Speaking of employment agreements...

Posted 12 Sep 2000 at 01:18 UTC by gward Share This

The recent "hating to love it" thread, on disillusioned programmers trying to redeem themselves by contributing to open source projects, brought up an issue I'm curious about: the employment agreements that most of us sign whenever we start a new job.

I'm curious to hear about the particulars of employment agreements typically foisted upon programmers and other geek types, especially by software-related companies. (Without getting into the seamy details, I want some ammunition for a battle that's been simmering at work for some time. I suspect the PHB's main line of defence will be, "But this is how everyone else does it," and I want to say, "No it isn't: look, here are employee agreements from companies A, B, and C.")

So: what sort of terms does your company impose on its employees? (Or university, or government lab, or whatever sort of organization you work for.) To focus the discussion, here are four broad categories of IP agreements I can envision:

  • huh? IP? what's that? (ie. no agreement)
  • anything you write for us while at work belongs to the company
  • anything you write in any capacity while employed by us belongs to the company
  • anything you have ever written in your life belongs to the company, anything you write in any capacity while employed for us belongs to the company, and anything you write in the future for as long as you walk this earth belongs to the company (in other words, "Welcome to serfdom!")
And no, the "serfdom" one is not fiction: that is the employment agreement in current use by my current employer.

I'm also curious to hear how things break down by employer; do you work for:

  • a company that is tightly tied to the open source world, either by producing solely open source, or a mixed of open and closed source, or what-have-you (eg. Red Hat, ActiveState, VA Linux, SuSE, etc.)
  • a large company with a vested interest in open source (eg. IBM, HP)
  • a large company that is openly hostile to open source (you-know-who ;-)
  • a large company that doesn't give a hoot about open source
  • a small Internet startup (flavour-of-the-week.com)
  • a university (especially interested in US vs non-US here, as American universities seem to be a lot more aggressive about IP)
  • a government research lab
  • a private research lab (eg. Bell Labs, Xerox PARC)
  • other

Finally, for ammunition against the PHB, I'd really like to get my hands on the actual text of several actual employee IP agreements. If you can, please mail them to me directly at gward@python.net.


GNU Doc License to the rescue., posted 12 Sep 2000 at 01:37 UTC by Apuleius » (Journeyer)

Bruce Perens's company posts its employee handbook under the GNU documentation license.

It's a start, but also what would be good is a place people can post their contracts.

University IP policy, posted 12 Sep 2000 at 02:15 UTC by Fyndo » (Journeyer)

Carnegie Mellon's intellectual property policy can be found here. It's been a while since I read it, but I think it basically comes down to:
  1. if you're paid to create it specifically, it's CMU's
  2. If you don't use university facilities, it's yours
  3. If the university sponsors it, it owns it
  4. If it's part of an externally sponsored project, the sponsor owns it
  5. If the above don't apply, and you want to put it in the public domain, you can..
  6. if you do use university facilites, it's yours, but CMU gets the right to use it, and for non- students, a cut of the profits.

Serfdom?, posted 12 Sep 2000 at 05:15 UTC by tja » (Journeyer)

Wow. If the "serfdom" scenario really is your current employment agreement, then you'd better stop making trouble and start licking the boots of your current boss, because you are completely unemployable by anyone else on the planet for the rest of your life. Presumably you have exaggerated slightly...

My own employment agreement has somewhat vague language that could be interpreted as either the second or third option in the first bulleted list, depending on how you look at it. I have received verbal assurances that it really means the second option (ie anything I do _at_ _work_ belongs to the company).

My Agreement, posted 12 Sep 2000 at 06:36 UTC by Uruk » (Apprentice)

I had to sign an agreement that says that anything that I wrote while employed with a company (whether using their time and equipment or not) belonged to them.

I was however able to get exceptions from some managers. When I wanted to release some software under the GPL, all I had to do was to let them review it to make sure that it didn't contain any information or "tricks" that belonged to the company, and they signed off on it. (As in, the little example at the bottom of the GPL) as an addendum to our original contract.

IMHO It's reasonble to let the people inspect the software first to make sure that you're not doing anything with their IP if you've already signed a contract. (Besides, since it's GPL'd, it's not like I'm going to deny them the right to look at any of the source code if they want to) Most of the stuff that I was writing such as gtkeyboard and other programs were things that I wanted to do but that my company couldn't figure out any way to exploit or make money off of, so they didn't see any need to be a bastard about it.

thankfully, posted 12 Sep 2000 at 07:10 UTC by darkewolf » (Journeyer)

Thankfully my boss is an ex-unix hacker. He hired me on my skills that I had developed with opensource development (amongst other things), and although I have yet to actually sign a contract there is the understanding that anything I hack on my own time is mine, and they are fairly slack with enforcing non-work related use of hardware.

but yes, we are a dot-com - been around for 8 months now, making money and frankly having fun doing it.

GPL by Contract, posted 12 Sep 2000 at 08:07 UTC by eMBee » (Journeyer)

when i first read my contract as a programmer for an internet startup, that got bought by a larger (mostly non-internet) communications company, it seemed to be a pretty standard one, including the following:

Employee also agrees that all inventions/advancements developed or created by Employee while employed by the Company, are the sole property of the Company and may not be used independently for financial gain or advancement of the Employee.

i immideately protested, and had the paragraph changed to the following.

Employee also agrees that all inventions/advancements developed or created by Employee while employed by the Company, are the sole property of the Company and will be published with the GNU General Public License Version 2.

i couldn't get the ownership of the code changed, but that doesn't really matter. they are paying so the code may as well be theirs.
it does say that everything, also stuff done at home is theirs, and i was told that the interpretation would be, everything done using company equipment is theirs, which unfortunately doesn't make a difference, as the computer i have at home is owned by the company (hey, saved me from having to buy one, when i moved here), but i consider this a minor tradeoff.

most important is what rights i get to use the code myself. and since there is no policy to keep the code clean from other owners, we are happily including other GPL code in our projects, thus making sure that the company can't suddenly go closed source anyways.

before that i worked for the vienna university of technology as a system administrator. the contract there said nothing whatsoever about IP, so i considered it a do-what-you-want-with-your-code situation and happily published everyting under the GPL as my own.
i also do not remember reading anything about limiting the rights of studends in that direction, the only thing i know is that the university network may not be used for any commercial or private gain (no advertising on studends or university websites and forums, no homepage for non-academiarelated organizations) and i guess they wouldn't be amused if you made lots of money on a product that you created using university resources, but other than that, programming is abviously academia related, and therefore not really restricted.

greetings, eMBee.

Serfdom agreement, posted 12 Sep 2000 at 09:27 UTC by lilo » (Master)

I doubt there are many places in the world where the "serfdom" agreement you describe is binding. It is simply not binding in the United States. Consult a lawyer and I think you might be pleasantly surprised.

Well we might still get away with this, posted 12 Sep 2000 at 13:19 UTC by bownie » (Master)

I thought the first and most well understood principle of all of this is we just not mention it.

I'm just going to get up now and walk very slowly over to the water cooler. You people just spread out and try to make yourselves look busy.

Contract negotiation, posted 12 Sep 2000 at 18:30 UTC by emk » (Master)

anything you write for us while at work belongs to the company

I've seen lots of employment agreements which look like this.

anything you write in any capacity while employed by us belongs to the company

I've seen lots of employement agreements which look like this, too. For regular employees, it's a very pushy agreement. Here's one way to handle it:

  • Go out and get four or five job offers. If you're a programmer in a metroplitan area, this may be easier than you think.
  • Politely ask your employer to draft a less restrictive agreement.
  • If they say, "no", thank them nicely and work somewhere else.

If you can't walk away, you don't have much negotiating leverage. Once you can walk away, you can start negotiating.

Under certain circumstances, you may want to accept an agreement like this. I know some very bright R&D programmers who can work on almost any project of their choosing. In return, everything they do--onsite or offsite--belongs to their employer. Their employer, in turn, will occasionally let them release packages as open source. They get paid well, and they're quite happy.

anything you have ever written in your life belongs to the company, anything you write in any capacity while employed for us belongs to the company, and anything you write in the future for as long as you walk this earth belongs to the company (in other words, "Welcome to serfdom!")

I've never seen any contract this bad. Anywhere. Oh, perhaps the National Security Agency has something like this for mathematicians, but it's virtually unheard of in the real world.

Talk to a good lawyer. Many states have laws against this sort of contract, and--depending on your state--it's possible to have contracts invalidated in court.

Good luck!

An incomplete recollection of Red Hat policy, posted 12 Sep 2000 at 18:43 UTC by hiller » (Journeyer)

Thinking back to the actual employment agreements that I signed -- I didn't see the documents on the intranet, I'd tell you for sure otherwise -- I signed something on NDAs, and a few other bits of company policy, but I'm quite certain there was nothing that implied I wouldn't have the copyright on work that I produced on my own time. Since I develop and maintain Denemo independently, I would've noticed if anything I'd signed didn't jive with such activity. Also, when I asked my boss to sign a disclaimer of copyright on Denemo, it wasn't a problem.

My experience, posted 12 Sep 2000 at 19:35 UTC by logic » (Journeyer)

Well, since I brought this up in the other thread, I'll answer it here too...

At a previous employer (a regional ISP, followed by their acquisition by a national company), I fell into the third category; anything I wrote during my tenure there, either at home or at work, was theirs. I'm not convinced of the legal enforcability of that contract, but that's a matter for an attorney to review.

My current contract is with a software company (as a systems administrator, although the programming staff sign the same agreement), and it falls into your second caregory; anything I write on my own time with my own resources is mine to do with as I please. I'm finding that this kind of contract is more common, especially with software companies having a hard time locating and retaining good people.

I'll never sign a contract that falls into your fourth category; even though it's not generally legally enforcable, why sign up for that kind of problem later? You'll be in court over it, and you'll be covering your own legal expenses. And your employer knows it; that's why they made you sign it, after all. Any employer who doesn't see the inevitable unenforcability of a contract like that is daft.

In the end, it's an employee's market; if you don't like the contract, there are more opportunities out there, and someone is bound to offer you terms that are acceptable. And make sure the companies you turn down know why you turned them down.

Consulting..., posted 12 Sep 2000 at 23:39 UTC by jmg » (Master)

The current consulting company and the last one both have agreements that say only time spent on the clock is owned by the company that is currently paying for your time. Of course this is consulting as opposed to a full employee.

As for the requirement that past and future works belong to the company, in the US that really isn't possible. If you resign (i.e. terminate your contract) you do exactly that. You are "free" and the work you will do is not governed by the contract that you left. (Of course IANAL), The whole thing is that you would still have to be an employee of theirs for the contract to be binding.

Also be careful for other languages in the contract. The NDA agreement that I signed to work at Credence included a non-compete clause which is pretty standard, but it was broad enough that it sounded like I couldn't even consult at another company that does ATE equipment. I of course visited the lawers and confirmed that this was the case, and ammended the contract appropriately.

Don't be afraid to stand up for your rights, if the company wants you (and you're good) you shouldn't have any problems convincing them that it is in their best interest to change their policy. You have the power that another company would hire you in an instant with same pay and less lax IP policy.

Assigning the copyright to the FSF., posted 12 Sep 2000 at 23:50 UTC by ole » (Journeyer)

If you want to protect the code, you could assign the copyright to the Free Software Foundation. Recently I filled out an assignment contract (assign.future - if you are the only contributor to a program, use assign.program) for past and future changes to a single GNU program and returned it to rms.

Re: Assigning rights to FSF, posted 13 Sep 2000 at 04:31 UTC by lilo » (Master)

It should be noted that if you have already signed away the copyright to a program, or to everything you write during some period (if enforceable), you can't then transfer it over to the Free Software Foundation. If you do so and don't tell the FSF they could be in an unpleasant legal situation.

SAGE-AU has been working on this for a while, posted 13 Sep 2000 at 07:53 UTC by ajv » (Master)

We're not ready to publically release as yet, but we do have a substantive clause to go into your average employer/employee contract.

If you're in the process of negotiating your contract, please contact me (see below) and see if the potential employer is prepared to put our single paragraph, plain English clause into your contract.

We will be releasing the results of a about a year's worth of effort (including getting Real Live Contract Lawyers(tm) to draft the wording) at the Australian Open Source Symposium in November. AUUG-AU, ISOC-AU, and SAGE-AU are supporting AOSS-2, so I hope I can see you guys in Adelaide this year!

Andrew van der Stock, ajv+advo@greebo.net
SAGE-AU President

You have the power, posted 14 Sep 2000 at 18:10 UTC by imp » (Master)

In the last three jobs I've applied for, I told my employer up front that I did FreeBSD software and that nothing they can do to stop it. I have objected to several non-compete, only one job, everything is owned by the company clauses and have been able to have them removed from my employment agreements. Only one company was a pita about it, and I told them to make the changes or find another candidate. They really wanted me, but just couldn't make the changes and it killed the deal.

Job seekers should realized that they do not have to sign over their rights and that they can agreessively negotiate these things.

I have found a few companies that are open source friendly. I currently work for Timing Solutions and they presented me with a sane agreement. Anything I do for them, directly related to their field belongs to them. Anything that is incidental to their product (eg bug fixes to FreeBSD) I'm free to contribute back to FreeBSD (and in fact, I'm encouraged to do that so we don't have to maintain it going forward). Anything I do on my own time is my own. I can do consulting for other people, so long as it doesn't impact my ability to work 40 hours a week. I cannot use company resources to do said consulting. This has worked really well and has allowed me to give back to the FreeBSD community bug fixes and some new features which I wouldn't have otherwise had the time or desire to do.

Here's the "serfdom" clause, posted 14 Sep 2000 at 20:37 UTC by gward » (Master)

OK, here's the employee agreement that I interpret as "Welcome to serfdom!". Or at least the relevant bits.

  1. this clause just says you can't consult without permission; patronizing and silly, but not the end of the world

  2. don't reveal trade secrets -- fine, whatever

  3. "I will, and hereby do, assign and transfer to company my entire right, title, and interest in and to any information, invention, discovery, computer program, algorithm, improvement, device, writing, idea, or work ("invention, writing, or idea") whether or not patentable or copy-rightable, hereafter made, created or conceived solely or jointly by me during the course of my employment with company which relates to or is suggested by or results from any task assigned to me, or work performed by me for or on behalf of company, or for which company equipment, supplies, facilities or confidental information is used, and I acknowledge that any such invention, writing or idea will be considered "work made for hire" belonging to company, unless expressly released or assigned in writing by the President of company. In connection with any invention, writing or idea covered by the preceding sentence of this paragraph, I will disclose it promptly to company, and I will, on request, prompty execute a specific assignment of title to company, and do anything else reasonably necessary to enable or assist company, at its expense, to secure and enforce any and all rights and protections therein in the United States and in foreign countries."

  4. no agreements with third parties

  5. "I acknowledge that I have been asked by company to disclose any particular matters which might be directly relevant to my employment with company, including but not limited to any inventions or computer programs made, created or conceived by me prior to my employment by company and in which I have right, title or interest and that I have done so.

    "I further acknowledge that any such particular matters which are not so disclosed by me will be deemed and treated as having been hereafter made, created or conceived during the course of my employment with company and subject to the provisions of paragraph 3 above, unless they were a result of a patent filed by a prior employer to which I am required to maintain confidentiality in which case I shall disclose such matters as soon as I am legally able to do so, and shall refrain from working on any such matters during the course of my employment with company until I am in a position to make full disclosure to company."

There are a few more clauses, but that's basically it. I guess I exaggerated the "everything you ever do as long as you walk the face of this earth belongs to us", but it's still a pretty extreme document. My boss has hired lawyers to look at it, and they all say it's the most draconian employment agreement they've ever seen.

Message to potential employers: if you present new hires with a document like this on their first day, congratulations! You have immediately earned yourself a new enemy and guaranteed that this person will escape your evil clutches as soon as humanly possible. And if you do the right and honest thing, and present this document before the poor sod shows up for the first day of work, you will probably lose them to a company with a sane and balanced IP policy. I certainly wouldn't have taken this job if I had known about the employment agreement ahead of time.

No IP agreement at all?, posted 14 Sep 2000 at 20:44 UTC by nas » (Master)

At my previous employer I was not required to sign any IP agreement. I think the feeling was that the law regarding "work for hire" was clear enough and the extra legal crap was just not required. Of course, this was in Canada where legal things seem to make a bit more sense.

Sometimes I think that the US economy is going to eventually be overrun by lawyers and will stop functioning all together. I wonder what percentage of the GNP is currently spent on legal issues? Copyrights and patents may be good for whoever holds them and for lawyers in general but what is the net effect on society? To me, they seem to usually do more harm than good.

Re: Here's the "serfdom" clause, posted 14 Sep 2000 at 22:47 UTC by jmg » (Master)

gward:
That actually looks very similar to the agreement that I signed with Cadence. The key to the whole thing is the following segment: "which relates to or is suggested by or results from any task assigned to me, or work performed by me for or on behalf of company, or for which company equipment, supplies, facilities or confidental information is used," Luckily I wasn't doing anything that I've done before, so there really wasn't any issues with it.

As for that last paragraph, make sure that you list anything that could conflict, and that other items that you may not remeber, but may be included at a later date. As long as you can prove that the work was done and you have the right to ammend the notice, you are fine.

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