Speaking of employment agreements...
Posted 12 Sep 2000 at 01:18 UTC by gward
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
- 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
- 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
- a government research lab
- a private research lab (eg. Bell Labs, Xerox PARC)
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
under the GNU documentation license.
It's a start, but also what would be good is a place people
can post their contracts.
property policy can be found here.
been a while since I read it, but I think it basically comes down to:
- if you're paid to create it specifically, it's CMU's
- If you
don't use university facilities, it's yours
- If the university
sponsors it, it owns it
- If it's part of an externally sponsored
project, the sponsor owns it
- If the above don't apply, and you want
to put it in the public domain, you can..
- 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 »
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
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 »
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
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 »
Thankfully my boss is an ex-unix hacker. He hired me on my skills that I
developed with opensource development (amongst other things), and
I have yet to actually sign a contract there is the understanding that
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
and frankly having fun doing it.
GPL by Contract, posted 12 Sep 2000 at 08:07 UTC by eMBee »
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
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
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
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.
Serfdom agreement, posted 12 Sep 2000 at 09:27 UTC by lilo »
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.
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.
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
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
- 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
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
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.
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 »
Well, since I brought this up in the other thread, I'll answer it
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 »
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.
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
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.
not ready to publically
yet, but we do have a substantive clause to go into your average
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, firstname.lastname@example.org
You have the power, posted 14 Sep 2000 at 18:10 UTC by imp »
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.
OK, here's the employee agreement that I interpret as "Welcome to
serfdom!". Or at least the relevant bits.
- this clause just says you can't consult without permission;
patronizing and silly, but not the end of the world
- don't reveal trade secrets -- fine, whatever
- "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."
- no agreements with third parties
- "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
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
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
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
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.