IBM to Kernel Maintainer: “You Are an IBM Employee 100% of the Time”
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Then it should say so in the comment. Preferably adding their thoughts about it, whether it's enforced in their company, etc.
Debating whether you're technically an employee 100% of your time is both true and needlessly pedantic.
Many companies put these IP and non-competition clauses into bonus award agreements. By accepting a bonus you agree to a bunch of terms and that’s where consideration comes in and makes it a real contract and legal. I have less of a problem with this arrangement than the back door approach.
If I work for a bakery, bake a cake at home, and come put it in the display cooler at work, they might have issues with that.
There’s more to that than the simple example you give.
It's likely "You are an IBM employee 100% of the time" has a similarly complex backstory.
> I dunno, does your bakery need that cake? Are your tools at home equal or better than the ones in your office?
Ultimately, if the bakery explicitly says "stop putting your personal shit in the work display", you obey or be fired. Even if it's a better cake, or your at-home tools are better.
This is more like a baker baking things at home, and giving them away for free under their own shingle. That still lacks the nuance of software scalability and licensing but it's a little closer.
I’m not sure why people sign these things though...
However, this is hurting you as developer when you work on unrelated projects. Your work for the community is impeded (e.g. in the case of Google you need to go through a lot of bureaucracy) or completely impossible. In theory you can write some code for yourself, but what motivation do you have, knowing that your employer will be its owner anyway? You will have less motivation to explore new areas of interest for the same reason. It's terrible for personal development.
I can understand both points of view, but I imagine from Google's standpoint: they do an incredibly large number of things, "working hours" are often a pretty nebulous concept in the world of software development, and simple accidental leaks could lead to bad litigation situations or critical IP leakage.
So its "mother may I?" for the 'privilege' of working for such a shit company?
For a company to claim ownership of everything I do when not working is called indentured servitude or slavery.
I get paid well, and have never had a problem -- or seen others have problems -- open sourcing things where it made sense; including things that I worked on at work during work hours such as abandoned/cancelled projects or things that made sense for the community to have access to.
EDIT: also your tone sucks, this is HN not reddit.
The limits you can work with are: working on your own equipment, non-working hours, working on it at home in an area not typically used for $dayjob, the subject of the work, and above all else your locality. These agreements are generally overreaches by the lawyers drafting them, depending on the nature of the job. Remember: no contract can limit rights granted to you under the law, every contract has limits, and you cannot be prevented from working, even if stated otherwise.
Washington, for instance, has state laws against this kind of IP assignment.
IANAL, so don't read into this too much, but I have consulted IP attorneys about this. If you're doing something like this, definitely consult -- the kind of work you do does matter. In this guy's case, it seems he does have a conflict of interest w.r.t. the work he does for IBM.
I suspect all the FAANG companies do this, because they are big enough to get away with it and the cachet of having them on your resume is impressive enough convinces some that it's worth it.
Their process is public actually, you can take a look: https://opensource.google/docs/releasing/
[1] https://www.californialaborandemploymentlaw.net/2017/intelle...
No one should ever be able to contract away a right.
That's bullshit. One step of signing away a right is a direct slope to slavery.
The complicated part is to find the right balance. Company lawyers will by default be more protective over the company.
Generally it's not legal. Under Canadian contract law at least you need to offer some compensation for a specific clause in the contract that involves transfer. That's also why you see stories like "she purchased the IP off Nortel for $1". Makes it harder to call foul later. Not a lawyer, but this is how it's been explained to me.
The problem is how many people seem to be surprised by it after signing their contract.
This is the even more crazy part. They continue to own you after no longer paying you.
If there were many companies offering the same pay, with a higher ratio of offerings to applicants than yes that would be applicable.
I'd your trying to say that they can sign away their rights than that is a different argument.
Pay and rights arnt/shouldnt be interchangeable, I'll work for you for X money but there isn't an amount that will make me give uo my rights.
Why? Well someone else will undercut that , and then they will be undercut and you eventually end up with no rights.
Note that I'm not necessarily endorsing that view, but stating what it is.
Generally, most companies use boilerplate employment agreements provided by their lawyer/HR person/firm. The reaction I usually get is that employers are surprised to learn that clause was even in there, and had no problems removing it.
Granted, these were small companies and not tech focused. There was really no conceivable overlap between my side projects and their line of business.
MY ADVICE:
Use a little human psychology here.
Don't create conflict by refusing to sign it, or create work for them by asking them to amend the contract.
Instead, amend the contract yourself. Draw a line through the offending clause. Sign the amended contract. Let them know about the amendment you made because you have side/hobby/opensource/whatever projects whose ownership you can't sign over to the company. Ask them to re-sign the amended contract.
In other words, make the acceptance of your proposed changes the "path of least resistance"... know what I mean?
There's a variation that says the employer has to buy it from you, and if they don't want the thing, then you can sell it to someone else, or give it away.
Two reasons actually:
1. Companies actually need those agreements because it's how copyright works [0].
2. Capitalism - companies have leverage.
[0] https://www.joelonsoftware.com/2016/12/09/developers-side-pr...
Usually if the company finds out you’re doing something they really don’t want to be involved in they do one of the following:
- Officially distance themselves from your project (some people actually abuse this to get free reign over a side project by weaving in pornography, gambling, etc.)
- Tell you to cease and desist immediately or face repercussions.
- Deem you a legal risk and fire you on the spot for code of conduct breach or just simply lay you off. (yes, severance is pennies compared to legal risk for some companies)
The clauses are usually (in my experience anyway) restricted to things that are "related" in some way to your core work. I personally don't question the boundaries on this "related" and assume that anything that involves writing code belongs to my employer. This doesn't bother me because I rarely write code outside of work [0], and I suspect most people who are employed full-time to write software are the same.
[0] Rare exceptions: solving silly puzzles when I get nerdsniped, and automating random things on my personal phone/laptop. If my employer finds out I'm doing either of those and would like to claim they own the IP for them, they can be my guest.
In this case, I assume IBM wants its employees contributions to be noted as open source support. They are a major contributor to Linux, in and off paid hours, they will not have a problem with one employee doing open source work, just want the PR.
US is not the whole world. In some of the other parts of the world this wouldn't even be legal.
One funny anecdote, I went through a relatively lengthy recruitment process for a company. The company, the role, the team, the tech, everything was interesting and enticing. We eventually agreed on compensation and the process moved on. I asked for a copy of the contract minutes before they had everything ready so I could read it without causing delays, which they complied.
I pointed out a few minor details but this one was sticking out so I was pretty clear that I was bothered by that. After a few of their tentatives to explain why and convince me it was fine and that clause had never been enforced, and that my comments had reignited internal conversations about this, in one call I was told they were in advanced talks with legal to make the change.
I told them I would be delighted to be in touch again when the clause was removed from my contract.
They never called back. :)
Very few developers are paid by the hour. Your contract defines what hours you're expected to be available, but your pay isn't related to that. If you work more hours, or less hours, you pay doesn't change (assuming you're not paid overtime.)
Whether or not your employer owns what you do in your hours outside of what you're contracted to work is a matter of what you negotiated when you joined. That often comes as a surprise to less experienced developers.
Because it is utterly unreasonable.
In other words, if you optionally choose to do work after hours for no extra pay then it's still considered work and the company is probably still liable for it.
On the other hand if he chose to write and publish music in his spare time, or a video game, he should he able to use his personal email address, or I would hope IBM would give him permission to do so.
In that case, everyone would agree that the work was done in their capacity as an employee. The employee isn't going to dispute that, or they'd essentially be admitting to unauthorized use of IBM systems.
The developer could contribute to a Free and Open Source IBM driver on their own time, and reasonably insist that IBM do not get to claim ownership, the same way anyone else can.
Whether that's a sensible choice of personal programming project, is another matter. It's unhelpful to muddy the waters.
This is obviously controversial for individual contributors, but it's well established in IP precedent. It's why you can't work at Google and develop a competing product in your off hours, even if it's "on your own time" and on your own equipment.
The sticking point is that he wanted to use his personal e-mail address for the work but IBM wanted him to retain the attributions to his professional and paid association with IBM.
Your employer writes your contract of employment and has fancy lawyers to make sure everything works in favour of the employer. You likely did not have input into the contract at all, and also likely did not have fancy lawyers to help you understand the terms of the contract. Your employer has made up the rules of the game and you do not understand them.
I predict you're going to lose.
It's totally worth it if you're getting paid a good SWE or higher salary. You can run the numbers on odds of litigation and on expected costs/benefits.
Once you do it once or twice, you start being able to understand the legal code a little bit better.
And yes, it is a code. Employment contracts are overly broad, and then limited by statutory law. At one point, I had an OC tell me I was reading something wrong. I make it a policy never to take advice from an OC, so I called up my employment lawyer.
For once, OC was right.
That almost never happens.
The layman's read made the contract totally untenable, but what it meant was perfectly reasonable. This was years ago, but I think it was some overly-broad we-own-your-life clause (non-compete or out-of-work-time or similar, probably). Statutory law made such clauses of limited power in my state, and it didn't block what I wanted to do.
I decided not to sign unless they removed the accidental part. In the end they removed it.
People dont realise but they have more power than they think. Specially in smaller companies.
Companies wait until the end of the interview to reveal all those nasty bits. But at that exact time, it's when they know they need you and they wa y you. Ask for your a copy of your contract before you decide. And feel free to comment on it. It is the only moment when you as an individual have the upper hand.
Hmmm, usually when I change jobs it goes like this: apply for job -> receive offer letter -> make decision -> sign offer letter -> give notice -> wait out last two weeks -> sign a bunch more stuff on the first day of the job or during the last two weeks, usually including what I think of as the contract. I could be wrong, I'm trying to be more conscious of these things.
It seems like in this scenario, you might get hit with this info after you've turned in your notice with your current job. Did they really let you see everything you needed to sign before you turned in your notice? Is that a normal request?
It's never been a problem.
Now, I don't job hop a lot, so that's not a large sample size, but at least the companies I worked for all let me review paperwork before deciding. Not all let me change it, but many did. It's not strictly a function of company size either.
And if they don't let you review it, that's a sign too. If someone is using information asymmetry against you, it's a bad sign. Likewise, if you're getting an offer, and you know you have 100,000 stock options, but no idea the size of the pool, it's probably not a place you want to work.
First job out of college, you'll probably get fleeced, and that's probably okay -- you're mostly building your resume and learning -- but most of the time, you should hold your employers to reasonable expectations.
I should also mention -- you learn a lot talking to lawyers. Part of the upside is reviewing your new contract, and part, it's an educational expense. The more you learn on your own going in before talking, the less you'll spend, and the more you'll get out.
Contracts still include such clauses (mine does say that all intellectual property at any time during the validity of the contract is the property of the company), but no company in their right mind would go to court trying to enforce it.
IBM Power SRIOV Virtual NIC Device Driver
M: Dany Madden <drt@linux.ibm.com>
M: Lijun Pan <ljp@linux.ibm.com>
M: Sukadev Bhattiprolu <sukadev@linux.ibm.com>
L: netdev@vger.kernel.org
S: Supported
F: drivers/net/ethernet/ibm/ibmvnic.*
It is the job of HR & Legal depts to make sure a contract is legally viable, not mine, and I happen to know my rights. There are at least 5 illegal clauses in my contract, and I am certainly keeping them close by if I need to go to court against them one day.
For example, the photographs of your family taken by yourself. Would you expect your employer to retain copyright?
Not sure in other countries, but probably in Western Europe and 100% sure in Spain even large corporations know it’s really hard to enforce contractual and post-contractual exclusivity, unless the employee breaks some IP of the employer.
Still, it is always a good idea to tell your new employer that you are “moonlighting”.
Edit: Meaning the tone and language suggest a work culture you might want to avoid. Separate from any actual policy.
I might be wrong, please correct me if so.
[1] https://www.forbes.com/sites/joanmichelson2/2019/02/01/7-tip...
1) highly dependant of where you are
2) still worth discussing when companies do try to enforce that for no good reason, even if they can (and often they can't, but still do as a scare tactic)
The law isn't the end of all things.
[1] https://medium.com/incerto/how-to-legally-own-another-person...
Edit: It isn't helpful for morale and makes employees want to leave whenever autonomy, purpose, social cohesion/community, and/or meaningfulness are threatened with, or actually, eliminated. I worked at a Big Name university academic dept where an insecure/inexperienced new manager postdoc came in and told the developers they're going to do X his way and they all immediately quit. And that classic video about motivation. https://www.youtube.com/watch?v=hmWD2HdoZ7k
First of all the employee was working on a driver for an IBM product and is an IBM employee so the IBM opinion is not completely wrong even if awkward and extreme. If the employee wants to work on their employers products, even as a hobby outside of work, they should disclose their affiliation even if my email address.
Secondly, many employers forbid moonlighting even when profit is not a motive. This is rare for a technology company but common for financial companies due to potential for ethical conflicts in both regulations and transfer of funds/services.
On the other hand I remember submitting an RFC ID about 12 years ago for an alternative web technology where the technical merits of the idea would later become proposals in other forms more directly aligned to HTML5. The idea went back and forth on the mailing list about how it wasn’t worth considering unless directly aligned with HTML5 regardless of any technical merits. I eventually said “fuck this” and left. I remember after that side comments about how I wasn’t really employed by Sabre. I listed Sabre as my primary employer on the last page of the document. I didn’t have a Sabre Holdings email address because I worked for Travelocity a wholly owner subsidiary that did not own IP (Sabre did). I was also contributing to the mailing list using my military email because I wrote the document while working at Travelocity but had temporarily separated for a military deployment to Afghanistan. Fuck that group.
My experience from working on open source taught me that an employer owns it and can slap a patent on it if not already exposed to the public. So, always expose your hobby work to the public using extreme licenses like AGPLv3 or CC0-1.0 and completely separate that work from any revenue stream until you are ready to incorporate.
https://www.theonion.com/ibm-emancipates-8-000-wage-slaves-1...
But are they still IP and branding slaves?
I'm interested in if there's an open database of companies with this kind of policy. I certainly don't want to bully or harass them, but this is good information to know going into an interview.
Why would IBM care that an employee spend free time working on something. Can they be held legally responsible or something? I can understand that if it's with normal working hours that they would like IBM to get the credit associated with a commit to the Linux kernel. That seems reasonable, given that they effectively bought that persons time.
Also, is it only because he committed code to something related to IBM? Could he have submitted patches to other unrelated parts of the kernel, without using his IBM email?
Every IBM software engineer knows this and is inculcated annually. IBM basically doesn't care what you're doing unless there is a clear legal reason, at which point the company will move heaven and earth.
According to some of the other comments here, this kernel work may have actually been part of his job rather than an unrelated free-time project.
IBM Power SRIOV Virtual NIC Device Driver
M: Dany Madden <drt@linux.ibm.com>
M: Lijun Pan <ljp@linux.ibm.com>
M: Sukadev Bhattiprolu <sukadev@linux.ibm.com>
L: netdev@vger.kernel.org
S: Supported
F: drivers/net/ethernet/ibm/ibmvnic.*
If IBM was prohibiting employees from working on unrelated projects in their off time, that would obviously be bad. However, if they’re paying people to work on teams to develop open-source code, it’s not unreasonable to expect them to use their IBM e-mail address to do it.
Did the story's subject work on company equipment from work?
Having a class of workers and a class of capital owners is central to capitalism.
Are you arguing for the abolishing of capital and business owners?
Corporations today are essentially authoritarian regimes, whose agents have wide remit to dictate the working conditions of other people.
The bit that usually confuses people about the socialist axis is that capitalism vs socialism is always framed in terms of free market enterprise vs statism; I’m arguing you can keep the free market dynamic while having a truly empowered workforce (not just some management spiel). This is very different to the models where the state either runs everything, or taxes private enterprise to run half the things.
glad that some things never change in this turbulent world of ours.
― G. K. Chesterton