Most employers take the position that everything you do in the space is logically competitive. Recognizing that, we, Google, make it very easy to get permission to open source things, but under Google copyright.
We have a process for releasing under your own copyright, but it is not as flexible. That said, we've cleared about 200 (75% of those requested) projects in the last year for copyright release.
It's easy to get knee-jerk about this and get upset, but recognizing the nature of IP in a company and acting on it is infinitely better than pretending the problem doesn't exist and then, in the future, retroactively claiming copyright when convenient. The latter leads to lawsuits and unfair restraints on creativity and competition.
This system works. We've released 10s of millions of lines of code into thousands of open source projects. It protects the employees and it protects Google and the price is a bit of complexity and the odd thread like this.
Also, thanks to this system, Googlers can work on Google equipment and during their 20% on these kinds of projects, which is clearly useful and recognizes that people who work on open source almost universally do so without regard to the machinery or network they use.
How come you can't just say "All work on Google-owned software is copyright Google. All work directly assigned by Google management is copyright Google. All work performed wholly independently and separate from Google by Google employees is copyright its respective owners."? I don't get it.
The only answer is to stop being meaty while within the reach of a wolf, and stop being within the reach before you're about to grow some meat.
I've got a 20% project that, to my knowledge, my manager doesn't even know about. It grew out of my 80% project - we needed a library that doesn't seem to exist yet. When it gets to a semi-functional state, I'll open-source it through cdibona's office, with copyright assigned to Google. Why not? It'll end up exactly the same for end-users, with an Apache license, and it's much less of a bureaucratic hassle to just do it with a Google copyright.
The point is that Google will claim copyright of everything that you do. If you write a game about chickens in your spare time, for example, then Google owns the copyright, despite not having had any input into it. I fail to see how that's fair or reasonable, and I'd be very interested to see what laws apply - I suspect that cdibona is trying to blow smoke up our collective asses.
What is unreasonable is that if you did it at home, with no Google resources, that they would still ask you to assign them ownership.
(I, fortunately, don't have this problem. Part of the official open-sourcing process involves deleting any reference to our company, even in the copyright, so that nobody sues them if it breaks. Example internal app that was open-sourced: http://openefs.org/)
All I can act on from this fairness perspective is Google's interactions with Open Source, making it as easy as possible to release code under open source licenses, which I think we're doing a good job of.
Would love to see specific citations showing that Google has no choice but to claim ownership of all its employee's projects during their own free time at home or elsewhere not at work. I thought slavery was banned in most countries, it's amazing to now hear that it is required under international treaty. Greatly looking forward to those specific citations of how specifically Google has no choice in this because of "state, federal and international law and treaty".
Software developers are thought workers, and you don't get to just check your brain at the door when you clock out like you could your tools or a laptop. Thus, any similar* work you do on your own time cannot be done without your brain using some of what is in your head, which you learned/figured out on company time.
* Now, this is the fun part. Where do you draw the similar line?
Think about it: you hire someone to solve a problem. You pay them to figure it out and implement. Then they turn around and implement the same solution, which you paid them to think about, for someone else?
Should I be writing all my past employers checks because I am using things I learned "on their time"? I had a job where we used CakePHP, and I learned much about the framework during this job; now, should all my future CakePHP work (of which there is hopefully very little) belong to the employer that first facilitated my learning of CakePHP? Should I write a past employer a check when the bad management practices I observed there are avoided due to my past experience? Do they own my wisdom on that subject now?
I think you can see where we're going with this. I think that anything that is not performed in the course of your ordinary job duties, not directly related to the company or its primary businesses, and performed outside of company time and facilities blatantly belongs to its original author.
>Think about it: you hire someone to solve a problem. You pay them to figure it out and implement. Then they turn around and implement the same solution, which you paid them to think about, for someone else?
Uh, yeah, this happens all the time. That's what most consulting firms do. You think when you hire a web firm to build your e-commerce site they always start from scratch on the shopping cart program? The cart was written the first time they had an e-commerce job, and now they reuse it. This is good practice and totally kosher, and should be expected, unless you explicitly request a custom shopping cart program with copyright assignment.
Aside from information that is considered confidential by my employer (in which case it falls under the NDA I signed), what's in my head belongs to me. Yes: me. Just as my employer is able to use knowledge and experience that I've gained from working for previous employers (and on open source projects in my spare time), I must be able to use the knowledge and experience I've gained at my current employer in future (or even current, as long as it's not the same) work.
A huge part of the reason I'm so good at the job I do now is because of the 5 years I spent working on Xfce. If my employer gets to leverage that, then I get to leverage what I've learned at my current job. It's mine, plain and simple.
That may not be exactly what the law says -- it's hard to read it and specifically say what's allowed and what isn't without a lawyer, and even then I'm sure they disagree -- but anything less is knowledge-servitude.
Now, as to the "similar" bit: I think a large company like Google could easily claim that the vast majority of personal projects done by its employees is "similar" enough to something someone somewhere in the company is working on that they are entitled to ownership under current law and policy. Even if it's not related to the work that the employee actually does for the company. And that's not cool.
Yes, I think it's cool that Google is so willing to allow its employees to open source so much Google-owned code. But that's not enough. Look at it the other way: if it's "no big deal" for the employee to assign copyright to Google because it's released under a liberal open source license like BSD, then why isn't it "no big deal" to allow the employee to retain copyright? Aside from prestige, what does Google gain from owning copyright on BSD-licensed code? As a person who writes software, a part of my resume is the body of open source code listed under my copyright. Sure, you can look at commit logs to find out who wrote the code, but it's much less impressive to be a contributor listed under your employer's umbrella.
That's perfectly fine, and happening all the time. Google got the fastest JS interpreter among all the major browsers (Chrome's V8) by hiring the guy Sun paid a lot of money to do nothing but think about virtual machines for a couple of years. Just because Sun paid for the development of HotSpot doesn't give them any kind of ownership over the ideas, with one exception: for some ideas, they can get government enforced limited time monopolies for the sake of "promoting the Progress of Science and useful Arts" by filing patents for them.
But how this applies to Google employees, I don't know: it would seem that Google ought not to be able to claim ownership of all of my ideas simply because I work there while having them. That said, I really can't imagine it being much of a problem if someone just stays honest about things (i.e. not work on a major competitor to their own project).
That is why I think it should go both ways and they should be forced to pay overtime for whenever a worker claims to have "thought" about the problem in their free time.
Imagine the scenario: you are on the beach with the family but, since you are a "thought" worker, your mind wonders so you think for 30 minutes about how to decrease the latency of that DB query. That should be 30 min of overtime billed to Google.
Wouldn't that be the other side of the "thought worker" coin ?
So, under California law, which is probably the most liberal in the United States coving IP, you are prescribed
from competing with your employer even on your own time or on your own equipment.
This is reinforced in industry employment agreements, including Google's (my employer)
Most employers take the position that everything you do in the space is logically competitive.
Recognizing that, we, Google, make it very easy to get permission to open source things, but under Google copyright.
... which is really the problem. Google can claim that anything web-related that an employee of theirs does on their own time to be sufficiently related to their business as to assert ownership. And that's not cool.
Just because a company has done good things for the community, it doesn't give them a free pass to do bad things to its employees.
I think that's entirely fair - if you're a Google employee contributing to a project that might potentially compete with Google, I don't see a problem with Google asking you to get permission.
EDIT: Corrected the corporate motto from "Do no evil" to "Don't be evil".
I don't see how it is that different in practice. Do you mean that there is a loophole, since a company that is "not evil" can clearly "act evil" and still operate according to its principles because of the specific wording of the statement?
In this specific example - yes, I think that claiming ownership over everything your employee does is slightly evil (common practice, though). However, without that legal protection, why would you ever share the rest of your IP with the employee? Why would you ever let them work on anything other than their immediately-assigned job duties? You end up with a culture that's fairly similar to most big companies, where employees are told only what they need to do their jobs, and managers tightly control everything that an employee works on. I'd say that's a far worse outcome than a culture where employees know everything that's going on in the company and have wide latitude to start projects that make things better for users. It's worse for employees, it's worse for users, and ultimately it's worse for the company.
Why isn't the employer prescribed to not compete with the employees' weekend project?
> Recognizing that, we, Google, make it very easy to get permission to open source things, but under Google copyright.
If you get copyright then do you also pay developers overtime for all that work? If you want to own the code you have to pay for it. Or I guess if you are multi-billion dollar corporation with fully staffed legal team, then I guess you can just take the code, yap, make sense ...
> It's easy to get knee-jerk about this and get upset
Sometimes peoples' gut reactions to what is fair kicks in before corporate newspeak does.
> This system works.
Of course it does -- for Google.
> Googlers can work on Google equipment and during their 20% on these kinds of projects.
No problem with that. If it is Google's equipment and Google's time then Google should own the code. But if it is employees' equipment and time then it is stealing.
> That said, we've cleared about 200 (75% of those requested)
And you stole the other 25%.
Because the employer is the one giving money to the employee, not the other way around.
"If you get copyright then do you also pay developers overtime for all that work?"
If you're salaried, there is no such thing as overtime. That's what the word "exempt" means on your tax forms. This is also why Google doesn't care when I get in to work at 1 PM, or when I take an hour long lunch break, or when I spend my whole time going to Tech Talks instead of working. As long as I get my work done over the time periods required by the business, it's none of their business how I spend my day.
Employment law recognizes many different categories of employees. If you're a contractor, you're paid for your work - you and the firm agree precisely on the deliverables, they give you a lump sum for the job, and then it's completely up to you how you build those deliverables. If you're hourly (non-exempt), you're paid for your time - you receive a set hourly wage for each hour that you work, and what you do outside of that is your own business. If you're salaried (exempt), you're paid for your ideas - you can manage your time as you please, but anything you think of relating to the company's business belongs to the company.
You should know exactly what you're signing up for when you sign those employment agreements, and pick the form of employment that suits your goals best. But remember that companies adjust the amount of information they share with each class of information accordingly - no contractor is going to know how Google's search infrastructure or ranking algorithm works, but a former employee will.
This is not what salary means. As I explained in another post below, salary is not an unlimited purchase of your ideas, imagination, or energy. Salary is a negotiated pay package that represents a fair cut for the employee because the value he provides is not directly correlated with the hours that he works.
That's why it doesn't matter how you spend your day when you're salaried -- because you and your employer have made an agreement that the amount of time you spend on something is not relevant as long as you're accomplishing the tasks that you're assigned within the terms of the assignment. It's not because Google owns all your software-related ideas over the course of your employment. A company cannot own your thoughts.
Ironically, the moment said employee becomes former, Google no longer has claim to any work they do. What's at issue here is the extent of their claims on /current/ employees.
> but anything you think of relating to the company's business belongs to the company.
A company can own /ideas/? Copyrights, yes. Patents, yes. But ideas? Not so much.
Even the idea that the company has a blanket claim to anything you set to keyboard or paper outside of the office seems ludicrous and unenforceable. Write a song? Google owns it. Write a poem? Google's. So why would they essentially get a blanket claim to any program you write?
edit: What's protecting Google's secret ranking algorithms is confidentiality, not copyright.
I have friends that work in publishing and journalism, and they have similar problems with their blogs. Their employers don't own any software that they write on their free time, but personal blogs are a gray-enough area that most stick to writing on their employers' official blogs.
Same reason that the DragonLance series is Copyright TSR. Tracy and Laura Hickman dreamed it up on the way to a job interview there, and then the plot and characters were developed while they were employed by the company.
As far as owning ideas - technically, yes, to the extent that those ideas are "reduced to practice". A company can't own what's in your head. But if you write it down, it's technically Copyright (c) 2010, Your Employer.
I think that it's silly to presume that a company should own something just because it's the same class of work. Does a newspaper own the diaries or private correspondence of its writers? Why should it own the personal blog? If the work is produced without compensation from the company and without using any company tools or resources, how can anyone make an argument that the company "owns" it just because the originator is employed there?
I can see how non-competes might be enforced to upbraid the release or participation of employees or ex-employees in businesses thought damaging to the employer. But that just gives the employer respite until the term of your non-compete agreement runs out; thereafter, all works should still be owned by their original author, and he is free to do as he pleases. You shouldn't be able just to steal that work without regard to the employee.
That makes sense. I am salaried too, but I also have hourly limits. There is a prescription in my employment contract that says I should work at least 8 hours / day. In other words, it is more rigid. I do not have the freedom to finish a project at night, and not show up next day. However there is no restriction on ownership over my own OSS projects.
> you can manage your time as you please, but anything you think of relating to the company's business belongs to the company.
I see. My "unfairness" alarm still goes off a little when companies claim ownership of their workers' weekend intellectual creations, but, of course, in the end it is a voluntary employment and a voluntary contract.
> You should know exactly what you're signing up for when you sign those employment agreements, and pick the form of employment that suits your goals best.
Definitely. It looks like many are advocating negotiating and tweaking the contract. I am from a different country and was a bit naive when I came here and didn't know I could even do that. I'll have to keep that in mind if I switch jobs.
If an employment agreement entered into after January 1, 1984, contains a provision requiring the employee to assign any of the employee's rights in any invention to the employer, the employer must also, at the time the agreement is made, provide a written notification to the employee that the 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.
The Act starts off clearly: "the 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", but then it gets in to a nasty gray area: "unless the invention relates to the business of the employer".
How do you define this for software? Does an implementation of "malloc" relate to ditch digging because the phones that ditch-diggers carry to be dispatched need to allocate memory?
That's literally how the contract is worded.
We have very few written policies, but the ones we do have are typically short and simple like that. Take the expense policy, for example. There are no lists of things you can or can't expense. The policy just says, "act in Netflix's best interest." It's up to you to act responsibly.
Imagine if every company in the country had this policy. Our economy would grind to a halt.
California law is pretty clear, if you do it on your own time, on your own equipment, it's yours. Most other states have a "unless related to something your employer does, or maybe might do, or they feel like" clause, but California does not allow that.
I never much minded similar constraints when I worked as an employee at a company. OTOH, trying to constrain own-time works of part time consultants is annoying (but that is not the case here).
That said, I also think it's silly to sign a contract that states this as a condition of employment. I've walked away from a couple of consulting opportunities in the past because of contracts like this, but gotten a few others because I just politely asked if they would strike out that part of the contract.
I understand wanting to protect your own intellectual property, but I think it's sleazy to claim ownership of things people do on their own time. It's right up there with "no competing with us for 2 years after we fire you" clauses.
I doubt everyone can do this, though.
At the same time, it's not necessarily part of a broader strategy to which the company is firmly, if quietly committed, and which they'll stick to, even as the costs of doing so escalate.
If the baseline cost of finding and hiring the right people is at all significant, economizing by lowering resistance is a no-brainer. Just treat this stuff like default settings from a useful, if not totally UX-savvy provider of software, and don't raise any eyebrows unless you get unexpected and seemingly arbitrary or mindless pushback.
I also got them to OK my ongoing participation in OSS.
a) Did you do it on the company's time?
b) Did you use company equipment or resources to do it?
c) Does it pertain to the company's current or future business?
Item (c) is where the legal gray area shows up. It gives you enough leeway to innovate on your own time with your own stuff but it also gives the company the legal right to assert themselves if they feel you've strayed to close to "company matters".
(c) is important because your employer can not control what's in your head. If you work for a company that builds cars, they don't want you thinking of a new, innovative way to build a car on your own time, leaving, patenting it, and then competing with them.
This is entirely reasonable for both parties, IMO. In this particular case it looks like the author has build a web server. This clearly falls within the realm of what Google might consider their current or future business and therefore can reasonably believe that the author is using Google knowledge (even if not equipment, resourecs, or time) to build it.
EDIT: Clearly every IP agreement is different; however, every one I've ever read or signed has essentially been the above. Further, there is always a schedule allowing you to outline the IP you currently own that might violate (c).
So the message is basically
"We own your mind, and everything you make, and you have no choice. And we don't need to pay you because, hey, you're lucky you've got a job with us."
Again, salary is not given so that the company has free-reign ownership over your body and mind and it should not be a mechanism whereby the company gets an hourly employee on the cheap (some bosses seem to think that salary translates to infinite and unlimited uncompensated overtime -- of course, the 40-hour-week limit isn't necessarily applicable, but things have to stay within reasonability). What you do on your own time without company resources is your property, plain and simple. Companies are not buying your whole imagination and salary does not EVER mean that they own everything you thought up while on payroll. If Google feels threatened by this web server, they can probably obtain an injunction based upon non-compete agreements that stops the publication or use of the thing for a year or whatever, but they have no right to totally misappropriate it and steal it from the original author, and saying "well, he's on salary, so we own the entire output of his energy and imagination" is such a horrible and disgusting cop-out.
I've worked for some people who've thought that salary meant person-ownership and got out as quickly as possible. I was astonished to see most co-workers minimize it with things like "Well, you know, the economy is tough, we're lucky to even have work, they'll reward us with bonuses and more down the road". I just don't understand how people can tolerate that kind of thing. People who do that to their employees are so obviously amoral I don't see how one can expect a fair recompense later on.
I'm sorry to say it, but unfortunately for us all Marx is beginning to become more and more relevant, again (I, for one, had hoped/thought that we had left him and the problems he described in "Das Kapital" behind us). What you're basically saying (and Marx was trying to explain) is that a company like Google isn't happy with what it gets (in terms of profit) when it employs an engineer for only 8 hours/day, they want him to be on the company payrolls 24 h/day, a thing that even Marx himself wouldn't have thought possible.
I mean, it may happen that the above-mentioned engineer has a brilliant idea in his sleep (we've all had our "dreaming in code" moments, no?), but, according to what you're saying, Google is entitled to appropriate that dream's contents as being their own.
Interesting perspective. I have been discussing this with someone recently how salaried work combined with large debts (mortgages, health care bills, student loans) and health insurance tied to a place of employment result in a virtual slavery.
This is probably not relevant to most HNers, who seem intelligent, highly qualified, and would have immediate multiple job offers should they decide to switch employment. But that is definitely not true for the majority of American workers. An employer who provides health insurance to an employee, runs a simple credit check (justified as a screening requirement or a condition of employment), and is aware of the job market situation, can easily get an idea on exactly how much pressure they can subject that employee without them jumping ship.
Hypothetical scenario. An employer hires Jon and Jake.
Jon is married, has 2 kids, $70K in student loans, his family is on his health care plan. The credit and local property search shows that they own about 30% of their $350K house, wife is unemployed.
Jake is not using company's health insurance plan. He either has individual insurance or is on his wife's (who is employed) health plan. His credit check shows that he has no loans whatsoever.
The job market in the particular sector at the particular time is not that great.
The infamous "crunch time" comes and someone needs to put in weekend hours. Everyone is stressed. Who would management ask to work on weekends without too much risk of them walking out?
No, it's not. Marx's ideas is that there's a violent takeover of all property by everyone, and then the state controls everything. He theorized that after some time of this violent control by the revolutionaries, the need for the control would naturally dissipate and we'd live in a harmonious utopia.
This has now been tried, and didn't go like he predicted. In fact, it produced much worse outcomes for just about everyone involved, but especially the most skilled and industrious people.
If Google's deal is bad, save some of that large paycheck for a year or two, and then quit and take a go of it on your own. You can do that because you're free. Under Marxist systems, you're not free to disagree with the people.
You gotta be careful talking about Marx in rosy tones without noting how vastly terrible every implementation has been in real life. The banner of Marxism has done more harm in the last 100 years than just about anything else. It out-competes fascism by a drastic margin, which is really saying something.
Socialism and Fascism (aka. Governmental control) are orthogonal - your economic model is independent of the government's control. In the Soviet Union you had both, in the US you have neither (although there's a lot more fascism these days). In most of Europe (eg. Sweden) there's socialism, but not a lot of fascism.
That's just it - people toss Marx's name around casually. I wonder if they've actually read his stuff? Or studied history? I can't find a semi-prominent ideology that's done anywhere near as much damage the last 100 years.
If you said, "Nazi ideology destroyed much of Europe and cost millions of lives," that's not hyperbole. If you go through and point the vast amounts of atrocity under communism, things like a full 1/3rd of the population being tortured to death in Cambodia under the Red Khmer ("Khmer Rouge" in French), the Cultural Revolution in China which killed three times as many people as the Holocaust, the massive armies of slave labor used in Russia... it's not hyperbole, that stuff all happened.
> your economic model is independent of the government's control.
This is not the generally agreed upon consensus of anyone - Marxist, free market, mainstream or alternative economics, political science, civics... I can't think of anyone that thinks that way.
> In most of Europe (eg. Sweden) there's socialism, but not a lot of fascism.
Sweden's a mostly free market country with welfare programs. That's not socialism, unless you've redefined socialism to mean "anything the government does," which doesn't seem right.
Denmark is the most socialist country in Europe, but:
(1) Most of that is the government-controlled energy industry.
(2) They have the second lowest growth rates in the developed world, and their model is in danger of collapsing if and when alternative energy obsoletes their energy deposits, unless they somehow stimulate entrepreneurship and growth in the state-owned system (which has never been successfully done).
Even then, it's a mixed economy, not pure socialism. The last pure socialist country left is North Korea. The next closest countries to the socialist model are probably Cuba and Libya.
Perhaps "independent of the government's control" is a poor choice of words, but you have totalitarian countries with both Capitalism and Communism, as well as relatively free ones with elements of Socialism and Capitalism. Are they pure Socialism? No, but then the US isn't pure Capitalism either. A system where the government allocates large chunks of the available capital is Socialist in my book.
What you have said is the case in California only. In most other states the test is very, very different.
That said, there is a fairly simple process within Google which this guy can use to get permission. While Google wants to assert its intellectual property rights, Google also understands that it is usually good for everyone when Google employees have the freedom to work on open source projects.
Relevant link: http://www.perlmonks.org/index.pl?node_id=153046
I think your case was tougher on you that these cases normally are. It seems in your case, your options were, "get fired and lose code", "get yelled at and lose code". In most cases where psychopaths are not involved, it's "can you edit the copyright statement and run this by me again"?
I think that is why you are a lot more bitter than the person involved in the linked article :)
I even got a weird kind of option grant from that company, which paid out to the tune of 90K or so when the company was sold.
To counteract this, for now, I only do contract work and/or work on fairly large team collaborations. My thinking is if I don't own it but the client does (since they are paying me to work on it after hours) - the day job company won't have much to go on because I didn't own the code in the first place. For the second - since I don't have full ownership/sole contributor - maybe that will make them less likely to go after me than a clean cut single owner situation.
All of these projects are done on non-company time, network, and hardware. I don't usually bring my MacBook in but when I have a client deadline, I will work on my train commute and not even charge the MacBook using (company) power - will just lock it to the desk by locking it to a cable while still in my bad - I tote around a second battery.
Am I doing something naive still? My thinking is they really won't come after me. I am nervous to talk about my side projects (get actual HR/VP approval) as I fear it will get me red-flagged in some manner. Maybe I have to.
I would estimate that a majority of developers are under pretty onerous agreements that assert control over all inventions that they create while under the employ of the company.
Before my startup days I was faced with such an agreement. The lawyer I consulted with (in Texas) certified that these agreements are in fact legal and have been upheld in court. Apparently California is more employee friendly in its labor code.
Could be. I'm fortunate enough that the company I work for at my day-job has a very explicit clause in their "IP Assignment Agreement" that spells out - very clearly - that if you invent something on your own time, on your own equipment, that doesn't involve company IP / knowledge / etc., then they make no claim to it. Now, granted, the way the legal system works in the US, they could - if they turned evil - turn around and try to claim ownership of some of my open-source stuff, and the outcome would (as always) come down to "what a particular combination of judge, jury, & lawyers, in a particular situation, on a particular day, decide." But given how clear they are on this point, their chances of successfully claiming such ownership seem pretty low.
From what I've seen/heard, it's not uncommon for such clauses to exist... some companies also invite you to submit a list of "things that you were already working on before gaining employment here" that are excluded from any IP claim by $COMPANY. Lulu, for example, did this when I was there (and presumably still do). When I joined them, I just gave them a list of every open-source project I'd ever touched, looked at, thought about, or considered, and the vaguest most abstract list of things I was working on that I could dream up. They weren't exactly crazy about the list I gave them, but it wasn't a deal-breaker. <shrug />
It sucks that we have to deal with this crap at all, but I honestly don't think most employers are actually evil in this regard. A lot of this is just bureaucracy for bureaucracy's sake, IMO.
If I dream up a improvements to my employer's business, but the incentives are not there to pursue them within that business, then you bet your arse that I can take them elsewhere. And yes, if I can be successful enough, compete with that business.
If the original business isn't smart enough to recognize the potential in its business, then it has no right to make a claim to it at a later date. None whatsoever.
Folk are up-voting you, so the consensus is in your favour, but let's please out the facts, not hearsay.
"Most jurisdictions in which such contracts have been examined by the courts have deemed CNCs to be legally binding so long as the clause contains reasonable limitations as to the geographical area and time period in which an employee of a company may not compete. "
California tends to be the most employee-friendly wrt non-competes, but even here you can construct one that is valid, for certain classes of employees and with many restrictions.
I see the righteous indignation engine is fully spinning up on my behalf. No need: I can take care of myself, thanks. I posted this on the github thread, but:
* Google has a slightly paperwork-heavy process I could have gone through to retain copyright on further contributions to this project
* I chose not to use it in lieu of using a paperwork-free process which involves me assigning copyright to MY contributions under a Google copyright
* I am quite happy with this situation, from a de facto standpoint my day-to-day life is completely unaffected
* because the code is BSD-licensed and it REALLY doesn't matter.
...but if railing against the "man" is making you guys happy, then by all means, continue?
But now you can never change the license again, even if an error of wording is discovered in the BSD license. You are stuck forever.
Oh wait: no it won't.
(Hey, I wish we could live in a world where we could all write software and not worry about copyrights and patents. But that, sadly, is not the world we live in.)
Maybe not personally -- clearly almost nobody gives a rat's ass about me, or about Haskell code in general for that matter -- but I'm just a little exasperated by being used as a proxy cudgel to wield against my totally reasonable employer, when the people who are sniping from the peanut gallery really have no idea what the legal situation is, what I have or haven't agreed to, whether I have done this voluntarily or under coercion, etc etc.
It is nice that there is some reasonable discussion coming out of this thread about the law and industry practices re: intellectual property vis-a-vis programmers, but for the most part I am pretty disappoint.
You previously said that you have to fill out paperwork in order to retain your copyright; that strongly implies that Google can deny your request. I suspect that you wouldn't be so understanding if it were Google claiming ownership of your startup instead.
The question remains: is this due to a law, or a contract that you've signed? What do other developers need to do in order to make sure that they can release their side project software under their own terms, without having to jump through bureaucratic hoops or needing permission from their employer.
"During the course of employment and at the
termination thereof, the Employee shall promptly disclose and deliver over to the Company, without additional
compensation, to the extent that such disclosure could reasonably be expected to be of interest to the Company,
in writing, or in such form and manner as the Company may reasonably require, the following: ... any and all algorithms, procedures or techniques related to the Company's business activities or to the Employee's work with the Company, and the essential ideas and principles underlying such algorithms, procedures or techniques, conceived, originated, adapted, discovered, developed, acquired, evaluated, tested, or applied by the Employee while employed by the Company, whether or not such
algorithms, procedures or techniques are embodied in a computer program...However, the Company recognizes that
the Employee may Conceive and/or Originate certain Products and/or Services which are unrelated to the activities of the Company, unrelated to the planned activities of the Company, and unrelated to any reasonable extension of the activities or planned activities of the Company ("Unrelated Products and/or Services"). The parties therefore agree, the other provisions of this Section 1 notwithstanding, that...any Unrelated Products and/or Services Conceived and/or Originated by the Employee, even while employed by the Company, shall not be considered Disclosure information..."
Generally speaking, Amazon is very liberal when it comes to proprietary code you write on your own time. So you can very well put together a startup on the side while you work for them. In fact, people have gotten away with pretty ludicrous things (Infibeam, anyone?) that tread way over to the wrong side of non-competes and basic morality.
If you like open source though, it's really not great. I know people who want to leave for MS for their better open source contribution policies (seriously).
Any open source projects you want to work on in your own time, even if their licenses are non-viral, anything, has to be cleared by a committee - one that is particularly not amenable to passing anything. I've known people at the company who wanted to work on projects in spaces completely way out of the company's current and predictable sphere, and have had the projects rejected. But of course, why approve a project and take on the minute risk of being wrong years down the line, when you can CYA and just deny the request?
tl;dr: If you work at Amazon and write proprietary code on the side that doesn't compete with the company, you're basically in the clear. If you have any interest in contributing to open source, you're SOL.
I think the standard should be that things the employee does that are directly related to their own employment are what is covered. It's fair enough for an employer to claim ideas directly related to the project you're being paid to work on, and/or to say that you can't compete in closely related fields to what you're doing for your employer. However, that's a very different thing to counting effectively the entire world of software development, if anything that any part of a large software company does or ever might do could be claimed.
The Google policy is not, as this article/discussion implies, a blanket policy where everything you do on your own time belongs to Google. From my employment agreement:
"I understand that the provisions of this Agreement requiring assignment of Inventions to the Company do not apply to any invention which qualifies fully under the provisions of California Labor Code Section 2870 (attached hereto as Exhibit B). I will advise the Company promptly in writing of any inventions that I believe meet the criteria in California Labor Code Section 2870 and not otherwise disclosed on Exhibit A."
You can see the contents of California Labor Code Section 2870 here. It says the essence of what your Amazon agreement says; stuff you develop entirely on your own time and does not compete with the company belongs to you.
So far, the two companies sound the same. But the internal policies surrounding this are worlds apart.
At Google, there is a fairly liberal policy around open-sourcing of code that belongs to Google. So code that you work on internally or on 20% time can be open-sourced without much push-back. In my experience, the policy is so favorable to open-sourcing that the primary barriers are technical (disentangling internal code from internal-only dependencies) rather than legal/policy. From this policy we see tons of Google open-source releases, like Protocol Buffers and tcmalloc.
Amazon also has an open-source releasing process. But the culture is so suspicious of open-sourcing that a friend of mine spent literally FIVE YEARS getting a project of his approved for open source release. I am not exaggerating. This is a project he is passionate about and has been working on for that entire time. The project is not proprietary in any way; it's a set of UNIX utilities for piping data around in JSON format instead of flat text, and he (and a community inside Amazon) wrote a bunch of useful transformations that made it like UNIX on steroids. Clearly not software that competes with Amazon.
Then there is the question of working on non-open-source software on your own time, because (for example) you're trying to do some business on the side. Now if you can show that your side project does not compete with Google according to the California statute above, then you're legally protected and it belongs to you. But ideally you want to avoid going to court at all. What you want is an assurance from Google that it won't attempt to claim ownership of your work. So there is a process called the IARC (Invention Assignment Review Committee) where you can submit a description of your work, and if your submission is accepted, you get an assurance from Google that it won't try to claim ownership of it.
This is a strict improvement over the Amazon situation, because you have the same legal protections you had already, but additionally you can preemptively clear the rights to any work you're doing on the side.
So in my view, Google has some of the best policies related to open sourcing of any company I've ever worked at, and certainly better than Amazon's.
Del. Code. Ann. 805 http://delcode.delaware.gov/title19/c008/index.shtml
765 Ill. Code 1060 http://law.justia.com/illinois/codes/2005/chapter62/2238.htm...
Minn. Stat. 181.78 https://www.revisor.mn.gov/statutes/?id=181.78
N.C. Gen. Stat. 66-57.1 http://law.onecle.com/north-carolina/66-commerce-and-busines...
Wash. Rev. Code 49.44.140 http://apps.leg.wa.gov/rcw/default.aspx?cite=49.44.140
(This list is taken from a treatise on software law I published a number of years back; more states may have enacted similar laws since then.)
2. For copyright ownership, in the U.S., and I think in quite a few other countries, a company's ownership of an employee's "work of authorship" would depend on whether the work was either:
(i) a work made for hire, usually meaning created "within the scope of employment" - http://en.wikipedia.org/wiki/Work_for_hire ; or
(ii) assigned to the employer - which an employment contract might require the employee to do.
I think I'd like to read your treatise. Can you post a link?
I resurrected a diagramming approach I tried some years back to show what an employer would have to prove to get ownership of an employee's off-duty invention - see http://www.ontechnologylaw.com/2010/12/diagramming-a-legal-i....
They can claim ownership if the work was done with the company's property, or the work is related to the company's business. And courts in California have generally held that the relation has to be pretty strong. So a software company can't claim ownership on _all_ software products you create in your spare time, just that which is "substantially similar" to what the company does.
There was a Joel on Software discussion on this a while back:
EDIT: The above is not legal advice. Corporate and worker rights vary by country, and the U.S., by state. But I hope the above is informative to Google engineers who work in California.
Now, that presumed, when an author contributes to the project, they explicitly agree to license their contributions under to the project's BSD license.
However, Google owns this code being contributed, and yet they, as a corporate entity, have not consented to the licensing of their contributions being distributed under the BSD license. Until they do, in writing, signed by the corporate legal counsel, or whoever else is able to sign contracts on their behalf, the code contributed is not BSD licensed because the author, which is Google Inc, did not agree to it in writing, and thus distribution and use is now a violation of Google's copyright since they did not legally consent to have their code released. As the owner of the code, Google alone can consent to its use, and not the "code slave resource" who happened to produce it, whose very soul Google now contractually owns.
This could be a problem for the project.
In general, projects need to require that anyone contributing new code represent that they alone are the owners of the copyright to the new code being contributed. If you contribute code owned by someone else and not explicitly licensed in a compatible manner by that other entity, then you have code in the project that presents a serious legal liability.
It's not always practical to do these docs, but they are out there.
This is one of the great things about open source, through the use of real , trusted open source licenses, we state our corporate intention quite clearly, and then we don't need to have a huge load of paper that accompanies every project.
We don't , for instance, have paperwork clearing the ip on all the projects we use at Google. The linux kernel alone is a huge work of shared copyright. No paper....
Now, many posts later, you are saying "we released" and "I've been given the authority" as if you were the one authorized to "release the copyright".
But previously you said someone else did. Did you get the authority in the time between the two comments? Who are you? Who at Google can verify that you have the authority to release Google code? What documentation of this is there? You say no paperwork is necessary? Is there an official list somewhere of which code Google legal/corporate has released? How does your term "copyright release" differ from placing something under a open source license? Usually 'releasing' copyright means placing something in the public domain. Are you using the common usage when you use the term "release". What about the 25% not 'released'? Did any of those represent code that had already been placed by the coder in a outside project? Were they informed afterwords to remove the code?
Here we have a coder who is contributing to a project who says the author of the code for copyright purposes is Google Incorporated. But he is not the legal representative of Google. What legal authority does he have to transfer ownership or determine contractual licensing terms of code owned by Google on their behalf? If he does have this authority, or it has been granted him by you or someone else, it has to be in writing or it means nothing. Yet you are saying it doesn't have to be documented anywhere?
Maybe this is authorized by the appropriate people at Google. Maybe not. Without any documentation of it, there's no legal bias for saying this © Google code is BSD licensed.
"Chris DiBona (born October 1971) is the open source and public sector engineering manager at Google. His team oversees license compliance and supports the open source developer community through programs such as the Google Summer of Code and through the release of open source software projects and patches on Google Code. In the public sector space, he looks after Google Moderator and the polling locations API."
Based on how authoritatively Chris DiBona is speaking, he is effectively representing Google in these comments and in the GitHub comments. He hasn't disclaimed this at all, and his position at Google would suggest he has the authority to make these statements.
And all I'm bringing up in my comment that led to this subthread is that when someone contributes code to an open source project and that person does not personally own the code themselves or have the legal authority to transfer license, then there is a serious legal issue involved that have to be taken very seriously.
With my own open source projects, people contributing need to be able to grant license on all the code they contribute. If someone came in with code owned by their employer with their employer's copyright on it and not their own, it would be absolutely critical to verify that their employer knew about it and cleared the licensing for that specific code in writing, or from some very public facing repository on the company website with explicit documentation about the license. Any sort of 'well it should be OK I think' or 'they told me it was all right' would raise red flags and require much more explicit permission.
It will be interesting now to see what the reaction of other contributors will be to the new policy that some animals are more equal than others. I have had no problem contributing to open source and having my contributions listed as "copyright by various contributors". But once one contributor gets his own name separated out in the code headers, then I want my own name in all those code headers as well, and I wouldn't be surprised if others would want the same as well.
The English-language text reads:
Copyright (c) 2009, Snap Framework authors (see CONTRIBUTORS)
Copyright (c) 2010, Google, Inc.
Putting Google in the contributors file would be inaccurate because that list is for people who have put code into the project. It is a difference in categorization and essentially I am saying "the copyright to this code is owned by these people and this corporation".
Here is an example: The Apache Software Foundation requires copyright assignment on all contributed work. Developers who contribute code must assign their copyrights to the ASF. Their name is still in the contributor list, because they are a contributor of code. However, the Apache Software Foundation is the sole copyright holder of the works.
Why does it mean they "have claim on my creativity and work" outside of this scope? I may sign additional non-compete agreements that make it so that I can't engage in any threatening or similar business. I may sign non-disclosure agreements that make it so I can't use any proprietary or secret information that belongs to the company. However, why should I sign an agreement that allows the company to take things they've had nothing to do with without any pay? Does the employee have power to take from the employer without providing compensation? Why should the employer have that power?
It would be better if Google simply quitclaimed any copyright interest in snap-server over to Gregory, but of course that would even cover stuff he does at work, and it makes sense that there's an approval process for that.
Everyone files an IP declaration enumerating the projects that are or may become relevant to the company's business. Since this determination is made at their sole discretion, I threw the kitchen sink at it and wrote down everything.
From the date of that declaration, they have a 90 day period in which they have an exclusive option to negotiate to buy. I am obliged to negotiate in good faith, but I am not obliged to sell. After that window, the option goes up in smoke.
If I'm reading you right you make this declaration when you are hired. What happens if you start a project while you are (already) at the company?
Before my time, there was an expansive policy that asserted ownership over everything. The old policy might not have even been enforceable in the UK. Some employees raised concerns about it, management responded. The company is small (~60 employees/~25 devs), so there tends to be a lot of flexibility.
"Holy crap. The situation is quite simple:
pre-existing work I contributed to this project remains under my copyright
contributions other people make to this project remain under their own copyrights
contributions I make to this project subsequent to November 2010 are under Google copyright
nobody should really give a shit about this because a) I freely agreed to this even though Google has a process where I could have asked to retain my own copyright because b) the code is BSD licensed and you can use it however you like regardless of who owns the copyright.
The only thing this would potentially make more difficult for me is if I wanted to re-license the code under some other terms. But I would have to obtain permission from our other contributors to do that anyways."
In all cases, the agreements had the list of exceptions you mentioned, but they only took ownership of stuff I thought of while I was on the clock. At the last company I worked for, the agreement was very contentious-- the employees lobbied for, and eventually received, an agreement that allowed them to own not only their off-the-clock ideas, but also their on-the-clock ideas if the company didn't develop them within 6 months. (There were more details, but that's the rough idea.)
At the time, I thought this was a big deal. In retrospect, I think all that stuff is just people making stuff up about what is going to happen in an imaginary future where ideas are worth millions and lawyers are free. All the same, I still refuse to sign agreements like that-- I think it distorts the way innovation actually works. As it's said, we're all standing on the shoulders of giants; I don't want to be under the control of someone who doesn't understand that.
When you are joining a new company, review the agreement. If you see a non-compete clause for post-employment time periods, cross it out. If you don't see some verbiage that explicitly makes clear the company doesn't own anything you do on your own time and with your own equipment, add it in.
If Google is hiring "A" employees, how come they aren't bright enough to add such a clause to their employment agreement?
Code, comments... they're both speech. If you can sign away code copyright in an employment contract, can you also sign away copyright to all human language speech you write?
Would those companies want to have ownership/copyright assigned to everything I do automatically, even if I created child pornography, or created some IP-violating software, or broke some US-export restrictions? It seems a pretty dangerous position to take - "we own everything you do" - which assumes that everything I do is legal/safe in the first place.
cdibona's candid description of the situation certainly does not warrant a Marxist interpretation.
In the case of multiple authors, the legal rights of any one contributor are significantly curtailed. Unless they vote with unanimity, the license cannot easily be changed: contributor X has licensed her code to contributors Y and Z (and everyone else) under BSD licensing terms, and it cannot be relicensed without her consent unless her contribution is completely excised from the project.
Even then, the waters can become murky because most code cannot just be deleted from a project, other code grows organically into and around it, so the line between what constitutes a "derivative work" and what doesn't can become really blurry.