Avow-CI Is No More
github.com
github.com
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.
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.
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.
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.
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.
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.
Best course of action here is the guy takes it as a lesson learned and reads his future employment contracts closer.
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.
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.
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".
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.
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.
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.
The implications are the same, and in both cases, I am on the side of the employee.
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.
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.
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.
That's a very naïve view and provably wrong in a lot of countries. Check with your local labor laws, you'll be surprised.
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.
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.
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.
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!")
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.
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.
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..
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.
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.
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.
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 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.
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.
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 frankly find this kind of legal posturing by companies abhorrent and immoral. It's almost like treating employees as slaves.
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.
I do.
http://www.intellectualpropertylawfirms.com/resources/intell...
But of course, if you use any company resources (including computers)... then they can be.
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.
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!
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.
> 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.
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'Not even that, since you can trivially set the commit date to whatever you want.
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're not even that:
git commit --amend --date="Mon, 14 Apr 2000 16:42:16 +0000"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...
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.
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.
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).
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.
Paper, ink, and signatures, or it didn't happen.
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.
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 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.
All his employer had to do was not be retarded little bitches.
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 :)
"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."
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.
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?
- 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.
Are their laws around this? Or is it set mostly through case law? Anyone have additional information?
Welcome to Zombo.com. You can do anything at Zombo.com.
Basically, manager can push you in any way and you'd not have any structure to hold for.
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.
- 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.
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.
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?
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).
NDA or PIIA agreements are common in software development.
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)
(Current Governor of Mass is looking to change this.)
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..
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.
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.
How can the company prove that he worked on the open source project on their time?
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)
We don't know exactly what contract he signed with his employers, but this would not be permitted by any reasonable contract.
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.
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.
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."
... which means that there is no way to prove that you worked on something in your personal time, I guess?
"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."
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.
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.
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.
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)
[1] http://www.gesetze-im-internet.de/arbnerfg/BJNR007560957.htm...
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?
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.
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.
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.
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?
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
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).
"While you work for me I own your mind"
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.
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.
> 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."
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.
The construction company would have a valid claim if you stole the blueprints at work.
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).
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.
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.
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.
> 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 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.
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?
"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?
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.
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 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 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.
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 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...
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.
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.
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)
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?
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.
I don't wish to exposed to those legal possibilities. It's just not acceptable to me.
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.
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.
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.
Lawsuits need only occur when someone strays into the middle.
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.
The english equivalent would be "Law governing inventions made by employees".
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.
From that I would argue that by building a similar product in his free time he was effectively working for a competitor.
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.
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.
The clauses are usually more nuanced because the blanket "we own all you ever create" is - rightfully - considered to broad and unenforceable.
In WA state, only work you do on company time, or with/on company resources can be claimed by the company.
... 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.
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!
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.
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.
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?
That's exactly why you should ask prospective employer about their stance on open source/unrelated side projects before signing a contract.
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.
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?
I am not sure that there would be a burden on the employer to even prove value though.
All: Please don't editorialize titles, especially not to make them more linkbaity.
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 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.
https://github.com/lucb1e/avow-ci/
And if it gets deleted, I have the code locally.
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.
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.
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.
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.
In the absence of such an explicit clause I am pretty sure that copyright automatically belongs to the author of the code.
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.
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.
Information freedom is a wonderful thing.
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.
sad, but true.
In the case I needed to do something like this, how would I?
To limit liability...