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Comment by DannyBee | Hacker News Reader

As a lawyer (IP, not employment), i can affirmatively state you are wrong about this, for reasons various folks mentioned below (the actual phrasing deals with relating to your company's business, not directly related to your work).

Additionally, court interpretations of this statute are not as favorable as engineers like to believe (IMHO).

Living in !California, from what I see, California is only theoretically different from most states. In practice, for technology companies, the law basically means your employer owns stuff on your free time, in the general case.

(IE If you were working for a startup that does online home rentals, and you were making a video game, you may have an argument)

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Surely those court interpretations are situations where employees left to pursue products though, right? Is there really case law where a company sued to recover ownership of a free software project? That just seems lose-lose all around. Bad PR, bad karma, no deep pockets to sue, no damages to recover.

Personally, I find this kind of bureaucratic nonsense infuriating. And I guess I thought Google was better about it, but it doesn't seem to be. My past employers have, for the most part, simply shrugged when told about open source work I've done. Honestly I have to think that if I really ran afoul of a rule like this I'd just call your bluff and see if you'd fire me over it (because as I mentioned, we both know you won't sue).

There is plenty of caselaw I can find where, for example, employees have not left, but refused to sign over patents on stuff done in spare time, and companies sued to recover them while the employee was still working there. I have yet to find one where the company lost.

For open source work, if you go through the process, it's short and we're happy to approve it (patches take about 30 minutes, projects, 3-7 days). In the IP release process, it's longer. That is better than every company i have worked at.

You seem to think it's not very important, and just nonsense in general. Knowing who the legal copyright owners of the source code in your open source project are is quite important (in the cases you posit where everyone is just saying "whatever", the owner is unclear) If you don't think so, I can tell you in the one important case in the US where an open source project had to defend itself, Jacobsen v. Katzer, that Victoria Hall (the lawyer) spent a very large amount of her time trying to get all this sorted after the fact, and it is only by luck that the 50+ contributors she had to wrangle were still around and accessible.

This is probably 300k in legal fees that could have been saved by having done the right thing up front at a cost of about 30 minutes. Note that these legal fees were paid by the poor guy who was running the open source project, not by his contributors.

If you want me to be blunt, no offense, I've met folks like you, who think all this is a waste of time, and you are generally not worth the eventual expense in legal fees to the open source projects you contribute to (IE when the open source project needs to actually defend its rights, or the company behind the OSS project gets sued). Shrugging and saying "whatever" also has a funny way of turning into "that was really mine and guess what, we want damages" when the company you worked for gets bought.

It's great to want the world to be different. I support all efforts to make life better for engineers around owning stuff in their spare time. I also spend a lot of my life trying to help open source in general.

But to be blunt some more: The world we live in right now is not a happy pretty place. The reality is if folks like me, and the companies we work for, tell you than when you release a new open source project we probably own, that you should spend 5 minutes filling out a 4 field form and waiting a day for some folks to click approve before you fly and be free, it's not because we are power tripping bureaucrats. It's because we're trying to save millions in legal fees when it matters, and make sure the open source project you want to release is not going to be in a bad place, at a cost of 5 minutes of time and a small amount of waiting.

So my advice is if you think you really want to "call someone's bluff", I would instead think hard about whether you are really expert enough in this stuff to be able to say it's all nonsense, and stop to think about whether the people who are perpetuating "nonsense" may actually have your best interests at heart. That is, trying to save you from yourself. If you really think it's a great idea to have an awesome open source project used by 1 million people, when it's not clear who actually owns the code, then all i can say is that i pity those people.

You're projecting pretty badly here, and are flaming where I really don't think it's appropriate ("People like you", indeed).

For clarity, though, when you say "the open source process", you mean the process where Google gets assigned ownership. An employee who wants to release something under an OSD compatible license without assigning copyright (for whatever reason, say because they want to use the GPLv3 and you don't, or because they simply don't trust a public company) does not simply fill out a 4-line form and get an answer in a day, as I understand it.

(edit: And you continue to euphemize this. It's not "special treatment", it's a flat out copyright assignment. Ownership isn't completely clear, so one of the parties needs to give up stake. And the process is clearly asymmetric in Google's favor. That's not surprising, really, but what is surprising is that you won't come straight out and say this.)

And my advice to you is that you consider the costs of this sort of thing to the employees and the engineering work when making your conservative legal pronouncements. As we've seen in the news today, even Google's rigorous IP process isn't enough to keep you from getting sued. The world is indeed not a happy pretty place; cavalier avoidance of process may not help things, but neither does paranoia.

1. I'm perfectly comfortable with what I wrote. I neither believe it was inappropriately flaming given what you wrote, nor do I think it is "projecting pretty badly", as you say (The "people like you" was intentional, and given the evidence I have, seems correct. If it turned out not to be correct, i'd happily retract it).

2. Yes, people who want special treatment take time. We've made the common case fast, and the exceptional case possible.

3. We do consider the costs, and try to keep the process as simple as possible while still accomplishing its goals. Note that I am an engineer as well as a lawyer, and contribute to a large number of open source projects and so I have to go through the same process everyone else does.

4. You honestly don't know what you are talking about when it comes to things you've "seen in the news", and i'll just leave it at that.

> There is plenty of caselaw I can find where, for example, employees have not left, but refused to sign over patents on stuff done in spare time, and companies sued to recover them while the employee was still working there. I have yet to find one where the company lost.

Is it possible to sum up briefly why this is? It seems to me that there are three kinds of spare time projects:

1. Spare time projects where the employer has no legitimate moral[1] claim of ownership.

2. Spare time projects where the legitimate moral owner is ambiguous.

3. "Spare time" projects where the legitimate owner is clearly the employer.

If employers only ever bother to sue in cases 2 or 3 I'm not sure there is a problem. Especially if there are internal procedures engineers can use to secure ownership of software in category 2.

Are companies routinely winning in case 1? If so this is a flaw in the legal system and should be fixed.

[1] Based on current generally accepted ideas about ownership. If a developer spends his nights working on a personal project with no connection to the employer, a reasonable person would attribute ownership of his work to the developer, not the employer who pays him during the day.

What companies do you know that even offers this type of process? Most companies you have 2 options. Ask and be told "no you can't" or don't ask don't tell and pray you don't get sued.

How is Google having an official policy to get clarity a bad thing here?

Everywhere I've ever worked has been perfectly fine with my open source contributions, and never asked for a copyright assignment (to be fair, nor have they offered one: this is the kind of thing DannyBee finds untidy and unsafe). This madness is an affliction of large companies, and in particular their legal departments. And, given the small sample size I have of "large tech companies", Google isn't much better than the norm here.

Basically, demanding copyright assignment in exchange for "simple appropval process" seems like a poor bargain to me. It's not at all unreasonable to expect that employees be allowed to keep their own IP, and to argue otherwise is IMHO dangerous to open source.

When you work for Google (who does everything) and you do anything computer related in your free time, I guess that then, Google owns it. In fact, many non-computer related stuff would probably also be owned by Google since they also do a bit of that.

Is that remotely correct (IANAL)?

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