Ask HN: My employer is asking me to copy proprietary code | Hacker News Reader

Ask HN: My employer is asking me to copy proprietary code

12 pointsemployeeanon13 comments

This is an anonymous account. I'm not seeking legal advice, just options to explore.

I have access to the code base of a company undergoing liquidation. My new employer (who took over the client base and some of the employees of the company being liquidated) is asking me to copy the code base on to their servers so that they can service these clients.

As far as I know, my employer has tried to negotiate terms with the owner of the code, but hasn't secured anything yet. It boils down to that my employer wants it for free, and the code's owner wants to charge a fee to help pay off debts before final liquidation.

What are my options? Can they force me to do this? Can they fire me if I don't? I have already resigned, and will be joining a new company on the first, but can they legally withhold my salary if I refuse to do this?

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"Ah, boss, that thing you're asking me to do is, technically speaking, theft. In addition to exposing us both to liability, if it is ever discovered, for example when a potential acquirer or large corporate customer does a line-by-line source code audit like they frequently do, our company is finished."

Boss plays ball: "Great, glad we're on the same page."

Boss directs you to steal it anyway Option A: "OK boss, if you're sure it's OK, I'd like you to send me a written email or memo instructing me to copy this code from their computers to our computers. You should CC it to $OWNER so that he knows we've taken action on the IP agreement we made with him, or if you'd prefer I can forward him a copy."

Boss directs you to steal it anyway Option B: "Alright boss, push or shove time. You can, probably, convince someone here to copy that code for you. If you do, I will hand in my resignation immediately. Think it over."

Boss directs you to steal it anyway Option C: "I quit, effective immediately."

n.b. In many US states you can get fired for just about anything, including "no reason at all." Regardless, the market for engineers is super hot right now. Work for someone who isn't an abusive jerk, because you're highly likely to find that he is not solely abusive to business partners.

n.b. #2: It is almost impossible in the US to get away with withholding salary for work already performed. One complaint to your state's labor relations board and he'll wish he had never been born. This assumes you have an employment relationship with the new evil boss. If you're working without a contract (don't ever work without a contract), you're probably best served by just writing off the three days or whatever you have invested in this job.

Technically speaking, and in the US, it's copyright infringement and not theft.

Dowling v. United States (1985) says "Since the statutorily defined property rights of a copyright holder have a character distinct from the possessory interest of the owner of simple "goods, wares, [or] merchandise," interference with copyright does not easily equate with theft, conversion, or fraud.

I know you want to make a statement about piracy not being bad as theft, but you're wrong here.

The Economic Espionage Act makes theft of trade secrets a federal crime. The act defines a trade secret as "all forms and types of financial, business, scientific, technical, economic, or engineering information, including patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs, or codes, whether tangible or intangible and whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing if the owner has taken reasonable measures to keep such information secret, and the information derives independent economic value (actual or potential) from not being generally known to, and not being readily ascertainable through proper means by, the public. The act defines owner as "the person or entity in whom or in which rightful legal or equitable title to, or license in, the trade secret is reposed.

So: regardless of what sophomoric opinions you have about copying music, copying trade secrets really is, in black letter federal law, theft.

Huh? Where did I ever imply "not as bad"? The previous poster said "technically" and I thought I would be a smart-ass by saying "well technically ...".

In any case, given the description here, how do you determine that theft of trade secrets is also involved? Pretend I'm a sophomore who doesn't know better and who can quote Wikipedia that a trade secret "confers some sort of economic benefit on its holder (where this benefit must derive specifically from its not being generally known, not just from the value of the information itself)". :) What's the implied trade secret above and beyond that of the copyright?

(Also, have you established that this crosses interstate lines? Otherwise the Economic Espionage Act does not apply and you need to deal with state trade secrets laws. OTOH, given the federal reach of the interstate commerce clause in Gonzales v. Raich, I realize that this is not a strong counter question.)

Okay, how is this worth -2? 0 I can see, but several others downvoted as well.

I seriously don't see how trade secret law applies to this case. Trade secret law rarely comes up in the context of software, so please treat this as a chance for education, not downvoting.

You are correct, but to me it seems copyright infringement is a bigger crime than anything else lately. A little exaggeration used, of course.

I don't think anyone is actually reading the whole question. The OP has already resigned, leaving in 2 weeks. He is asking what to do in the interim.

This is not legal advice:

1. Good for you, sticking to your principles and quitting.

2. They can try to force you, but you don't have to do it.

3. They can't hold salary for this, they might try, but they will loose.

4. They can however, fire you on the spot, not letting you work out your notice. You won't get paid for the next two weeks you would have been working. (Some states differ)

I would think the ethical thing to do would be to inform the code's owner of this attempt, though you may wish to consult a lawyer on the best way to go about it.

I think it's pretty straight forward. You're being asked to steal. You don't want to steal. So don't.

Sometimes standing up for what you believe to be right is a costly stance to take, or at the very least difficult.

If the worst case is that you get fired...well you were leaving anyway. What's to be lost? Even if for some bizarre reason they did withhold your salary, I'd personally rather than that be an accomplice to their wrong doing.

You are not being paid to steal, nor did you agree to do so when you joined the company. Your employer cannot legally withhold your salary for not doing something illegal. That being said, if they want they could find some other reason to do the same.

You should ask them to send you an email, detailing what they want you to do and you can respond to it. I think they will get the message and probably will refuse to do so. But at-least you will have some leverage in case they deny it in the future.

If they "find another reason", I would think -- but IANAL -- that you would have a pretty strong case for a lawsuit.

Whether you would want to go that route is another question. But if they ask/tell you to do something illegal -- and you can document this -- and then fire you after you refuse, I imagine most courts/judges/juries would look upon this pretty unfavorably.

I further speculate that it might even rise to the level of criminal prosecution, if it was high profile enough. Probably, though, most prosecutors would pass it by.

Basically, though, I agree with other comments here. For a couple of weeks' salary, it's not worth it. Borrow the difference from family/friends if you have to (and make a note to self to maintain a "rainy day" balance, in future). Be grateful you already have something else to move onto, meaning also a "secured" future paycheck.

Just, also, beware of any damage your current employer might try to do to your future position/employment, if they are the vengeful type. Ideally in this case, they would not know of or where your next position is.

It depends on your situation. If you can afford to loose your job (so you can find another one) just stand up for the right thing.

Walk. Now!

Your reputation isn't worth two week's salary.

And you will be the one thrown under the bus.

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