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you really should check with an attorney. to me this doesn't pass the sniff test.

i work for an open source (AGPL) company, that uses one of my open source (MIT) projects as a core dependency. before i joined, i made sure that any code i write for my library continues to be MIT-licensed, no matter when and where i am writing it. additional code i write for the company also often starts out as a demo/PoC in my MIT repo, but is then adapted and extended into our AGPL codebase.

this, however, is likely a different arrangement than what you're describing as a loophole.

Actually that's why I release the code on Apache/MIT combo. This way, I get to keep my code open source without forcing my company to release the modified code. Also there are no patent related issues as Apache handles that beautifully. This way, both of us get to be happy. All I want is that the original piece of my code is 1) mine for ever. Attribution wise. 2) open source for ever 3) every contributor to the code is always attributed for their work. 4) my company can make proprietary (the reason why I avoid LGPL) profits and take royalty on its modified part but my original piece must remain in the wild for me or anybody to be used freely.

no matter how clever you think you're being, if you have not consulted an IP attorney about this, be prepared for some unpleasant surprises.

Don't have money for that. May be an IP attorney here on HN can help us out?!

> Don't have money for that.

and how about money to defend a potential lawsuit? you're gambling with more than just your job, honestly.

Thanks for the tip. I ended up consulting a friend of mine (an attorney specialising in company law and ipr) yesterday and it turns out what I'm doing is perfectly legal and foolproof. So all's well.

It depends on the exact wording of your employment contract.

If it only covers work you did with company property, you're lucky.

As far as the law goes, in California (per Labor Code section 2870), employment agreements are allowed to assign the employer IP rights (including copyrights and patent rights) to inventions that satisfy any of the following:

- "[Use] the employer’s equipment, supplies, facilities, or trade secret information"

- "Result from any work performed by the employee for the employer"

- "Relate at the time of conception or reduction to practice of the invention to the employer’s business, or actual or demonstrably anticipated research or development of the employer"

For my part, the employment contract I signed is maximalist: it basically paraphrases the above language and says that anything satisfying any of those conditions is assigned to my employer.

The third condition is really the kicker. If you want to use your code at work, then the code probably "relates to" your employer's "business" or "actual or demonstrably anticipated research or development". If your employment contract is as maximalist as mine (and there's a good chance it is), then that's enough to make it not yours, regardless of who (if anyone) forked it.

In my case, my employer is large enough that it's hard to imagine software that doesn't somehow relate to its business…

Ohh yes.. These contracts are always maximalist. That's why I never touch areas where my company can even remotely claim involvement. But these are extremely important points that must be always keep in mind by everyone who wants to contribute in open-source.

What you describe in your original comment is that you write code at night with the intent of it being used by your company the next morning. I can't see how that doesn't "relate at the time of conception or reduction to practice of the invention to the employer’s business".

Oh it's not like I am trying to steal its IP from my company. I don't do that shit for everything I do. But only for the ideations that I know are great and think I am going to use later. In that regard, programming can be easily generalised. Let me give you some examples.

1) Let's us say my company wants me to create a full stack dashboard that helps you visualise the inventory. I can just create a corona dashboard and then adjust the db tables and models in the office whereas keeping my original idea still free.

2) I create a library to easily log my programs with proper gears suited to my needs.

3) I write a DB script that helps me do active passive backup easily.

4) I write an FPGA library with vLL but enforcing an encryption. I provide a use case for astronomy (whereas my company is for retail, let us say)

My point is there's always a way out.

> I don't do that shit for everything I do. But only for the ideations that I know are great and think I am going to use later.

"I thought I might need it later" does not constitute a legal defense if your employer comes after you for IP theft.

IANAL, but I can't see what foundation your strategy rests on. That the code is generic does not change the fact that it was written by you to solve a problem that your employer had. This pretty unambiguously places it within the range of what your employer can claim as theirs, no matter how applicable it might be to other use cases.

It'd be one thing if you had code that you'd written a few months back that turned out to be useful solving today's problem. But what you're describing is that your employer asks you to do something and then you go and open-source part or all of the solution without consulting them.

If you are as indispensable as you say you are, the actually bulletproof approach to getting this code open sourced legally would be to use your influence to persuade your employer to officially open-source that code.

I’d like to differ. The foundation of my strategy is that I shouldn’t be obligated to run every code I write with my company legal. On the contrary, the simple reason that my code is generic absolves me from having to consult my company for anything I decide to write in my own time on my own property. I'm never going to say “I 'took' it because I thought I might use it later”. That clearly implies theft. My reasoning is “I wrote it first in the open source and then I thought it might be useful in the company that why I ‘reused’ it here.”

I don't think you got the premise. Like I said earlier, my motive is not to steal company IP but to keep my stuff my own so that I can use that whenever and wherever I want. That's what I tried to demonstrate with the examples above and I purposely provided multiple use cases. I am genuinely curious, if you can go through the example scenarios I cited and tell me which one of them the employer can claim as theirs, considering it is neither into healthcare not aerospace.

Nevertheless, I think we have our separate approaches and I think we can agree to disagree.

> Nevertheless, I think we have our separate approaches and I think we can agree to disagree.

That's not how the law works. You're either right that your solution works or you're wrong. I'm not a lawyer, but I'm warning you that you really need to talk to an attorney before assuming that this practice will keep you safe.

By that, I just meant that you're not addressing my points and just arguing aimlessly with cherry-picked snippets from my comments so I just wanted to kill this discussion in a civilised manner.

> That's not how the law works.

Oh, this is how the law works. Unlike programming, there's never a hard right or wrong.

> you really need to talk to an attorney

that's not what you said earlier. your idea is that I should run it through my company's legal for everything I do. Let me enlighten you what will happen next. They will simply summarily reject my request and put me on a watchlist. Consult your company legal only if you need to keep written evidence for your defense. For any advise, always consult an attorney from outside.

Anyway, after getting all feedback from other comments in this thread, I did decide to run this with a lawyer and after a good and pretty long discussion and going through all my stuff, he is pretty satisfied with my setup. In fact, some of the things I did are an overkill! Wouldn't say it would work for you too as the laws of the land from where you come from might be wildly different.

Your example is foolproof, but there's always a bigger fool? How do you prove that your commits weren't made on company time? How do you prove that they weren't made on company laptops? How do you prove that you didn't include trade-secrets in your implementation of these libraries?

You can show that your commits were made at hours outside of office hours, you can show that the commits were made with your personal e-mail address, but lawyers can dispute it - Git commits are cryptographic proof only that someone (or if you signed them, someone with access to that private key) attested to those statements, and you do both those things on the company computers. You can show that all of the code is obvious, but lawyers can dispute it. A sufficiently foolish lawyer can dispute literally anything.

Don't work for places where you'd have a problem with this - Get explicit approval for you to spend company time working on open source libraries that are the proprietary interest of the company, but that you as an individual have a copyleft license to (Iff you don't care that you can't take them private later). Or work for a company that doesn't have such onerous terms in their employment contract.

yeah... somebody needs to always make sure not to be the bigger fool...

1) Git commits have timestamps. 2) Proving I did on company laptop is their onus. Innocent until proven guilty. ;-P 3) I do that. Along with randomisation of sample data. but yeah, you make a very important point in general. 99% of people get screwed on such things. 4) If I do something using company laptop, it is bound to be logged somewhere. All my git visits are also logged and archived for 10 years as per law. So proving I did it using company laptop is easy and it is them who have to prove it. And a foolish lawyer is a dream come true because then I can keep dismissing his every argument as wasting the learned court's time.

But yes, keeping things straight forward is always a better idea.

    git commit --amend --date="Wed Feb 16 14:00 2011 +0100" --no-edit

Certain proponents of Fossil and Mercurial will tell you that this is an advantage of those systems - They're fooling themselves, because you can make those edits, there's just not nice tooling for them.

So I guess it works in my favor because I own the git repo.

There's always something, isn't it. I can change my git timestamps and the employer can change its server log timestamps if there's maleficence at either side. That's a completely different territory then.

That sounds like the standard employment contract; not necessarily the "shower clause."

It makes sense that the employer (or contractee) can claim that all work, done on their paid time, or on their equipment, is theirs.

i.e., if I use my employers' laptop to develop OS software, and they can prove it, then they have a strong (and, basically, legit) claim on my work. Same with time that I'm being paid for, and supposed to be doing work for them.

That's one reason why I brought my own personal laptop, many years ago, instead of using my employers' computer for my personal stuff.

I'm not sure, but it may not even be required to be in the employment contract. I think that basic employment laws may enforce that.

The "shower clause," on the other hand, says that all work and ideas that occur during your term of employment, belong to the company; regardless of whether or not it occurred on their paid time, or using their equipment.

i.e., if you come up with an idea for a great Web site, while out on a date, or while taking a shower; whether or not it has anything to do with the corporation, the corporation can lay claim to it.

It's pretty damn evil.

FWIW, I just found out that shower clauses are unenforceable (at most places) if it did not occur in paid time notwithstanding the fact whether you signed such a contract or not. There has to be a payment in lieu of your services otherwise such terms are deemed to be void.

Thanks. I know that my company's HR had some clearly unenforceable stuff in their various contracts, noncompetes and NDAs, but they banked on folks not having the means to fight it.

Oh, did not realise that. thanks for the clarification.

IANAL, cannot comment on the legality, but as far as I’m concerned the comment about the department being too dependent on you is the most salient point of your entire post. There’s a whole universe of lawsuits and actions that can be filed and are not filed because companies calculate that they’ll extract a better return from a “live and let live” approach.

There’s probably an ocean of open source that is in a work product gray area, and the companies just don’t care enough to do anything (think “I saw Alex working on a 2D physics game library after successfully deploying our latest healthcare platform feature. It will be of no use to us, and Alex is a good dev, let’s let it slide.”)

A lot of copyright infringement goes un-acted on because it just doesn’t matter to the rights holders. But if they’re in a jurisdiction where they can enforce their work product agreement and then management changes, a new greedier manager might decide to claim Alex’s 2D physics engine on the almost-zero chance it becomes useful to them in the future. Probably not the smartest move, possibly a totally legal move. (But what do I know, IANAL)

hehe. Yeah that is indeed a salient clause there. Especially since I'm highly underpaid. Both me and my employer knows that finding my replacement is going to be tricky. Sucks money wise but gives me a great work life balance. :-D

Personally I don't use the comp laptop for my own stuff. I remote into my machine/network at home from my personal phone. DP over usb-c works wonders with a BT keyboard.

As a side note: I don't publish anything. My wife on the other hand does. It's been like that for over 10 years now.

EDIT: Forgot to mention that I ended up doing this after a previous employer wanted to grab a load of VBA modules. Big pain the back side. My luck was that my wife actually did work with me on them. Saved my back side big time.

Your charged your phone in your office? There, Gotcha! You used "company resources".

Believe it or not, lawyers will put arguments like these and the judge will accept those as valid reasons.

btw, I have a similar setup (I don't work on it during office time inside the office, though) with a minor difference. I vnc/ssh to my aws setup rather than my home. This way my laptop lives longer and wife doesn't bicker about electricity bills.

that charging thing... I didn't think about something like that :( christ. It's becoming absurd but you made me realize that there might be other things I missed.

... Yeah I don't understand this at all, and I'm not going to try. Ever since my employer's started putting in that IP clause I stopped writing public/open-source code.

You can still do it in your mom's name, iykwim... but yeah such "shower clauses" are an abomination.

This