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|  Beware Employment Contracts |
 Posted by
michael
on Wednesday March 20, @08:58PM
from the ties-that-bind dept.
elfdump writes "Tilly, one of the Perl Monks, has been threatened with lawsuits from his employer for performing open-source development. His company claims ownership on all of the GPL'd work he has performed since he was hired, including rights to portions of the Carp and Exporter modules. In addition to his code being pulled, Tilly's revolutionary ideas on regular expression engines (1, 2) may now never be fulfilled. In this statement, Tilly warns open-source developers of the dangers of the "work for hire" provision in contracts, which entitles a company to all of its employee's intellectual products, regardless of their applicability to the company or whether or not the ideas were developed on work time. Definitely something to consider if you perform OSS development." One thing to clarify: your employer does not own everything you do by law - only by the contract you may have signed. Brief rant below.
A lot of people think they have no negotiating ability. You do. When you're thinking of signing on with some company, and they send you a boiler-plate contract to sign, don't just sign it and send it back. Read it carefully. Alter it as you see fit, striking out sections, adding sections, and initialing each change. Then sign it, make a copy for yourself, and send it back.
Where it says:
company owns the rights to all work produced during the term of employment
Just strike it out, and change it to:
company owns the rights to code written during working hours and in direct furtherance of any tasks assigned by the company
See how much nicer that reads? Now, when you do this, there are two possibilities: either the company will ignore it and hire you, or they will object to your alteration of the contract. In the second case, if they stand firm on the boiler-plate contract, I suggest you simply ask for more money - for instance, if you were expecting an 8 hour/day job and their contract asserts that they own what you do 24 hours/day, then you'll need at least three times as much salary to compensate.
And if you and the company cannot reach an agreement, well, maybe you didn't want to work for them anyway. If they're already screwing you before you've even signed on, that's not a good omen.
There's already some good advice in the comments on the perlmonks story, so I'll leave it at that.
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Beware Employment Contracts
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Argh.. (Score:4, Interesting)
by JoeLinux on Wednesday March 20, @09:01PM (#3197804)
(User #20366 Info | http://www.pacificnet.net/~isamu/joe_html)
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Unfortunately, for us Electrical/Computer Engineers, there is no way around that. They simply won't hire you. Sucks, but that's how it works.
Joe Carnes
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Promissory Estopple (Score:5, Insightful)
by ClarkEvans on Wednesday March 20, @09:05PM (#3197818)
(User #102211 Info | http://clarkevans.com)
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If he was clearly doing these things in public and his superiors _knew_ that he was doing this stuff and doing it with a GPL, then the employer may not be able to retroactively re-claim copyright. If they confronted him (in writing) *as soon as they found out* then his license to us is invalid, and people should refrain from using the code he licensed to us under the GPL. *sighs*
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| - Re:Promissory Estopple by Anonymous Coward (Score:1) Wednesday March 20, @09:58PM
Re:Promissory Estoppel (Score:5, Interesting)
by ClarkEvans on Wednesday March 20, @10:31PM (#3198163)
(User #102211 Info | http://clarkevans.com)
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This has nothing to do with the doctrine of promissory estoppel. As the name implies, promissory estoppel requires a _promise_. Silence is not the same as a promise. Only under limited circumanstances will a court hold that failure to enforce a right amounts to a total waiver of that right. The scenario you pose is not such a circumstance.
Sorry for not being clear. Many times a direct manager will make remarks indicating that outside work (especially open source work) is perfectly OK. They do this to keep up morale and they know that professional involvment like this is a good thing. Thus, the manager will make an unwritten policy (via private talks in person) that is directly against the work-for-hire agreement. Then, when things go sour, and upper management finds out, or the lawyers/venture capitalist get into the picture the story changes. The middle manager lies about their promise...
I am not a lawyer, but this is *exactly* what promisorry estoppel is all about. The employer (through middle manger) makes a un-written promise, the employee does work (or continues to do work) based on this promise, and then the employer (upper managment, lawyers, etc) go back on the promise. In this case, it is unfair for the employer to take back their part of the deal... even if it was unwritten. The consideration for the promise could be extra overtime or staying with the company or even doing the open source work with the company's email address.
Since no middle manager is going to admit to making the verbal promise (or it's their job) the employee is left hanging. A resonable judge will understand this situation and use the facts as a guide: (a) the manager knew that the employee was doing open source work; (b) the manager didn't do anything in writing to confront the employee about this fact (turns a blind eye). If these are the facts, then I'd say the employee has a good claim that verbal statements were made in private.
As for Silence, this is _exactly_ what the doctine is all about, no? If the agreement was verbal and both parties agreed that there was an agremment you don't need this doctrine, do you? The doctine is for verbal agreements which one party claims didn't happen. Then the judge has to figure out if it is resonable to assume that the verbal agreement did actually occur.
But then again, I'm not a lawyer... perhaps you are. For other info on Promissory Estopple, see Google, in particular Bus477 [gallaudet.edu] notes which say:
Promissory estoppel
A doctrine in which a non contractual promise may be made enforceable to avoid an injustice. Acceptable alternative ways of describing promissory estoppel are:
* A doctrine which arises when injustice can be avoided only by enforcement of a non enforceable promise.
* Promissory estoppel is used where, although there may not otherwise be a enforceable contract, because one party has relied on the promise of the other, it would be unfair not to enforce the agreement.
* Promissory estoppel is used to enforce charitable gift pledges where the charity relies on them.
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Re:Promissory Estoppel (Score:4, Informative)
by Anonymous Coward on Wednesday March 20, @11:27PM (#3198388)
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Your entire post regarding the situation where the manager made either an explicit or implicit promise is correct. The result would be same in the other situation you describe-i.e. where the manager lies. However, the situation you describe is not silence. Rather, that's just one person lying. The judge/jury is just deciding that the promise was made, but someone was lying when they denied that they made a promise.
Silence falls under equitable estoppel. This is a related but different doctrine than promissory estoppel. The requirements for equitable estoppel are quite strict, and generally require that any silence be misleading. For example, if a manager knows about misconduct, knows that it is a breach of an agreement, and turns a blind eye to it without a word to the employee, it may or may not be misleading. It definitely would be silence, and definitely would not be a promise to the employee. Depending on the circumstances, it may or may not be misleading and a court may or may not enforce the agreement.
BTW, I am a lawyer who deals with IP/employement issues. Don't take this to mean I think the quoted contract would be upheld. It seems a little broad to me and most courts would be skeptical of something that broad. (And this is not legal advice blah, blah, blah.)
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Re:Promissory Estoppel (Score:4, Insightful)
by shyster on Thursday March 21, @12:57AM (#3198697)
(User #245228 Info | http://slashdot.org/)
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I am not a lawyer, but this is *exactly* what promisorry estoppel is all about. The employer (through middle manger) makes a un-written promise, the employee does work (or continues to do work) based on this promise, and then the employer (upper managment, lawyers, etc) go back on the promise. In this case, it is unfair for the employer to take back their part of the deal... even if it was unwritten. The consideration for the promise could be extra overtime or staying with the company or even doing the open source work with the company's email address.
That's interesting how you got the promissory estoppel definition correct, but then totally mangled your example. Promissory estoppel occurs when a promise is mead without consideration. The one who was promised then reasonably takes actions based on the promise to his detriment. Silence, or the lack thereof, has nothing to do with it.
In this case, if a manager or other agent of the company orally or verbally agreed to let the worker work on open source projects without consideration, then you could claim promissory estoppel. If there was consideration, whether oral or written, then there's a contract which would amend his previous one. The only argument then would be if the manager or agent of the company was acting for the company or not.
As for silence constituting agreement, there would have to be some sort of discussion beforehand to that effect. If, for instance, the worker approached management and they discussed open source work, but did not come to an agreement-and then later the worker, with management knowledge, writes and posts OSS, and management does not complain, you could argue that silence constituted an agreement. I say argue because it would be dependent on the prior conversations, and would probably be a pretty weak case.
In this instance, I'd say it's a pretty weak case altogether. It's common in R&D fields to sign over all projects whether directly or indirectly related to work. I'm not a programmer, so I don't know if this is common or not in programming fields. The one saving grace may be if the OSS was a totally different field than work software.
Depending on the original contract, he may be able to claim joint ownership of the OSS work. Without an express agreement to the contrary, patents are awarded to the individual that invented it, with the employer receiving shop rights-a royalty free, non transferable license to use the invention. Of course, the caveats there are that he can't be employed in inventing, can't have signed away rights to them, and can't have been assigned to invent. That's patent law...copyright law may be a bit different on that matter.
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- Re:Promissory Estopple by Capsaicin (Score:1) Wednesday March 20, @11:03PM
- Re:Promissory Estopple by ceethree (Score:1) Thursday March 21, @12:23AM
- 2 replies
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Re:Argh.. (Score:4, Insightful)
by Arandir on Wednesday March 20, @09:08PM (#3197840)
(User #19206 Info | http://www.usermode.org/)
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If they won't hire you because you have a private life, then perhaps you should look for a job elsewhere. My employer doesn't own the kitchen addition I made for my mother, so why should it own the program I wrote for her to organize her recipes?
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| - Re:Argh.. by Capsaicin (Score:2) Wednesday March 20, @11:13PM
- Re:Argh.. by Ares (Score:1) Thursday March 21, @12:23AM
- Re:Argh.. by NetSerf2000 (Score:1) Thursday March 21, @05:24AM
- Or... by Greyfox (Score:2) Thursday March 21, @10:40AM
- Re:Argh.. by mpe (Score:2) Thursday March 21, @03:11AM
Re:Argh.. (Score:5, Interesting)
by ClarkEvans on Wednesday March 20, @09:11PM (#3197861)
(User #102211 Info | http://clarkevans.com)
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Unfortunately, for us Electrical/Computer Engineers, there is no way around that. They simply won't hire you. Sucks, but that's how it works.
You can cross off entire paragraphs. I've done it... many times. In one case they told me that a particular clause wasn't enforcable, I smiled and said "Great, then we can remove it.". In another case, I asked them to clarify what the contract meant... and we wrote in the "clarification", which was very limiting and granted me the exceptions that I required.
In general, if you are doing open source software that is not directly related to your work; you are seen as someone with initiative... and good employers should encourage this sort of professional involvement in your field. If they try to "own you" and not let you be a "professional" then call 'em on it. They want a professional, a professional does these sorts of things.
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| - Re:Argh.. by Arker (Score:2) Thursday March 21, @12:52AM
- Re:Argh.. by 3dr (Score:1) Thursday March 21, @10:56AM
- Re:Argh.. by dnight (Score:2) Wednesday March 20, @09:29PM
- Re:Argh.. by neuroticia (Score:1) Wednesday March 20, @09:45PM
- Re:Argh.. by AnalogBoy (Score:3) Wednesday March 20, @10:02PM
- Re:Argh.. by npietraniec (Score:2) Wednesday March 20, @11:56PM
- Re:Argh.. by rjamestaylor (Score:1) Wednesday March 20, @10:11PM
One thing-- overtime (Score:5, Insightful)
by einhverfr (einhverfr@hotmail.i-report-spamcom) on Wednesday March 20, @09:32PM (#3197965)
(User #238914 Info | http://www.basementmedia.net/)
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For those of us who work hourly work, there is one think called "overtime" which is usually provided for in state law. This means that if my employer wanted to claim my work via contract, I would claim large quantities of overtime... If they claim that they own the work, then the time I put into it was work for hire, right? ;)
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Blackmail: Sign or else (Score:5, Informative)
by Anonymous Coward on Wednesday March 20, @10:13PM (#3198109)
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Here is my take:
1. We once were sent to a convention. At the convention we were told that we were on duty 24/7. So I asked for 24/7 compensation. They shut up and left me alone after that.
2. I have always marked out, struck through, and changed any documents which a company has given me when they were considering me for hire. I've always signed them, made copies, and keep the copies with me. No one has ever had a problem with this except one company.
As I do not wish to be sued - I'll leave company names out of this: I did not go to work for one company because they said sign the contract or don't work here. I had gone through a headhunter company and the job looked really great. Lots of money, great benefits, etc.... The only problem was that the contract basically said everything I'd ever done belonged to this company. Even things created prior to joining the company belonged to them. I've helped a lot of people and written a lot of code so I was very concerned and even brought it up to both the headhunter as well as the company. When I had finally decided not to accept the contract I let both parties know and I even went over with both of them why I had decided to turn down the offer. The headhunter company became very nasty. Even going so far as to threaten me with a lawsuit if I didn't take the job. I told them I couldn't. The terms were so terrible that I just could not "Sign Zee Papers" (If there are any C&C fans out there.) So then, curiously, I could no longer get a contract with anyone. No contract or perm for a very long time. Only after a year and a half had gone by was I able to get another contract.
So my thing is - there is a very real threat to contractors (and even people looking for permanent positions). Sometimes they blacklist you if you do not sign and there isn't much you can do about it. So what do you do? I was lucky - I had a friend I could live with. But someone else might not be so lucky. Then what? Do you go ahead and say "Sure - take everything I've ever created" like this guy is having to do? I believe there has to be a limit to what a company can claim as theirs. We aren't slaves but we are being treated as such.
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Signing your life away (Score:5, Interesting)
by i_am_nitrogen on Wednesday March 20, @10:17PM (#3198129)
(User #524475 Info | http://www.slimetech.com/ | Last Journal: Tuesday January 01, @05:01AM)
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I recently signed on with a particular high profile company I'm sure a few of you are familiar with (it was instrumental in the recent Windows trademark ruling, for example). The contract, of course, had a work-for-hire clause. They also included a section from California state law (other states may have similar restrictions) saying that any inventions can only be claimed by the employer if
A. The invention directly relates at time of conception to the employer's business,
or
B. The invention was created at least partially using company equipment.
The law also states that any contract may not override the law.
Check your state's employment and work-for-hire laws (if you work in a different state than the company, usually the laws of the company's state apply). Hopefully this helps people.
Any opinions or ideas expressed herein are solely my own.
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| - Re:Argh.. by amason (Score:1) Wednesday March 20, @11:35PM
- Re:Argh.. by Essef (Score:1) Thursday March 21, @12:00AM
- 1 reply
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- Re:Argh.. by asackett (Score:2) Thursday March 21, @12:08AM
- Re:Argh.. by bigberk (Score:1) Thursday March 21, @12:24AM
- Depend on who "they" are by Per Abrahamsen (Score:2) Thursday March 21, @06:17AM
- Re:Argh.. by peter hoffman (Score:2) Thursday March 21, @08:06AM
- Re:Argh.. by palesius (Score:2) Thursday March 21, @08:19AM
- Re:Argh.. by limbo_14 (Score:1) Thursday March 21, @08:55AM
- Re:Argh.. by OldAsDirt (Score:1) Thursday March 21, @09:42AM
- Re:Argh.. by mencik (Score:1) Thursday March 21, @11:21AM
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Don't worry (Score:1)
by FigBugDeux on Wednesday March 20, @09:04PM (#3197816)
(User #257259 Info | http://slashdot.org/)
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don't give them the rights to your code. These agreements never stand up in court. But it does mean going to court, which is a pain.
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| - Re:Newbie? by FigBugDeux (Score:1) Thursday March 21, @12:57AM
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Read your contracts (Score:5, Informative)
by Arandir on Wednesday March 20, @09:05PM (#3197819)
(User #19206 Info | http://www.usermode.org/)
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Just strike it out, and change it to: company owns the rights to code written during working hours and in direct furtherance of any tasks assigned by the company
Amen! That's the clause in my employment agreement. When I started doing open source development, I pulled it out and double checked. If I create it at work it's theirs. If I create it at home, it's mine.
Of course, I just have to be careful not to use any of my open source code for anything at work. That would make it very easy for them to claim I worked on it at their expense. If you've written something you want to use at work, right up a separate contract and license it to your employer for one dollar, just to keep everything clean.
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Re:Read your contracts (Score:4, Interesting)
by tpv on Wednesday March 20, @09:13PM (#3197875)
(User #155309 Info | http://slashdot.org/)
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Agreed.
When I started at my current employer, I received a nice plain employment agreement. It was good. I signed it.
Then they wanted to change my conditions, which was also good, because it mean more money, so they gave me a new contract to sign.
It has an ambiguous clause in it regarding IP ownership. I corrected it, signed the new version, and sent it in.
Everyone around me was saying "You can't do that."
Oh yes I can.
I don't think they ever read my version.
I don't really care - I know that what I signed gives them the rights to anything done on their time or their equipment.
That's it.
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Re:Read your contracts (Score:5, Informative)
by technomancerX (sgw at node777 dot net) on Wednesday March 20, @09:39PM (#3197998)
(User #86975 Info | http://node777.net)
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Hell Yes! I've had similar clauses removed from
employment contracts twice in the past. There is
just no excuse for leaving a clause like that in
a contract.
Also, when striking out and writing in changes
on an existing contract make sure to date the modification
and that you and the employer both initial
the changes, or you risk the employer
stating they didn't agree to the changes.
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| - Also, part-time work by DragonMagic (Score:2) Wednesday March 20, @09:42PM
- Re:Read your contracts by BlueUnderwear (Score:2) Thursday March 21, @03:28AM
- The key: Proper subject matter by ip4noman (Score:1) Thursday March 21, @05:19AM
- Required Course for Graduating Seniors by FreeUser (Score:2) Thursday March 21, @12:39PM
- 1 reply
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That wouldn't fly in California (Score:5, Informative)
by phr2 on Wednesday March 20, @09:05PM (#3197821)
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Section 2870(a) of the California Labor Code states:
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.
New York may have a similar provision. IANAL and I don't live in New York any more. Talk to a lawyer who works in NY labor law.
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| - Re:That wouldn't fly in California by jgerman (Score:2) Wednesday March 20, @09:10PM
Re:That wouldn't fly in California (Score:4, Interesting)
by Wanker on Wednesday March 20, @09:18PM (#3197903)
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The lawyers are already onto this. Every small company I've seen requires employees to "waive" this right as a condition of employment.
Somewhat puzzlingly, the larger, more bureaucratic companies do not always require this waiver. I expected it to be the other way around.
Providing some small hope for humanity, I also know of a lot of very qualified people who have left over this very requirement.
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You CAN'T waive that provision (Score:5, Informative)
by phr2 on Wednesday March 20, @09:28PM (#3197949)
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IANAL but from what a lawyer told me, we're not talking about a "right" that can be waived. Rather, it's a law about what parts of employment contracts are enforceable. An agreement to "waive" it is no more valid than an agreement that says you'll work for your employer at below the legal minimum wage or that you'll permit your boss to shoot you dead if you're late to work. Basically the law says that it's plain illegal for an employer to claim ownership of something you did on your own time. It's not subject to your "waiving" it. You are not allowed to waive the law.
I've worked for several small companies in California whose agreements tried to grab everything they could from me, and if they could have gotten me to "waive" section 2870(a) they would have. Instead, the employment agreements and IP assignments specifically said stuff under 2870(a) wasn't covered. The paragraph that I typed in came verbatim from where it was quoted on one of my old employment agreements that I pulled out when I saw the /. article. Any employer who fools around with that needs to be reported to the labor board.
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Re:You CAN'T waive that provision (Score:5, Insightful)
by Wanker on Wednesday March 20, @10:04PM (#3198081)
(User #17907 Info)
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I need to go look at those old papers again, especially since the following is also part of California law [ca.gov]:
[2870]
.... the part included in the original post ....
(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.
2871. No employer shall require a provision made void and
unenforceable by Section 2870 as a condition of employment or
continued employment. Nothing in this article shall be construed to
forbid or restrict the right of an employer to provide in contracts
of employment for disclosure, provided that any such disclosures be
received in confidence, of all of the employee's inventions made
solely or jointly with others during the term of his or her
employment, a review process by the employer to determine such issues
as may arise, and for full title to certain patents and inventions
to be in the United States, as required by contracts between the
employer and the United States or any of its agencies.
2872. If an employment agreement entered into after January 1,
1980, contains a provision requiring the employee to assign or offer
to assign any of his or her rights in any invention to his or her
employer, the employer must also, at the time the agreement is made,
provide a written notification to the employee that the agreement
does not apply to an invention which qualifies fully under the
provisions of Section 2870. In any suit or action arising
thereunder, the burden of proof shall be on the employee claiming the
benefits of its provisions.
It's quite possible that the "waiver" is really "an offer to assign" under section 2872 there. Talk about an offer you can't refuse...
But then again, I'm no lawyer so I have no idea how this should be interpreted "correctly".
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beneath your current threshold.
- Re:That wouldn't fly in California by coolgeek (Score:2) Wednesday March 20, @09:41PM
- Re:That wouldn't fly in California by Random Feature (Score:2) Wednesday March 20, @10:48PM
- Re:That wouldn't fly in California by mpe (Score:2) Thursday March 21, @02:48AM
- Re:That wouldn't fly in California by T3kno (Score:1) Wednesday March 20, @09:20PM
- Re:That wouldn't fly in California by electroniceric (Score:2) Wednesday March 20, @09:20PM
- Re:That wouldn't fly ... (or maybe it would??) by yokimbo (Score:1) Wednesday March 20, @09:41PM
or in Washington (Score:4, Interesting)
by AdamBa (adam@proudlyserving.com) on Wednesday March 20, @09:42PM (#3198016)
(User #64128 Info)
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I talked to a lawyer about this at one point...she said that the employment contract language was standard boilerplate, it doesn't mean the company is a bad company, and in actuality as long as you did the work on your own time, with your own equipment, it was OK.
HOWEVER if the work you did on your own time was similar to the work you did at your job (i.e. you designed websites for your job and then you design websites on your own time) then they may have a claim. But typically you just need permission from your manager ahead of time ("Can I go hack websites on my own time?" "Yeah sure") to make your work yours again.
When I worked at Microsoft, they explicitly prohibited people from working on open source (this was not in the contract (or at least the one I signed years before), just in an email). The rationale was not to pollute *Microsoft's* code with GPL code that could then result in someone claiming that Microsoft's code needed to be GPLed (i.e. the opposite of what happened in the situation being discussed here).
- adam
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| - Re:That wouldn't fly in many places by Anonymous Coward (Score:1) Wednesday March 20, @10:11PM
- Re:That wouldn't fly in California by Marsala (Score:3) Thursday March 21, @12:14AM
- 1 reply
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- Re:That wouldn't fly in California by e40 (Score:1) Thursday March 21, @12:43AM
- Re:That wouldn't fly in California by Raedwald (Score:1) Thursday March 21, @05:01AM
- 1 reply
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Scary (Score:5, Insightful)
by jgerman on Wednesday March 20, @09:06PM (#3197823)
(User #106518 Info)
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That's scary, and I worry about it all the time. I'm pretty sure my contract did say that only work in the company's field was owned by them. I guess what it boils down to is I'll double check my employment agreement before I ever do a major release of sofware under GPL. Hell, I'll release it anonymously if I have to. Maybe that's the next step, coders forced to release projects under psuedonymns to avoid draconian employment contracts.
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| - Re:Scary by Zurk (Score:3) Wednesday March 20, @09:43PM
- Re:Scary by MrDelSarto (Score:1) Wednesday March 20, @11:01PM
- Re:Scary by t (Score:1) Wednesday March 20, @11:08PM
- Re:Scary by anshil (Score:3) Thursday March 21, @01:57AM
- Re:Scary by BlueUnderwear (Score:3) Thursday March 21, @03:40AM
- Re:Scary by prgammans (Score:2) Thursday March 21, @06:22AM
- Re:Scary by dillon_rinker (Score:2) Thursday March 21, @08:11AM
- Re:Scary by Geeky (Score:1) Thursday March 21, @01:24PM
- 1 reply
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- Re:Scary by Anonymous Coward (Score:1) Thursday March 21, @03:46AM
- Re:Scary by Zunni (Score:1) Thursday March 21, @11:56AM
- Contributing to GCC by devphil (Score:3) Thursday March 21, @01:08PM
- Re:Scary by ilcylic (Score:1) Thursday March 21, @04:23PM
- Re:Scary by jgerman (Score:2) Wednesday March 20, @09:41PM
- Re:Scary by pizen (Score:1) Thursday March 21, @12:20AM
- 1 reply
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Best Idea (Score:1)
by spudwiser (`spudwiser' `at' `hotmail.com') on Wednesday March 20, @09:06PM (#3197826)
(User #124577 Info | http://blueskel.cjb.net/)
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would be to work for a company that supports the GPL and open-source development. Of course, finding a company like that that actually makes enough money to still pay you might be extremely rare. Unless the company went public and has several million sitting in a bank account, it might be easier. *cough* red hat *cough*
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At least the code is GPL'd (Score:1)
by gadfium on Wednesday March 20, @09:06PM (#3197827)
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That means there isn't much the company can do. I suspect it means that they can embed it into their own proprietary products if they want; if they own it, they can add other licences besides GPL to it. They can't stop the existing code from being freely used and further developed.
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IP contracts (Score:1)
by PhoenxHwk on Wednesday March 20, @09:07PM (#3197829)
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When I read things like this, it always makes me think of some of the contracts I've signed with employers. I've basically signed away every idea in my head before, but it has always been alright because they were just temporary jobs (internships and whatnot). Fortunately, the job I'm at right now is run by a bunch of even-headed people whose IP contract was all acceptable.
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this is a serios problem (Score:1)
by minus_273 (anurodhp&startrekmail,com) on Wednesday March 20, @09:07PM (#3197831)
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even if you arent working on an open source project.. however i can see where some companies would be coming form when they do something like this.. imagine a person working on code at work then coming home and doing the same thing...
it is unfair to the company of course..
and we cant just assume -- like ppl do in /. -- that all code shoud be free...
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So list the company (Score:1)
by daves on Wednesday March 20, @09:08PM (#3197835)
(User #23318 Info | Last Journal: Monday August 20, @01:45PM)
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That should go a long way towards taking care of the problem.
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I would like to know the name of the company. (Score:5, Funny)
by Sivar (sivar AT email DOT com) on Wednesday March 20, @09:08PM (#3197836)
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No reason. }:>
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National Geographic and Intellectual property (Score:2, Interesting)
by Anonymous Coward on Wednesday March 20, @09:09PM (#3197842)
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National Geographic has come across the some problems with intellectual property. Photos, except for those actually printed remain the property of the Photographer, whereas on a film/video expedition ALL fottage is NAtional Geo's property. (I know there are different issues with film, clip useage, etc.)Is this type of intellectual property agreement common across all creative fields, even if the company never profits from the employees work?
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No frigging way. (Score:2, Funny)
by Espressoman on Wednesday March 20, @09:09PM (#3197847)
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Such a thing is obscene. No amount of money will convince me to sign over every piece of intellectual property (what ever that may be in this context) I generate during the contract term. We are meant to be hiring out our brains, not selling them into bonded labour. What do they expect people to do, turn off our brains when we aren't at work? Crazy.
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System Administration? (Score:2, Interesting)
by fo0bar on Wednesday March 20, @09:10PM (#3197851)
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I just took a new sysadmin job with an overly-lawyerfied inventions agreement. However, I did look over and change things to TRY to protect my existing open-source work, including changing the "we own all your code" clause to "we own all your code that you made, relevant to your job".
However, a sysadmin position is a very broad job. Does the 100-line perl script I wrote to move SNMP data into a database (which I did for my own use) count as something relevant to my job? Yes, it very well can.
Any idea how to navigate these invention clauses when you are a jack of all trades?
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This hurts like... H-E-double-hockey-stick... (Score:2, Insightful)
by RnKTessai on Wednesday March 20, @09:12PM (#3197866)
(User #549778 Info | http://slashdot.org/)
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Most of the people on PerlMonks [perlmonks.org] know me as Necos. Personally, I think that most would agree that this sucks for all of us that do open source development. tilly has helped out a lot of us at Perlmonks with suggestions and code snippets (where applicable). To lose tilly's insight is not only a loss for Perlmonks users, but for Perl coders and OSS developers everywhere. My best goes out to tilly. I hope that he can somehow get out of this bind.
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It's time for a LABOR LAW LAYWER (Score:2)
by Dino (jd_dino&yahoo,com) on Wednesday March 20, @09:12PM (#3197871)
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For example, if you were in Texas, you could go here [texasemployees.org].
I'm sorry, but this is crazy.
Run, don't walk from such contracts.
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OK, so what about.... (Score:5, Insightful)
by pjdepasq on Wednesday March 20, @09:12PM (#3197872)
(User #214609 Info | http://csgrad.cs.vt.edu/~pjdepasq)
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So what about if you go back to school part time to work on a Master's or PhD. Especially with respect to software developement for your degree, (in my case, software for my PhD). Do they think they own my software and ideas central to the PhD?
At my school (and many others define a PhD this way), PhD work has to be new, original work that adds to the discipline. Almost certainly anything that you do under the PhD banner would be something a company might claim falls under such a contract. Regardless if the work relates to the company's products/goals/ideals, this does not seem right and fair to me.
I am not in this situation, but know others that are. Just wondering...
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| - Re:OK, so what about.... by wytcld (Score:3) Wednesday March 20, @09:32PM
- Re:OK, so what about.... by pjdepasq (Score:2) Wednesday March 20, @09:35PM
Re:OK, so what about.... (Score:5, Interesting)
by clifyt ([editor] [at] [sonikmatter.com]) on Wednesday March 20, @11:02PM (#3198308)
(User #11768 Info | http://sonikmatter.com/ | Last Journal: Sunday August 19, @11:50AM)
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Actually, I had a situation similar to this a few years back. An employee of mine asked if I wouldn't mind letting her do a project she was working on as a Senior Thesis. The only thing that meant for me was that I, as an employeer, had to be vigilant NOT to take the code and reprogram it for her in the middle of the night as I could get her in trouble with her educators (I also work for an educational facility, so things like that would effect me if it were thought I was helping a student cheat). It just meant that I had to act pretty much as an idiot non-programmer and give her bug reports and things like that, but not the actual code fixes. Hell, I'd end up writing an example code of something different showing her how I would fix the code, just to insulate me from the process and it worked well.
Anywho, a month after her graduation, that school started offering a product line VERY similar to my own...I knew because their department had been licensing the older software from us (as do quite a few schools) and was shopping it around to my other clients.
It ended up being a real pain in the ass, with her professor actually claiming that he came up with the entire idea of this and didn't know she worked for me. He claimed that she was such a bad programmer that he also wrote most of the code (when in fact a good chunk of what was there in the end, was actually my example code...I was a little miffed as I told her NOT to use my examples wholesale for this application, but to do something similar).
So for 4 months, we argued back and forth about all of this, until we got the lawyers involved. The jerk of a prof continued to tell everyone that it was his idea and mostly his programming, when the guy barely knew this language...in the end, he was able to keep a chunk of the software that I paid my employee for and use it in house (which meant I lost their school as a major client) but it was agreed that they would not sell it or let anyone else use it.
So yeah, your company and your educational institution may end up fighting over your code in the end. Make sure everyone who is involved knows whats going on and arrange a meeting with everyone BEFORE you start to use the code (as the employeer I didn't meet anyone til about the time the educator was having trouble using the code...which I let her leave in the stripped down 'Thesis Mode' on my demo server, but he needed it installed on his machine to see how it worked...but didn't even know how to get ODBC set up...yeah it was windows code). If I had met all these people, I would have gotten a signed statement from everyone these saying, "Yeah, I know she's using this for a class and I'm not helping any more than as a mentor, but it still fucking belongs to me as I'm paying for the shit". I would have gotten a signed statement from the educator revoking any right he had to the code and I would have gotten a signed statement from the employee / student saying she understood both of our positions. If ANY of the following did not agree to this, I would have told her to do something completely different that ANYTHING that we were doing in my department.
So, maybe this in some sense explains why employeers have to be nazi's about the whole damn thing.
clif / sonikmatter.com
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- Re:OK, so what about.... by Kefaa (Score:2) Thursday March 21, @12:26AM
- Re:OK, so what about.... by Frobnicator (Score:1) Thursday March 21, @03:08AM
- Re:OK, so what about.... by eison (Score:1) Thursday March 21, @10:03AM
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I checked my contract before signing... (Score:2, Funny)
by stupkid on Wednesday March 20, @09:13PM (#3197879)
(User #16083 Info | http://www.supakewl.com)
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And my employer (A fortune five company) had no problem with me owning the code that I write on my own time. I can't imagine that any employer would unless they are planning on screwing you.
The funny part is that my current employer is very liberal with the licensing on my code and their environment is not very Linux friendly. My former employer was a .com Linux shop they were very adamant about owning all of my code. Guess who is paying me more?
;)
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Can't beat em straight on (Score:1)
by MicroBerto on Wednesday March 20, @09:14PM (#3197883)
(User #91055 Info | http://soul.apk.net/bertocam/)
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Chances are that you're not going to be able to negotiate your contract too well. I would probably end up submitting the code under a false identity, and not let anyone at work know about all the extra stuff going on. Yeah, i know that I'd like to have my real name attached to my code, but sometimes it's the next best option besides taking chances.
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You don't own your rant (Score:4, Funny)
by Disco Stu on Wednesday March 20, @09:14PM (#3197885)
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Dude, I think your employer owns your Perlmonks rant, too. I hope they don't change it.
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Does anyone know... (Score:1)
by T3kno (t3kno@nospam.pacbell.net) on Wednesday March 20, @09:15PM (#3197888)
(User #51315 Info | http://www.slashdot.org/)
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What company Tilly works for? As soon as I find out I will surely boycott that company. This is where the Open Source community needs to stand together and show companies that they cannot get away with this. If we do not use any of this companies products or services and tell our family/friends/co-workers not to either we can really make life miserable for this company. Do your part, help Tilly and boycott this company.
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| - Re:Does anyone know... by ichimunki (Score:1) Wednesday March 20, @09:27PM
Response and Responsibility (Score:4, Insightful)
by rjamestaylor (rjtonline@onebox.com) on Wednesday March 20, @09:29PM (#3197956)
(User #117847 Info | http://server1.thermeon.com/rjt/index.html | Last Journal: Thursday November 29, @12:57PM)
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A public drubbing, including massive amounts of humiliation are definitely in order. I would go as far to say that Tilly's company has benefitted greatly from Open Source and this could be seen as a major slap in the face of Larry Wall, et al, who have provided the tools Freely (and freely) for others to use. Seriously, Tilly may have to go "dark" because of his slave master employer, but we have a right -- no, a responsibility -- to shine the light of day on this greedy corporate leech. It's evident on Perl Monks that Tilly has no practical choice but to: stop contributing Open Source, and, this is worse, not to leave his company or face having his work pulled from CPAN. He's being blackmailed -- and can't afford to leave for the sake of his wife. This is outrageous behavior on behalf of his company. Damn that company!
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| - Re:Does anyone know... by phriedom (Score:1) Wednesday March 20, @09:57PM
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One partial fix for that (Score:3, Interesting)
by jmv (valj01@nospam.gel.usherb.ca) on Wednesday March 20, @09:15PM (#3197891)
(User #93421 Info | http://freespeech.sourceforge.net/overflow.html)
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One thing I'm glad I was doing (though I never had to use it with my employer) is that I wasn't alone working on my (L)GPL project (see sig). That way, even if my company had tried to claim copyright, they would have had a copyright on only my code, which would make the code useless without the other contributions. It sorts of limits the incentive for a company when it knows that it can't gain much in the (potential) conflict.
Another thing that also helped is that since at one point a part of their software linked to my (LGPL) library, making it "illegal" would also have made their own product illegal.
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This is US specific (Score:1)
by dirkx on Wednesday March 20, @09:16PM (#3197892)
(User #540136 Info | http://www.webweaving.org/)
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The note:
One thing to clarify: your employer does not own everything you do by law - only by the contract you may have signed. Brief rant below.
Is not as applicable to most of Europe as it is to the US - where the law may actually stipulate a number of things which can not be overridden by an agreement. And this implies that in a lot of EU countries a company owns all your output/braincycles, be it at home, during your holidays or elsehwere, while full time employed - as soon as there is some overlap with your task at work.
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Applicability is Dependent on State Law. (Score:2, Interesting)
by cluon on Wednesday March 20, @09:18PM (#3197899)
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Boiler plate contracts such as this are limited by state laws. I did some research in this area a year or two ago while reviewing my employment contract.
I found that in California, it had been previously upheld in court that anything an employee creates outside of his work environment, without using company resources can not be considered for ownership by the employing organization.
The only other thing that may bite you in the ass is non-compete agreements you may have with your employer.
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Work-for-Hire screwing recording artists as well (Score:1)
by joeflies on Wednesday March 20, @09:18PM (#3197904)
(User #529536 Info)
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Courtney Love pointed this out in a VERY interesting speech a while back, noting that recording companies slipped in this clause to hold a tight grip on their artists. Other recording artists I've spoken to say the very same thing.
Courtney Does the Math [salon.com]
" Over the years record companies have tried to put "work for hire" provisions in their contracts, and Mr. Glazier claims that the "work for hire" only "codified" a standard industry practice. But copyright laws didn't identify sound recordings as being eligible to be called "works for hire," so those contracts didn't mean anything."
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When VA sent me a new employment contract.... (Score:1)
by zairius on Wednesday March 20, @09:20PM (#3197908)
(User #54221 Info | Last Journal: Monday October 15, @02:38PM)
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after they acquired Andover.net. I didn't like it and filed it in the trashcan even though they offered me a $200 bonus to sign it. Nothing happened because of it.
John Casey
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Absurd! (Score:3, Insightful)
by Decimal on Wednesday March 20, @09:20PM (#3197910)
(User #154606 Info | http://www.stardotgeek.org/ | Last Journal: Monday February 04, @07:24PM)
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This is like being a gourmet chef, and one day your employer shows up and demands all of the food in your fridge!
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| - Re:Absurd! by t (Score:1) Wednesday March 20, @11:23PM
- Re:Absurd! by andfarm (Score:1) Thursday March 21, @12:25AM
- Re:Absurd! by Frank T. Lofaro Jr. (Score:1) Thursday March 21, @12:27AM
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And keep a copy! (Score:4, Informative)
by MarkusQ on Wednesday March 20, @09:20PM (#3197911)
(User #450076 Info)
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Where it says:
company owns the rights to all work produced during the term of employment
Just strike it out, and change it to:
company owns the rights to code written during working hours and in direct furtherance of any tasks assigned by the company
Don't forget to keep a photocopy of the modified contract!
An even better solution: many such contracts have a space for exceptions (e.g., in case you are already bound by the terms of a previous employer's contract). Just put in something like "excluding work on software distributed under licenses (GPL, etc.) that would otherwise conflict with the terms of this contract."
If they object, just ask (with an innocent face) "do you really want to get the company's IP tangled up with the GPL? I think we should keep them seperate, don't you?" Ten gets you one they will shudder and agree to the exclussion.
If they try to say you can't work on open source projects, put the innocent look back on and say "is it really company policy to prohibit employees from doing community service on their own time? I find that rather...unusual."
-- MarkusQ
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When I worked for Goldman Sachs... (Score:2)
by rcs1000 ((moc.oohay) (ta) (0001scr)) on Wednesday March 20, @09:21PM (#3197916)
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The employment contract was even more harsh... at least in theory.
Any intellectual property I developed, such as writing a diary, at home in my own time, was their property. To this day I worry that royalties from my autobography Robert Smithson: My Life at The Coalmine (sales to date: zero) will accrue to GS.
BUT (and this is the point of my post, as you guessed there would be) the contract also stated that any work I did in my own time would be mine, so long as I got their permission. And that such permission 'would not reasonably be refused'.
Maybe GS is uncommonly kind (although that seems a little unlikely), but most emplyers demand more the right to be kept informed, than the right to control your every move. If your line manager says (off-contract) that it is 'no problem' that you work on GNU/Emacs for Dreamcast in your evening time (especially if you mention the important befits to your company, like... errr.. not playing Virtua Tennis instead) ten there is very little the company can do about it.
So, just remeber to ask someone who doesn't care, or know the details, about employment contracts and you'll be fine. Just hope they don't read Slahdot...
*r
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| - Re:When I worked for Goldman Sachs... by PoiBoy (Score:1) Wednesday March 20, @09:41PM
Re:Hate to tell you but the Constitution only (Score:4, Insightful)
by rcs1000 ((moc.oohay) (ta) (0001scr)) on Wednesday March 20, @09:56PM (#3198058)
(User #462363 Info)
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You're in favour of random drug testing?
Let me tell you a story about my boss at GS. (Whose name shall remain anonymous, because he'd kill me...)
He was the most highly rated analyst in Europe at sector X. His calls as to when a stock would go up, or down or just round-and-round were always spot on. In every survery of investors he was rated best in sector.
One day the head of research asked him: "So, Joe, why don't you become our X analyst in the US, you'd earn a lot more money?"
Answer: "You drug test in the US."
The moral of this anecdote: you don't employ people to be crack addicts, you employ them to do a job. If they can do the job better than anyone else despite (insert impediment here) then any *rational* employer would hire them anyway.
Anyway, my boss has given up worrying about those pesky urine samples (by leaving GS) and good on him...
*r
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| - Re:Hate to tell you but the Constitution only by whatparadox (Score:1) Thursday March 21, @01:08AM
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- Re:When I worked for Goldman Sachs... by blang (Score:2) Wednesday March 20, @10:47PM
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"Told you so" says the FSF (Score:3, Interesting)
by Olivier Galibert (galibert@pobox.com) on Wednesday March 20, @09:23PM (#3197932)
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That's exactly the reason why the FSF is so adamant about getting copyright assignments for the code they accept in their projects, including a release by the employers of the contributors. Otherwise, you have a non-negligible risk of ending up with this kind of problems...
OG.
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Take a different type of job (Score:1)
by DuncanMurray on Wednesday March 20, @09:31PM (#3197964)
(User #448670 Info | http://www.acutesoftware.com.au)
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If you want to be producing Open Source on your spare time for a year or so, what about taking a non coding job for a while - , like sysadmin/database admin/web page maintainance, or something; as long as it isnt coding.BR>
You'll get a lot more development done at night after work if you haven't already spent all day coding for someone else, and the contract *should* be less restricting.
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This only hurts the employer in the long run (Score:5, Insightful)
by WIAKywbfatw on Wednesday March 20, @09:32PM (#3197967)
(User #307557 Info)
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This kind of "we own you and everything you do" approach only hurts the employer in the long run. Here are a few reasons why:
1) It pisses off the company's current staff.
When an employer treats you as a piece of property then there's very little incentive to treat the company as anything other than a source of income. Why devote your life to the job when you get no respect back?
2) It hurts the company when it's recruiting.
A lot of jobs are filled by recommendation, word of mouth, etc. If your friend's constantly telling you how badly his employer's screwing him would you apply for a job there?
Or, if you were offered two similar jobs would you take the one that wants to own you a third of the time or the one that wants to own you all of the time?
3) It discourages staff from furthering their knowledge and experience.
Pop quiz: if you were the boss, which would you rather have?
a) coders who care are in it for only the money, who switch off at 5.00pm sharp and spend their evenings playing on a PS2; or
b) coders who live and breathe code, who actively take part in open source development, learning new tricks and techniques in their own time and come to work with fresh ideas and more experience under their belt everyday.
Tough one, huh?
I'm amazed this company has the balls to treat it staff so badly. Let's face it, treating your most valuable employees as little more than street urchins, turning away potentially brilliant hires because they refused to be shackled 24/7 and discouraging your employees from broadening their programming horizons and skills is incredibly short-sighted.
Ultimately, company's that persue such restrictive terms of employment are only shooting themselves in the foot.
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My experience (Score:5, Interesting)
by Virtex (virtex AT bigfoot DOT com) on Wednesday March 20, @09:33PM (#3197974)
(User #2914 Info | http://www.virtex.org)
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I work for a large telecommunications company. I won't mention the name, but I'll just say that it's a 6 letter word which starts with "spr" and ends in "int". Anyway, six months after I got the job, they tried to force one of these employee agreements on me. It was filled with language that basically said that they own everything I do, past, present, or future (it said anything related to this company's current or anticipated future business, but it would be all too easy for them to say some invention of mine was an "anticipated future business idea"). I doubt such a blanket statement would be legally enforceable, but I didn't want to deal with the legal headaches.
When I got the form, I wrote back with all the changes I wanted to see in order to protect my rights without adversly affection theirs (hey, I can understand a company wanting to protect themselves, so long as they understand my desire to protect myself too). A couple weeks later, the company's lawyer came down to talk to me, trying to convince me that I was taking the document too literally and that the company would never really use it against me. Of course, if that were true, he would have had no problem changing the document as I asked, but his excuse is that this was the same document that everybody signs.
I took the document and marked it up with the changes I wanted, and added a disclaimer which basically said "my signature on this document is contingent on me being able to own my own work". Of course, I detailed what I defined as "my own work". After making these changes, I sent the document in. About two months later, I received another copy of the form in the mail with a letter saying I had never signed the document, and they wanted me to sign this one. I never did, and they haven't bothered me with it since. If they were to hassle me with it again in the future, I have no doubts I could find a better job elsewhere.
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IEEE Spectrum Article (Score:1)
by soundsop on Wednesday March 20, @09:34PM (#3197975)
(User #228890 Info | http://www.un.org/rights/50/decla.htm)
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There is an interesting article [ieee.org] in IEEE Spectrum magazine regarding a similar case.
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universities do to (Score:1)
by trefoil (brents@cs.orst.edu) on Wednesday March 20, @09:34PM (#3197977)
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When I was at Oregon State, they also had a clause which stated that any program that was developed that used any of the universities resources at any time belongs to the university. It really made me want to be innovative. *heavy sarcasm*
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Dodgy Situation in Australia and help (Score:5, Informative)
by mosabua (manfred@mosabuam.com) on Wednesday March 20, @09:34PM (#3197979)
(User #534503 Info | http://slashdot.org/)
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Down here in Melbourne (Australia) the whole IP situation is similarly screwed as in the US because Australia tends to follow the "good example" and add some additional bull****.
Luckily there are sample contract snippets available at the Open Source Developer Agreement [sage-au.org.au] site.
I made sure that my contract contains some even harsher wording (because I want to also be able to write under the open content licence and other open licences than the GPL) also DURING my work time WITH work equipement.
My contract snippet looks like that then:
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3.14.The Employee expressly covenants that all discoveries, ... will be the exclusive and sole property of the Company. The Employee must disclose promptly to the Company and hereby assigns to the Company without further ... and so on ..
3.15.The Employee hereby assign to the Company in perpetuity all present and future rights, title and interests in all works as defined in the Copyright Act 1968 in all countries throughout the world, created by him whilst doing any act or carrying out any task, whether alone or together with other persons, in the course of their employment under this Agreement; including without limitation:
3.15.1.all the rights that a copyright owner has under the Copyright Act 1968 and under any similar legislation in any country;
3.15.2.the right to apply for and maintain design, copyright, trade mark or patent registration; and
3.15.3.the right to sue for past infringements.
3.15.4.any moral rights that he may hold in such works. In this respect the Employee consents to .the alteration and variation in any manner of such works; and the use of such works without any attribution of authorship.
3.16.The provisions of the sections above shall not include Open Source software, code, documentation, publications or any other work developed by the Employee during the term of their employment provided such software, code, documentation, publications or any other work is
3.16.1.Open Source or covered by any other Open Licence (see e.g. http://www.gnu.org/licenses/licenses.html or http://opensource.org/licenses/index.html)
3.16.2.developed independently by the Employee on their own time or on direction of the Company during normal working hours.
The Employee agrees to unconditionally disclose all such software or code to the Company immediately upon its creation.
That should help a bit
manfred
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Contract may have section for employee to fill out (Score:1)
by AHumbleOpinion on Wednesday March 20, @09:35PM (#3197981)
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I've seen many of these work-for-hire contracts and this issue was addressed in the contracts. The companies all had a section or addendum to fill out where you could list personal projects. Unless your project somehow overlaps with the job it's not an issue and the company signs off on your projects instantaneously. Projects related to work merely need a little clarification or negotiation.
I suspect most problems are due to employees not reading, not filling out paperwork, not checking with management ahead of time, etc. I've had some pretty lame PHB's sign off on my stuff just by explaining things to them ahead of time.
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Moral Rights might help (Australian Idea) (Score:2, Informative)
by mosabua (manfred@mosabuam.com) on Wednesday March 20, @09:40PM (#3198001)
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Hi again!
just a follow up to my contract snippet. In Australia there is a term called Moral Rights of Authorship that are part of the Copyright act.
Normally you have to sign an waiver of all moral rights on employment because they give you VERY wide control of your work.
They were intended for book or film authors preventing from rip offs and so on, but they DO apply for programmers and engineers and so on as well.
If your contract does not contain a waiver for those rights you are most likekly fine and actually have a lot of control.
Maybe there is something like that in the US as well...
manfred
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If you hate your job anyways... (Score:5, Funny)
by dghcasp on Wednesday March 20, @09:41PM (#3198007)
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Some places I worked in the past had Employment Contracts that gave the company full rights to "... any intellectual property, inventions or creations made during the period of employment." [wording more or less.]
I often thought that if I really wanted to quit and didn't care about a good reference, I'd take my camera to the local zoo and shoot several rolls of, er..., animal droppings, then lay out a book of photos of these, er... products of nature. And, since the company has all IP rights, put them down as the author.
It'd all be worth it when HR got the pre-press of the glossy coffe table book of Products, by Joe's Software, with the big picture of a turd on the cover.
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I did this, and it worked (Score:3, Interesting)
by legLess (legless@eudoramail.com) on Wednesday March 20, @09:41PM (#3198011)
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My boss (a lawyer) gave me a boilerplate employment contract, basically claiming rights to everything I thought during my employment. I asked him to change it to include only work done during paid hours for the company, and to exclude any code covered by the GPL. After a 5-minute explanation of the GPL, he was a little worried.
Then I showed him to source to the CGI and DBI Perl modules, and told him that we'd have to extend our timeframe by 6 months while I rewrote all that funcionality. Then he got it, and I've had no trouble.
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Tilly's post (Score:5, Informative)
by Skald on Wednesday March 20, @09:44PM (#3198024)
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In the interests of helping to spare our
beloved Monastery further merciless
Slashdotting, here is the whole of tilly's
post:
This post is somewhat long, so I would like to start
by saying that this is very much relevant to PerlMonks
even though it is not about Perl or programming. It
is also very relevant to CPAN, perl, and the broader
open source community. This is about aspects of being
an employee which generally get ignored, and really,
really, really shouldn't be.
I will talk about New York State's laws, since that is
what I know best. However in discussions with legal
types it appears that New York's provisions are not
unusual, and therefore what I say is applicable in some
way to most of the US, and likely in many other countries
as well. I should also disclaim at this point that I am
not a lawyer, nor is this legal advice. But
the general outline of what I am saying has been verified
to me by both lawyers, and people who are merely
interested in the legal profession. I have also been
told that this is bound to become a huge issue for the
open source world.
Enough advertising.
In New York State there are three basic classes of
employee:
- Hourly employee: If you show
up at work, punch a clock, and are paid overtime, then
you are an hourly employee. Factory workers are commonly
hourly employees. As an hourly employee the company owns
the hours you are at work, and has no other claim on you.
I believe it is uncommon for programmers to be hourly
employees.
- Contract worker: In this case you are working
per defined contracts. The work you do on that contract
is (barring specific contract provisions saying otherwise)
owned by the company that has hired you. They have no
claim on your time or energy when you are not working on
the contract. Many programmers work this way. But if you
are (for instance) hired by a consulting company to work at
clients, then your employment with that consulting company
is not contract work, see the next option.
- Professional employee: This is the rest of us.
Professional employees have employment that is not defined
by a clock or by a contract. In fact under the law their
productive output belongs to their employer, 24x7, 365 days
a year (366 on leap years). It is customary for these terms
to also be spelled out in employment contracts very clearly,
though truth be told most people read these, sign them, and
have never given the contents of those contracts much in the
way of thought.
This brings me to intellectual property law. Intellectual
property law in general assigns the rights to intellectual
property to the creator of an idea, work, or implementation.
That creator gains delimited control of their creation. In
theory the reason for this is to encourage potential
creators to create new things, and for them to pass into
the public domain. Or at least this was the reasoning that
Thomas Jefferson used (and he got it from French thought on
copyrights), though the reality in this century has not
matched theory very well.
But who is the creator?
One would think that the creator of a work is the author,
the person who actually produces it. But the realities of
life are not so simple. What if one person conceives of an
idea, and then gets multiple people to implement it? Is it
owned by the implementers, or the person who thought it
possible and paid for it to be done?
The legal resolution is the doctrine of a work for hire.
A work for hire is a work that you produced for someone else,
and they own all rights to any potential intellectual property
that might arise from that work. (Including, obviously, both
copyrights and patents.)
Now what happens if you combine these two legal areas?
The answer is unambiguous both in theory and practice. All
work covered under your employment terms belongs to your
employer. In the case of professional employees, this is
everything. If you go home and write something on the
weekend, you do not own it. You might b Read the rest of this comment...
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| - slavery by Anonymous Coward (Score:1) Wednesday March 20, @10:48PM
Re:slavery (Score:5, Insightful)
by Catbeller on Wednesday March 20, @11:57PM (#3198485)
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Sigh. Yes, you can sign away your human rights. 1st amendment, 4th amendment. You can sign away your children, legally, if you try hard enough. Same for rights protecting you from unreasonable search and seizure. Free speech.
People who have been sued by a rather famous litigious SF cult, for instance, have frequently had to sign agreements stating that they can never write, speak, or complain about their legal tormenters for the rest of their lives. And at that, some of those same people were still hounded by the nutballs -- but could not sue or even discuss the matter with other people. Because to do so would be a breach of contract that could get them punitively fined, or imprisoned. A contract can say anything.
Justice Scalia of the Supreme Court, just this last Tuesday likened public school to a prison: a student has no constitutional rights if the parents or school board so desire. That case, the suit of a former high school student who is trying to challenge mandatory drug tests as a prerequisite to participation in off-hour school activities, is doomed to be tossed out by a court majority who literally snarled at the concept of constitution rights applying to "druggies" infesting the schools. Just a step away is the tying of waiver of one's constitution rights as a prerequisite to attend school at all -- or later, to be employed.
If a citizen demands their rights, the only option left to them might be to live in a forest subsisting on nuts and termites.
Rights are useless if ideologues in both business and governement tie the ability to get an education and a job to your surrender of those rights.
I'm beginning to think that, broadly, a new judiciary that does not recognize Jeffersonian rights of man has been intermittently installed since '80. They recognize sweeping powers for the right to do business -- yes -- but the old standbys of speech and security in home and person are, as another justice said Tuesday, part of the past, not applicable to the new world we live in.
The pendulum has swung far too far away from classical constitutional thinking. The present atmosphere is not "conservative". It's something else entirely, something new and hostile to ideals we've held for over 225 years.
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| - No rights with corporations... by sterno (Score:3) Thursday March 21, @02:01AM
- Re:No rights with corporations... by odin53 (Score:1) Thursday March 21, @02:58AM
Clarification (Score:4, Insightful)
by sterno (sterno at bigbrother dot net) on Thursday March 21, @09:41AM (#3199874)
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Okay, not quite ALL the rights, allow me to clarify. Originally corporations operated under charters which narrowly defined the ground rules for their operation. During the 19th century, the power of corporations grew substantially, and in 1886, the Supreme Court ruled in Santa Clara County v. Southern Pacific Railroad that a corporation was deemed a "natural person" under the US Constitution. This effectively extended all constitutional protections to a corporation as thought it were a citizen.
It is this Supreme Court ruling that set up the basis for the campaign finance mess we are in today. Since corporations have the right of free expression, and since spending money is a form of expression, there's not a whole lot that can be done to limit their political influence. We'll see what happens with the new campaign finance law that looks to be passed shortly, but it's likely much of it can get struck down in court.
No, clearly corporations don't have EVERY right of a citizen. As you point out, they cannot vote, and clearly, since they are owned by people, they could be considered slaves. But where it counts they've been given a lot of constitutional protection that was never intended for them.
As for being bound by the limitations of the constitution, I disagree. Through contracts, a corporation can require it's employees or other contract signers to waive just about any right. While a contract cannot directly violate the law, they can limit the free speech of citizens quite readily. Most of the rights we traditionally think of can easily be signed away to a corporation, but a government agency has no such power over us.
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- Re:No rights with corporations... by maxpublic (Score:2) Thursday March 21, @04:04PM
- Re:slavery by ignavus (Score:2) Thursday March 21, @06:04AM
- Re:slavery by glwtta (Score:3) Thursday March 21, @08:01AM
- Re:slavery by RazorJ_2000 (Score:1) Thursday March 21, @09:00AM
- Re:slavery by GSloop (Score:2) Thursday March 21, @11:04AM
- 1 reply
beneath your current threshold.
- Re:Tilly's post by TheEnigma (Score:2) Wednesday March 20, @11:17PM
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Oddly... (Score:2)
by Improv (qc@apk.net) on Wednesday March 20, @09:44PM (#3198025)
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I'm not actually under an employment contract
at all. Maybe it's because I'm an at-will
employee, but I'm salaried, and don't recall
signing anything at all stating conditions of
employment. No nondisclosure, no IP stuff,
etc. I *was* hired in a hurry, but it still
amuses me.
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Freedom of speech. (Score:2)
by JohnBE on Wednesday March 20, @09:47PM (#3198036)
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Surely code is a written expression of human thought and therefor should be protected by the US Constitution? Or does that only count for academic papers and books (sic crypto)?
Surely we all have the right to free expression?
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Fight back (Score:1)
by isoteareth on Wednesday March 20, @09:48PM (#3198040)
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Absurdly restrictive employment contracts have been struck down in the past. There is a reason many contracts have a clause where they say that part of the contract being invalid does not invalidate the rest. It's a hack to cover overly broad and potentially invalid contracts.
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just like the RIAA (Score:2, Informative)
by futuresheep on Wednesday March 20, @09:51PM (#3198052)
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They must have taken a lesson from the RIAA:
from:
Article [salon.com]
Recording Industry Association of America (RIAA)
Last November, a Congressional aide named Mitch Glazier, with the support of the RIAA, added a "technical amendment" to a bill that defined recorded music as "works for hire" under the 1978 Copyright Act.
He did this after all the hearings on the bill were over. By the time artists found out about the change, it was too late. The bill was on its way to the White House for the president's signature.
That subtle change in copyright law will add billions of dollars to record company bank accounts over the next few years -- billions of dollars that rightfully should have been paid to artists. A "work for hire" is now owned in perpetuity by the record company.
Under the 1978 Copyright Act, artists could reclaim the copyrights on their work after 35 years. If you wrote and recorded "Everybody Hurts," you at least got it back to as a family legacy after 35 years. But now, because of this corrupt little pisher, "Everybody Hurts" never gets returned to your family, and can now be sold to the highest bidder.
Over the years record companies have tried to put "work for hire" provisions in their contracts, and Mr. Glazier claims that the "work for hire" only "codified" a standard industry practice. But copyright laws didn't identify sound recordings as being eligible to be called "works for hire," so those contracts didn't mean anything. Until now.
Writing and recording "Hey Jude" is now the same thing as writing an English textbook, writing standardized tests, translating a novel from one language to another or making a map. These are the types of things addressed in the "work for hire" act. And writing a standardized test is a work for hire. Not making a record.
So an assistant substantially altered a major law when he only had the authority to make spelling corrections. That's not what I learned about how government works in my high school civics class.
Three months later, the RIAA hired Mr. Glazier to become its top lobbyist at a salary that was obviously much greater than the one he had as the spelling corrector guy.
The RIAA tries to argue that this change was necessary because of a provision in the bill that musicians supported. That provision prevents anyone from registering a famous person's name as a Web address without that person's permission. That's great. I own my name, and should be able to do what I want with my name.
But the bill also created an exception that allows a company to take a person's name for a Web address if they create a work for hire. Which means a record company would be allowed to own your Web site when you record your "work for hire" album. Like I said: Sharecropping.
Although I've never met any one at a record company who "believed in the Internet," they've all been trying to cover their asses by securing everyone's digital rights. Not that they know what to do with them. Go to a major label-owned band site. Give me a dollar for every time you see an annoying "under construction" sign. I used to pester Geffen (when it was a label) to do a better job. I was totally ignored for two years, until I got my band name back. The Goo Goo Dolls are struggling to gain control of their domain name from Warner Bros., who claim they own the name because they set up a shitty promotional Web site for the band.
Orrin Hatch, songwriter and Republican senator from Utah, seems to be the only person in Washington with a progressive view of copyright law. One lobbyist says that there's no one in the House with a similar view and that "this would have never happened if Sonny Bono was still alive."
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Tilly's employers (Score:1)
by russotto on Wednesday March 20, @09:57PM (#3198062)
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Are going to be scratch one Tilly as soon as the economy improves a bit. And if the guy is good, which I assume he is or he wouldn't be writing core Perl modules, that's going to be a big loss. This is just really dumb on their part.
My employer doesn't claim anything that I don't do at work or related to the area the company works in (Sorry, I don't have the exact language handy). I'm an _employee_, not a slave. Yes, my employment is "for hire", and I'm a professional employee, but works done on my own time are NOT "for hire".
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But seriously, what are they gonna do about it? (Score:2, Interesting)
by Fastball on Wednesday March 20, @09:57PM (#3198064)
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Remove the Carp and Exporter modules from the standard Perl distro? Is a cold front moving into Hades?
Sounds to me like the company he works for is getting taken to the woodshed by its legal department and/or legal counsel. If company's said management knew better, they would realize that pursuing this is futile. Like Compuserve GIF futile. Frauhofer MP3 futile.
To say nothing about the untold benefits his company has reaped from open source development. If a single TCP/IP packet has flowed into or out of his company's LAN, if Perl is utilized, or if some other technological goody with roots in open source development is used there, then those fargin' iceholes need to step off.
This is just another example of how far behind the technological curve (especially regarding open source software) our legal system and legislative bodies are.
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A simple solution... (Score:2)
by Junior J. Junior III (jjjiii69@roomtemperaturemail.com) on Wednesday March 20, @09:58PM (#3198067)
(User #192702 Info | http://www.livejournal.com/users/jjjiii)
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Develop multiple personality disorder. Then name your alter ego your 1337 H4x0r handle, and credit all your GPL'd work to *that* guy. The guy who earns your paychecks can find his name on his Social Security Card and possibly also his birth certificate.
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Off topic. (Score:1)
by jag164 (jgoodman@musician.org) on Wednesday March 20, @09:58PM (#3198068)
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I saw this article and thought, "Great. Another tirade against common sense." I figured there would be /.ers pretending to be lawayers, and angry mobs, but it was refreshing to see that common sense prevailed.
The common sense that you have the contract before you sign. RTFC and don't be surprised later. Ask questions if the legalese doesn't make sense. /. people provided good responses here. College kids take note of them. When you're presented a contract, read it and don't be afraid to negotiate amendments to the contract. I have a friend who has succussfuly negotiated one extra day of vacation a year to be used on his birthday or the last working day of the year. Why? Because he can he says. Why the hell not. You're there to negotiate so work your magic. If a company is strict and does not bend, don't neccessarily rule them out. Code under a pen name :)
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Multiple Personas (Score:2)
by sinserve on Wednesday March 20, @10:00PM (#3198074)
(User #455889 Info | http://slashdot.org/...=stories&author=7654)
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I am not employed at the moment, but back when I had a job, I got a new SF
UID, when I started to work on an important project. Altough the project iteself
never made it big (other OS projects beat us to it.) I have foreseen this possibility.
The other thing is, I code "ill" software. Things no one would ever admit in public
to doing, let alone put on their CV. So, to feed my addiction, I learnt
to live with multiple names.
It really bothers me when I get some kudoses and compliments under my Mr.Hyde title,
and I could never show this to a potential employer. So the cycle continues, depressed->crack.
--
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Everything I like is either illegal, immoral or fattening.
-- Alexander Woollcott
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Beware Employment Contracts
