Avow-CI Is No More(github.com)
github.com
Avow-CI Is No More
https://github.com/Fluidbyte/avow-ci/
33 comments
The author makes no reference to a non-compete agreement. His former company claims that he stole their code and put it into his public repo, not that he is violating his non-compete.
If the accusation is false, it's easy to prove. But the problem is that a company can bankrupt an individual with just the legal fees involved in the discovery process and depositions alone, even if it doesn't go to trial. So most folks are forced to yield, as the author is doing.
If the accusation is false, it's easy to prove. But the problem is that a company can bankrupt an individual with just the legal fees involved in the discovery process and depositions alone, even if it doesn't go to trial. So most folks are forced to yield, as the author is doing.
> But the problem is that a company can bankrupt an individual with just the legal fees involved in the discovery process and depositions alone, even if it doesn't go to trial.
This is the damning thing. It looks like the company is, if not right, at least able to make a reasonable enough claim of rightness to warrant further discussion. However, what if the company was dead wrong? What is to stop an unethical corporate entity from punitively suing employees into cooperative behavior, knowing they cannot pay? Our lawsuit culture is quietly underlying this entire discussion: what if the company couldn't sue this man into legal-fee-poverty in the first place?
This is the damning thing. It looks like the company is, if not right, at least able to make a reasonable enough claim of rightness to warrant further discussion. However, what if the company was dead wrong? What is to stop an unethical corporate entity from punitively suing employees into cooperative behavior, knowing they cannot pay? Our lawsuit culture is quietly underlying this entire discussion: what if the company couldn't sue this man into legal-fee-poverty in the first place?
If he's not governed by a non-compete, yes, this is outrageous behavior on the part of his former employer. I had not even considered that possibility.
Either you don't quite understand the purpose of a non-compete or there's an entire class of them I'm not aware of (which is entirely possible), but in my experience, their purpose is to explicitly bar employees from poaching customers from the business.
Working on something in your personal time that's similar to what you're working on for your employer -- unless your employment contract is entirely unreasonable -- isn't and shouldn't be a violation unless you are using company resources (including but not limited to trade secrets learned in the context of your employment and not legally available through other sources).
Working on something in your personal time that's similar to what you're working on for your employer -- unless your employment contract is entirely unreasonable -- isn't and shouldn't be a violation unless you are using company resources (including but not limited to trade secrets learned in the context of your employment and not legally available through other sources).
This is a matter of non-compete agreements, signed by private parties. Personally, I think it's totally reasonable to ask employees not to work on competing products in their off-time. As an employee, I have signed such agreements myself. The author appears to have signed such an agreement.
We can disagree about this. You, personally, are free not to sign these agreements with your employer, because you feel the request is unreasonable.
(Trade secrets are different. That's typically governed by state law, no special agreement required: http://en.wikipedia.org/wiki/Uniform_Trade_Secrets_Act)
We can disagree about this. You, personally, are free not to sign these agreements with your employer, because you feel the request is unreasonable.
(Trade secrets are different. That's typically governed by state law, no special agreement required: http://en.wikipedia.org/wiki/Uniform_Trade_Secrets_Act)
Non-compete is a somewhat generalized term being used here, but it can mean what you referenced ("don't poach customers") as well as "don't steal our product ideas". These are sometimes called NDA or PIIA (1) which might be better representations of what we are talking about here. In this case, the company is claiming that he stole their code (an 'invention' or 'property' of the company) for the benefit of some other party.
NDA or PIIA agreements are common in software development.
1 - http://en.wikipedia.org/wiki/Non-disclosure_agreement
NDA or PIIA agreements are common in software development.
1 - http://en.wikipedia.org/wiki/Non-disclosure_agreement
Non-competes, as applied to tech workers in Massachusetts, essentially say from start, to two years after you quit your job, you will NOT work on anything similar, for anybody. (Depending on the contract you signed.)
(Current Governor of Mass is looking to change this.)
(Current Governor of Mass is looking to change this.)
It IS a violation in many places and it should be IMO. See my reply above.
I'll try to dig up some relevant links to laws
Here's a relevant link.
"Employees Owe a Duty of Loyalty to Their Employers
...
Thus, an employee who improperly competes with his employer, assists a competitor during the course of employment, or makes use of the employer's confidential information to compete with the employer after termination may have breached the duty of loyalty.
"
etc..
http://shawvalenza.com/publications.php?id=68
I'll try to dig up some relevant links to laws
Here's a relevant link.
"Employees Owe a Duty of Loyalty to Their Employers
...
Thus, an employee who improperly competes with his employer, assists a competitor during the course of employment, or makes use of the employer's confidential information to compete with the employer after termination may have breached the duty of loyalty.
"
etc..
http://shawvalenza.com/publications.php?id=68
The OP explicitly said that he worked on it during personal non work time, and further more has evidence (git logs) to prove it. Whether his former employer has any evidence (either way) apart from the existence of the project on github obviously hasn't been stated.
Sorry, but git logs prove nothing. Git allows rebase and modification of commits. Even a full log of when pushes to github happened prove nothing - I can work during the day and just commit later.
It's a little unclear what you mean by "modify", so just to be clear here: you can't alter an existing commit.
You can certainly fake any timestamp you want to start with, or you can create a new set of commits with a different timestamp (which is what rebase does), but you can't change an existing commit - the hash would be wrong.
You can certainly fake any timestamp you want to start with, or you can create a new set of commits with a different timestamp (which is what rebase does), but you can't change an existing commit - the hash would be wrong.
>but you can't change an existing commit - the hash would be wrong.
True - however as long as nobody ever saw that commit, nobody will know. So the only way a git log could ever constitute a proof would be that you immediately push to a tamper-proof audit system right after your commit.
True - however as long as nobody ever saw that commit, nobody will know. So the only way a git log could ever constitute a proof would be that you immediately push to a tamper-proof audit system right after your commit.
Isn't the onus of proof on the company in this case?
How can the company prove that he worked on the open source project on their time?
How can the company prove that he worked on the open source project on their time?
> - His personal project is directly related to his work.
He worked on the same thing in his work is very different
> - His personal project conceivably competes with his employer's products.
As far as I can tell, his former company is not in the CI business and do training and consulting, I'm guessing they wanted an internal CI for their client projects and stuff, there's no competition (not to mention there are already a billion CI out there)
He worked on the same thing in his work is very different
> - His personal project conceivably competes with his employer's products.
As far as I can tell, his former company is not in the CI business and do training and consulting, I'm guessing they wanted an internal CI for their client projects and stuff, there's no competition (not to mention there are already a billion CI out there)
He was paid to work on a CI tool, by a firm that sells development services. Even if we assume that tool would never, ever be sold to customers, releasing a product that erodes their competitive advantage is still foul play. It's dirty pool.
We don't know exactly what contract he signed with his employers, but this would not be permitted by any reasonable contract.
We don't know exactly what contract he signed with his employers, but this would not be permitted by any reasonable contract.
Working on a similar product as your last but rebuilding from scratch under a different employer (in this case himself) is by no means uncommon. Employees are often poached from companies specifically because of their experience in a field. There are contracts that require you not compete in a field after you quit (probably illegal n some states), but my impression is that those are less common. You can't take the code, or possibly event significant portions of how a system works, but your experience in the field is yours and yours alone.
The sticky part of this is where he started working on this (in his free time) while still employed for the original company. That, along with what we don't know about his employment contract, makes this hard to reason about.
The sticky part of this is where he started working on this (in his free time) while still employed for the original company. That, along with what we don't know about his employment contract, makes this hard to reason about.
NY and CA have laws that limit the scope and length of valid non-compete agreements.
In many other states, wide-ranging, long-term non-competes are practically universal. Personally, I've been asked to sign contracts that would effectively ban me from working in tech, period, for two years after departure.
In many other states, wide-ranging, long-term non-competes are practically universal. Personally, I've been asked to sign contracts that would effectively ban me from working in tech, period, for two years after departure.
Your own source for the fourth point, the map of offices, actually does show an office in upstate New York. Look again at http://appendto.com/wp-content/uploads/2013/12/100-Remote.pn...
>>He worked on a personal project during company time.
Doesn't he claim this is not true?
"I did not do so on company time (as proven by the git commit logs), I worked on it in the evenings after I had completed my work for the day."
Doesn't he claim this is not true?
"I did not do so on company time (as proven by the git commit logs), I worked on it in the evenings after I had completed my work for the day."
To be fair, you can work on something and wait until the evening to commit it.
You can also modify the commit timestamps.
... which means that there is no way to prove that you worked on something in your personal time, I guess?
... which means that there is no way to prove that you worked on something in your personal time, I guess?
Time isn't the only corporate asset he could have utilized to create his competing code. He might have utilized corporate-funded computers, LAN hardware, Internet access/bandwidth, etc. When I worked for a major Internet corporation I signed a contract specifically stating that anything I created using any corporate resources belonged to the company. Thus, when I worked on open source stuff, I did it from home using my own computer on my own time. Did the author sign such a contract, or violate such a contract by using company assets other than business hours? We just don't know.
Maybe he was breathing some residual company oxygen while he was in his home working on this software. It would follow that he used company resources and thus the software he created must belong entirely to his former employer.
Non sequitur means "it does not follow."
He did not work on it during company time.
"I did not do so on company time (as proven by the git commit logs), I worked on it in the evenings after I had completed my work for the day."
"I did not do so on company time (as proven by the git commit logs), I worked on it in the evenings after I had completed my work for the day."
[deleted]
[deleted]
Remind me never to work for you.
This isn't what I have in mind when I think "open-source bullying." This is standard corporate lawyer sending of C&D orders.
Agreed. This should be renamed to "Employer bullying open source now-former-employee." It's an incredibly crappy situation and the former employee is doing exactly what the Employer wants, not defending themselves due to the expense of doing so.
It's an incredibly crappy situation and the former employee is doing exactly what the Employer wants, not defending themselves due to the expense of doing so.
... and protecting (rather than naming) the employer, something the employer also wants, out of fear of causing a reputation issue for "bad-mouthing" an ex-- in this case, an objectively deserving ex.
We need representation, agents and collective bargaining, like actors and writers in Hollywood. This event just proves that, because we (as tech workers) fail to fight for our own, employers can get away with far too much shit.
... and protecting (rather than naming) the employer, something the employer also wants, out of fear of causing a reputation issue for "bad-mouthing" an ex-- in this case, an objectively deserving ex.
We need representation, agents and collective bargaining, like actors and writers in Hollywood. This event just proves that, because we (as tech workers) fail to fight for our own, employers can get away with far too much shit.
It's one thing to work on unrelated open source software while working somewhere. It's a much more tenuous situation when you're working on OSS in the same domain as your commercial software, even if the entire technology stack is completely different. Unfortunately it sounds like the employer's claim might have some legs in this case.
I would have thought so too (and did), but at my previous employer they took over another company which broadened the scope of the products (VFX software) they offered, which then came into conflict with work I'd been doing in my own time.
I ended up signing a specific non-compete and agreeing not to open-source my stuff for a year for the opportunely to work on something I wanted to there, but it turned out that up to that point, the managers' interpretation of the contract that I thought would have prevented working on open-source competitors (i.e. blender or something) meant that they wouldn't have been able or had the right to. Which I found surprising, but I guess wasn't really put to the test.
So I guess it varies.
I ended up signing a specific non-compete and agreeing not to open-source my stuff for a year for the opportunely to work on something I wanted to there, but it turned out that up to that point, the managers' interpretation of the contract that I thought would have prevented working on open-source competitors (i.e. blender or something) meant that they wouldn't have been able or had the right to. Which I found surprising, but I guess wasn't really put to the test.
So I guess it varies.
Also when nearly all mid-sized corps and above have in their employment contract that all knowledge/output etc whether on company time or not, is property of the company.
Tip: I've worked at 4 or 5 small/medium companies where I crossed this out of my employment contract before signing it, and had the hiring person initial the modification. I just explain that I have a number of hobby projects that I can't hand over to the company.
In my experience most companies don't even know or care that clause is in there and have no problem waiving it. Remember, employment contracts are almost always just prepared by their legal firm, and the legal firm is just copy-pasting most if not all of the contract.
You can do this with literally any clause of any contract, by the way. The other party might balk (good luck if you try it on your mortgage papers!) but generally it's much easier than you think...
In my experience most companies don't even know or care that clause is in there and have no problem waiving it. Remember, employment contracts are almost always just prepared by their legal firm, and the legal firm is just copy-pasting most if not all of the contract.
You can do this with literally any clause of any contract, by the way. The other party might balk (good luck if you try it on your mortgage papers!) but generally it's much easier than you think...
Your mileage will definitely vary on this one. I've tried this a couple of times, and the result was always the same: "Sign an unmodified employer agreement or go find another job."
It doesn't surprise me that mileage can vary; I'm sorry you had to deal with unreasonable companies. Were they tech-focused companies?
In my cases, they were companies where software development was necessary but tangential to what they do. For example I currently work at a printing company where I help to automate digital stuff and help drive print sales with online storefronts. I'm not even sure the owner knows what programming is other than the fact that I do it for him and it makes his stuff work. So he's not interested in owning software I write outside of work hours...
In my cases, they were companies where software development was necessary but tangential to what they do. For example I currently work at a printing company where I help to automate digital stuff and help drive print sales with online storefronts. I'm not even sure the owner knows what programming is other than the fact that I do it for him and it makes his stuff work. So he's not interested in owning software I write outside of work hours...
Never sign these.
They have no right. None at all.
It's fair enough to get people to sign something that says they won't leak IP, and even that they won't do other projects that compete with company business. But a catch-all "All your code belongs to us?"
No. Way.
They have no right. None at all.
It's fair enough to get people to sign something that says they won't leak IP, and even that they won't do other projects that compete with company business. But a catch-all "All your code belongs to us?"
No. Way.
> They have no right. None at all.
Depends on where you are. In germany this is actually enshrined in the Arbeitnehmererfindungsgesetz. The employer has the right, even without the contract clause. Good luck opting out.
Depends on where you are. In germany this is actually enshrined in the Arbeitnehmererfindungsgesetz. The employer has the right, even without the contract clause. Good luck opting out.
Wow.
Remind me never to work in Germany! (It comes up once in a while. I probably wasn't going to anyway, but this is further reason not to)
Remind me never to work in Germany! (It comes up once in a while. I probably wasn't going to anyway, but this is further reason not to)
Just out of interest, to whoever did it - why the downvote?
I think Germany's a great country, there's an awful lot done right there, but it's important enough to me that I retain ownership of my own out-of-hours projects that I would not work there.
Is this wrong of me?
I think Germany's a great country, there's an awful lot done right there, but it's important enough to me that I retain ownership of my own out-of-hours projects that I would not work there.
Is this wrong of me?
Why? There's an easy way to solve this problem: Go talk to your employer. The ones you might want to work for are reasonable: I'm not claiming IP rights for unrelated side projects of employees.
Now if you get into the area where you're dealing with trade secrets and patents on stuff that directly relates to your work, even if you write the code on the side, you'll probably run into trouble in a lot of jurisdictions. There's no way to effectively draw the line and say "oh, this small idea about the flux-compensator, I had that at work, but this great, patent-worthy-and-billion-dollar idea, that builds on my previous findings at work, that one, that totally came to me in my spare time (exactly at 08:01 pm, just as I stepped into my car)." That's the problems that these regulations try to tackle. It's imperfect, but hey, at least you're entitled to a fair compensation by the same law.
Now if you get into the area where you're dealing with trade secrets and patents on stuff that directly relates to your work, even if you write the code on the side, you'll probably run into trouble in a lot of jurisdictions. There's no way to effectively draw the line and say "oh, this small idea about the flux-compensator, I had that at work, but this great, patent-worthy-and-billion-dollar idea, that builds on my previous findings at work, that one, that totally came to me in my spare time (exactly at 08:01 pm, just as I stepped into my car)." That's the problems that these regulations try to tackle. It's imperfect, but hey, at least you're entitled to a fair compensation by the same law.
Talking to your employer solves nothing. Many times people will renege on verbal agreements to allow things, either because of inflated concerns about liability or competition, or simply out of ignorance or spite.
I don't wish to exposed to those legal possibilities. It's just not acceptable to me.
I don't wish to exposed to those legal possibilities. It's just not acceptable to me.
> Many times people will renege on verbal agreements to allow things, either because of inflated concerns about liability or competition, or simply out of ignorance or spite.
That's what I meant with 'people you don't want to work for', especially the ones that act out of spite. I found all employers that I worked for in my career quite supportive, some would even allow me to work on the side projects during office time.
> I don't wish to exposed to those legal possibilities. It's just not acceptable to me.
Certainly your choice. Given that a lot of US employment contracts have clauses to the same effect I'd be curious what options remain. European law is fairly well standardized and I'd not be surprised if other european countries have laws to the same effect. Germany tends to be pretty employee friendly.
That's what I meant with 'people you don't want to work for', especially the ones that act out of spite. I found all employers that I worked for in my career quite supportive, some would even allow me to work on the side projects during office time.
> I don't wish to exposed to those legal possibilities. It's just not acceptable to me.
Certainly your choice. Given that a lot of US employment contracts have clauses to the same effect I'd be curious what options remain. European law is fairly well standardized and I'd not be surprised if other european countries have laws to the same effect. Germany tends to be pretty employee friendly.
And how do you tell ahead of time if someone's going to change their mind or go back on their verbal agreement? You can't.
In the US I would at least be free not to sign such a contract, or demand the clause be removed. I'm in the UK and I wouldn't sign anything like that here either. I also don't believe we have anything like that in law, though I could be wrong.
I know Germany (and much of the EU) are very employee friendly, which is why I find this so surprising, and frankly pretty outrageous.
In the US I would at least be free not to sign such a contract, or demand the clause be removed. I'm in the UK and I wouldn't sign anything like that here either. I also don't believe we have anything like that in law, though I could be wrong.
I know Germany (and much of the EU) are very employee friendly, which is why I find this so surprising, and frankly pretty outrageous.
> And how do you tell ahead of time if someone's going to change their mind or go back on their verbal agreement? You can't.
Ok, sorry, I was unclear: Talk about it, come to an agreement and get that in writing. E-Mail as confirmation should be enough to move the burden of proof to the employer.
> I know Germany (and much of the EU) are very employee friendly, which is why I find this so surprising, and frankly pretty outrageous.
I'm not surprised. This certainly is an area that will get a lot of problematic cases. The law in germany not only contains the first right of the employer to certain inventions, it also stipulates fair compensation and guidelines about the correct process. I much prefer that over "let's battle that out in court." It's actually quite employee-friendly.
Ok, sorry, I was unclear: Talk about it, come to an agreement and get that in writing. E-Mail as confirmation should be enough to move the burden of proof to the employer.
> I know Germany (and much of the EU) are very employee friendly, which is why I find this so surprising, and frankly pretty outrageous.
I'm not surprised. This certainly is an area that will get a lot of problematic cases. The law in germany not only contains the first right of the employer to certain inventions, it also stipulates fair compensation and guidelines about the correct process. I much prefer that over "let's battle that out in court." It's actually quite employee-friendly.
I don't prefer that at all. If I'm doing something work related I do it at work and it belogs to them. If I'm not there and it's unrelated it's mine.
Lawsuits need only occur when someone strays into the middle.
Lawsuits need only occur when someone strays into the middle.
You know, not being a German speaker, the first time I read that name I thought you were being facetious. No disrespect to the German language, but that is one hell of a name.
I'm assuming an English equivalent is something like "standard conflict resolution for employees?" I can see "arbitration" in the German, if I'm not mistaken.
I'm assuming an English equivalent is something like "standard conflict resolution for employees?" I can see "arbitration" in the German, if I'm not mistaken.
No, I'm not being facetious. The official name is "Gesetz über Arbeitnehmererfindungen", the official short "ArbnErfG". (http://www.gesetze-im-internet.de/arbnerfg/BJNR007560957.htm...)
The english equivalent would be "Law governing inventions made by employees".
The english equivalent would be "Law governing inventions made by employees".
You could say that German is one of the languages where you can combine words to form new words pretty freely.
A lot of language features seem pretty weird from other reference points. But I don't think it's constructive to point it out like this.
A lot of language features seem pretty weird from other reference points. But I don't think it's constructive to point it out like this.
What about working for a competitor? Presumably a company can ask that you not actively undermine their product while cashing their paychecks?
From that I would argue that by building a similar product in his free time he was effectively working for a competitor.
From that I would argue that by building a similar product in his free time he was effectively working for a competitor.
I'm not sure that my attitude to "we own all your stuff" clauses is directly relevant to the case at hand, no.
I agree entirely that the employer has the right to ask you not to compete while you're still employed by them. I won't sign non-competes that extend past employment, but I don't think it's unreasonable to sign one during employment. Particularly not for products (FOSS or otherwise) that directly compete with the very thing you're working on now.
I agree entirely that the employer has the right to ask you not to compete while you're still employed by them. I won't sign non-competes that extend past employment, but I don't think it's unreasonable to sign one during employment. Particularly not for products (FOSS or otherwise) that directly compete with the very thing you're working on now.
> Particularly not for products (FOSS or otherwise) that directly compete with the very thing you're working on now.
But that's the case discussed here. The guy was tasked to build a CI-System at work and built another one in his spare time.
But that's the case discussed here. The guy was tasked to build a CI-System at work and built another one in his spare time.
Yes, I know, which is why my comment was specifically about clauses in which employers claim ownership of side projects and other out of scope productivity. Please track back up-thread to see the comment I was responding to.
Does that really hold up in court? I suppose it depends on the state you live in. I hope someday a developer stands up to this, wins in court and scares the crap out of employers all across the country from trying the same. We need a Rackspace/NewEgg of Employer Intellectual Property trolls.
Never sign this unless you have a lawyer, money and breath to invalidate a clause you thought "does not hold up in court".
Usually the clause is more nuanced, giving them an option to own it, or something to that effect. I asked an HR person years ago if they actually wanted to be on the hook for any intellectual property I might create off the clock - I might be in to illegal porn stuff, or security virus work, or whatever. Did they really want to claim ownership of that, without even knowing what it was? "Well, no, we don't want that" was the response.
You can't be on the hook for intellectual property. Having the right to the IP you gained off hours does not mean that they're on the hook for your actions in that time, even if your actions were a requisite to gain that IP.
The clauses are usually more nuanced because the blanket "we own all you ever create" is - rightfully - considered to broad and unenforceable.
The clauses are usually more nuanced because the blanket "we own all you ever create" is - rightfully - considered to broad and unenforceable.
yeah - unenforceable - in that one case I actually got them to modify the language to be a bit more clear as to what they were after (essentially non-competition).
Depending on location, those may be illegal.
In WA state, only work you do on company time, or with/on company resources can be claimed by the company.
In WA state, only work you do on company time, or with/on company resources can be claimed by the company.
I would disagree.
What you do in your personal time is none of your employers business he is not paying for that time and he does not own whatever you create in that time.
Not unless you signed a ridiculous contract saying something like that which in my opinion should not be enforceable anyway.
It's like a construction company saying it owns the house you built for your family just because you happen to work for them and you gained experience by working for them.
They certainly didn't supply the raw material which in programming would be time and effort so they shouldn't have any claim on it.
What you do in your personal time is none of your employers business he is not paying for that time and he does not own whatever you create in that time.
Not unless you signed a ridiculous contract saying something like that which in my opinion should not be enforceable anyway.
It's like a construction company saying it owns the house you built for your family just because you happen to work for them and you gained experience by working for them.
They certainly didn't supply the raw material which in programming would be time and effort so they shouldn't have any claim on it.
> Not unless you signed a ridiculous contract saying something like that which in my opinion should not be enforceable anyway.
The problem is that pretty much every employment contract for tech companies big and small in the US have this type of clause as standard even for non-techie employees. It's been this way for over a decade now. INAL but I've heard that the only "easy" way around it is to make a specific change to your employment contract that makes it less ridiculously broad and aggressive BEFORE you have any issues. You probably need a lawyer for that, and even if you do; your lawyer's work only helps if your employer, more specifically their legal team, actually agrees to it. My former coworker's wife is a employment contract lawyer so that helped him become aware of it and mitigate it. I don't feel that most people have this advantage.
The problem is that pretty much every employment contract for tech companies big and small in the US have this type of clause as standard even for non-techie employees. It's been this way for over a decade now. INAL but I've heard that the only "easy" way around it is to make a specific change to your employment contract that makes it less ridiculously broad and aggressive BEFORE you have any issues. You probably need a lawyer for that, and even if you do; your lawyer's work only helps if your employer, more specifically their legal team, actually agrees to it. My former coworker's wife is a employment contract lawyer so that helped him become aware of it and mitigate it. I don't feel that most people have this advantage.
This was apparently (anecdotally) the case a while ago, but I've never seen a single employment contract that included a clause like this. I don't know whether it's just FUD, whether it's not as common as it was in the 80's or early 90's, or whether this is another case of Silicon Valley being a poor place to work in tech (or the midwest being a good one), but this is not universally common.
> This was apparently (anecdotally) the case a while ago, but I've never seen a single employment contract that included a clause like this
It is in pretty much every tech company's employment contract in the US regardless of size. I've seen this in Georgia, New York, Texas, Washington, and California. If it's a Fortune 1000 company, they're going to have. If it's a startup, they're probably going to have it. A lot of people just aren't aware of it because they don't tend to read their 10+ page employment contracts full of headache inducing, legalese.
> I don't know whether it's just FUD, whether it's not as common as it was in the 80's or early 90's
It is not FUD, and it's a lot more common than it was before the 90s.
How did this get super popular? Someone can correct me, but it starts with Apple in the 90s. Hotmail was actually developed by an Apple employee during his off time. Well MS buys it and Apple gets nothing. Why? It's probably because they didn't have this clause or a more aggressive and broad version of it like what we have today. Apple really is a trend setter.
Anyways the legal clause is basically ridiculous, since the general legal strategy is to be aggressive early on. In layman's terms ANYTHING you come up with, at ANYTIME during your employment either on company time or your own personal time, and ANYWHERE either in the office or in your own home, belongs to your employer regardless of your employer's industry.
What mortifies me is 1. how prevalent this is, and 2. how ignorant everyone is of its existence.
It is in pretty much every tech company's employment contract in the US regardless of size. I've seen this in Georgia, New York, Texas, Washington, and California. If it's a Fortune 1000 company, they're going to have. If it's a startup, they're probably going to have it. A lot of people just aren't aware of it because they don't tend to read their 10+ page employment contracts full of headache inducing, legalese.
> I don't know whether it's just FUD, whether it's not as common as it was in the 80's or early 90's
It is not FUD, and it's a lot more common than it was before the 90s.
How did this get super popular? Someone can correct me, but it starts with Apple in the 90s. Hotmail was actually developed by an Apple employee during his off time. Well MS buys it and Apple gets nothing. Why? It's probably because they didn't have this clause or a more aggressive and broad version of it like what we have today. Apple really is a trend setter.
Anyways the legal clause is basically ridiculous, since the general legal strategy is to be aggressive early on. In layman's terms ANYTHING you come up with, at ANYTIME during your employment either on company time or your own personal time, and ANYWHERE either in the office or in your own home, belongs to your employer regardless of your employer's industry.
What mortifies me is 1. how prevalent this is, and 2. how ignorant everyone is of its existence.
> It is in pretty much every tech company's employment contract in the US regardless of size.
If you couple that with an expectation in certain programming circles that you should do programming as a hobby as well as a job, you've got the nice effect of working 40 hours a week for your employer, + all the hours that you spend on programming in your free time for your employer, as in 'they'll cash in if it is succesful'. So like a little speculative, cost free investment for the company.
The only way that I can reconcile this with the modern off-work github coding is that the programmers don't keep this in the back of their minds, and that whatever big fall outs of this have been relatively isolated.
(obviously I am only talking about side projects that could potentially have some value, not the 'implement pac man in brainfuck' for the pain, I mean for educational purposes, type of projects)
If you couple that with an expectation in certain programming circles that you should do programming as a hobby as well as a job, you've got the nice effect of working 40 hours a week for your employer, + all the hours that you spend on programming in your free time for your employer, as in 'they'll cash in if it is succesful'. So like a little speculative, cost free investment for the company.
The only way that I can reconcile this with the modern off-work github coding is that the programmers don't keep this in the back of their minds, and that whatever big fall outs of this have been relatively isolated.
(obviously I am only talking about side projects that could potentially have some value, not the 'implement pac man in brainfuck' for the pain, I mean for educational purposes, type of projects)
It depends on the country. I have never heard of such contracts either in Portugal or Germany.
It's a standard clause in Germany, and even if it's not in your contract, it's in the law. You even have to notify your employer if you make a discovery related to your job. [1] (patent, technical improvements or similar). As with a lot of laws it's not quite so simple to apply to IT jobs, but for anything that's patent worthy, it's pretty clear.
[1] http://www.gesetze-im-internet.de/arbnerfg/BJNR007560957.htm...
[1] http://www.gesetze-im-internet.de/arbnerfg/BJNR007560957.htm...
Ah this is another case of people not reading long legal contracts that they sign. I would have been surprised if this wasn't standard in the EU as well as Asia
.
> They certainly didn't supply the raw material which in programming would be time and effort so they shouldn't have any claim on it.
It's this last point where you might well run into legitimate disagreement. What is the "raw material" for a piece of software? If it's the knowledge that goes into writing it, then arguably the employer did supply that.
I can pretty much remember what code I wrote during a day. Not verbatim of course, but if I solved a problem at 10:00 AM, I'll be able to figure it out again at 6:00 PM. What is to prevent me from going to work for a small software company, working on their product during the day, cashing their paychecks, and duplicating my work at night? When I'm done, I just quit and sell my version as a competitor?
It's this last point where you might well run into legitimate disagreement. What is the "raw material" for a piece of software? If it's the knowledge that goes into writing it, then arguably the employer did supply that.
I can pretty much remember what code I wrote during a day. Not verbatim of course, but if I solved a problem at 10:00 AM, I'll be able to figure it out again at 6:00 PM. What is to prevent me from going to work for a small software company, working on their product during the day, cashing their paychecks, and duplicating my work at night? When I'm done, I just quit and sell my version as a competitor?
If doing that is really practical, I would tend to wonder if the employer has a practical business plan. Shouldn't your employer be adding enough value to your code and work processes that you couldn't make the same product without them?
At the job I currently work, our product is for a very specialized domain. I can remember the problems that I've solved, but there's no way I could build or sell a product in the same market without the domain expertise that my employer brings to the table.
Maybe your employer is providing capital to fund the salaries of a team of developers to build a product that has no guarantee of any market success, saving you the trouble of risking that kind of money, or convincing somebody else to risk it for you.
Maybe you don't like sales, and your employer is going out to potential customers and convincing them to use your product, so you can keep working on the stuff you're really good at.
Point is, if you legitimately can't think of some value that your employer adds to your work, maybe you really should take off and do the same thing for yourself.
At the job I currently work, our product is for a very specialized domain. I can remember the problems that I've solved, but there's no way I could build or sell a product in the same market without the domain expertise that my employer brings to the table.
Maybe your employer is providing capital to fund the salaries of a team of developers to build a product that has no guarantee of any market success, saving you the trouble of risking that kind of money, or convincing somebody else to risk it for you.
Maybe you don't like sales, and your employer is going out to potential customers and convincing them to use your product, so you can keep working on the stuff you're really good at.
Point is, if you legitimately can't think of some value that your employer adds to your work, maybe you really should take off and do the same thing for yourself.
That was more of a hypothetical scenario than my actual life -- I'm a researcher working in academia, so in my case, I pretty much do do all the work around what I produce (my university provides support in terms of office space, administrative staff, etc., of course, but the "product" is research papers that they don't have much of a hand in).
But that aside, I'm not sure you got my point. Something doesn't have to be easy to do in order for it to be illegal. There are lots of reasons why a person might not want to do this -- you mention several of them. But that also doesn't mean that the employer shouldn't have the right to prevent them from doing it if they did want to. If your employer is paying for you to figure out how to solve a particular problem, generally the employer gets ownership of that work. If you then duplicate it on your own, it's a pretty gray area as to whether the employer gets some claim over it.
But that aside, I'm not sure you got my point. Something doesn't have to be easy to do in order for it to be illegal. There are lots of reasons why a person might not want to do this -- you mention several of them. But that also doesn't mean that the employer shouldn't have the right to prevent them from doing it if they did want to. If your employer is paying for you to figure out how to solve a particular problem, generally the employer gets ownership of that work. If you then duplicate it on your own, it's a pretty gray area as to whether the employer gets some claim over it.
[deleted]
Well, sometimes what you do in your personal time is your employers business. Would you feel the same way if rather than working on open source, he were doing the same work moonlighting for a competitor of his employer? Its fine to say that the technology stack is different, but certainly he carries with him, perhaps unwittingly, certain proprietary information including but not limited to feature lists, customers and leads, marketing strategy, performance characteristics, etc.
I don't think this guy is a necessarily bad guy by any stretch, and I don't think he was intentionally trying to harm his former employer, but he's a little clueless.
I don't think this guy is a necessarily bad guy by any stretch, and I don't think he was intentionally trying to harm his former employer, but he's a little clueless.
Personal time, is personal time, and none of the employers business even if moonlighting for a competitor. If the employer has a say over your personal time then you have no personal time and the employer owns you.
>Personal time, is personal time, and none of the employers business even if moonlighting for a competitor.
How are you proving that you did not use internal company knowledge to build the competing product? This is a legal nightmare, just do yourself a favor and don't do it. Or do you also think that NDA-clauses for employees are invalid?
How are you proving that you did not use internal company knowledge to build the competing product? This is a legal nightmare, just do yourself a favor and don't do it. Or do you also think that NDA-clauses for employees are invalid?
I never said i did it or would do it... I like my employer and have no desire to moonlight at all.
However they do not own me, which is what your implying with your statements. Any employer that needs to use legal threats and controls on my personal time to control me is probably not someone I would ever work for anyway
However they do not own me, which is what your implying with your statements. Any employer that needs to use legal threats and controls on my personal time to control me is probably not someone I would ever work for anyway
> Any employer that needs to use legal threats and controls on my personal time to control me is probably not someone I would ever work for anyway
See, most people are trying to be nice and I'll take your word for it that you're one of them. That's not the people we write contracts for. The contracts and legal threats are for the people that don't play nice. Those employees that push of all their work to the colleagues so that they can not only moonlight for the competition, but actively support it during their time at the office. (no joke, seen that).
See, most people are trying to be nice and I'll take your word for it that you're one of them. That's not the people we write contracts for. The contracts and legal threats are for the people that don't play nice. Those employees that push of all their work to the colleagues so that they can not only moonlight for the competition, but actively support it during their time at the office. (no joke, seen that).
and contracts can be worded in a way that is not
"While you work for me I own your mind"
"While you work for me I own your mind"
So by your reasoning he can never work in that field ever again because of the "proprietary" information he may have.
Can we apply that to bricklayers as well?
They might have "proprietary" information on how to make an arch or build a stable house or how the company is structured and organized so they probably shouldn't be allowed to work for anybody else in that field ever again.
Can we apply that to bricklayers as well?
They might have "proprietary" information on how to make an arch or build a stable house or how the company is structured and organized so they probably shouldn't be allowed to work for anybody else in that field ever again.
Above the VP level in certain lines of business at an investment bank, its typical to take 'gardening leave' if you move to a competitor. Typically it will be between 30 and 90 days, where the new firm must pay you, and you cannot speak to or do any work for them. Both banks will take it very seriously, and it's great work if you can get it. The feeling is that 1) Non-competes won't work in the environment; and 2) these people have intimate and specific knowledge of deals in the works on the banking side and positions on the trading side. 'Gardening leave' is a solution that make everyone happy.
As long as the employer doesn't trow you onto the street and threatens to sue you fair enough.
If they want that separation they have to be willing to pay for it.
Would work wonders in software development where the code is complex enough to be forgotten in weeks.
If they want that separation they have to be willing to pay for it.
Would work wonders in software development where the code is complex enough to be forgotten in weeks.
https://en.wikipedia.org/wiki/Indentured_servant
> Penal sanctions, previously considered perfectly in line with free labor, became in the 19th century a way to transform ordinary labor into "contracts of slavery."
> Penal sanctions, previously considered perfectly in line with free labor, became in the 19th century a way to transform ordinary labor into "contracts of slavery."
That depends on your contract. And unfortunately those contracts are legal. I gave up working on open source projects as I'd rather that code didn't exist then having to surrender it to my company.
My employer, Google, has the most expensive lawyers money can buy and they will not hesiste to ruin your life in order to defend the company's interests. Like the guy in the article I have a family to support and the pottential affect is just not worth the risk.
My employer, Google, has the most expensive lawyers money can buy and they will not hesiste to ruin your life in order to defend the company's interests. Like the guy in the article I have a family to support and the pottential affect is just not worth the risk.
Damn shame, we have a huge number of developers committing code to OSS projects. I'd be surprised if you actually worked at Google, as anyone who made it past their first week is welcome to our training on how to release, patch and in fact navigate the borders between Google and personal copyright.
You're talking about how you think it ought to be (which I agree with); the person you're disagreeing with was simply describing how it is. None of this is unusual in any way, unfortunately.
I disagree. Your employer is sponsoring a lot of your learnings in a specific area, so he's entitled to all your ideas in that area, that's what your paid for. It would be extremely easy to just keep your best ideas for "your" project and not use them in your work project.
The construction company would have a valid claim if you stole the blueprints at work.
The construction company would have a valid claim if you stole the blueprints at work.
> Your employer is sponsoring a lot of your learnings in a specific area, so he's entitled to all your ideas in that area
No, he is not on either count.
> that's what your paid for.
I don't know you, but I'm paid for the work I produce, I'd be really happy if I could be paid for learning stuff and not doing shit.
> The construction company would have a valid claim if you stole the blueprints at work.
Yes. It would not have a valid claim if you built stuff on the side, even if it's better stuff. Your company does not own your knowledge, which is why non-compete agreements are invalid in just about all jurisdictions unless very heavily compensated (in Germany it's at least 50% of gross and no more than 2 years, and clauses can still be found unreasonable and invalidated).
No, he is not on either count.
> that's what your paid for.
I don't know you, but I'm paid for the work I produce, I'd be really happy if I could be paid for learning stuff and not doing shit.
> The construction company would have a valid claim if you stole the blueprints at work.
Yes. It would not have a valid claim if you built stuff on the side, even if it's better stuff. Your company does not own your knowledge, which is why non-compete agreements are invalid in just about all jurisdictions unless very heavily compensated (in Germany it's at least 50% of gross and no more than 2 years, and clauses can still be found unreasonable and invalidated).
In the US, most white-collar jobs have contractual clauses that grant the employer rights to IP produced by the employee, even after work hours, if such IP relates to the work the employee performs for the employer.
These clauses are enforceable in every state, though some states such as California limit the breadth of "related" to the specific industry or industries in which the employer operates.
These clauses are enforceable in every state, though some states such as California limit the breadth of "related" to the specific industry or industries in which the employer operates.
I think the legality matters less and having feelings hurt matters more. If someone pays you to build something, and you build a free version on the side, they're really subsidizing a free competitor to their product. That's going to hurt people's feelings. And they're going to want to hurt your feelings too, maybe by burying you in paperwork.
When he says that the employer is sponsoring learning in that company's particular area, he is right. Learning is not just sitting down with a textbook and taking notes. In most jobs, especially computer science, you're learning every day. You're adapting new solutions to problems, and taking that experience with you. That knowledge can then be applied to future problems.
His company is paying him to solve problems in a particular space. Once he solves them, he knows how to solve them in the future. When working on an OSS project in the same space, he can apply the techniques he learned at his job to that project.
His company is paying him to solve problems in a particular space. Once he solves them, he knows how to solve them in the future. When working on an OSS project in the same space, he can apply the techniques he learned at his job to that project.
> I don't know you, but I'm paid for the work I produce, I'd be really happy if I could be paid for learning stuff and not doing shit.
Your employer does not pay the time you spend on work-related research (or even general research)? Change job. It's part of what programmers do - find solutions to problems, and since most problems we're facing are variations of problems other people already solved research and learning about possible solutions are an important part of our work, I'd even say the most critical part. I'm happy to compensate my employees for that.
> which is why non-compete agreements are invalid
There's no noncompete clause being discussed here. It's basically a case of "I'm building the same product as at work, just for free" and the guy is making a direct competitor to his employer. Sorry, if one of my employees did build a competing product while being employed here without explicit permission, I'd fire him.
If the guy build something mostly unrelated to his work, I'd totally agree with him, but the way this case looks like, no, I'm not.
Your employer does not pay the time you spend on work-related research (or even general research)? Change job. It's part of what programmers do - find solutions to problems, and since most problems we're facing are variations of problems other people already solved research and learning about possible solutions are an important part of our work, I'd even say the most critical part. I'm happy to compensate my employees for that.
> which is why non-compete agreements are invalid
There's no noncompete clause being discussed here. It's basically a case of "I'm building the same product as at work, just for free" and the guy is making a direct competitor to his employer. Sorry, if one of my employees did build a competing product while being employed here without explicit permission, I'd fire him.
If the guy build something mostly unrelated to his work, I'd totally agree with him, but the way this case looks like, no, I'm not.
> > Your employer is sponsoring a lot of your learnings in a specific area, so he's entitled to all your ideas in that area
> No, he is not on either count.
Yes they are... are you honestly trying to tell us you've learned jack all at your current employer? No new frameworks, coding practices, algorithms? Learnt absolutely nothing about how various patterns of software writing pan out in production?
If you've learned absolutely nothing, you have to be one of the most useless developers your employer has. I find that impossible to believe.
> > that's what your paid for.
> I don't know you, but I'm paid for the work I produce, I'd be really happy if I could be paid for learning stuff and not doing shit.
No, you're being paid for your skills and abilities. That includes your learning ability. It's not "learning stuff and not doing shit", it's "learn stuff as you're doing shit". Everyone does it. A company can't guarantee where or what it's going to be working on next year or so, the market always changes. What they do have is staff capital, including hopefully a team of capable programmers that can do whatever the changing market requires, be it picking up a new language, optimising algorithms, etc. That's what people hiring and employing staff are looking for. If you're not bringing all your abilities to the job, including your ability to learn, then you've been working under really crappy bosses who have been letting you get away with it.
In this particular case he's working on a CI system both in his day job and his out-of-hours work. Are you seriously trying to tell us he learned absolutely nothing about CI during the day time, and only learned stuff out-of-hours? That he gained absolutely nothing from his colleagues? Operational aspects of the software? UI?
> No, he is not on either count.
Yes they are... are you honestly trying to tell us you've learned jack all at your current employer? No new frameworks, coding practices, algorithms? Learnt absolutely nothing about how various patterns of software writing pan out in production?
If you've learned absolutely nothing, you have to be one of the most useless developers your employer has. I find that impossible to believe.
> > that's what your paid for.
> I don't know you, but I'm paid for the work I produce, I'd be really happy if I could be paid for learning stuff and not doing shit.
No, you're being paid for your skills and abilities. That includes your learning ability. It's not "learning stuff and not doing shit", it's "learn stuff as you're doing shit". Everyone does it. A company can't guarantee where or what it's going to be working on next year or so, the market always changes. What they do have is staff capital, including hopefully a team of capable programmers that can do whatever the changing market requires, be it picking up a new language, optimising algorithms, etc. That's what people hiring and employing staff are looking for. If you're not bringing all your abilities to the job, including your ability to learn, then you've been working under really crappy bosses who have been letting you get away with it.
In this particular case he's working on a CI system both in his day job and his out-of-hours work. Are you seriously trying to tell us he learned absolutely nothing about CI during the day time, and only learned stuff out-of-hours? That he gained absolutely nothing from his colleagues? Operational aspects of the software? UI?
"Your employer is sponsoring a lot of your learnings in a specific area, so he's entitled to all your ideas in that area"
No way. Employer is not entitled to all java code just because he paid me to java certification. Employer to all my products forever just because he paid my college or whatever.
"that's what your paid for"
I am paid for work done for employer. I'm not own by him.
"It would be extremely easy to just keep your best ideas for "your" project and not use them in your work project."
Well, then your workplace contribution would be lower then the contribution of your collegues. I would expect you to have lower salary or be fired if you contribute too little. The same way as if you would never had the idea in the first place.
"The construction company would have a valid claim if you stole the blueprints at work."
However, the construction company would NOT have a valid claim if I would make my own blueprints at home.
No way. Employer is not entitled to all java code just because he paid me to java certification. Employer to all my products forever just because he paid my college or whatever.
"that's what your paid for"
I am paid for work done for employer. I'm not own by him.
"It would be extremely easy to just keep your best ideas for "your" project and not use them in your work project."
Well, then your workplace contribution would be lower then the contribution of your collegues. I would expect you to have lower salary or be fired if you contribute too little. The same way as if you would never had the idea in the first place.
"The construction company would have a valid claim if you stole the blueprints at work."
However, the construction company would NOT have a valid claim if I would make my own blueprints at home.
> No way. Employer is not entitled to all java code just because he paid me to java certification. Employer to all my products forever just because he paid my college or whatever.
Your understanding of "specific area" is quite broad. I thought more along the lines "his employer paid him to do research and development for CI-Systems", so he should not in his spare time build a competing CI-System.
> I am paid for work done for employer. I'm not own by him.
Where did I say so? You're certainly not owned by your employer, you're not a slave. But you can't go and build the same thing at home and give it away for free as you're building at work and get paid for. Even for a construction guy that would be a problem. Undercutting your employer with knowledge gained at work? Do you think any employer would be fine with that?
Your understanding of "specific area" is quite broad. I thought more along the lines "his employer paid him to do research and development for CI-Systems", so he should not in his spare time build a competing CI-System.
> I am paid for work done for employer. I'm not own by him.
Where did I say so? You're certainly not owned by your employer, you're not a slave. But you can't go and build the same thing at home and give it away for free as you're building at work and get paid for. Even for a construction guy that would be a problem. Undercutting your employer with knowledge gained at work? Do you think any employer would be fine with that?
Your employer is sponsoring a lot of your learnings in a specific area
"Some" maybe, but probably not "a lot".
so he's entitled to all your ideas in that area, that's what your paid for.
I'd argue that, in general, this is wrong. Most companies pay based on the idea that you work approximately a 40hr work week. Certainly most of us negotiate salary based on this assumption. But if a company wants all of the ideas from my brain, 24x7, they are going to have to pay a lot more. Like, 4 or 5 times more, and that's just as a starting point.
It would be extremely easy to just keep your best ideas for "your" project and not use them in your work project.
As long as your employer is happy with the results you're delivering, does it matter if they're getting your "best" ideas or not?
"Some" maybe, but probably not "a lot".
so he's entitled to all your ideas in that area, that's what your paid for.
I'd argue that, in general, this is wrong. Most companies pay based on the idea that you work approximately a 40hr work week. Certainly most of us negotiate salary based on this assumption. But if a company wants all of the ideas from my brain, 24x7, they are going to have to pay a lot more. Like, 4 or 5 times more, and that's just as a starting point.
It would be extremely easy to just keep your best ideas for "your" project and not use them in your work project.
As long as your employer is happy with the results you're delivering, does it matter if they're getting your "best" ideas or not?
I disagree. Your employer is sponsoring a lot of your learnings in a specific area, so he's entitled to all your ideas in that area, that's what your paid for.
Absolutely not, you're paid for your time, not your thoughts!
Absolutely not, you're paid for your time, not your thoughts!
> Absolutely not, you're paid for your time, not your thoughts!
Are you? I pay my employees for the value they create for the company, not to warm the chair at the office eight hours on five days a week. If someone is more productive in four hours a day than someone else at eight hours, well, go home after four, still get paid more. Fine with me.
Are you? I pay my employees for the value they create for the company, not to warm the chair at the office eight hours on five days a week. If someone is more productive in four hours a day than someone else at eight hours, well, go home after four, still get paid more. Fine with me.
The employer is not "sponsoring your learnings", they're purchasing your time and labour (if you're a regular employee). What you do outside of the scope of the contract of employment is your own.
He's at least safe from IP infringement because it utilized a completely different approach.
I guess it's understandable the legal dept would be upset, because this different approach would be hard for them to see. It's also understandable that some pitch-forks might come out.
Perhaps a resoluion is to get independent confirmation of his claim that it is a "completely different approach".
Of course, the legal dept's concern might be more on stopping a potential competitor/alternative.
I guess it's understandable the legal dept would be upset, because this different approach would be hard for them to see. It's also understandable that some pitch-forks might come out.
Perhaps a resoluion is to get independent confirmation of his claim that it is a "completely different approach".
Of course, the legal dept's concern might be more on stopping a potential competitor/alternative.
I'm not sure of that, simply because many employment contracts have a term something like "any employee output of value, even in off hours, is the property of the employer." So even if it was in his spare time, he might not own the IP rights to his creation.
This may seem like semantics, but I deliberately omitted that case by addressing "IP infringement", and not the contractual issue (of ownership). sigh I guess it's arguable, that the contractual scenario is technically "IP infringement", but I would say it's just a part of it, and not the issue that it turns on. But this argument is not important enough to go into.
I could have also addressed the contractual issue, if only in passing, to armour-plate my comment, but it wasn't the point I wanted to make, and thought it would complicate, dilute and confuse it. Also, defensive commenting is not fun. sigh this regularly happens to me online, I wonder if there's any way to prevent it (or accept it, once it happens)? It really bugs me. I may be seeing it from my own point of view too exclusively... Any suggestions?
I could have also addressed the contractual issue, if only in passing, to armour-plate my comment, but it wasn't the point I wanted to make, and thought it would complicate, dilute and confuse it. Also, defensive commenting is not fun. sigh this regularly happens to me online, I wonder if there's any way to prevent it (or accept it, once it happens)? It really bugs me. I may be seeing it from my own point of view too exclusively... Any suggestions?
That would imply that they own the ideas that give birth to the code you write, rather than the code itself, right?
[deleted]
This seems less like bullying and more like a company enforcing a 'do not compete' clause in the programmer's contract.
Even if its a different stack, they would have had access to things like A/B testing, client feedback and client names if he wanted to try selling his version!
Even if its a different stack, they would have had access to things like A/B testing, client feedback and client names if he wanted to try selling his version!
I don't know how you can create a better mousetrap if you can't use your knowledge of the industry gained on the field to build it.
So quit your job at MouseTrap Enterprises before you go off and build your better mouse trap. If you have a job as a MouseTrap inventor at MouseTrap Enterprises and you have a great idea for a mouse trap, it does seem kind of sketchy to go off and create your better mouse trap at home on the weekends while you're cashing your MTE checks. That is what they're paying you for..
ah..am I missing something?..source is still up in release download section
The README states that the entire repo will be deleted on April 18th.
Presumably, lots of people will fork it before that time.
I wasn't going to out right say that :) I don't want the repo owner to be held accountable for that.
He isn't accountable, he is complying with the C&D. His company can go ahead and try if they think they can censor the entire Internet of his work.
Information freedom is a wonderful thing.
Information freedom is a wonderful thing.
[deleted]
The company is AppendTo.
"In appendTo, we’ve constructed our business model to encourage our staff to keep an effective and balanced schedule. The definition of work-life balance is unique for each person, but we’ve built our organization with the features and tools that empowers our employees to customize their interaction with appendTo to their needs. This manifests itself many ways, from flex time to giving our engineers time to work on personal growth or open source projects."
-- http://appendto.com/company/values/
"In appendTo, we’ve constructed our business model to encourage our staff to keep an effective and balanced schedule. The definition of work-life balance is unique for each person, but we’ve built our organization with the features and tools that empowers our employees to customize their interaction with appendTo to their needs. This manifests itself many ways, from flex time to giving our engineers time to work on personal growth or open source projects."
-- http://appendto.com/company/values/
>we’ve built our organization with the features and tools that empowers our employees to customize their interaction with appendTo to their needs
Welcome to Zombo.com. You can do anything at Zombo.com.
Welcome to Zombo.com. You can do anything at Zombo.com.
They have a Visual Design Engineer position? That's unique.
today's winner in BS bingo.
Basically, manager can push you in any way and you'd not have any structure to hold for.
Basically, manager can push you in any way and you'd not have any structure to hold for.
[deleted]
Shame on them. They used to be a front runner in web development tutorials and it seems they have built a company out of that.
A quick pro-tip for appendTo: if your company's business model is in building things for developers, don't do scummy things to your developer employees.
A quick pro-tip for appendTo: if your company's business model is in building things for developers, don't do scummy things to your developer employees.
Shame on them for not wanting an employee to take what they've learned at work (on a monetised product) and release it open source? The tech stack is largely irrelevant, the products are in the exact same domain.
I think any company would be rightly pissed off if their employees did that. Can you imagine github, for example, being happy for one of their employees to be working on a complete web front-end / issues tracking system for git, in their spare time and releasing it open source, provided it was written in Java? Or Atlassian being happy for one of their employees writing a complete ticketing system in their spare time, and releasing it open source provided it was written in javascript?
Really?
I think any company would be rightly pissed off if their employees did that. Can you imagine github, for example, being happy for one of their employees to be working on a complete web front-end / issues tracking system for git, in their spare time and releasing it open source, provided it was written in Java? Or Atlassian being happy for one of their employees writing a complete ticketing system in their spare time, and releasing it open source provided it was written in javascript?
Really?
There's hundreds of continuous integration systems out there, enough to learn from and build your own. Even if you have a product that is truly a snowflake, there's a lot of other ways to go about handling this. Maybe they tried to go about this a different way, for some reason I doubt it. Here's a few other ways this could have been handled:
- Talk to the employee about their open source implementation. Maybe there are some things you can bring back to your product from their open source implementation and pay the developer to work on doing it.
- Realize that the employee seems to have passion about this product and figure out how to elevate them into a more important role.
- Talk to the developer about how we can make open source a big part of our business model (I notice appendTo has some open source projects already) and offer to put them in a role getting paid to work on their project so long as the repo goes under the appendTo organization on GitHub, or the developer gives a shoutout to appendTo on the project, blog posts, conferences, etc.
- Talk to the employee about their open source implementation. Maybe there are some things you can bring back to your product from their open source implementation and pay the developer to work on doing it.
- Realize that the employee seems to have passion about this product and figure out how to elevate them into a more important role.
- Talk to the developer about how we can make open source a big part of our business model (I notice appendTo has some open source projects already) and offer to put them in a role getting paid to work on their project so long as the repo goes under the appendTo organization on GitHub, or the developer gives a shoutout to appendTo on the project, blog posts, conferences, etc.
That is completely within the employee's rights. Unless it's covered by a trade secret, patent or copyright, what you know (even if you learned it on the job) is yours to use.
How would the employee know what is a trade secret though? When something is first discovered it is not known yet that the employer would want it kept secret until someone in a position to make that decision does so.
Are their laws around this? Or is it set mostly through case law? Anyone have additional information?
Are their laws around this? Or is it set mostly through case law? Anyone have additional information?
IANAL, but the important pieces (in most states) come from the Uniform Trade Secrets Act[0], which defines a Trade Secret. I'm pretty sure that most software ideas developed at software companies can be considered trade secrets, unless they're commonly known, but once again IANAL and don't have a solid handle on that.
[0] https://en.wikipedia.org/wiki/Uniform_Trade_Secrets_Act
[0] https://en.wikipedia.org/wiki/Uniform_Trade_Secrets_Act
They do have a section for Open Source on their web site.
This is their github repository
https://github.com/a2labs
Management team is here
http://appendto.com/team/
I guess go ahead and find where one of them contributed to prop 8 or something.
According to the readme, the guy only worked on the repo for a week while he worked there. Shouldn't be too hard to redo a week's worth of work. Maybe easier than undoing the damage being done to appendto's reputation by their scumbag policies.
http://appendto.com/team/
I guess go ahead and find where one of them contributed to prop 8 or something.
According to the readme, the guy only worked on the repo for a week while he worked there. Shouldn't be too hard to redo a week's worth of work. Maybe easier than undoing the damage being done to appendto's reputation by their scumbag policies.
If it was legally released under an open source license, someone can and should grab it before he deletes it, put it somewhere else, and people other than him can certainly legally keep using it or working on it, right?
I guess the employer could try cease-and-desisting others and claiming it is their IP and the open source license was not legal.
I guess the employer could try cease-and-desisting others and claiming it is their IP and the open source license was not legal.
Yes. At least in my country. That's why I forked the repo and perhaps see if it is useful maybe I'll even commit something.
I think they will have a hard time tracking down me and then fight a legal battle overseas. If they were to send me a C&D letter I would simply not comply, answer or do anything. First they have to find my address though.
A lot of people already has forked it, the code is available in a ta, maybe even in the history. Because of the seemingly bad communication now it will never go down.
I think they will have a hard time tracking down me and then fight a legal battle overseas. If they were to send me a C&D letter I would simply not comply, answer or do anything. First they have to find my address though.
A lot of people already has forked it, the code is available in a ta, maybe even in the history. Because of the seemingly bad communication now it will never go down.
I was wondering if anyone has simply forked and reissued the code.
Open-source bullying is when someone says "your code sucks and you should kill yourself!".
This is more of a company enforcing that you do not copy the systems they are doing to minimize competition. Many times when people leave they try to create same product that previous company created.
This is more of a company enforcing that you do not copy the systems they are doing to minimize competition. Many times when people leave they try to create same product that previous company created.
[deleted]
Another 'big guy bully small guy' story, there seems to be a lot of these nowadays. Again, the law doesn't protect the small guys at all does it. Shame Really.
appendTo on the blacklist of companies to work for, someone should make a site with a collection of companies with these kinds of behaviour, so people are aware. last one I read about was Goldman Sachs.
appendTo on the blacklist of companies to work for, someone should make a site with a collection of companies with these kinds of behaviour, so people are aware. last one I read about was Goldman Sachs.
Welcome to my world :)
14. Intellectual Property and Related Rights
14.1 All records, documents, papers, databases (including copies and summaries thereof) and other original matter, work or creation (collectively “Creations”) made or acquired by the Employee in the course of the Employment shall, together with all copyright, database rights and design rights both registerable and unregisterable that subsist in all such Creations worldwide, be and at all times remain the absolute property of the Company.
14.2 The Employee hereby irrevocably and unconditionally waives all rights granted by Chapter IV of Part I of the Copyright, Designs and Patents Act 1988 that vest in the Employee (whether before, on or after the date hereof) in connection with the authorship of any copyright works in the course of the Employment with the Company, wherever in the world enforceable, including without limitation the right to be identified as the author of any such works and the right not to have any such works subjected to derogatory treatment.
I wonder if I can teach my 2yo daughter alphabet or counting 1-2-3 or would she become property of the company?
14. Intellectual Property and Related Rights
14.1 All records, documents, papers, databases (including copies and summaries thereof) and other original matter, work or creation (collectively “Creations”) made or acquired by the Employee in the course of the Employment shall, together with all copyright, database rights and design rights both registerable and unregisterable that subsist in all such Creations worldwide, be and at all times remain the absolute property of the Company.
14.2 The Employee hereby irrevocably and unconditionally waives all rights granted by Chapter IV of Part I of the Copyright, Designs and Patents Act 1988 that vest in the Employee (whether before, on or after the date hereof) in connection with the authorship of any copyright works in the course of the Employment with the Company, wherever in the world enforceable, including without limitation the right to be identified as the author of any such works and the right not to have any such works subjected to derogatory treatment.
I wonder if I can teach my 2yo daughter alphabet or counting 1-2-3 or would she become property of the company?
"Course of employment" has a legal definition, it's the things you do because you have to for your work, so the actual work in the office, required education, travel to customers, that sort of stuff.
I think the key here is how “in the course of the Employment” should be interpreted. Is it anything that happens during the dates you are employed, or is there a requirement of some connection to the employment?
It gets even funnier. The contract of my wife effectively bars her from getting any software developer job in the same country for a year after cessation. Now, this makes you think about enforceability, doesn't it?
That's exactly why you should ask prospective employer about their stance on open source/unrelated side projects before signing a contract.
That's exactly why you should ask prospective employer about their stance on open source/unrelated side projects before signing a contract.
I get that this can be generic, and we can discuss this as a open source issue with an employer asserting their rights, but I want to take a more direct approach to the specific situation.
Does a company really think they are able to achieve and sustain a competitive advantage from controlling a continuous integration system? What is the business rationale here?
Does a company really think they are able to achieve and sustain a competitive advantage from controlling a continuous integration system? What is the business rationale here?
If they do a lot of consulting, they could have heavy third party approval processes or some other consulting workflow structure in the CI that "greatly" improves their customer experience or engagement in the dev process.
I am not sure that there would be a burden on the employer to even prove value though.
I am not sure that there would be a burden on the employer to even prove value though.
As is often the case, the problem here could have been avoided if there had been clearer and more open communication.
All this guy had to do was go to his employer and say, "Listen, you should know that I'm working on an open-source project that is in the same ballpark as what I'm doing at work. However, there is no shared code, a different architecture, and the two don't even compete against one another. Plus, what I'm doing is open source."
If his employer had said, "Yeah, go ahead -- no problem," then there wouldn't have been a problem.
If his employer had said, "We're all in favor of open-source contributions and projects, but not when they compete against our core products, from which we make money," then they could have worked out a deal. Or not. But at least it wouldn't have been left up in the air like this.
I definitely see a problem with an employee creating an open-source project in the same space as his commercial, day job. While a cease-and-desist order is pretty unpleasant, all they're saying is that he has to stop work on the project. It could have been much worse, and much more expensive.
It also seems weird to me that while the former employee is saying he needs to stop, he's letting others fork the code and keep going with it. If I were interested in picking up an open-source project, I'd be hesitant to join one in which there had been explicit legal threats against the original author.
All this guy had to do was go to his employer and say, "Listen, you should know that I'm working on an open-source project that is in the same ballpark as what I'm doing at work. However, there is no shared code, a different architecture, and the two don't even compete against one another. Plus, what I'm doing is open source."
If his employer had said, "Yeah, go ahead -- no problem," then there wouldn't have been a problem.
If his employer had said, "We're all in favor of open-source contributions and projects, but not when they compete against our core products, from which we make money," then they could have worked out a deal. Or not. But at least it wouldn't have been left up in the air like this.
I definitely see a problem with an employee creating an open-source project in the same space as his commercial, day job. While a cease-and-desist order is pretty unpleasant, all they're saying is that he has to stop work on the project. It could have been much worse, and much more expensive.
It also seems weird to me that while the former employee is saying he needs to stop, he's letting others fork the code and keep going with it. If I were interested in picking up an open-source project, I'd be hesitant to join one in which there had been explicit legal threats against the original author.
> Listen, you should know that I'm working on an open-source project that is in the same ballpark as what I'm doing at work.
No employer will ever be comfortable with something like this. I write open source on my spare time and I support the idea wholeheartedly but hearing that one of my developers is doing something like this would make me question what exactly she is doing and why.
I'm perfectly fine with her working on totally unrelated projects but this smells very dangerous for both parties, starting with the fact that it's probably impossible to make sure the two projects are not leaking into each other, with unforeseen legal and competitive consequences.
No employer will ever be comfortable with something like this. I write open source on my spare time and I support the idea wholeheartedly but hearing that one of my developers is doing something like this would make me question what exactly she is doing and why.
I'm perfectly fine with her working on totally unrelated projects but this smells very dangerous for both parties, starting with the fact that it's probably impossible to make sure the two projects are not leaking into each other, with unforeseen legal and competitive consequences.
Anything that I do with my time, my equipment and my brain outside paid work hours belongs to me. If there was a contract that insisted on it not being so, there is no need to offer the said clause the protection of law.
I find it troubling that so many people are alright with signing away their personal rights. The employee individually isn't obligated to the company any more than the company is obligated to the society collectively. Without the public obeying rules such as copyright, the said company wouldn't even be in business.
The west's definition of freedom is confounding. Capitalism has eroded the rights of the individual and left him utterly powerless and subservient. To the extent that many people don't even realize how much of their rights have been ceded.
I find it troubling that so many people are alright with signing away their personal rights. The employee individually isn't obligated to the company any more than the company is obligated to the society collectively. Without the public obeying rules such as copyright, the said company wouldn't even be in business.
The west's definition of freedom is confounding. Capitalism has eroded the rights of the individual and left him utterly powerless and subservient. To the extent that many people don't even realize how much of their rights have been ceded.
Actually, it's not the code that matters. It's the ideas; the thinking process. It's virtually impossible to sit down and approach the same problem in completely different ways. Sure, you can use different tools (languages, frameworks, etc, etc) but the process is still the same. Especially when your day AND night jobs produce the same competing app.
It's not about personal freedom. It's about (and no insult intended) appearances. And this is damn sloppy.
As an employer I'd be suspect too.
It's not about personal freedom. It's about (and no insult intended) appearances. And this is damn sloppy.
As an employer I'd be suspect too.
But that is a wrong way to think about it.
Most often lots of the thinking is done before joining the company. In fact many times people are hired because their thinking in the field. In fact the company hiring me themselves benefit from the knowledge I might have acquired at another company. So that whole "we own your brain and ideas" is simply wrong in every sense of the way.
As an employer you have a product that product consist of some code.
If you can show that employer X took code y and implemented it into their project then you have a case, if not you don't really have a case IMHO (although I am sure it doesn't stop wealthy employers from doing so anyway)
P.S. I used to be an employer of 70 people myself.
Most often lots of the thinking is done before joining the company. In fact many times people are hired because their thinking in the field. In fact the company hiring me themselves benefit from the knowledge I might have acquired at another company. So that whole "we own your brain and ideas" is simply wrong in every sense of the way.
As an employer you have a product that product consist of some code.
If you can show that employer X took code y and implemented it into their project then you have a case, if not you don't really have a case IMHO (although I am sure it doesn't stop wealthy employers from doing so anyway)
P.S. I used to be an employer of 70 people myself.
> I find it troubling that so many people are alright with signing away their personal rights. The employee individually isn't obligated to the company
The employee and the company are obliged to stand by their agreements with each other. The time to negotiate the terms of the agreement is before you sign it, not after.
The employee and the company are obliged to stand by their agreements with each other. The time to negotiate the terms of the agreement is before you sign it, not after.
There are limitations to the rights you can sign away and agreements you can enter into. For example, you cannot agree to work for less than the minimum wage, and any contract of that form is not binding.
Right, but this isn't one of those.
Best course of action here is the guy takes it as a lesson learned and reads his future employment contracts closer.
Best course of action here is the guy takes it as a lesson learned and reads his future employment contracts closer.
I think this should be one of them. You should not be able to sign away the right to work on other programming projects on your spare time.
Employment contract terms are also negotiable.
True, most of the time. But in general, for most people, the bigger the company, the less negotiable the contract terms.
That's a myth, especially for salaried people.
Companies aren't going to lose a good hire over a reasonable term change. I've heard the "this is non-negotiable", but when you get up to walk away, it becomes negotiable, as long as what you're asking for is reasonable.
Companies aren't going to lose a good hire over a reasonable term change. I've heard the "this is non-negotiable", but when you get up to walk away, it becomes negotiable, as long as what you're asking for is reasonable.
True, but there are also various laws in the different states that determine whether contracts can even cover this point at all. California, I believe, has laws in place that override employee contract clauses that claim ownership of off-the-clock employee inventions.
So, if the OP was in California, his employer really had no leg to stand on, regardless of what he may have signed when he started the job.
So, if the OP was in California, his employer really had no leg to stand on, regardless of what he may have signed when he started the job.
You're mistaken. The California statute makes an exception for work that relates to the business of the employer. I quote from the addendum to the offer letter I received for my current job:
In compliance with prevailing provisions of relevant state statutes, this agreement does not apply to an invention for which no equipment, supplies, facility, or trade secret information of the employer was used and which was developed entirely on the employee's own time, unless (a) the invention relates (i) to the business of the employer, or (ii) to the employer's actual or demonstrably anticipated research or development, or (b) the invention results from any work performed by the employee for the employer.
That language is probably straight from the statute, though I didn't check. Anyway, it would have to be written this way, or it would be an invitation to rampant abuse by employees. As it is I think it's very fair. Note especially the word "demonstrably".
In compliance with prevailing provisions of relevant state statutes, this agreement does not apply to an invention for which no equipment, supplies, facility, or trade secret information of the employer was used and which was developed entirely on the employee's own time, unless (a) the invention relates (i) to the business of the employer, or (ii) to the employer's actual or demonstrably anticipated research or development, or (b) the invention results from any work performed by the employee for the employer.
That language is probably straight from the statute, though I didn't check. Anyway, it would have to be written this way, or it would be an invitation to rampant abuse by employees. As it is I think it's very fair. Note especially the word "demonstrably".
Anything that I do with my time, my equipment and my brain outside paid work hours belongs to me.
Other things being equal, I would agree with you. But it seems like other things are far from equal in this case, because the project in question is in exactly the field that its author was being paid to work in by his employer.
If any related work that (the employee says) happens outside office hours belongs to the employee in that case, what is to stop someone from simply claiming that any good idea they have on the project their employer pays them to work on happened at home after hours, the prototype code they wrote to implement it also happened away from the office, and therefore they assert the rights to it personally and the employer had better pay them whatever they want or be prevented from using exactly the work they are already paying the employee to do for them?
I find it troubling that so many people are alright with signing away their personal rights.
So do I, but contracts are two-sided deals. The other side here is that software developers are typically paid a significant amount of money for their work already, and it seems fair to me that the person paying that money would expect clear rights to what they're paying for in return.
There is nothing to stop the employer and employee from incorporating some mutually agreeable condition that makes clear how the projects are split and who will get which rights, assuming such a mutually agreeable condition can be found. But as others have noted, for something that is so directly related to what an employee works on by day, there is an obvious conflict of interest.
Other things being equal, I would agree with you. But it seems like other things are far from equal in this case, because the project in question is in exactly the field that its author was being paid to work in by his employer.
If any related work that (the employee says) happens outside office hours belongs to the employee in that case, what is to stop someone from simply claiming that any good idea they have on the project their employer pays them to work on happened at home after hours, the prototype code they wrote to implement it also happened away from the office, and therefore they assert the rights to it personally and the employer had better pay them whatever they want or be prevented from using exactly the work they are already paying the employee to do for them?
I find it troubling that so many people are alright with signing away their personal rights.
So do I, but contracts are two-sided deals. The other side here is that software developers are typically paid a significant amount of money for their work already, and it seems fair to me that the person paying that money would expect clear rights to what they're paying for in return.
There is nothing to stop the employer and employee from incorporating some mutually agreeable condition that makes clear how the projects are split and who will get which rights, assuming such a mutually agreeable condition can be found. But as others have noted, for something that is so directly related to what an employee works on by day, there is an obvious conflict of interest.
> what is to stop someone from simply claiming that any good idea they have on the project their employer pays them to work on happened at home after hours...
As we often claim here, the idea itself is worth little. It is the implementation of that idea that matters more. There are ways to ensure that the implementation belongs to the company. In software for instance, whatever has been committed to the company's version control belongs to the company.
> Contracts are two-sided deals... it seems fair to me that the person paying that money would expect clear rights to what they're paying for in return.
Sure, they get the code. That's it. If that brings down the company, maybe they should have had a better business model. We don't have to bend over backwards to ensure that companies make a profit. Another forward-thinking, responsible company (such as RedHat) can take their place.
Laws should serve us first. Not corporate interests.
As we often claim here, the idea itself is worth little. It is the implementation of that idea that matters more. There are ways to ensure that the implementation belongs to the company. In software for instance, whatever has been committed to the company's version control belongs to the company.
> Contracts are two-sided deals... it seems fair to me that the person paying that money would expect clear rights to what they're paying for in return.
Sure, they get the code. That's it. If that brings down the company, maybe they should have had a better business model. We don't have to bend over backwards to ensure that companies make a profit. Another forward-thinking, responsible company (such as RedHat) can take their place.
Laws should serve us first. Not corporate interests.
There are ways to ensure that the implementation belongs to the company. In software for instance, whatever has been committed to the company's version control belongs to the company.
Not necessarily, if the employee already had similar code outside work that no-one at the office was aware of or understood but for which the employee could demonstrate holding significant rights in some reasonable way.
There are all kinds of ways that situation, or even enough ambiguity that the situation is a possibility, can backfire legally for the company. The best result for the employer in such a case is likely to be undertaking a significant amount of costly legal work and winding up with all the rights. There are many plausible and much worse outcomes.
Laws should serve us first. Not corporate interests.
False dichotomy is false.
Seriously, I've taken on whole HR teams over this kind of issue, and I won. I've walked away from potentially lucrative positions because I got a bad vibe about how the employer viewed work/life balance or had a dubious term about it in the contract and didn't seem likely to agree to change it. I really am the guy who should be totally on your side in this debate. So if this situation doesn't even convince someone like me to side with the employee, probably either it's not as simple as you're making out or your position is one-sided beyond the point of being reasonable.
Not necessarily, if the employee already had similar code outside work that no-one at the office was aware of or understood but for which the employee could demonstrate holding significant rights in some reasonable way.
There are all kinds of ways that situation, or even enough ambiguity that the situation is a possibility, can backfire legally for the company. The best result for the employer in such a case is likely to be undertaking a significant amount of costly legal work and winding up with all the rights. There are many plausible and much worse outcomes.
Laws should serve us first. Not corporate interests.
False dichotomy is false.
Seriously, I've taken on whole HR teams over this kind of issue, and I won. I've walked away from potentially lucrative positions because I got a bad vibe about how the employer viewed work/life balance or had a dubious term about it in the contract and didn't seem likely to agree to change it. I really am the guy who should be totally on your side in this debate. So if this situation doesn't even convince someone like me to side with the employee, probably either it's not as simple as you're making out or your position is one-sided beyond the point of being reasonable.
So you must also support non-compete clauses. If I work for Google, I shouldn't be able to quit and work for Microsoft, right? How dare I take all my knowledge and apply it elsewhere?
The implications are the same, and in both cases, I am on the side of the employee.
The implications are the same, and in both cases, I am on the side of the employee.
So you must also support non-compete clauses.
Why would you think that? It's a completely different situation.
For the record, I have no problem with restricting someone from using trade secrets or disclosing other confidential information they learned as part of one job for the benefit of another (probably competing) employer.
I do have a problem with saying if you quit one job you can't then even work in the same industry for some period afterwards, unless a suitable amount of consideration is given in return.
Why would you think that? It's a completely different situation.
For the record, I have no problem with restricting someone from using trade secrets or disclosing other confidential information they learned as part of one job for the benefit of another (probably competing) employer.
I do have a problem with saying if you quit one job you can't then even work in the same industry for some period afterwards, unless a suitable amount of consideration is given in return.
Anything that I do with my time, my equipment and my brain outside paid work hours belongs to me. If there was a contract that insisted on it not being so, there is no need to offer the said clause the protection of law.
You are speaking on a matter of what you feel is moral right, not what is law. As a matter of law, I know that New York State a decade ago was set up so that, by default, a professional employee (ie anyone who doesn't punch a clock and isn't a contractor) is considered "always at work". The default is that everything you do is owned.
You are speaking on a matter of what you feel is moral right, not what is law. As a matter of law, I know that New York State a decade ago was set up so that, by default, a professional employee (ie anyone who doesn't punch a clock and isn't a contractor) is considered "always at work". The default is that everything you do is owned.
I am near certain I have read Appple taking entire projects away from employees who made apps at home, and these apps were unrelated. For example, a game versus working in Apple's iMessage department.
That's very ironic when you consider where the Apple came from. (An HP employee's free time.)
Must you politicize everything?
These terms aren't binding, they're agreed upon. Neither party is liable for them, but they are part of the agreement. An agreement is held in good faith, and this faith was misplaced on the employer's part, and abused by the employee. No "rights" were "signed away", nobody here is beholden.
I wouldn't enter into a personal agreement like this, then make it a lie by doing something other than what was agreed upon, that's just a dick move. It's equivalent to breaking a promise to a friend.
These terms aren't binding, they're agreed upon. Neither party is liable for them, but they are part of the agreement. An agreement is held in good faith, and this faith was misplaced on the employer's part, and abused by the employee. No "rights" were "signed away", nobody here is beholden.
I wouldn't enter into a personal agreement like this, then make it a lie by doing something other than what was agreed upon, that's just a dick move. It's equivalent to breaking a promise to a friend.
> Anything that I do with my time, my equipment and my brain outside paid work hours belongs to me.
That's a very naïve view and provably wrong in a lot of countries. Check with your local labor laws, you'll be surprised.
That's a very naïve view and provably wrong in a lot of countries. Check with your local labor laws, you'll be surprised.
"... hearing that one of my developers is doing something like this would make me question what exactly she is doing and why."
When someone is working on something 'outside' there can be a number of motivations. As a manager I'm thrilled if they are learning new skills or packages, I can't always come up with projects that keep people interested, and side projects can help with people keeping technically alert. I also love to hear about what they have learned "Hey Chuck, Chef does this much better than we do." Or "Hey we can use this new Meteor framework to build cool stuff."
On the other hand if they say "I'm working on an entirely new way to crawl the web, but it isn't at all like our crawler." I'm going to talk to them about switching to our crawler, after all if that is where there interest has taken them, I'd rather it help both of us company and employee. If they don't want to do that because of personality issues, or some other structural issue which has been lingering, as a manager I want to know about that and try to fix it.
Bottom line is if your working off hours to charge your technical batteries, its great. If you're working at those hours because of some problem at work, I want to fix that. If you are working on something because you don't want to work here anymore, I'd like to know that too and make the transition smoother for everyone.
When someone is working on something 'outside' there can be a number of motivations. As a manager I'm thrilled if they are learning new skills or packages, I can't always come up with projects that keep people interested, and side projects can help with people keeping technically alert. I also love to hear about what they have learned "Hey Chuck, Chef does this much better than we do." Or "Hey we can use this new Meteor framework to build cool stuff."
On the other hand if they say "I'm working on an entirely new way to crawl the web, but it isn't at all like our crawler." I'm going to talk to them about switching to our crawler, after all if that is where there interest has taken them, I'd rather it help both of us company and employee. If they don't want to do that because of personality issues, or some other structural issue which has been lingering, as a manager I want to know about that and try to fix it.
Bottom line is if your working off hours to charge your technical batteries, its great. If you're working at those hours because of some problem at work, I want to fix that. If you are working on something because you don't want to work here anymore, I'd like to know that too and make the transition smoother for everyone.
We're totally comfortable with things like that. We have different parameters (steering well clear of client conflicts), but we also (a) care very deeply about IP and (b) don't have problems with people doing off-hours work.
My previous employer (Arbor Networks): roughly the same way. People had side/off-hours projects that involved network instrumentation.
I think you're overgeneralizing.
That's important because if you weren't, and virtually all employers would have a problem with these kinds of side projects, the risk/reward for asking permission would be different.
My previous employer (Arbor Networks): roughly the same way. People had side/off-hours projects that involved network instrumentation.
I think you're overgeneralizing.
That's important because if you weren't, and virtually all employers would have a problem with these kinds of side projects, the risk/reward for asking permission would be different.
And when you read "go to the employer" and "the employer said", think to yourself: My company should have a clearly defined IP policy that states how to make these requests and hopefully an associated SLA.
I sit on our IP group as an R&D representative and there are other representatives from HR as well as Legal. This allows the group to basically handle any situation that comes up efficiently and employees have a clear single point of contact. We try to ensure no request takes longer than a week to resolve, but most take minutes.
I sit on our IP group as an R&D representative and there are other representatives from HR as well as Legal. This allows the group to basically handle any situation that comes up efficiently and employees have a clear single point of contact. We try to ensure no request takes longer than a week to resolve, but most take minutes.
It also seems weird to me that while the former employee is saying he needs to stop, he's letting others fork the code and keep going with it.
I think he received poor legal advice on this, and the same goes for anyone who forks it.
The issue is that he does not own copyright. Given that he doesn't own copyright, what he says does not matter. It is as meaningful as my giving permission for Bob to drive YOUR car. Since I don't own it, I can't actually give permission.
Usual disclaimers. I am not a lawyer, this is not legal advice.
I think he received poor legal advice on this, and the same goes for anyone who forks it.
The issue is that he does not own copyright. Given that he doesn't own copyright, what he says does not matter. It is as meaningful as my giving permission for Bob to drive YOUR car. Since I don't own it, I can't actually give permission.
Usual disclaimers. I am not a lawyer, this is not legal advice.
I don't think you can say that he does not own copyright. In this case, it is unclear who owns the copyright and a court would probably have to be involved to clarify the situation.
In this case, it is unclear who owns the copyright and a court would probably have to be involved to clarify the situation.
While it's strictly true that we haven't been told enough to know, I would expect even the most fair and reasonable of employment contracts to transfer the copyright to the employer by default if we're talking about a project that is in exactly the field that the employee works in at their job.
While it's strictly true that we haven't been told enough to know, I would expect even the most fair and reasonable of employment contracts to transfer the copyright to the employer by default if we're talking about a project that is in exactly the field that the employee works in at their job.
I don't think you can say that he does not own copyright.
I have worked in and paid attention to employment law as far as it pertains to copyright in both California and New York. From what I have been told by competent lawyers in both states, this would be an open and shut case. Even if the contract didn't say anything about it (which would be extremely unlikely), work done by an employee on a project related to what the company does is a work for hire and therefore belongs to the company.
I have worked in and paid attention to employment law as far as it pertains to copyright in both California and New York. From what I have been told by competent lawyers in both states, this would be an open and shut case. Even if the contract didn't say anything about it (which would be extremely unlikely), work done by an employee on a project related to what the company does is a work for hire and therefore belongs to the company.
This is a very touchy area. You have to get buy-in from your employer for side projects, otherwise they (with some legal standing) believe they own the work. The only alternative is to be very discreet about what you do on the side. It's wrong, but see how companies react...
> All this guy had to do was go to his employer and say
All his employer had to do was not be retarded little bitches.
All his employer had to do was not be retarded little bitches.
> "We're all in favor of open-source contributions and projects, but not when they compete against our core products, from which we make money,"
This right here is the classic definition of a leech. I am only in favour of open source if i can benefit from it. I am not in favour of the part that suggests that I "contribute back to the community". Well, I guess everyone is in their right to be an asshole. When you smell the stench then you know what's coming :)
This right here is the classic definition of a leech. I am only in favour of open source if i can benefit from it. I am not in favour of the part that suggests that I "contribute back to the community". Well, I guess everyone is in their right to be an asshole. When you smell the stench then you know what's coming :)
There's a huge difference between writing open source software that benefits your company and open source software that directly competes with your company's core products. There's plenty of room to find something that wouldn't be a conflict of interest.
I think that as a descriptive (and not normative) explanation, this is right on the money.
This is pretty standardized in many US-based software jobs - the employer gives you an Assignment of Inventions bit of paper in which you agree they own a chunk of your brain, you add additional bits of paper where you and the employer agree to exclude specific things, say, your personal open-source groupon for kittens. It's usually routine and painless.
It should be noted that many states, including CA puts limits on what can be covered by this language.
Under California law, an employee cannot be required to assign any of his or her rights in an invention he or she develops “entirely on his or her own time without using the employer’s equipment, supplies, facilities, or trade secret information”
There are exceptions, see the whole article. This case even if in CA may be marred by the "Trade Secrets" restriction.
http://www.intellectualpropertylawfirms.com/resources/intell...
Under California law, an employee cannot be required to assign any of his or her rights in an invention he or she develops “entirely on his or her own time without using the employer’s equipment, supplies, facilities, or trade secret information”
There are exceptions, see the whole article. This case even if in CA may be marred by the "Trade Secrets" restriction.
http://www.intellectualpropertylawfirms.com/resources/intell...
The next line from your clip seems really relevant to this topic
when the invention was conceived or “reduced to practice” (actually created or a patent application filed) it related to the employer’s business or actual or “demonstrably anticipated” research or development, or...
In other words, if it's related to the employer's business it belongs to them. What's related and what is not is up to a judge to decide. There's arguably a spectrum of directly related, somewhat related, tangentially related, unrelated, etc.. Seems like the OP's project though is in the directly related side of the spectrum.
when the invention was conceived or “reduced to practice” (actually created or a patent application filed) it related to the employer’s business or actual or “demonstrably anticipated” research or development, or...
In other words, if it's related to the employer's business it belongs to them. What's related and what is not is up to a judge to decide. There's arguably a spectrum of directly related, somewhat related, tangentially related, unrelated, etc.. Seems like the OP's project though is in the directly related side of the spectrum.
One of those exceptions is potentially rather significant here, though. From immediately after the part you quoted:
unless:
when the invention was conceived or “reduced to practice” (actually created or a patent application filed) it related to the employer’s business or actual or “demonstrably anticipated” research or development,
That said, the article you linked to seems to be about patents covering inventions rather than copyright covering creative works, so without reading more about the laws in those states I don't know whether any of this is actually relevant in this case.
unless:
when the invention was conceived or “reduced to practice” (actually created or a patent application filed) it related to the employer’s business or actual or “demonstrably anticipated” research or development,
That said, the article you linked to seems to be about patents covering inventions rather than copyright covering creative works, so without reading more about the laws in those states I don't know whether any of this is actually relevant in this case.
> If his employer had said ...
Paper, ink, and signatures, or it didn't happen.
Paper, ink, and signatures, or it didn't happen.
I'd get it in writing, but asking someone for a paper and ink OK for your Open Source project in 2014 is a bit much.
I disagree. I think its in everyone's best interests (most especially the employee) to get outside projects approved and in writing.
In writing includes digitally.
A nice, even-handed summary of the situation.
TBH, it never would have even occurred to me to work on an open-source project that directly competes with what I do to pay the bills. I've got a noncompete, of course, but even without that it strikes me as a violation of basic business ethics.
And even without that, as much as I enjoy programming after hours, working on the same problem you spend your work days hacking on seems like such a recipe for burn-out.
TBH, it never would have even occurred to me to work on an open-source project that directly competes with what I do to pay the bills. I've got a noncompete, of course, but even without that it strikes me as a violation of basic business ethics.
And even without that, as much as I enjoy programming after hours, working on the same problem you spend your work days hacking on seems like such a recipe for burn-out.
> TBH, it never would have even occurred to me to work on an open-source project that directly competes with what I do to pay the bills. I've got a noncompete, of course, but even without that it strikes me as a violation of basic business ethics.
It takes an extraordinarily broad definition of "compete" to apply that to this situation, though. He works on an internal CI system at his company. He makes an OSS CI system in his spare time. Since these things have different uses and one is merely an incidental tool that his company uses to acomplish actual goals, he is not competing with his company in the sense that normal human beings would use the word. (Similarly, no sane person would look at someone sewing an apron at home and say, "Wow, that person is competing with Home Depot because their workers wear aprons!")
It takes an extraordinarily broad definition of "compete" to apply that to this situation, though. He works on an internal CI system at his company. He makes an OSS CI system in his spare time. Since these things have different uses and one is merely an incidental tool that his company uses to acomplish actual goals, he is not competing with his company in the sense that normal human beings would use the word. (Similarly, no sane person would look at someone sewing an apron at home and say, "Wow, that person is competing with Home Depot because their workers wear aprons!")
There are a couple of interesting things in what the former employee says
1) He claims the commit logs are proof of when he did the work. They aren't, they are simply proof of when he did the commits.
2) He says, "I worked on it in the evenings after I had completed my work for the day." Which instantly makes me wonder whether he was doing this on a work computer after hours?
If you want to do open-source work on an area related to your job you must talk to your employer first, and whatever open source work you do you should be sure you're either not using company resources or have permission to use them. Commit logs cannot prove when you did the work, they can only prove you did them at or before that point.
1) He claims the commit logs are proof of when he did the work. They aren't, they are simply proof of when he did the commits.
2) He says, "I worked on it in the evenings after I had completed my work for the day." Which instantly makes me wonder whether he was doing this on a work computer after hours?
If you want to do open-source work on an area related to your job you must talk to your employer first, and whatever open source work you do you should be sure you're either not using company resources or have permission to use them. Commit logs cannot prove when you did the work, they can only prove you did them at or before that point.
>If you want to do open-source work on an area related to your job you must talk to your employer first
I promise you that's not the law.
A bartender that makes drinks for his friends at a house party doesn't have to reimburse his employer for skills learned when tending a bar.
> and whatever open source work you do you should be sure you're either not using company resources or have permission to use them
But this is a valid point. If you're using company hardware and resources, you're arguably spending resources owned by the company.
I promise you that's not the law.
A bartender that makes drinks for his friends at a house party doesn't have to reimburse his employer for skills learned when tending a bar.
> and whatever open source work you do you should be sure you're either not using company resources or have permission to use them
But this is a valid point. If you're using company hardware and resources, you're arguably spending resources owned by the company.
That is the law in many places, California being one. Companies generally own anything you do related to their business. Related is up to a judge to decide if it gets to that point but some arguably obvious examples: making a game on the side while working for a game company. Making an email website while working for a company that makes an email website.
Why it makes sense IMO. Without the company owning work related to their business outside of work hours that would seem to make something along these lines legal.
Employee is at home, after work hours, and thinks of solution to problem at work on his project. The next day he comes to work and demands if the company wants this solution he must be compensated for work he did on his own time that belongs to him.
Your bartender case I have no idea how a judge would take that. The judge might see it as common sense. On the other hand if the bartender took a second job bartending a judge might decide that's not okay. Examples: Bartender invents new drink in Bar #2. Does Bar #2 own that? Can Bar #2 trademark the new drink? Can Bar #1 claim bartender has a conflict of interest because while working at Bar #2 it's arguably his job to lure people away from Bar #1.
Here's a quote from Nolo: "
Moonlighting
Generally speaking, working more than one job is lawful. However, an employer has the right to limit after-hours work that is in conflict with the employer's own business. For instance, going to work for the competition could provide grounds for discipline or discharge.
"
http://www.nolo.com/legal-encyclopedia/off-duty-conduct-empl...
Here's another
"Employees Owe a Duty of Loyalty to Their Employers ... Thus, an employee who improperly competes with his employer, assists a competitor during the course of employment, or makes use of the employer's confidential information to compete with the employer after termination may have breached the duty of loyalty. " etc..
http://shawvalenza.com/publications.php?id=68
Why it makes sense IMO. Without the company owning work related to their business outside of work hours that would seem to make something along these lines legal.
Employee is at home, after work hours, and thinks of solution to problem at work on his project. The next day he comes to work and demands if the company wants this solution he must be compensated for work he did on his own time that belongs to him.
Your bartender case I have no idea how a judge would take that. The judge might see it as common sense. On the other hand if the bartender took a second job bartending a judge might decide that's not okay. Examples: Bartender invents new drink in Bar #2. Does Bar #2 own that? Can Bar #2 trademark the new drink? Can Bar #1 claim bartender has a conflict of interest because while working at Bar #2 it's arguably his job to lure people away from Bar #1.
Here's a quote from Nolo: "
Moonlighting
Generally speaking, working more than one job is lawful. However, an employer has the right to limit after-hours work that is in conflict with the employer's own business. For instance, going to work for the competition could provide grounds for discipline or discharge.
"
http://www.nolo.com/legal-encyclopedia/off-duty-conduct-empl...
Here's another
"Employees Owe a Duty of Loyalty to Their Employers ... Thus, an employee who improperly competes with his employer, assists a competitor during the course of employment, or makes use of the employer's confidential information to compete with the employer after termination may have breached the duty of loyalty. " etc..
http://shawvalenza.com/publications.php?id=68
>making a game on the side while working for a game company. Making an email website while working for a company that makes an email website.
The first example made me cringe.
Let's say that I work at EA (I don't), coding up the next iteration of Sport Ball 2k15. In this example, at home, I'm writing Yet-Another-Dungeon-Crawler (YADC) (tm). All the two have in common is that they are video games. Should EA get rights to YADC(tm)? What's the scope?
On the second, this is even worse. If I worked at Ford building cars all day and was working on a Go Karts on the weekend, is there a gray area here? What if I repaired and sold vintage Jaguars on the side? Can I not apply skills that I've learned in my side-pursuits?
Why would I not be able to use my training to produce things for myself? Why should companies be the default owner of the fruits of our personal labors?
>Your bartender case I have no idea how a judge would take that. The judge might see it as common sense.
I think it's a fun thought experiment.
Of course the bartender won't have to pay the bar owner for his labors outside of work, he's just making drinks! However, when your skills are technical, the non-technical audience treats it differently.
The first example made me cringe.
Let's say that I work at EA (I don't), coding up the next iteration of Sport Ball 2k15. In this example, at home, I'm writing Yet-Another-Dungeon-Crawler (YADC) (tm). All the two have in common is that they are video games. Should EA get rights to YADC(tm)? What's the scope?
On the second, this is even worse. If I worked at Ford building cars all day and was working on a Go Karts on the weekend, is there a gray area here? What if I repaired and sold vintage Jaguars on the side? Can I not apply skills that I've learned in my side-pursuits?
Why would I not be able to use my training to produce things for myself? Why should companies be the default owner of the fruits of our personal labors?
>Your bartender case I have no idea how a judge would take that. The judge might see it as common sense.
I think it's a fun thought experiment.
Of course the bartender won't have to pay the bar owner for his labors outside of work, he's just making drinks! However, when your skills are technical, the non-technical audience treats it differently.
Yes, EA would own your work.
1. You're making a competing product.
EA makes games. You're making a game
2. You're have a conflict of interest.
If you figure out how to speed something up 20% at home you arguably have a duty to share that at work. If you have a game idea for your game at home you think it unique you arguably have a duty to share that at work.
It would be up to a judge to decide what "related to their business" means. There's a spectrum. Both are FPS games, One is FPS, one is RTS. One is Online, on is offline. Is a gaming web site related? EA runs a gaming website. I have no idea. Do you want to find out after spending XXX hours on something it belongs to your employer? No? Then maybe you should ask them.
Note: Many companies will sign an agreement on request and review that allow you to make things that might have a conflict of interest. My understanding is EA specifically does this because so many of their employees wanted to make mobile games on the side. I have no idea what that agreement says. It might say EA gets the first right to publish it. Again I have no idea.
I know Google allows outside projects with permission. You submit a description of your project. They review it. If they don't see a conflict of interest they'll give you a signed document saying so so you can work on it with no issues.
1. You're making a competing product.
EA makes games. You're making a game
2. You're have a conflict of interest.
If you figure out how to speed something up 20% at home you arguably have a duty to share that at work. If you have a game idea for your game at home you think it unique you arguably have a duty to share that at work.
It would be up to a judge to decide what "related to their business" means. There's a spectrum. Both are FPS games, One is FPS, one is RTS. One is Online, on is offline. Is a gaming web site related? EA runs a gaming website. I have no idea. Do you want to find out after spending XXX hours on something it belongs to your employer? No? Then maybe you should ask them.
Note: Many companies will sign an agreement on request and review that allow you to make things that might have a conflict of interest. My understanding is EA specifically does this because so many of their employees wanted to make mobile games on the side. I have no idea what that agreement says. It might say EA gets the first right to publish it. Again I have no idea.
I know Google allows outside projects with permission. You submit a description of your project. They review it. If they don't see a conflict of interest they'll give you a signed document saying so so you can work on it with no issues.
Under what authority is "We own everything you do in a related market" the default condition?
From what I understand on this kind of stuff, it's completely determined by what contracts an employee has signed. "We own everything you do on company property or with company equipment" is basically universal and things done at your job are understood to be works-for-hire, but a company can't just claim "We own everything you do in your free time if it's related to computers" unless the employee has agreed to that in a contact. Am I wrong here?
For your Google example, I would assume their review framework was set up by an agreement with the employees. I had an offer for a job where I was told "Anything you do on your own time is yours. And if you want to put that in a written agreement for a particular project, we're happy to." From what you say, maybe Google doesn't have quite as lax an approach, but their ability to decide what you can and can't work on must have been specified in an employment contract.
From what I understand on this kind of stuff, it's completely determined by what contracts an employee has signed. "We own everything you do on company property or with company equipment" is basically universal and things done at your job are understood to be works-for-hire, but a company can't just claim "We own everything you do in your free time if it's related to computers" unless the employee has agreed to that in a contact. Am I wrong here?
For your Google example, I would assume their review framework was set up by an agreement with the employees. I had an offer for a job where I was told "Anything you do on your own time is yours. And if you want to put that in a written agreement for a particular project, we're happy to." From what you say, maybe Google doesn't have quite as lax an approach, but their ability to decide what you can and can't work on must have been specified in an employment contract.
No, it is the default of the law. They don't need an employment agreement. See the links in my replies in this thread. The laws says the own nothing...EXCEPT...anything related to their business.
They are being generous (or maybe just trying to make sure people don't quit) by signing agreements that let you out of the default law.
They are being generous (or maybe just trying to make sure people don't quit) by signing agreements that let you out of the default law.
I've found that employers are quite accommodating when an employee asks for permission to do a side project. Even if you're not obliged to, it's a matter of professional courtesy.
It's more like, what would happen if the bartender invented the next margarita, i.e. something that becomes an international standard? Can the bar he works at claim some kind of trademark or patent to it? Or it would be, if it weren't nearly impossible to get any sort of IP for food.
I should note that California is a generous state in this regard. New York is much worse - if you're a programmer, they own anything that you program on the side, related or not.
I have long believed that this legal difference is a big part of why "doing a startup on the side" is far more common in California than New York.
I have long believed that this legal difference is a big part of why "doing a startup on the side" is far more common in California than New York.
I'm not sure that it matters all that much what state you're in; whatever the state defaults are, they're "corrected" by boilerplate employment rights assignment contracts.
It matters intensely which state you're in, because quite a few states, such as California, have declared that kind of rights assignment contract unenforceable / illegal.
Don't forget how common it is for companies to sign their staff to nonsense in the hope of scaring them out of their rights through ignorance.
Don't forget how common it is for companies to sign their staff to nonsense in the hope of scaring them out of their rights through ignorance.
From what I can tell, California requires IP assignment to be narrowly construed, but that's probably not enough to keep you out of court.
Well in the vernacular, "you can sue for a ham sandwich;" virtually nothing can keep you out of court.
I can sue you, and get you into court, for murdering my pet vampire using the power of forgiveness, if I want to, and am willing to waste the money.
I mean, to your actual point, yes, there are cases where this can come up and be valid, but my understanding of this part of the thread was that we were making comparison to New York state boilerplate contracts that would take ownership of anything produced on side time, and that has been tested and there is a significant body of "oh hell no" in California law.
IANAL, TINLA, etc ad nauseum.
I can sue you, and get you into court, for murdering my pet vampire using the power of forgiveness, if I want to, and am willing to waste the money.
I mean, to your actual point, yes, there are cases where this can come up and be valid, but my understanding of this part of the thread was that we were making comparison to New York state boilerplate contracts that would take ownership of anything produced on side time, and that has been tested and there is a significant body of "oh hell no" in California law.
IANAL, TINLA, etc ad nauseum.
I think the vernacular is that you can indict a ham sandwich. But yes, my point is just that no matter what US jurisdiction you work in, you probably won't go wrong by adopting the most conservative interpretation of your employment contract.
I would argue that this is a moot point since computer hardware is a commodity. Most companies around here buy their employees new hardware and said employees will simply use them for all their computing needs as is convenient (would you travel with 2 laptops just to be able to claim you didn't use company hardware).
I frankly find this kind of legal posturing by companies abhorrent and immoral. It's almost like treating employees as slaves.
I frankly find this kind of legal posturing by companies abhorrent and immoral. It's almost like treating employees as slaves.
>I would argue that this is a moot point since computer hardware is a commodity.
The cost of the hardware is recognized (in accounting) over the life of the machine.
>(would you travel with 2 laptops just to be able to claim you didn't use company hardware).
I have a really nice computer from work and an old laptop at home. I use my old laptop for all personal projects to avoid just such an issue.
The cost of the hardware is recognized (in accounting) over the life of the machine.
>(would you travel with 2 laptops just to be able to claim you didn't use company hardware).
I have a really nice computer from work and an old laptop at home. I use my old laptop for all personal projects to avoid just such an issue.
> (would you travel with 2 laptops just to be able to claim you didn't use company hardware)
I do.
I do.
Oh come on two MBPs is not an unreasonable travel burden(though for a while I was doing it with an MBP(personal) and a W520 and that made people mad at me at airport security)
Whoah. Be careful. Off-hours work doesn't statutorily belong to employers (ie, it's not "the law"), but employees can and often do sign contracts conceding the rights to their off-hours work to employers. The law most definitely sees many of those contracts as enforceable.
It depends on the state; in 8 states there are restrictions, most notably California. Such contracts aren't enforceable in CA:
http://www.intellectualpropertylawfirms.com/resources/intell...
But of course, if you use any company resources (including computers)... then they can be.
http://www.intellectualpropertylawfirms.com/resources/intell...
But of course, if you use any company resources (including computers)... then they can be.
My employment agreements typically include something about work product and rights assignments to the employer. I gather that my employers' contracts with their customers have similar intellectual property transfers (from the contractor to the customer). As a result, I've always explicitly sought exceptions from both employers and customers. Even if it isn't required, it doesn't hurt to have something on paper that says my contributions to some free software project are on the up-and-up.
>If you want to do open-source work on an area related to your job you must talk to your employer first
It isn't the law, but a some employment agreements give de factor ownership of any intellectual property an employee produces to the company, own time or not.
It isn't the law, but a some employment agreements give de factor ownership of any intellectual property an employee produces to the company, own time or not.
A bartender is typically an hourly employee, clearly paid for the time they are "clocked in". A salaried, "exempt" employee is a little bit of a different thing.
Which isn't to say that the quoted imperative is "the law" - that depends on jurisdiction and the wording of contracts that have been signed. In any event, the imperative is great advice, though!
Which isn't to say that the quoted imperative is "the law" - that depends on jurisdiction and the wording of contracts that have been signed. In any event, the imperative is great advice, though!
> But this is a valid point. If you're using company hardware and resources, you're arguably spending resources owned by the company.
Really? you are going to try to defend this point of view?
OK, so he should just pay $3.50 for the electricity and internet he used for those commits and everyone will be happy.
Really? you are going to try to defend this point of view?
OK, so he should just pay $3.50 for the electricity and internet he used for those commits and everyone will be happy.
Even the timestamp on the commit can be changed. That doesn't proof anything. It's totally possible the timestamp has been tempered with.
> git rebase -i
pick and edit each commit and do this
> git commit --author <override-author> --date <override-date>
I think you do this better with filter-branch too. But I don't know that command as much.
> git rebase -i
pick and edit each commit and do this
> git commit --author <override-author> --date <override-date>
I think you do this better with filter-branch too. But I don't know that command as much.
> I think you do this better with filter-branch too. But I don't know that command as much.
It goes like this:
It goes like this:
git filter-branch --env-filter \
'if [ $GIT_COMMIT=186ba2fd6bca97c901194d9450c694c2836064d2 ]
then
export GIT_AUTHOR_DATE="Fri Apr 11 21:38:53 2014 -0800"
export GIT_COMMITTER_DATE="Sat Apr 12 01:01:01 2014 -0700"
fi'> He claims the commit logs are proof of when he did the work. They aren't, they are simply proof of when he did the commits.
Not even that, since you can trivially set the commit date to whatever you want.
Not even that, since you can trivially set the commit date to whatever you want.
1) He claims the commit logs are proof of when he did the work. They aren't, they are simply proof of when he did the commits.
True, but it lends evidence that they were done outside of work. After all, if the commits were made during 9-5, then you can claim it was during work.
True, but it lends evidence that they were done outside of work. After all, if the commits were made during 9-5, then you can claim it was during work.
> They aren't, they are simply proof of when he did the commits.
They're not even that:
They're not even that:
git commit --amend --date="Mon, 14 Apr 2000 16:42:16 +0000"A) If his employer had said, "Yeah, go ahead -- no problem," then there wouldn't have been a problem.
B)If his employer had said, "We're all in favor of open-source contributions and projects, but not when they compete against our core products, from which we make money," then they could have worked out a deal. Or not. But at least it wouldn't have been left up in the air like this.
---
False dichotomy. They could have pretended to go with '(A)' and then sued him over it later when/if the product became popular/made money.
He (the developer) also then exposes himself to risks that he otherwise might not (e.g. lazy lawyers that only act when prompted).
B)If his employer had said, "We're all in favor of open-source contributions and projects, but not when they compete against our core products, from which we make money," then they could have worked out a deal. Or not. But at least it wouldn't have been left up in the air like this.
---
False dichotomy. They could have pretended to go with '(A)' and then sued him over it later when/if the product became popular/made money.
He (the developer) also then exposes himself to risks that he otherwise might not (e.g. lazy lawyers that only act when prompted).
If he is based in California then the court systems will put the onus on they company for proving his project infringed. There are three things I've learned to remember in California about moonlighting; Don't work on any project that has the same goals as one of your employers project, get clearance in writing when you start, and keep good notes.
Early in my career doing hardware design on my own was 'easy' since I was always employed as a software engineer, and number two (get clearance) really helped me understand both how cool NetApp was and how bogus Google was in what they consider 'their space'. Number three helped early on, keeping a notebook I found was helpful for me to keep from not bringing things from work home into my projects.
Early in my career doing hardware design on my own was 'easy' since I was always employed as a software engineer, and number two (get clearance) really helped me understand both how cool NetApp was and how bogus Google was in what they consider 'their space'. Number three helped early on, keeping a notebook I found was helpful for me to keep from not bringing things from work home into my projects.
Shouldn't we name names in this case? This behaviour should be part of the company's public image. Or does that just greatly increase the legal risk for the author?
I personally would not do business with or purchase products from a company that decided to threaten an ex-employee in this way. But then, I am not an important person.
Another reason to work for an employer as a consultant, so that you control your own IP and time.
I'll keep saying this until one day talented programmers get the message. If you're creating open source frameworks, you're talented enough to not have to take any bullshit from employers. Offer them your services, and nothing else.
Sadly, the state of health insurance in the US makes this somewhat difficult.
I'll keep saying this until one day talented programmers get the message. If you're creating open source frameworks, you're talented enough to not have to take any bullshit from employers. Offer them your services, and nothing else.
Sadly, the state of health insurance in the US makes this somewhat difficult.
Could have been worse
http://en.wikipedia.org/wiki/Sergey_Aleynikov
http://en.wikipedia.org/wiki/Sergey_Aleynikov
It's sad, but a rule of thumb is: "never EVER open source anything that is close to your employer", because people don't care how different your open source project is. They see what they monetize on, so they sue. Unless you really do something generic, like "yet another social network for kitten owners having foot fetish" ;-)
Wow, the repository is really gutted out.
In the case I needed to do something like this, how would I?
In the case I needed to do something like this, how would I?
His former employer is claiming that he worked on it on their time and that he stole code. He denies these claims and even offers some evidence to prove it.
So HN says he should have discussed it with them, he probably had a non-compete clause, he probably conferred his intellectual property to his employer in his contract, or that his actions are just in general bad form.
BULL - The companies claims are pretty specific and if they are false as he claims then their behaviour is indefensible.
I'm shocked that the HN community is in favour of this.
So HN says he should have discussed it with them, he probably had a non-compete clause, he probably conferred his intellectual property to his employer in his contract, or that his actions are just in general bad form.
BULL - The companies claims are pretty specific and if they are false as he claims then their behaviour is indefensible.
I'm shocked that the HN community is in favour of this.
Depends on your employee agreement, and where you live. Most of the companies I've worked at said that anything related to any of their business was theirs, regardless of the times that I worked on it. Since a large company does a lot of things, you're pretty much down to selling fruit or watercolor paintings of stuffed animals, if that. (I believe that Microsoft has a blanket "No moonlighting" that they want to apply to all jobs; makes those paying hobbies interesting).
My current employer doesn't care at all, and gives explicit permission in the employee contract. I can even write stuff that is in their business space, as long as I do it on my own time and equipment. Very enlightened.
My current employer doesn't care at all, and gives explicit permission in the employee contract. I can even write stuff that is in their business space, as long as I do it on my own time and equipment. Very enlightened.
I forked the repo, but I think I will actually see if I can put it up in a non-forked repo so it'll be a tiny bit harder to take down. Also I am starting a private repo as backup on another git service.
They will never be able to shut it down now lol. I think the communication of the employer was really bad even if it's not that good to do the same at home as you are doing at work.
They will never be able to shut it down now lol. I think the communication of the employer was really bad even if it's not that good to do the same at home as you are doing at work.
Is this a case to use a personal corporation and submit open source code?
To limit liability...
To limit liability...
Shouldn't the title of this submission be that on the page, "Avow-CI Is No More?" The submission title was previously highly editorialized, now changed to "Open-source bullying or just the company's right?" but I think that's still pretty slanted and limits the discussion to only two viewpoints.
Yes, the title was against the rules and we changed it. I didn't see the previous one, but if it was worse it must have been really bad.
All: Please don't editorialize titles, especially not to make them more linkbaity.
All: Please don't editorialize titles, especially not to make them more linkbaity.
[deleted]
A lot of good comments here, and I think the OP stepped in it a little bit. It should have been a wee bit more obvious that the overlap was likely to cause some concern, so chalk this one up to a professional learning experience, which as others have pointed out could have been a lot more costly.
Another factor, imo, is that regardless of how supportive of open source your employer is, human jealousy and possessiveness still comes into play. Nobody is getting as much work done as they would like, and they never will. When a manager hears about an open source project I guarantee you some little corner of his or her brain feels like they want those hours for themselves. I've seen this emotion inadvertently aired on more than one occasion. If the project in question is truly a side project and truly unrelated then the manager's best course is obviously a held tongue. But it if is potentially competitive? Now the reaction has legitimacy, and for that reason alone it's best to steer well clear of anything that might be a conflict.
Another factor, imo, is that regardless of how supportive of open source your employer is, human jealousy and possessiveness still comes into play. Nobody is getting as much work done as they would like, and they never will. When a manager hears about an open source project I guarantee you some little corner of his or her brain feels like they want those hours for themselves. I've seen this emotion inadvertently aired on more than one occasion. If the project in question is truly a side project and truly unrelated then the manager's best course is obviously a held tongue. But it if is potentially competitive? Now the reaction has legitimacy, and for that reason alone it's best to steer well clear of anything that might be a conflict.
Doesn't it just come down to what's in his contract? Many contracts now do include a clause assigning copyright to all employee code (even that written outside work) to the company. I would never sign such a contract, but it's a perfectly reasonable thing to put in one.
In the absence of such an explicit clause I am pretty sure that copyright automatically belongs to the author of the code.
In the absence of such an explicit clause I am pretty sure that copyright automatically belongs to the author of the code.
I would have preferred it if he had included “what was practically a cease and desist letter”. It would be easier to judge the case if you knew what his employer was asking him to do in their own words.
I have worked in the game industry for a long time and it used to be said that code walks with programmers. The use of open source repositories may end up making this more visible.
I have worked in the game industry for a long time and it used to be said that code walks with programmers. The use of open source repositories may end up making this more visible.
This whole situation is really sad. I don't know if he violated any terms of his contract or not (and I take him at his word that he didn't reuse code), but I certainly understand his position that his family and livelihood are more important than fighting some lawsuit.
That said, I think this highlights and important point -- when you work on outside projects that are even tangentially related to your full-time job (and by that, I mean, if you are an engineer, any software you write, not just stuff associated with what you write at work), it's important to get that cleared and approved in your contract. Preferably at the time of hiring.
I'm a writer and reporter. I can't make money or even contribute articles for free to a publication that could be considered a competitor -- that's obviously clear. But when I was hired, I was working on a few freelance projects that were not directly related to my main employer. I got it in writing that those projects (including things like podcasts or magazine work) are clear. Every year when I review my contract, I make sure those points remain intact, along with the new names of other projects I work on.
But if I were to start another creative project, even one that on the surface didn't intersect or compete with my employer, and I didn't get that cleared (or I didn't already have the ability t do so in my contract), that would absolutely be a problem.
That said, I think this highlights and important point -- when you work on outside projects that are even tangentially related to your full-time job (and by that, I mean, if you are an engineer, any software you write, not just stuff associated with what you write at work), it's important to get that cleared and approved in your contract. Preferably at the time of hiring.
I'm a writer and reporter. I can't make money or even contribute articles for free to a publication that could be considered a competitor -- that's obviously clear. But when I was hired, I was working on a few freelance projects that were not directly related to my main employer. I got it in writing that those projects (including things like podcasts or magazine work) are clear. Every year when I review my contract, I make sure those points remain intact, along with the new names of other projects I work on.
But if I were to start another creative project, even one that on the surface didn't intersect or compete with my employer, and I didn't get that cleared (or I didn't already have the ability t do so in my contract), that would absolutely be a problem.
This is why I don't have kids. So I can irresponsibly and irrationally fight the good fight. Sorry for your loss.
Not sure it won't get deleted along with the original repos that I forked it from, but at least here is the repos reverted to the last useful commit:
https://github.com/lucb1e/avow-ci/
And if it gets deleted, I have the code locally.
https://github.com/lucb1e/avow-ci/
And if it gets deleted, I have the code locally.
That's why the easiest way to improve the world by open source is to only commit anonymously.
sad, but true.
sad, but true.
- He worked on a personal project during company time. Edit: Oops. I misread this one as the inverse of what the author was saying. He only worked on it while employed. Still very ugly given the field of his work.
- His personal project is directly related to his work.
- His personal project conceivably competes with his employer's products.
- The company does not have staff in NY or CA, so the author lacks even the minimal limitations on non-competes imposed by state law (http://newappendto.wpengine.com/wp-content/uploads/2013/12/1...)
All of these things are typically barred by completely reasonable non-competes. As the author, I would absolutely expect to receive a C&D. As his former employer, I would feel (personally) hurt, even betrayed, by this behavior.