15 ms·

As is often the case, the problem here could have been avoided if there had been clearer and more open communication. All this guy had to do was go to his empl

by reuven 13y ago

As is often the case, the problem here could have been avoided if there had been clearer and more open communication. All this guy had to do was go to his employer and say, "Listen, you should know that I'm working on an open-source project that is in the same ballpark as what I'm doing at work. However, there is no shared code, a different architecture, and the two don't even compete against one another. Plus, what I'm doing is open source." If his employer had said, "Yeah, go ahead -- no problem," then there wouldn't have been a problem. If his employer had said, "We're all in favor of open-source contributions and projects, but not when they compete against our core products, from which we make money," then they could have worked out a deal. Or not. But at least it wouldn't have been left up in the air like this. I definitely see a problem with an employee creating an open-source project in the same space as his commercial, day job. While a cease-and-desist order is pretty unpleasant, all they're saying is that he has to stop work on the project. It could have been much worse, and much more expensive. It also seems weird to me that while the former employee is saying he needs to stop, he's letting others fork the code and keep going with it. If I were interested in picking up an open-source project, I'd be hesitant to join one in which there had been explicit legal threats against the original author.

tptacek 13y ago
I think that as a descriptive (and not normative) explanation, this is right on the money.
pvg 13y ago
This is pretty standardized in many US-based software jobs - the employer gives you an Assignment of Inventions bit of paper in which you agree they own a chunk of your brain, you add additional bits of paper where you and the employer agree to exclude specific things, say, your personal open-source groupon for kittens. It's usually routine and painless.
- mikeryan 13y ago
  It should be noted that many states, including CA puts limits on what can be covered by this language. Under California law, an employee cannot be required to assign any of his or her rights in an invention he or she develops “entirely on his or her own time without using the employer’s equipment, supplies, facilities, or trade secret information” There are exceptions, see the whole article. This case even if in CA may be marred by the "Trade Secrets" restriction. http://www.intellectualpropertylawfirms.com/resources/intellectual-property/patents/is-your-pre-inve http://www.intellectualpropertylawfirms.com/resources/intell...
  - greggman 13y ago
    The next line from your clip seems really relevant to this topic when the invention was conceived or “reduced to practice” (actually created or a patent application filed) it related to the employer’s business or actual or “demonstrably anticipated” research or development, or... In other words, if it's related to the employer's business it belongs to them. What's related and what is not is up to a judge to decide. There's arguably a spectrum of directly related, somewhat related, tangentially related, unrelated, etc.. Seems like the OP's project though is in the directly related side of the spectrum.
  - Silhouette 13y ago
    One of those exceptions is potentially rather significant here, though. From immediately after the part you quoted: unless: when the invention was conceived or “reduced to practice” (actually created or a patent application filed) it related to the employer’s business or actual or “demonstrably anticipated” research or development, That said, the article you linked to seems to be about patents covering inventions rather than copyright covering creative works, so without reading more about the laws in those states I don't know whether any of this is actually relevant in this case.
eternalban 13y ago
> If his employer had said ... Paper, ink, and signatures, or it didn't happen.
- nailer 13y ago
  I'd get it in writing, but asking someone for a paper and ink OK for your Open Source project in 2014 is a bit much.
  - filmgirlcw 13y ago
    I disagree. I think its in everyone's best interests (most especially the employee) to get outside projects approved and in writing.
    - nailer 13y ago
      In writing includes digitally.
bunderbunder 13y ago
A nice, even-handed summary of the situation. TBH, it never would have even occurred to me to work on an open-source project that directly competes with what I do to pay the bills. I've got a noncompete, of course, but even without that it strikes me as a violation of basic business ethics. And even without that, as much as I enjoy programming after hours, working on the same problem you spend your work days hacking on seems like such a recipe for burn-out.
- chc 13y ago
  > TBH, it never would have even occurred to me to work on an open-source project that directly competes with what I do to pay the bills. I've got a noncompete, of course, but even without that it strikes me as a violation of basic business ethics. It takes an extraordinarily broad definition of "compete" to apply that to this situation, though. He works on an internal CI system at his company. He makes an OSS CI system in his spare time. Since these things have different uses and one is merely an incidental tool that his company uses to acomplish actual goals, he is not competing with his company in the sense that normal human beings would use the word. (Similarly, no sane person would look at someone sewing an apron at home and say, "Wow, that person is competing with Home Depot because their workers wear aprons!")
  - muteh 13y ago
    I know what you mean, but this isn't quite the same as the Home Depot version. Do you really think he didn't bring any of the paid for thought about CI to the open source version?
    - chc 13y ago
      I don't see how that's material to whether or not he was competing with his employer.
aardvark179 13y ago
There are a couple of interesting things in what the former employee says 1) He claims the commit logs are proof of when he did the work. They aren't, they are simply proof of when he did the commits. 2) He says, "I worked on it in the evenings after I had completed my work for the day." Which instantly makes me wonder whether he was doing this on a work computer after hours? If you want to do open-source work on an area related to your job you must talk to your employer first, and whatever open source work you do you should be sure you're either not using company resources or have permission to use them. Commit logs cannot prove when you did the work, they can only prove you did them at or before that point.
- mjolk 13y ago
  >If you want to do open-source work on an area related to your job you must talk to your employer first I promise you that's not the law. A bartender that makes drinks for his friends at a house party doesn't have to reimburse his employer for skills learned when tending a bar. > and whatever open source work you do you should be sure you're either not using company resources or have permission to use them But this is a valid point. If you're using company hardware and resources, you're arguably spending resources owned by the company.
  - bennylope 13y ago
    >If you want to do open-source work on an area related to your job you must talk to your employer first It isn't the law, but a some employment agreements give de factor ownership of any intellectual property an employee produces to the company, own time or not.
  - kzahel 13y ago
    I would argue that this is a moot point since computer hardware is a commodity. Most companies around here buy their employees new hardware and said employees will simply use them for all their computing needs as is convenient (would you travel with 2 laptops just to be able to claim you didn't use company hardware). I frankly find this kind of legal posturing by companies abhorrent and immoral. It's almost like treating employees as slaves.
mjolk 13y ago
A) If his employer had said, "Yeah, go ahead -- no problem," then there wouldn't have been a problem. B)If his employer had said, "We're all in favor of open-source contributions and projects, but not when they compete against our core products, from which we make money," then they could have worked out a deal. Or not. But at least it wouldn't have been left up in the air like this. --- False dichotomy. They could have pretended to go with '(A)' and then sued him over it later when/if the product became popular/made money. He (the developer) also then exposes himself to risks that he otherwise might not (e.g. lazy lawyers that only act when prompted).
- tomp 13y ago
  That's why you don't "talk" to your employer about such things, you "write" them an email (or better yet, a contract/copyright release).
  - mjolk 13y ago
    Sure, swap out the verb, but even so, there's lots of fun ways to word things that leave the door open for future lawsuits/claims.
apaprocki 13y ago
And when you read "go to the employer" and "the employer said", think to yourself: My company should have a clearly defined IP policy that states how to make these requests and hopefully an associated SLA. I sit on our IP group as an R&D representative and there are other representatives from HR as well as Legal. This allows the group to basically handle any situation that comes up efficiently and employees have a clear single point of contact. We try to ensure no request takes longer than a week to resolve, but most take minutes.
btilly 13y ago
It also seems weird to me that while the former employee is saying he needs to stop, he's letting others fork the code and keep going with it. I think he received poor legal advice on this, and the same goes for anyone who forks it. The issue is that he does not own copyright. Given that he doesn't own copyright, what he says does not matter. It is as meaningful as my giving permission for Bob to drive YOUR car. Since I don't own it, I can't actually give permission. Usual disclaimers. I am not a lawyer, this is not legal advice.
- j_jochem 13y ago
  I don't think you can say that he does not own copyright. In this case, it is unclear who owns the copyright and a court would probably have to be involved to clarify the situation.
  - Silhouette 13y ago
    In this case, it is unclear who owns the copyright and a court would probably have to be involved to clarify the situation. While it's strictly true that we haven't been told enough to know, I would expect even the most fair and reasonable of employment contracts to transfer the copyright to the employer by default if we're talking about a project that is in exactly the field that the employee works in at their job.
  - btilly 13y ago
    I don't think you can say that he does not own copyright. I have worked in and paid attention to employment law as far as it pertains to copyright in both California and New York. From what I have been told by competent lawyers in both states, this would be an open and shut case. Even if the contract didn't say anything about it (which would be extremely unlikely), work done by an employee on a project related to what the company does is a work for hire and therefore belongs to the company.
laureny 13y ago
> Listen, you should know that I'm working on an open-source project that is in the same ballpark as what I'm doing at work. No employer will ever be comfortable with something like this. I write open source on my spare time and I support the idea wholeheartedly but hearing that one of my developers is doing something like this would make me question what exactly she is doing and why. I'm perfectly fine with her working on totally unrelated projects but this smells very dangerous for both parties, starting with the fact that it's probably impossible to make sure the two projects are not leaking into each other, with unforeseen legal and competitive consequences.
- jeswin 13y ago
  Anything that I do with my time, my equipment and my brain outside paid work hours belongs to me. If there was a contract that insisted on it not being so, there is no need to offer the said clause the protection of law. I find it troubling that so many people are alright with signing away their personal rights. The employee individually isn't obligated to the company any more than the company is obligated to the society collectively. Without the public obeying rules such as copyright, the said company wouldn't even be in business. The west's definition of freedom is confounding. Capitalism has eroded the rights of the individual and left him utterly powerless and subservient. To the extent that many people don't even realize how much of their rights have been ceded.
  - WalterBright 13y ago
    > I find it troubling that so many people are alright with signing away their personal rights. The employee individually isn't obligated to the company The employee and the company are obliged to stand by their agreements with each other. The time to negotiate the terms of the agreement is before you sign it, not after.
    - rmc 13y ago
      There are limitations to the rights you can sign away and agreements you can enter into. For example, you cannot agree to work for less than the minimum wage, and any contract of that form is not binding.
eyko 13y ago
> "We're all in favor of open-source contributions and projects, but not when they compete against our core products, from which we make money," This right here is the classic definition of a leech. I am only in favour of open source if i can benefit from it. I am not in favour of the part that suggests that I "contribute back to the community". Well, I guess everyone is in their right to be an asshole. When you smell the stench then you know what's coming :)
- cruise02 13y ago
  There's a huge difference between writing open source software that benefits your company and open source software that directly competes with your company's core products. There's plenty of room to find something that wouldn't be a conflict of interest.
mathattack 13y ago
This is a very touchy area. You have to get buy-in from your employer for side projects, otherwise they (with some legal standing) believe they own the work. The only alternative is to be very discreet about what you do on the side. It's wrong, but see how companies react...
whatevsbro 13y ago
> All this guy had to do was go to his employer and say All his employer had to do was not be retarded little bitches.

by reuven 13y ago

tptacek 13y ago

I think that as a descriptive (and not normative) explanation, this is right on the money.

pvg 13y ago

This is pretty standardized in many US-based software jobs - the employer gives you an Assignment of Inventions bit of paper in which you agree they own a chunk of your brain, you add additional bits of paper where you and the employer agree to exclude specific things, say, your personal open-source groupon for kittens. It's usually routine and painless.

mikeryan 13y ago
It should be noted that many states, including CA puts limits on what can be covered by this language. Under California law, an employee cannot be required to assign any of his or her rights in an invention he or she develops “entirely on his or her own time without using the employer’s equipment, supplies, facilities, or trade secret information” There are exceptions, see the whole article. This case even if in CA may be marred by the "Trade Secrets" restriction. http://www.intellectualpropertylawfirms.com/resources/intellectual-property/patents/is-your-pre-inve http://www.intellectualpropertylawfirms.com/resources/intell...
- greggman 13y ago
  The next line from your clip seems really relevant to this topic when the invention was conceived or “reduced to practice” (actually created or a patent application filed) it related to the employer’s business or actual or “demonstrably anticipated” research or development, or... In other words, if it's related to the employer's business it belongs to them. What's related and what is not is up to a judge to decide. There's arguably a spectrum of directly related, somewhat related, tangentially related, unrelated, etc.. Seems like the OP's project though is in the directly related side of the spectrum.
- Silhouette 13y ago
  One of those exceptions is potentially rather significant here, though. From immediately after the part you quoted: unless: when the invention was conceived or “reduced to practice” (actually created or a patent application filed) it related to the employer’s business or actual or “demonstrably anticipated” research or development, That said, the article you linked to seems to be about patents covering inventions rather than copyright covering creative works, so without reading more about the laws in those states I don't know whether any of this is actually relevant in this case.

eternalban 13y ago

> If his employer had said ... Paper, ink, and signatures, or it didn't happen.

nailer 13y ago
I'd get it in writing, but asking someone for a paper and ink OK for your Open Source project in 2014 is a bit much.
- filmgirlcw 13y ago
  I disagree. I think its in everyone's best interests (most especially the employee) to get outside projects approved and in writing.
  - nailer 13y ago
    In writing includes digitally.

bunderbunder 13y ago

A nice, even-handed summary of the situation. TBH, it never would have even occurred to me to work on an open-source project that directly competes with what I do to pay the bills. I've got a noncompete, of course, but even without that it strikes me as a violation of basic business ethics. And even without that, as much as I enjoy programming after hours, working on the same problem you spend your work days hacking on seems like such a recipe for burn-out.

chc 13y ago
> TBH, it never would have even occurred to me to work on an open-source project that directly competes with what I do to pay the bills. I've got a noncompete, of course, but even without that it strikes me as a violation of basic business ethics. It takes an extraordinarily broad definition of "compete" to apply that to this situation, though. He works on an internal CI system at his company. He makes an OSS CI system in his spare time. Since these things have different uses and one is merely an incidental tool that his company uses to acomplish actual goals, he is not competing with his company in the sense that normal human beings would use the word. (Similarly, no sane person would look at someone sewing an apron at home and say, "Wow, that person is competing with Home Depot because their workers wear aprons!")
- muteh 13y ago
  I know what you mean, but this isn't quite the same as the Home Depot version. Do you really think he didn't bring any of the paid for thought about CI to the open source version?
  - chc 13y ago
    I don't see how that's material to whether or not he was competing with his employer.

aardvark179 13y ago

There are a couple of interesting things in what the former employee says 1) He claims the commit logs are proof of when he did the work. They aren't, they are simply proof of when he did the commits. 2) He says, "I worked on it in the evenings after I had completed my work for the day." Which instantly makes me wonder whether he was doing this on a work computer after hours? If you want to do open-source work on an area related to your job you must talk to your employer first, and whatever open source work you do you should be sure you're either not using company resources or have permission to use them. Commit logs cannot prove when you did the work, they can only prove you did them at or before that point.

mjolk 13y ago
>If you want to do open-source work on an area related to your job you must talk to your employer first I promise you that's not the law. A bartender that makes drinks for his friends at a house party doesn't have to reimburse his employer for skills learned when tending a bar. > and whatever open source work you do you should be sure you're either not using company resources or have permission to use them But this is a valid point. If you're using company hardware and resources, you're arguably spending resources owned by the company.
- bennylope 13y ago
  >If you want to do open-source work on an area related to your job you must talk to your employer first It isn't the law, but a some employment agreements give de factor ownership of any intellectual property an employee produces to the company, own time or not.
- kzahel 13y ago
  I would argue that this is a moot point since computer hardware is a commodity. Most companies around here buy their employees new hardware and said employees will simply use them for all their computing needs as is convenient (would you travel with 2 laptops just to be able to claim you didn't use company hardware). I frankly find this kind of legal posturing by companies abhorrent and immoral. It's almost like treating employees as slaves.

mjolk 13y ago

A) If his employer had said, "Yeah, go ahead -- no problem," then there wouldn't have been a problem. B)If his employer had said, "We're all in favor of open-source contributions and projects, but not when they compete against our core products, from which we make money," then they could have worked out a deal. Or not. But at least it wouldn't have been left up in the air like this. --- False dichotomy. They could have pretended to go with '(A)' and then sued him over it later when/if the product became popular/made money. He (the developer) also then exposes himself to risks that he otherwise might not (e.g. lazy lawyers that only act when prompted).

tomp 13y ago
That's why you don't "talk" to your employer about such things, you "write" them an email (or better yet, a contract/copyright release).
- mjolk 13y ago
  Sure, swap out the verb, but even so, there's lots of fun ways to word things that leave the door open for future lawsuits/claims.

apaprocki 13y ago

And when you read "go to the employer" and "the employer said", think to yourself: My company should have a clearly defined IP policy that states how to make these requests and hopefully an associated SLA. I sit on our IP group as an R&D representative and there are other representatives from HR as well as Legal. This allows the group to basically handle any situation that comes up efficiently and employees have a clear single point of contact. We try to ensure no request takes longer than a week to resolve, but most take minutes.

btilly 13y ago

It also seems weird to me that while the former employee is saying he needs to stop, he's letting others fork the code and keep going with it. I think he received poor legal advice on this, and the same goes for anyone who forks it. The issue is that he does not own copyright. Given that he doesn't own copyright, what he says does not matter. It is as meaningful as my giving permission for Bob to drive YOUR car. Since I don't own it, I can't actually give permission. Usual disclaimers. I am not a lawyer, this is not legal advice.

j_jochem 13y ago
I don't think you can say that he does not own copyright. In this case, it is unclear who owns the copyright and a court would probably have to be involved to clarify the situation.
- Silhouette 13y ago
  In this case, it is unclear who owns the copyright and a court would probably have to be involved to clarify the situation. While it's strictly true that we haven't been told enough to know, I would expect even the most fair and reasonable of employment contracts to transfer the copyright to the employer by default if we're talking about a project that is in exactly the field that the employee works in at their job.
- btilly 13y ago
  I don't think you can say that he does not own copyright. I have worked in and paid attention to employment law as far as it pertains to copyright in both California and New York. From what I have been told by competent lawyers in both states, this would be an open and shut case. Even if the contract didn't say anything about it (which would be extremely unlikely), work done by an employee on a project related to what the company does is a work for hire and therefore belongs to the company.

laureny 13y ago

> Listen, you should know that I'm working on an open-source project that is in the same ballpark as what I'm doing at work. No employer will ever be comfortable with something like this. I write open source on my spare time and I support the idea wholeheartedly but hearing that one of my developers is doing something like this would make me question what exactly she is doing and why. I'm perfectly fine with her working on totally unrelated projects but this smells very dangerous for both parties, starting with the fact that it's probably impossible to make sure the two projects are not leaking into each other, with unforeseen legal and competitive consequences.

jeswin 13y ago
Anything that I do with my time, my equipment and my brain outside paid work hours belongs to me. If there was a contract that insisted on it not being so, there is no need to offer the said clause the protection of law. I find it troubling that so many people are alright with signing away their personal rights. The employee individually isn't obligated to the company any more than the company is obligated to the society collectively. Without the public obeying rules such as copyright, the said company wouldn't even be in business. The west's definition of freedom is confounding. Capitalism has eroded the rights of the individual and left him utterly powerless and subservient. To the extent that many people don't even realize how much of their rights have been ceded.
- WalterBright 13y ago
  > I find it troubling that so many people are alright with signing away their personal rights. The employee individually isn't obligated to the company The employee and the company are obliged to stand by their agreements with each other. The time to negotiate the terms of the agreement is before you sign it, not after.
  - rmc 13y ago
    There are limitations to the rights you can sign away and agreements you can enter into. For example, you cannot agree to work for less than the minimum wage, and any contract of that form is not binding.

eyko 13y ago

> "We're all in favor of open-source contributions and projects, but not when they compete against our core products, from which we make money," This right here is the classic definition of a leech. I am only in favour of open source if i can benefit from it. I am not in favour of the part that suggests that I "contribute back to the community". Well, I guess everyone is in their right to be an asshole. When you smell the stench then you know what's coming :)

cruise02 13y ago
There's a huge difference between writing open source software that benefits your company and open source software that directly competes with your company's core products. There's plenty of room to find something that wouldn't be a conflict of interest.

mathattack 13y ago

This is a very touchy area. You have to get buy-in from your employer for side projects, otherwise they (with some legal standing) believe they own the work. The only alternative is to be very discreet about what you do on the side. It's wrong, but see how companies react...

whatevsbro 13y ago

> All this guy had to do was go to his employer and say All his employer had to do was not be retarded little bitches.