryandrake 13y ago
  Your mileage will definitely vary on this one. I've tried this a couple of times, and the result was always the same: "Sign an unmodified employer agreement or go find another job."
  - JohnBooty 13y ago
    It doesn't surprise me that mileage can vary; I'm sorry you had to deal with unreasonable companies. Were they tech-focused companies? In my cases, they were companies where software development was necessary but tangential to what they do. For example I currently work at a printing company where I help to automate digital stuff and help drive print sales with online storefronts. I'm not even sure the owner knows what programming is other than the fact that I do it for him and it makes his stuff work. So he's not interested in owning software I write outside of work hours...
mgkimsal 13y ago
Usually the clause is more nuanced, giving them an option to own it, or something to that effect. I asked an HR person years ago if they actually wanted to be on the hook for any intellectual property I might create off the clock - I might be in to illegal porn stuff, or security virus work, or whatever. Did they really want to claim ownership of that, without even knowing what it was? "Well, no, we don't want that" was the response.
- Xylakant 13y ago
  You can't be on the hook for intellectual property. Having the right to the IP you gained off hours does not mean that they're on the hook for your actions in that time, even if your actions were a requisite to gain that IP. The clauses are usually more nuanced because the blanket "we own all you ever create" is - rightfully - considered to broad and unenforceable.
  - mgkimsal 13y ago
    yeah - unenforceable - in that one case I actually got them to modify the language to be a bit more clear as to what they were after (essentially non-competition).
balls187 13y ago
Depending on location, those may be illegal. In WA state, only work you do on company time, or with/on company resources can be claimed by the company.

rjknight 13y ago

I would like to know the precise mechanism here. What is the harm that the employer is claiming to experience?

frankydp 13y ago
Most likely they would claim a reduction in competitive advantage if the employer CI was internal.

Fuxy 13y ago

I would disagree. What you do in your personal time is none of your employers business he is not paying for that time and he does not own whatever you create in that time. Not unless you signed a ridiculous contract saying something like that which in my opinion should not be enforceable anyway. It's like a construction company saying it owns the house you built for your family just because you happen to work for them and you gained experience by working for them. They certainly didn't supply the raw material which in programming would be time and effort so they shouldn't have any claim on it.

deong 13y ago
> They certainly didn't supply the raw material which in programming would be time and effort so they shouldn't have any claim on it. It's this last point where you might well run into legitimate disagreement. What is the "raw material" for a piece of software? If it's the knowledge that goes into writing it, then arguably the employer did supply that. I can pretty much remember what code I wrote during a day. Not verbatim of course, but if I solved a problem at 10:00 AM, I'll be able to figure it out again at 6:00 PM. What is to prevent me from going to work for a small software company, working on their product during the day, cashing their paychecks, and duplicating my work at night? When I'm done, I just quit and sell my version as a competitor?
- deleted 13y ago
  [deleted]
- ufmace 13y ago
  If doing that is really practical, I would tend to wonder if the employer has a practical business plan. Shouldn't your employer be adding enough value to your code and work processes that you couldn't make the same product without them? At the job I currently work, our product is for a very specialized domain. I can remember the problems that I've solved, but there's no way I could build or sell a product in the same market without the domain expertise that my employer brings to the table. Maybe your employer is providing capital to fund the salaries of a team of developers to build a product that has no guarantee of any market success, saving you the trouble of risking that kind of money, or convincing somebody else to risk it for you. Maybe you don't like sales, and your employer is going out to potential customers and convincing them to use your product, so you can keep working on the stuff you're really good at. Point is, if you legitimately can't think of some value that your employer adds to your work, maybe you really should take off and do the same thing for yourself.

hyp0 13y ago

He's at least safe from IP infringement because it utilized a completely different approach. I guess it's understandable the legal dept would be upset, because this different approach would be hard for them to see. It's also understandable that some pitch-forks might come out. Perhaps a resoluion is to get independent confirmation of his claim that it is a "completely different approach". Of course, the legal dept's concern might be more on stopping a potential competitor/alternative.

awda 13y ago
I'm not sure of that, simply because many employment contracts have a term something like "any employee output of value, even in off hours, is the property of the employer." So even if it was in his spare time, he might not own the IP rights to his creation.
- hyp0 13y ago
  This may seem like semantics, but I deliberately omitted that case by addressing "IP infringement", and not the contractual issue (of ownership). sigh I guess it's arguable, that the contractual scenario is technically "IP infringement", but I would say it's just a part of it, and not the issue that it turns on. But this argument is not important enough to go into. I could have also addressed the contractual issue, if only in passing, to armour-plate my comment, but it wasn't the point I wanted to make, and thought it would complicate, dilute and confuse it. Also, defensive commenting is not fun. sigh this regularly happens to me online, I wonder if there's any way to prevent it (or accept it, once it happens)? It really bugs me. I may be seeing it from my own point of view too exclusively... Any suggestions?

f0nd004u 13y ago

That would imply that they own the ideas that give birth to the code you write, rather than the code itself, right?

berkut 13y ago

I would have thought so too (and did), but at my previous employer they took over another company which broadened the scope of the products (VFX software) they offered, which then came into conflict with work I'd been doing in my own time. I ended up signing a specific non-compete and agreeing not to open-source my stuff for a year for the opportunely to work on something I wanted to there, but it turned out that up to that point, the managers' interpretation of the contract that I thought would have prevented working on open-source competitors (i.e. blender or something) meant that they wouldn't have been able or had the right to. Which I found surprising, but I guess wasn't really put to the test. So I guess it varies.