Beware Employment Contracts

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.

Argh..

[JoeLinux (20366)]

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

Promissory Estopple

[ClarkEvans (102211)]

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*

Re:Promissory Estoppel

[ClarkEvans (102211)]

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.

Re:Promissory Estoppel

[by Anonymous Coward]

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.)

Re:Promissory Estoppel

[shyster (245228)]

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.

Re:Argh..

[Arandir (19206)]

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?

Re:Argh..

[DEBEDb (456706)]

On the other hand, feel free to create
a very controversial work that your employer
will have the rights to. A porn movie,
perhaps.

Re:Argh..

[ClarkEvans (102211)]

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.

One thing-- overtime

[einhverfr (238914)]

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? ;)

Blackmail: Sign or else

[by Anonymous Coward]

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.

Re:Blackmail: Sign or else

[Jah-Wren Ryel (80510)]

Unless you work in a very small market the chance of being blacklisted is minimal. There is little to no collusion between recruiters from different headhunting agencies. Also, turn over in such jobs is very high, especially during the dot-com years - this week's headhunter was last week's stripper. So it is hard for the kind of behind the scenes network that would enable blacklisting to ever get created in the first place.

I'm not saying blacklisting isn't possible, just that is highly unlikely. Without some direct evidence, like a borker at a new agency telling you that you are blacklisted, I would tend to blame the problem on other events like, say, the dot-bomb effect. Huge numbers of us lost gigs and struggled (and still struggle) to find anything. The market is saturated with talent, lots of it desperate. It is only those in the selective niches who are still able to command high (or in some cases only just decent) rates today.

Signing your life away

[i_am_nitrogen (524475)]

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.

Read your contracts

[Arandir (19206)]

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.

Re:Read your contracts

[tpv (155309)]

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.

Re:Read your contracts

[technomancerX (86975)]

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.

That wouldn't fly in California

[phr2 (545169)]

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.

Re:That wouldn't fly in California

[cmowire (254489)]

Be careful about these laws, however.. They mostly cover "inventions", which can be interpreted to mean that your ideas at home and any patents resulting from this can't be assigned, but any code you write may not be enough of an "invention"

Talk to a lawyer before making this assumption.

Re:That wouldn't fly in California

[red_dragon (1761)]

...but any code you write may not be enough of an "invention".

If they weren't enough of an invention, they wouldn't be patentable, right? I'd bet there are more than enough contradictions involved in this.

Re:That wouldn't fly in California

[Wanker (17907)]

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.

You CAN'T waive that provision

[phr2 (545169)]

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.

Re:You CAN'T waive that provision

[Wanker (17907)]

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".

or in Washington

[AdamBa (64128)]

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

Re:or in Washington

[Supa Mentat (415750)]

Dude, you admitted to working for M$ on /. and made no excuses for it! How do you walk with balls that big?

I disagree

[Arker (91948)]

Microsoft shouldn't pay people that use their spare time to help their competitors... Geeze...

Nonsense. Microsoft, like every other employer in the world, needs to accept the fact that they don't own their employees and have absolutely no right to tell them what to do or not do after they clock out and go home.

Scary

[jgerman (106518)]

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.

I would like to know the name of the company.

[Sivar (316343)]

No reason. }:>

OK, so what about....

[pjdepasq (214609)]

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...

I resigned.

[The Famous Brett Wat (12688)]

I resigned over this very issue. I submitted two essays to the Wipout competition on the matter: The Intellectual Slave [wipout.net], and Current Thoughts on Intellectual Property [wipout.net]. The first is the more relevant of the two: the only detail that the second adds is the fact that I did resign.

Re:OK, so what about....

[clifyt (11768)]

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

You don't own your rant

[Disco Stu (13103)]

Dude, I think your employer owns your Perlmonks rant, too. I hope they don't change it.

One partial fix for that

[jmv (93421)]

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.

And keep a copy!

[MarkusQ (450076)]

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

This only hurts the employer in the long run

[WIAKywbfatw (307557)]

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.

My experience

[Virtex (2914)]

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.

Dodgy Situation in Australia and help

[mosabua (534503)]

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:

-----------

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

If you hate your job anyways...

[dghcasp (459766)]

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.

Tilly's post

[Skald (140034)]

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:

1. 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.
2. 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.
3. 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 be unaware of this issue and naively put a copyright notice on it, then distribute it. That was your mistake.

Now let me make this personal.

I am a professional employee. I signed a routine employment contract while I was still pretty much of a novice as both a programmer and an employee. As is common, 6 months later I had completely forgotten about the terms of the contract and was blissfully unaware of the laws I live under.

My bad.

Over the course of this job I have slowly become more and more involved in open source work. I write software for fun and release it. I have put code into posts here, released stuff on CPAN, and even contributed a core perl module. All of which I thought I had the right to do, but as it turns out none of which I did. There isn't even a legal issue to contest, I simply didn't know better.

My very bad.

As of today here is the status. This came up from an incidental issue about a month ago. I have been told that if I wish to continue being employed, I cannot post code. If I continue being employed, then I will be admonished for the code I have released so far. If I leave my employment then the decision about what happens with any and all of the code of mine that people here have seen is not mine. (Stupid comment removed.)

I live in NYC. It seems likely that my wife is going to have no option about moving any significant distance for at least a year. I am carefully considering my employment options. I have a likely job prospect near Philadelphia which would allow me to work on open source stuff. That is farther than I want to commute, and the pay cut would be painful, plus it does not resolve the other issues. I have not seriously searched for any potential jobs which are closer.

Now my food for thought for everyone is this. How many more people are in the same position I am, and are not aware of it? How much open source software has been put out there by authors who thought they owned rights that they do not? If you are an employee, are you one of them?

These are, as I have just learned, extremely non-hypothetical questions.

UPDATE
There is, considering the circumstances, only one choice for me to make which is not abysmally moronic. Do not expect to hear much from me in the future.

Re:slavery

[Catbeller (118204)]

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.

Clarification

[sterno (16320)]

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.

So what's the name of the company?

[aralin (107264)]

When we could boycott Adobe, we can boycott these morons as well. Right? There are many posts that say how to prevent it or how the company is short-sighted, but what about some direct impact. Who is the employer? And why don't we - programmers - organize a little more. Where is the black list of employers that don't treat us well?

Yet again

[nabucco (24057)]

I have seen this happen to people I know. The standard contract has these provisions. When people ask about them the company says they're just protecting themselves and not to worry about it. Yet they are given the legal authority to hold it against you and sometimes do.

For almost every problem I've seen engineers face, someone says, "Well you should have negotiated that with your contract". Well, I know a lot of engineers and the number I know who work full-time and have intellectual property or overtime issues negotiated in their initial employment agreement I can count on my hand. The reality is, if they're handing you something to sign from their lawyer's boilerplate, instead of vice versa, they have the upper hand.

Most professions have professional organizations that look out for their interests, lawyers have the ABA, doctor's have the AMA. Who looks out for IT workers? There are some ancient associations which are more-or-less owned by the industry employers (IEEE, ACM). The professional associations that truly look out for the modern IT workforce - the Programmer's Guild, Washtech and whatnot, are new, small organizations. They do not have the history and well-funded organization of the ITAA, the IT employers association. The ITAA has not only rammed through H1-B legislation but legislation which overturned FLSA so that computer workers don't have to be paid overtime. Section 1706 was lobbied into the IRS tax code to drive independent consultants into body shops. Because the professional organizations are still small, most engineers don't even know this, and know the ITAA is attacking their livelihood down in Washington.

What do most engineers say? Well, they always think they're the smart, hard-working ones who are unaffected by the laws of supply and demand. In some ways, they are a bit of the engineer stereotype, putting their personal self-worth into how "skilled" they are, and think being skilled is a panacea for everything. Luckily for them, this requires no backbone as the boss has no problems with engineers spending what spare time they have improving their skills. Unfortunately, laziness is endemic in the profession and a few engineers will have to deal with these issues, defending against the ITAA's attacks on the profession while a lot of other people lazily sit around and criticize them. Hopefully there will be enough counter-force, I'm not too optimistic however. I think in 15-20 years there will be a lot of carpal-tunnel afflicted (another bill the ITAA killed) guys who have spent the last 20 years working 60 hour weeks, oncall 24/7, and who are burned out, having problems with their families who they don't spend time with and are over-the-hill and less and less employable. I see this because this is what I see now with a large percentage of 40+ programmers today. Luckily everyone I meet thinks they're a unique super-genius who is too smart for all of this, lucky them. We're so smart we don't have to organize like doctors and lawyers do, so we don't even need an organization warning us about the ITAA like the Programmer's Guild and CESO and Washtech do. I'm afraid as time goes by, I am becoming more concerned about the thick headedness of American programmers and that the ITAA will succeed in making everyone a low scale wage slave, I thought this recession and widespread wage freezing, cutting, long hours of unpaid overtime, 24/7 oncall, unemployment and so forth would do it. I'm actually planning a professional exit strategy while I'm still in my 20's as being an American programmer 15-20 years from now looks like a bad deal, I'll be fighting the good fight 2-3 more years however hoping things will start looking like they might turn around until then though.

Anyhow, here is my web page on this:

http://www.geocities.com/oncallguild

Even these posts

[Veteran (203989)]

Under the "We own your life 24/7/365 contract" that most people sign - even these Slashdot postings belong to your employer - since any creative work you do belongs to them. This means that they can censor what you have to say here.

This is - of course - manifestly wrong. The reason that companies get away with this sort of thing is horrendous case law; beat up somebody in court who doesn't have the financial resources to fight you and you have established a precedent to use against everyone.

Count me in on any legal expenses

[Starky (236203)]

There have been many insightful comments from the gallery.

I have benefitted personally and professionally from open source contributions of others (including Tilly). While I am happy to pay for proprietary software that I use, I am also happy to contribute both my time [sourceforge.net] and money [perlfoundation.org] to open source projects that I derive benefit from.

Regardless of Tilly's decision, he should know that I for one would like to be first in line to contribute to a legal defense fund should he decide to defend his right to his intellectual property.

And if his decision ends up costing him his job, I would be happy to use my professional contacts (mostly in the Denver area, many of which work in Perl shops) to the best of my ability to try to find him a new and better position. Just send me an e-mail [mailto], Tilly.

Changing the contract worked for me

[Michael Snoswell (3461)]

I was offered a job by one of the "big" unix computer systems companies in Silicon Valley. Their intellectual property clause was a horrible blanket statment. I refused to sign it as I was working on some stuff of my own as a hobby. They said "We didn't think you'd sign but be thought we'd it on you anyway"!!! I got a lawyer to rewrite their paragraph (it came out to 10 pages long) and the company lawyers took 2 months to ok it but it the end they realised it was all above board.

So they were happy with that. But a few months later when I was approach by a national TV network to do an interview about my software I checked with my boss about it and word came down the line that if I said anything I'd get fired [shrug] Can't win them all but I guess that was reasonable as my software competed with a product my employer was working on internally (which was one main reason they employed me in the first place, because of my specialist knowledge).

Live and learn.

Re:At least the code is GPL'd

[MeowMeow Jones (233640)]

But did he have the right to GPL it in the first place?

In a worst case scenario, what happens when you merge all these patches from someone and then two years later some company claims that he didn't have the rights to assign ownership to you? Even if you manage to strip all the patches out, you then need to make sure that the replacement patches aren't borrowing any ideas from the old intellectual property.

Re:At least the code is GPL'd

[jfroebe (10351)]

I don't buy that the company couldn't do something... If I wrote a chunk of code, slapped a GPL license on it, and released it out to the public, does that mean that the code is actually under the GPL license? not necessarily... The question is really, "Who originally owned the code?" If it was me, then I can put a GPL license on it. If the company actually can legally claim ownership of the code (such as an employment contract clause), then the code is the company's and it was wrong if not illegal (stolen intellectual property, blah blah) for me to release the code. Usually, even if there is such a clause, the company can and will make an exception if you detail to them what it is you want to do (work on open source stuff on your own time). Just get it in writing. For example, Steven Wozniak (inventer of the Apple computer), approached Hewlett Packard about the design to the original Apple. If he didn't, they could have sued both him & Steve Jobs because until HP actually OWNED the rights to the Apple computer until HP decided it didn't care about such a "toy". Apple History: http://www.apple-history.com/history.html If you don't know what your company's policy is, then you better ask. jason

Re:System Administration?

[jgerman (106518)]

They should only have ownership dibs on stuff you did explicitly for work, and or on their equipment. Tell your boss straight up. I wrote a piece of software at home that would make this easier, I'd be more productive, but I'm not bringing it in until I have, in writing, that I own the software.

Response and Responsibility

[rjamestaylor (117847)]

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!

Re:Does anyone know...

[SuiteSisterMary (123932)]

Tilly read the contract, agreed to it, then forgot that he did. That's his bad, pure and simple. He even admits it. It wasn't obfuscated, or overly legal-speakified. He ignored something he agreed to, and he got spanked for it.

Re:Hate to tell you but the Constitution only

[rcs1000 (462363)]

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