It's one thing to work on unrelated open source software while working somewhere. It's a much more tenuous situation when you're working on OSS in the same domain as your commercial software, even if the entire technology stack is completely different. Unfortunately it sounds like the employer's claim might have some legs in this case.
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.
> Not unless you signed a ridiculous contract saying something like that which in my opinion should not be enforceable anyway.
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.
This was apparently (anecdotally) the case a while ago, but I've never seen a single employment contract that included a clause like this. 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, or whether this is another case of Silicon Valley being a poor place to work in tech (or the midwest being a good one), but this is not universally common.
> This was apparently (anecdotally) the case a while ago, but I've never seen a single employment contract that included a clause like this
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.
> It is in pretty much every tech company's employment contract in the US regardless of size.
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)
It's a standard clause in Germany, and even if it's not in your contract, it's in the law. You even have to notify your employer if you make a discovery related to your job. [1] (patent, technical improvements or similar). As with a lot of laws it's not quite so simple to apply to IT jobs, but for anything that's patent worthy, it's pretty clear.
Ah this is another case of people not reading long legal contracts that they sign. I would have been surprised if this wasn't standard in the EU as well as Asia
.
Well, if you're under a german employment contract, you probably should, it could be worth it. It's actually fairly balanced and contains regulation concerning fair compensation etc.
> 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.
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?
If doing that is really practical, I would tend to wonder if the employer has a practical business plan. Shouldn't your employer be adding enough value to your code and work processes that you couldn't make the same product without them?
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.
That was more of a hypothetical scenario than my actual life -- I'm a researcher working in academia, so in my case, I pretty much do do all the work around what I produce (my university provides support in terms of office space, administrative staff, etc., of course, but the "product" is research papers that they don't have much of a hand in).
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.
Well, sometimes what you do in your personal time is your employers business. Would you feel the same way if rather than working on open source, he were doing the same work moonlighting for a competitor of his employer? Its fine to say that the technology stack is different, but certainly he carries with him, perhaps unwittingly, certain proprietary information including but not limited to feature lists, customers and leads, marketing strategy, performance characteristics, etc.
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.
Personal time, is personal time, and none of the employers business even if moonlighting for a competitor. If the employer has a say over your personal time then you have no personal time and the employer owns you.
>Personal time, is personal time, and none of the employers business even if moonlighting for a competitor.
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?
I never said i did it or would do it... I like my employer and have no desire to moonlight at all.
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
> 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).
So by your reasoning he can never work in that field ever again because of the "proprietary" information he may have.
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.
Above the VP level in certain lines of business at an investment bank, its typical to take 'gardening leave' if you move to a competitor. Typically it will be between 30 and 90 days, where the new firm must pay you, and you cannot speak to or do any work for them. Both banks will take it very seriously, and it's great work if you can get it. The feeling is that 1) Non-competes won't work in the environment; and 2) these people have intimate and specific knowledge of deals in the works on the banking side and positions on the trading side. 'Gardening leave' is a solution that make everyone happy.
> 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."
You're talking about how you think it ought to be (which I agree with); the person you're disagreeing with was simply describing how it is. None of this is unusual in any way, unfortunately.
That depends on your contract. And unfortunately those contracts are legal. I gave up working on open source projects as I'd rather that code didn't exist then having to surrender it to my company.
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.
Damn shame, we have a huge number of developers committing code to OSS projects. I'd be surprised if you actually worked at Google, as anyone who made it past their first week is welcome to our training on how to release, patch and in fact navigate the borders between Google and personal copyright.
I disagree. Your employer is sponsoring a lot of your learnings in a specific area, so he's entitled to all your ideas in that area, that's what your paid for. It would be extremely easy to just keep your best ideas for "your" project and not use them in your work project.
The construction company would have a valid claim if you stole the blueprints at work.
> Your employer is sponsoring a lot of your learnings in a specific area, so he's entitled to all your ideas in that area
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).
In the US, most white-collar jobs have contractual clauses that grant the employer rights to IP produced by the employee, even after work hours, if such IP relates to the work the employee performs for the employer.
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.
I think the legality matters less and having feelings hurt matters more. If someone pays you to build something, and you build a free version on the side, they're really subsidizing a free competitor to their product. That's going to hurt people's feelings. And they're going to want to hurt your feelings too, maybe by burying you in paperwork.
When he says that the employer is sponsoring learning in that company's particular area, he is right. Learning is not just sitting down with a textbook and taking notes. In most jobs, especially computer science, you're learning every day. You're adapting new solutions to problems, and taking that experience with you. That knowledge can then be applied to future problems.
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 is sponsoring a lot of your learnings in a specific area, so he's entitled to all your ideas in that area
> 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?
> 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.
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.
"Your employer is sponsoring a lot of your learnings in a specific area, so he's entitled to all your ideas in that area"
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.
> 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.
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?
Your employer is sponsoring a lot of your learnings in a specific area
"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?
I disagree. Your employer is sponsoring a lot of your learnings in a specific area, so he's entitled to all your ideas in that area, that's what your paid for.
Absolutely not, you're paid for your time, not your thoughts!
> 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.
The employer is not "sponsoring your learnings", they're purchasing your time and labour (if you're a regular employee). What you do outside of the scope of the contract of employment is your own.
He's at least safe from IP infringement because it utilized a completely different approach.
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'm not sure of that, simply because many employment contracts have a term something like "any employee output of value, even in off hours, is the property of the employer." So even if it was in his spare time, he might not own the IP rights to his creation.
This may seem like semantics, but I deliberately omitted that case by addressing "IP infringement", and not the contractual issue (of ownership). sigh I guess it's arguable, that the contractual scenario is technically "IP infringement", but I would say it's just a part of it, and not the issue that it turns on. But this argument is not important enough to go into.
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 would have thought so too (and did), but at my previous employer they took over another company which broadened the scope of the products (VFX software) they offered, which then came into conflict with work I'd been doing in my own time.
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.
Also when nearly all mid-sized corps and above have in their employment contract that all knowledge/output etc whether on company time or not, is property of the company.
Tip: I've worked at 4 or 5 small/medium companies where I crossed this out of my employment contract before signing it, and had the hiring person initial the modification. I just explain that I have a number of hobby projects that I can't hand over to the company.
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...
Your mileage will definitely vary on this one. I've tried this a couple of times, and the result was always the same: "Sign an unmodified employer agreement or go find another job."
It doesn't surprise me that mileage can vary; I'm sorry you had to deal with unreasonable companies. Were they tech-focused companies?
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...
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?"
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.
Just out of interest, to whoever did it - why the downvote?
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.
Why? There's an easy way to solve this problem: Go talk to your employer. The ones you might want to work for are reasonable: I'm not claiming IP rights for unrelated side projects of employees.
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.
Talking to your employer solves nothing. Many times people will renege on verbal agreements to allow things, either because of inflated concerns about liability or competition, or simply out of ignorance or spite.
I don't wish to exposed to those legal possibilities. It's just not acceptable to me.
> Many times people will renege on verbal agreements to allow things, either because of inflated concerns about liability or competition, or simply out of ignorance or spite.
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.
And how do you tell ahead of time if someone's going to change their mind or go back on their verbal agreement? You can't.
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.
> And how do you tell ahead of time if someone's going to change their mind or go back on their verbal agreement? You can't.
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.
You know, not being a German speaker, the first time I read that name I thought you were being facetious. No disrespect to the German language, but that is one hell of a name.
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.
I'm not sure that my attitude to "we own all your stuff" clauses is directly relevant to the case at hand, no.
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.
Yes, I know, which is why my comment was specifically about clauses in which employers claim ownership of side projects and other out of scope productivity. Please track back up-thread to see the comment I was responding to.
Does that really hold up in court? I suppose it depends on the state you live in. I hope someday a developer stands up to this, wins in court and scares the crap out of employers all across the country from trying the same. We need a Rackspace/NewEgg of Employer Intellectual Property trolls.
Usually the clause is more nuanced, giving them an option to own it, or something to that effect. I asked an HR person years ago if they actually wanted to be on the hook for any intellectual property I might create off the clock - I might be in to illegal porn stuff, or security virus work, or whatever. Did they really want to claim ownership of that, without even knowing what it was? "Well, no, we don't want that" was the response.
You can't be on the hook for intellectual property. Having the right to the IP you gained off hours does not mean that they're on the hook for your actions in that time, even if your actions were a requisite to gain that IP.
The clauses are usually more nuanced because the blanket "we own all you ever create" is - rightfully - considered to broad and unenforceable.
yeah - unenforceable - in that one case I actually got them to modify the language to be a bit more clear as to what they were after (essentially non-competition).
