No employer will ever be comfortable with something like this. I write open source on my spare time and I support the idea wholeheartedly but hearing that one of my developers is doing something like this would make me question what exactly she is doing and why.

I'm perfectly fine with her working on totally unrelated projects but this smells very dangerous for both parties, starting with the fact that it's probably impossible to make sure the two projects are not leaking into each other, with unforeseen legal and competitive consequences.

I find it troubling that so many people are alright with signing away their personal rights. The employee individually isn't obligated to the company any more than the company is obligated to the society collectively. Without the public obeying rules such as copyright, the said company wouldn't even be in business.

The west's definition of freedom is confounding. Capitalism has eroded the rights of the individual and left him utterly powerless and subservient. To the extent that many people don't even realize how much of their rights have been ceded.

It's not about personal freedom. It's about (and no insult intended) appearances. And this is damn sloppy.

As an employer I'd be suspect too.

Most often lots of the thinking is done before joining the company. In fact many times people are hired because their thinking in the field. In fact the company hiring me themselves benefit from the knowledge I might have acquired at another company. So that whole "we own your brain and ideas" is simply wrong in every sense of the way.

As an employer you have a product that product consist of some code.

If you can show that employer X took code y and implemented it into their project then you have a case, if not you don't really have a case IMHO (although I am sure it doesn't stop wealthy employers from doing so anyway)

P.S. I used to be an employer of 70 people myself.

The employee and the company are obliged to stand by their agreements with each other. The time to negotiate the terms of the agreement is before you sign it, not after.

Best course of action here is the guy takes it as a lesson learned and reads his future employment contracts closer.

Companies aren't going to lose a good hire over a reasonable term change. I've heard the "this is non-negotiable", but when you get up to walk away, it becomes negotiable, as long as what you're asking for is reasonable.

So, if the OP was in California, his employer really had no leg to stand on, regardless of what he may have signed when he started the job.

In compliance with prevailing provisions of relevant state statutes, this 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.

That language is probably straight from the statute, though I didn't check. Anyway, it would have to be written this way, or it would be an invitation to rampant abuse by employees. As it is I think it's very fair. Note especially the word "demonstrably".

Other things being equal, I would agree with you. But it seems like other things are far from equal in this case, because the project in question is in exactly the field that its author was being paid to work in by his employer.

If any related work that (the employee says) happens outside office hours belongs to the employee in that case, what is to stop someone from simply claiming that any good idea they have on the project their employer pays them to work on happened at home after hours, the prototype code they wrote to implement it also happened away from the office, and therefore they assert the rights to it personally and the employer had better pay them whatever they want or be prevented from using exactly the work they are already paying the employee to do for them?

I find it troubling that so many people are alright with signing away their personal rights.

So do I, but contracts are two-sided deals. The other side here is that software developers are typically paid a significant amount of money for their work already, and it seems fair to me that the person paying that money would expect clear rights to what they're paying for in return.

There is nothing to stop the employer and employee from incorporating some mutually agreeable condition that makes clear how the projects are split and who will get which rights, assuming such a mutually agreeable condition can be found. But as others have noted, for something that is so directly related to what an employee works on by day, there is an obvious conflict of interest.

As we often claim here, the idea itself is worth little. It is the implementation of that idea that matters more. There are ways to ensure that the implementation belongs to the company. In software for instance, whatever has been committed to the company's version control belongs to the company.

> Contracts are two-sided deals... it seems fair to me that the person paying that money would expect clear rights to what they're paying for in return.

Sure, they get the code. That's it. If that brings down the company, maybe they should have had a better business model. We don't have to bend over backwards to ensure that companies make a profit. Another forward-thinking, responsible company (such as RedHat) can take their place.

Laws should serve us first. Not corporate interests.

Not necessarily, if the employee already had similar code outside work that no-one at the office was aware of or understood but for which the employee could demonstrate holding significant rights in some reasonable way.

There are all kinds of ways that situation, or even enough ambiguity that the situation is a possibility, can backfire legally for the company. The best result for the employer in such a case is likely to be undertaking a significant amount of costly legal work and winding up with all the rights. There are many plausible and much worse outcomes.

Laws should serve us first. Not corporate interests.

False dichotomy is false.

Seriously, I've taken on whole HR teams over this kind of issue, and I won. I've walked away from potentially lucrative positions because I got a bad vibe about how the employer viewed work/life balance or had a dubious term about it in the contract and didn't seem likely to agree to change it. I really am the guy who should be totally on your side in this debate. So if this situation doesn't even convince someone like me to side with the employee, probably either it's not as simple as you're making out or your position is one-sided beyond the point of being reasonable.

The implications are the same, and in both cases, I am on the side of the employee.

Why would you think that? It's a completely different situation.

For the record, I have no problem with restricting someone from using trade secrets or disclosing other confidential information they learned as part of one job for the benefit of another (probably competing) employer.

I do have a problem with saying if you quit one job you can't then even work in the same industry for some period afterwards, unless a suitable amount of consideration is given in return.

You are speaking on a matter of what you feel is moral right, not what is law. As a matter of law, I know that New York State a decade ago was set up so that, by default, a professional employee (ie anyone who doesn't punch a clock and isn't a contractor) is considered "always at work". The default is that everything you do is owned.

These terms aren't binding, they're agreed upon. Neither party is liable for them, but they are part of the agreement. An agreement is held in good faith, and this faith was misplaced on the employer's part, and abused by the employee. No "rights" were "signed away", nobody here is beholden.

I wouldn't enter into a personal agreement like this, then make it a lie by doing something other than what was agreed upon, that's just a dick move. It's equivalent to breaking a promise to a friend.

That's a very naïve view and provably wrong in a lot of countries. Check with your local labor laws, you'll be surprised.

When someone is working on something 'outside' there can be a number of motivations. As a manager I'm thrilled if they are learning new skills or packages, I can't always come up with projects that keep people interested, and side projects can help with people keeping technically alert. I also love to hear about what they have learned "Hey Chuck, Chef does this much better than we do." Or "Hey we can use this new Meteor framework to build cool stuff."

On the other hand if they say "I'm working on an entirely new way to crawl the web, but it isn't at all like our crawler." I'm going to talk to them about switching to our crawler, after all if that is where there interest has taken them, I'd rather it help both of us company and employee. If they don't want to do that because of personality issues, or some other structural issue which has been lingering, as a manager I want to know about that and try to fix it.

Bottom line is if your working off hours to charge your technical batteries, its great. If you're working at those hours because of some problem at work, I want to fix that. If you are working on something because you don't want to work here anymore, I'd like to know that too and make the transition smoother for everyone.

My previous employer (Arbor Networks): roughly the same way. People had side/off-hours projects that involved network instrumentation.

I think you're overgeneralizing.

That's important because if you weren't, and virtually all employers would have a problem with these kinds of side projects, the risk/reward for asking permission would be different.

TBH, it never would have even occurred to me to work on an open-source project that directly competes with what I do to pay the bills. I've got a noncompete, of course, but even without that it strikes me as a violation of basic business ethics.

And even without that, as much as I enjoy programming after hours, working on the same problem you spend your work days hacking on seems like such a recipe for burn-out.

It takes an extraordinarily broad definition of "compete" to apply that to this situation, though. He works on an internal CI system at his company. He makes an OSS CI system in his spare time. Since these things have different uses and one is merely an incidental tool that his company uses to acomplish actual goals, he is not competing with his company in the sense that normal human beings would use the word. (Similarly, no sane person would look at someone sewing an apron at home and say, "Wow, that person is competing with Home Depot because their workers wear aprons!")

1) He claims the commit logs are proof of when he did the work. They aren't, they are simply proof of when he did the commits.

2) He says, "I worked on it in the evenings after I had completed my work for the day." Which instantly makes me wonder whether he was doing this on a work computer after hours?

If you want to do open-source work on an area related to your job you must talk to your employer first, and whatever open source work you do you should be sure you're either not using company resources or have permission to use them. Commit logs cannot prove when you did the work, they can only prove you did them at or before that point.

I promise you that's not the law.

A bartender that makes drinks for his friends at a house party doesn't have to reimburse his employer for skills learned when tending a bar.

> and whatever open source work you do you should be sure you're either not using company resources or have permission to use them

But this is a valid point. If you're using company hardware and resources, you're arguably spending resources owned by the company.

Why it makes sense IMO. Without the company owning work related to their business outside of work hours that would seem to make something along these lines legal.

Employee is at home, after work hours, and thinks of solution to problem at work on his project. The next day he comes to work and demands if the company wants this solution he must be compensated for work he did on his own time that belongs to him.

Your bartender case I have no idea how a judge would take that. The judge might see it as common sense. On the other hand if the bartender took a second job bartending a judge might decide that's not okay. Examples: Bartender invents new drink in Bar #2. Does Bar #2 own that? Can Bar #2 trademark the new drink? Can Bar #1 claim bartender has a conflict of interest because while working at Bar #2 it's arguably his job to lure people away from Bar #1.

Here's a quote from Nolo: "

Moonlighting

Generally speaking, working more than one job is lawful. However, an employer has the right to limit after-hours work that is in conflict with the employer's own business. For instance, going to work for the competition could provide grounds for discipline or discharge.

"

http://www.nolo.com/legal-encyclopedia/off-duty-conduct-empl...

Here's another

"Employees Owe a Duty of Loyalty to Their Employers ... Thus, an employee who improperly competes with his employer, assists a competitor during the course of employment, or makes use of the employer's confidential information to compete with the employer after termination may have breached the duty of loyalty. " etc..

http://shawvalenza.com/publications.php?id=68

The first example made me cringe.

Let's say that I work at EA (I don't), coding up the next iteration of Sport Ball 2k15. In this example, at home, I'm writing Yet-Another-Dungeon-Crawler (YADC) (tm). All the two have in common is that they are video games. Should EA get rights to YADC(tm)? What's the scope?

On the second, this is even worse. If I worked at Ford building cars all day and was working on a Go Karts on the weekend, is there a gray area here? What if I repaired and sold vintage Jaguars on the side? Can I not apply skills that I've learned in my side-pursuits?

Why would I not be able to use my training to produce things for myself? Why should companies be the default owner of the fruits of our personal labors?

>Your bartender case I have no idea how a judge would take that. The judge might see it as common sense.

I think it's a fun thought experiment.

Of course the bartender won't have to pay the bar owner for his labors outside of work, he's just making drinks! However, when your skills are technical, the non-technical audience treats it differently.

1. You're making a competing product.

EA makes games. You're making a game

2. You're have a conflict of interest.

If you figure out how to speed something up 20% at home you arguably have a duty to share that at work. If you have a game idea for your game at home you think it unique you arguably have a duty to share that at work.

It would be up to a judge to decide what "related to their business" means. There's a spectrum. Both are FPS games, One is FPS, one is RTS. One is Online, on is offline. Is a gaming web site related? EA runs a gaming website. I have no idea. Do you want to find out after spending XXX hours on something it belongs to your employer? No? Then maybe you should ask them.

Note: Many companies will sign an agreement on request and review that allow you to make things that might have a conflict of interest. My understanding is EA specifically does this because so many of their employees wanted to make mobile games on the side. I have no idea what that agreement says. It might say EA gets the first right to publish it. Again I have no idea.

I know Google allows outside projects with permission. You submit a description of your project. They review it. If they don't see a conflict of interest they'll give you a signed document saying so so you can work on it with no issues.

From what I understand on this kind of stuff, it's completely determined by what contracts an employee has signed. "We own everything you do on company property or with company equipment" is basically universal and things done at your job are understood to be works-for-hire, but a company can't just claim "We own everything you do in your free time if it's related to computers" unless the employee has agreed to that in a contact. Am I wrong here?

For your Google example, I would assume their review framework was set up by an agreement with the employees. I had an offer for a job where I was told "Anything you do on your own time is yours. And if you want to put that in a written agreement for a particular project, we're happy to." From what you say, maybe Google doesn't have quite as lax an approach, but their ability to decide what you can and can't work on must have been specified in an employment contract.

They are being generous (or maybe just trying to make sure people don't quit) by signing agreements that let you out of the default law.

I have long believed that this legal difference is a big part of why "doing a startup on the side" is far more common in California than New York.

Don't forget how common it is for companies to sign their staff to nonsense in the hope of scaring them out of their rights through ignorance.

I can sue you, and get you into court, for murdering my pet vampire using the power of forgiveness, if I want to, and am willing to waste the money.

I mean, to your actual point, yes, there are cases where this can come up and be valid, but my understanding of this part of the thread was that we were making comparison to New York state boilerplate contracts that would take ownership of anything produced on side time, and that has been tested and there is a significant body of "oh hell no" in California law.

IANAL, TINLA, etc ad nauseum.

I frankly find this kind of legal posturing by companies abhorrent and immoral. It's almost like treating employees as slaves.

The cost of the hardware is recognized (in accounting) over the life of the machine.

>(would you travel with 2 laptops just to be able to claim you didn't use company hardware).

I have a really nice computer from work and an old laptop at home. I use my old laptop for all personal projects to avoid just such an issue.

I do.

http://www.intellectualpropertylawfirms.com/resources/intell...

But of course, if you use any company resources (including computers)... then they can be.

It isn't the law, but a some employment agreements give de factor ownership of any intellectual property an employee produces to the company, own time or not.

Which isn't to say that the quoted imperative is "the law" - that depends on jurisdiction and the wording of contracts that have been signed. In any event, the imperative is great advice, though!

Really? you are going to try to defend this point of view?

OK, so he should just pay $3.50 for the electricity and internet he used for those commits and everyone will be happy.

> git rebase -i

pick and edit each commit and do this

> git commit --author <override-author> --date <override-date>

I think you do this better with filter-branch too. But I don't know that command as much.

It goes like this:

   git filter-branch --env-filter \
       'if [ $GIT_COMMIT=186ba2fd6bca97c901194d9450c694c2836064d2 ]
         then
            export GIT_AUTHOR_DATE="Fri Apr 11 21:38:53 2014 -0800"
            export GIT_COMMITTER_DATE="Sat Apr 12 01:01:01 2014 -0700"
        fi'

Not even that, since you can trivially set the commit date to whatever you want.

True, but it lends evidence that they were done outside of work. After all, if the commits were made during 9-5, then you can claim it was during work.

They're not even that:

  git commit --amend --date="Mon, 14 Apr 2000 16:42:16 +0000"

Under California law, an employee cannot be required to assign any of his or her rights in an invention he or she develops “entirely on his or her own time without using the employer’s equipment, supplies, facilities, or trade secret information”

There are exceptions, see the whole article. This case even if in CA may be marred by the "Trade Secrets" restriction.

http://www.intellectualpropertylawfirms.com/resources/intell...

when the invention was conceived or “reduced to practice” (actually created or a patent application filed) it related to the employer’s business or actual or “demonstrably anticipated” research or development, or...

In other words, if it's related to the employer's business it belongs to them. What's related and what is not is up to a judge to decide. There's arguably a spectrum of directly related, somewhat related, tangentially related, unrelated, etc.. Seems like the OP's project though is in the directly related side of the spectrum.

unless:

when the invention was conceived or “reduced to practice” (actually created or a patent application filed) it related to the employer’s business or actual or “demonstrably anticipated” research or development,

That said, the article you linked to seems to be about patents covering inventions rather than copyright covering creative works, so without reading more about the laws in those states I don't know whether any of this is actually relevant in this case.

B)If his employer had said, "We're all in favor of open-source contributions and projects, but not when they compete against our core products, from which we make money," then they could have worked out a deal. Or not. But at least it wouldn't have been left up in the air like this.

---

False dichotomy. They could have pretended to go with '(A)' and then sued him over it later when/if the product became popular/made money.

He (the developer) also then exposes himself to risks that he otherwise might not (e.g. lazy lawyers that only act when prompted).

I sit on our IP group as an R&D representative and there are other representatives from HR as well as Legal. This allows the group to basically handle any situation that comes up efficiently and employees have a clear single point of contact. We try to ensure no request takes longer than a week to resolve, but most take minutes.

Paper, ink, and signatures, or it didn't happen.

I think he received poor legal advice on this, and the same goes for anyone who forks it.

The issue is that he does not own copyright. Given that he doesn't own copyright, what he says does not matter. It is as meaningful as my giving permission for Bob to drive YOUR car. Since I don't own it, I can't actually give permission.

Usual disclaimers. I am not a lawyer, this is not legal advice.

While it's strictly true that we haven't been told enough to know, I would expect even the most fair and reasonable of employment contracts to transfer the copyright to the employer by default if we're talking about a project that is in exactly the field that the employee works in at their job.

I have worked in and paid attention to employment law as far as it pertains to copyright in both California and New York. From what I have been told by competent lawyers in both states, this would be an open and shut case. Even if the contract didn't say anything about it (which would be extremely unlikely), work done by an employee on a project related to what the company does is a work for hire and therefore belongs to the company.

All his employer had to do was not be retarded little bitches.

This right here is the classic definition of a leech. I am only in favour of open source if i can benefit from it. I am not in favour of the part that suggests that I "contribute back to the community". Well, I guess everyone is in their right to be an asshole. When you smell the stench then you know what's coming :)