Beware Employment Contracts 619
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.
Promissory Estopple (Score:5, Insightful)
Scary (Score:5, Insightful)
Re:Argh.. (Score:4, Insightful)
This hurts like... H-E-double-hockey-stick... (Score:2, Insightful)
OK, so what about.... (Score:5, Insightful)
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...
Absurd! (Score:2, Insightful)
Re:At least the code is GPL'd (Score:4, Insightful)
Response and Responsibility (Score:4, Insightful)
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!
One thing-- overtime (Score:5, Insightful)
This only hurts the employer in the long run (Score:5, Insightful)
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.
Re:That wouldn't fly in California (Score:4, Insightful)
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:Response and Responsibility (Score:3, Insightful)
Re:Hate to tell you but the Constitution only (Score:4, Insightful)
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
one way to cover your self (Score:2, Insightful)
Two basic principals to keep in mind:
#1. It has been my experience that most companies steal; it is very difficult for a company to make money ethically, and very few even try. While they may talk a good ethical game you will discover that the employment contract puts lots of constraints on you, and almost none on them.
#2. The only reason someone wants you to sign anything is to use it against you in a court of law and for no other reason. People might say "Oh its just a formality" but don't you believe them: they want a legal weapon to use against you.
Re:You CAN'T waive that provision (Score:5, Insightful)
But then again, I'm no lawyer so I have no idea how this should be interpreted "correctly".
So what's the name of the company? (Score:4, Insightful)
Disney (Score:1, Insightful)
And don't forget about the Bern convention (Score:3, Insightful)
Article 6 (bis)
(1) Independently of the author's copyright, and even after
transfer of the said copyright, the author shall have the right
to claim authorship of the work, as well as the right to object
to any distortion, mutilation or other modification of the said
work which would be prejudicial to his honour or reputation.
So, they can take away your copyright, but they can't do with it as they please. And if these grim goons follow through with their threath, leave them this paragraph as a parting gift. Maybe they find out that the easiest way out is to give the code back to the community.
Re:That wouldn't fly in California (Score:2, Insightful)
Very, very interesting point. I am also not a lawyer, but I remember an interesting point of Common Law from Bus Law class (way back in the last century) that if you obtain title to something from someone you reasonably believe to have valid title, your title is valid and the legit owner has no recourse against you. Basically if you buy a stolen item, and have no reason to believe it is stolen, it is yours to keep. This, of course, is a flakey area of law, and not something I would want to defend for buying a nice TV for $10 from some dude on the street. BUT, I think anyone accepting GPL code in this situation could probably use this to defend their right to the code in question. Heck, even the "thief" in this case did it in good faith.
Even these posts (Score:4, Insightful)
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.
Re:Does anyone know... (Score:5, Insightful)
slavery (Score:1, Insightful)
I do not get it. Thats the definition of slavery. Contract or what not, you can not sign away your human rights.
Release Anonymously, claim later (Score:3, Insightful)
Release the code anonymously, if your worried about nazi employers. Release it stating that the author's anonymous, and providing some way by which the author can identify he in fact is the true author later on. When you feel the cost is clear, claim you wrote it.
For this particular prommer, I suggest he start doing that. Release the code anonymously.
As for the code already released under the GPL, that's GPL'ed permanently for everyone (though for the company, its effectively under public-domain). The company can't stop it from being distributed, and can't stop others from redistributing. When WE download a GPL'ed code, there's an implicit understanding on OUR part that we have the freedom to redistribute according to the terms of the license; irrelevant of anything else, we have the right to demand our side of the legal bargain.
Even if the company can somehow get a ruling prohibiting others from distributing it under GPL, that won't stop them from doing it. One, such a order would have to be federal. A court in one state can't have jurisdiction over the other states. Only a Federal Court can. Two, such an order would be unenforcible. Proof? Despite us constantly complaining about the nazis who decided the DeCSS case, DeCSS' distribution hasn't been halted since the judge ordered its distribution stopped. In fact, its increased.
Now, here's something this guy can do. Claim he isn't the author of the programs. He didn't write the programs. How can the company prove that he did? If he wrote these things out of work, there's no way the company can prove he's the author. He simply wipes the files, and there's no proof.
Re:Tilly's post (Score:2, Insightful)
Thinking of that, do they take responsibility for any infringements you make on other people's copyrights, or do they only take credit, no blame? What the hell is that? I'll tell you: slavery for money.
Undoubtedly your employer will only care if they can make a buck out of you, but they should be forced to carry out the letter of the law. And if they own what you do that's good, they should own what you do that's bad, too.
It all sounds very fishy to me. Capitalism really has some issues in my opinion.
bg
They deserve a public beating! (Score:3, Insightful)
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.
That should involve sending resumes out as fast as he can, taking extended lunch breaks, sick days and vacation until he lands another job. His company has jerked everyone around and deserves no better for themselves. A whole module? That took time and people at his job knew what he was doing. So they let him do it, let others link into it, then sprung this kind of shit? That's bad faith, NOT HIS BAD. Is there other people's work in that module? Does they company expect to extract money from every distro out there that ever rolled it up? Shit on them, they have acted in bad faith to all and deserve to be lied to and ignored.
Legal is not always moral. Never work for or with people who are not moral. Working with people who are out to screw others really is moronic.
Employment Agreements (Score:2, Insightful)
Don't believe the common wisdom "It won't hold up in court", because it doesn't matter. You'll still get the lovely threatening letters that will require you to retain an attorney. Sure, when you get to court, you may score some points, but you'll quickly find yourself burning through precious resources and/or spending money you don't have. Typically, even absurd agreements aren't tossed out, they just get reduced (eg. one-year clause turning into 6 months).
Be aware of the state laws that apply to the agreement, each state treats these agreements differently. Depending upon where you live, you may find that an employer cannot have you sign an agreement without some level of compensation, especially after you've already begun work. Remember, anything you sign places you in a convenant with your employer. You might get exposed to creative new uses for a document you signed that you thought was innocent.
Lastly, be careful when you're putting your agreement issues in writing. Some states allow this to be interpreted as you "quitting" your job. A friendly negotiation can quickly turn into you out on the street -- w/o unemployment. Look at curiously timed requests like these with a jaundice eye.
For those reading these posts, consult an attorney. Logic doesn't necessarily apply to these issues. You'll quickly discover information in your head may not even belong to you.
IANAL yet... seems like a better gig than this technology worker crap.
Re:slavery (Score:5, Insightful)
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.
Re:Release Anonymously, claim later (Score:2, Insightful)
As for the code already released under the GPL, that's GPL'ed permanently for everyone.
Actually, no, it isn't. The GPL is just a license, and the copyright holder is free to change the license at any point in time he or she wants to. If it was case that Tilly was the original copyright owner and the company has just now popped up and said, "That belongs to us, we want you to assign the copyright over to us immediately and we're not going to release it as GPL any more", then everything he's released up till now will remain copyright'd to him and thusly would remain GPL'd and you could start a fork right there (like openssh and ssh). No problems, no worries.
The problem, and this is the really insidious part, is that the company is saying that Tilly never EVER held the copyright to any of the work he's done, therefore he didn't have the authority to license the code, therefore anything he's ever published has to come down. And even worse, Tilly finds himself in the very unenviable and legally actionable position of having "leaked" intellectual property to the rest of the world. Even assigning the copyright to the FSF or someone else wouldn't have worked since he didn't have the authority to do it.
That's the part that really, really sucks
Your idea of "underground coding" (ie, writing code and releasing it under an alias or anonymously) is very interesting, though. Technically, you're still not protected, but if the employer isn't able to firmly establish a connection between you and the code, there's no practical way to stop it. I just pity you if you get caught. :-)
Another method that I've heard that I thought was interesting to start each and every project you intend to GPL off with the source code from an already existing GPL project. Ie, grab the source code for GNU ls and start hacking rather than starting from scratch so that even if the company does claim ownership of the copyright they're still bound by the GPL. :-)
The company can't stop it from being distributed, and can't stop others from redistributing. When WE download a GPL'ed code, there's an implicit understanding on OUR part that we have the freedom to redistribute according to the terms of the license; irrelevant of anything else, we have the right to demand our side of the legal bargain.
Again, from the company's standpoint, permission was never given to license the code in the first place, therefore the license is invalid for that code.
Oh well. Like I said in another post, kharma's a bitch. :-) Either that or a common sign of a doomed company is that it tends to start getting pennywise and pound foolish and trying to pull stupid stunts like this. Or maybe both.
Mixing 'work' and 'hobby' can be dangerous... (Score:3, Insightful)
You need to be careful when your 'work' and your 'hobby' and your 'recreation' all tend to have a lot of overlap.
There are some nasty pitfalls ahead.
Yes, everything might be rosy now, you are on good terms with your boss and upper management, but just wait until your hobby project shows some commercial promise, you upset somebody higher up the food chain, or any other event or change upsets the delicate balance...
A lot of very bright people have been caught in this trap, the most common outcome is that your 'personal, hobby project' becomes the intellectual property of your employer.
When I applied at Motorola, part of the application asked that you detail every potentially valuable idea you had ever had on your personal time, with the understanding that any other idea you came up with from that point on would be the property of Motorola.
(No, I didn't accept the job.)
Re:Promissory Estoppel (Score:4, Insightful)
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.
I disagree (Score:4, Insightful)
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.
No rights with corporations... (Score:3, Insightful)
Corporations, unfortunately, have been endowed with all the rights of a citizen. The Supreme Court ruling that established this is possibly the greatest ongoing threat to the rights of individuals. Because of this ruling these corporations can engage in contracts as any citizen would but of course they have substantially more power. They are not boun by the limitations of the constitution. As the power shifts out of the hands of government and in to the hands of corporations, this situation only looks to get worse.
A constitution doesn't mean jack to people if the chief influence on their lives ceases to be government.
Re:Blackmail: Sign or else (Score:4, Insightful)
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.
Re:OK, so what about.... (Score:1, Insightful)
Beautiful! Let's get some student who's under a nasty employment contract and goes to such a school to write some really great software. Then we'll lure the university and the company into fighting over who actually owns the software. Maybe it will consume so many lawyers that the rest of us can breath easier for a while.
Much of it is... (Score:3, Insightful)
Sure, right now, in the middle of a down patch. When things pick up in a few months, maltreated employees will be out of there like rats of a sinking ship, and the scumball employers will lose out bigtime. What goes around...
Speaking as someone who just gave a list of "no way" employers to his agent, based on the way they've treated friends of mine in the recent past, I disagree. I work in a high-tech city, and it's a small world. Employers who try to take advantage will find the best employees leaving, or just not applying in the first place. Employers who treat their staff as people to be valued and not "human resources" do much better. The past few years provide several shining examples of each type.
Yep, a fair and reasonable one. Inserting the kind of contractual terms we're discussing does far more to telegraph what kind of employer they are going to be. The kind of employer who objects to such alterations, or, say, rules you out because you have the audacity to ask how long a typical working day is during interview, is not the kind of place I'd work anyway. If they get evasive or uncooperative, they just confirm my initial impression, and save me wasting any more time.
Clarification (Score:4, Insightful)
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.
Ask first (Score:2, Insightful)
Good idea! (Score:2, Insightful)
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.