> There is no reason to change his position on the subject of ex-employees making clones of the product.

Obviously I completely agree with this in a vacuum, but you seem to imply that that is what happened in this case. It was pretty clear from all the emails posted, assuming they were materially unaltered, that this isn’t what happened here. So your comment seems like a bit of a non sequitur, unless you’re saying that is what happened here?

I don’t see any reason why an ex-employee should expect a happy outcome when they create an open source “clone” of their employer’s product. Personally I have been in this situation as an ex-employee, where I was generally interested in the product field, and I avoided doing that to avoid any appearance of impropriety, and also to some degree, the copyright purity of the project would have been questionable and litigable.

A lot of people are very unclueful about this, especially young people, and maybe Mr. Masad could have had a gentler touch. But for the blogger to have cloned the product or part of it without (pinky swear!) actually taking any IP from the employer, that might in fact be legally true, but it’s a walk across a tightrope.

That you think “copyright purity” is the issue to litigate points out that you’re not very clueful either, I’m afraid. If I quit Google and write a clone search engine using none of their code but all of their technical architecture, in no way does that interact with Google’s copyrights. At all. You can’t copyright an indexing strategy nor a software architecture. You can, however, copyright a Visio diagram of the architecture. That’s a different thing.

This also applies to your nod toward “a novel fair use argument” in a sibling comment. Fair use has absolutely nothing to do with this or any hypothetical like it. You may as well have cited bird law.

Copyright isn’t the blanket IP concept people think would cover most disputes. These types of cases get into trade dress, patent law, and other legal concepts. The fundamental limits of copyright are why software techniques are patented in the first place and one reason among many why you sign assignment when you join a company.

IANAL and my comment is U.S. biased. At least in the U.S., the fixed and tangible aspects of copyright are bite-sized enough to understand without a J.D. Given how murky this entire field is when it comes to IP, it’s extremely important to understand these concepts for even a line engineer, as well.

Clean room design is a whole thing that people do, because of copyright. Maybe they don’t need to do that. If you want to quit the search team at Google and make your own search company, I’m not against that, but you should expect scrutiny like the kind Levandowski had.

Clean room design of software has absolutely nothing to do with copyright because software concepts cannot be copyrighted. I would encourage you to study these legal concepts further before you debate them, because you’re coming off quite uninformed. Copyright has a specific purpose and specific limits. Studying a competitive software product and cloning it (even non clean room) is, again, not a copyright violation unless you’re literally pulling code from the competitive product. Nearly all clean rooms are to avoid patents and specific implementation thereof in the software space. This is different when it comes to other fields, so I get the confusion.

Theft of intellectual property in the case you cited also barely touches copyright. Put another way, copyright status of the property in question is largely immaterial to securing a conviction on the allegation.

No, it is directly to avoid copyright. It doesn’t protect against patents. Trademarks are irrelevant. What other form of IP is there?

https://en.m.wikipedia.org/wiki/Clean_room_design

Wikipedia is speaking to a broader application of copyright than software. It’s also targeting an international audience, where this varies.

Again, you’re coming off uninformed here and relying on Wikipedia (which doesn’t speak to that context) isn’t really helping.

I’m linking Wikipedia to help you out.

Clean room design doesn’t protect you from patents. That’s not how patents work, simple as that.

To help me out? I’m patiently trying to explain to you that your mental model of copyright and particularly how it interacts with software is fundamentally flawed. I’m handwaving a lot of complexity when I refer to patents (and why clean rooms are important when dealing with implementation) because I’m not discussing patent law with you. I’m specifically responding to you saying “I didn’t clone a prior employer because copyrights.” That’s just factually wrong. Pulling me into “aha, but what about patents?” in a deep thread is extremely tiring.

I know how patents work. I hold 15 and I’ve defended two at trial. I’m tapping out here, since you’re simply competing with me to be less wrong the deeper this goes, and I’ve rapidly run out of patience to have intellectual property law explained to me by someone who doesn’t understand the fundamental purpose nor qualifications of copyright, and thinks it and fair use doctrine has any bearing on “I built a clone of Facebook”.

And here I thought you were the one pulling me into this tangent.

If you have the time later I’d love to hear how you can legally infringe on a patent with clean room design.

While we’re on this tangent, you might want to check out the Zenimax vs. Oculus copyright judgement. Which I think is bullshit, but that’s the sort of thing I was worried about.

Clean room design is about wholesale copying of code. If you copied the APIs and architecture and wrote the code differently there would be nothing wrong as SCOTUS just ruled.

You’re stretching SCOTUS’s ruling about API’s farther than it goes.

Regarding this part of your comment:

> Fair use has absolutely nothing to do with this or any hypothetical like it.

Yes, it does. The commercial effect of the usage is a factor in determining fair use, and that might distinguish a “show and tell” project from a “production-ready” OSS project.

Fair use only applies to copyrighted materials. The parent poster is pointing out (correctly but maybe not written the best way) that it isn’t a copyright issue unless something like code was actually copied, and thus fair use doesn’t apply. Abstract things like ideas, architecture and design don’t have copyright protection.

> The parent poster is pointing out (correctly but maybe not written the best way) that it isn’t a copyright issue unless something like code was actually copied,

And this is in fact false. See https://m.facebook.com/permalink.php?story_fbid=191354689554...

That was an expert witness claiming “non literal copying” is a copyright violation, but that doesn’t make it so. As far as I can tell the trial concluded with a finding that someone violated an NDA but no copyright violation. Am I misreading that ?

The trial had a $50 million award for the copyright violation.

I appreciate your diplomacy, but from my POV, GP is definitely trying to suggest the intern's actions were equivalent to founding a competing company, and is interested in defending REPL.it's CEO.

It doesn’t matter whether it’s a competing company or open source when it comes to the question of whether IP got stolen, unless you want to make a novel fair use argument.

What IP was stolen? The idea of running code from a web editor? The _button placement_?

There’s nothing here that says he’s stolen code or any IP. The CEO doesn’t even claim that he’s stolen real IP. Everything that’s similar is public knowledge and the burden of proof is to point out what’s been stolen.

Which the CEO could! Because the work was open sourced. So he could reply and say, “hey, you implemented this part in a way that is in code you worked on. It’s also a pretty atypical solution to this problem, so it seems reasonable that you took that from us.”

He doesn’t.

Instead, he gets insecure that a kid implemented a similar product in a couple days and decides to rail on him, then offer a half-apology well after it has blown up.

I don't think he necessarily needed to say that - he can apologize for poor behavior without trying to reassert his moral/ethical stand in every public-facing comment (here, on Twitter).

Taking the analogy of the punch/stab example from one of the cousin comments above, it would be really strange for people to believe that because you apologized for retaliating the original act of getting punched was blameless.

Of course the analogy of physical violence is more explicit, less vague, less nuanced than the context of IP. If he wants to explain/assert his moral/philosophical ideas on IP, then it should be done separately in a more nuanced, detailed manner than what he's been doing all this while, which is acting out in retaliation of a seemingly small threat.

This also shows insecurity/weakness. He could have acted as/been the bigger person but gave up on it on every turn.

Cloning your previous employer's product doesn't seem illegal in California given the limitations on NDAs and very strong limitations on non-competes. Assuming no trade secrets or copyrighted information was used which would be easy to verify in an open source project. Merely having information about a company's internals in your head does not make it illegal to work for or start competitors.

And maybe that’s the answer here. Or maybe the legal and moral boundaries don’t coincide. But the facts of the case haven’t changed, so there’s no reason you’d expect any genuinely held opinion to have changed.