"Google asserts copyright, even on work I do in my own time." (Snap framework)

https://github.com/snapframework/snap-server/commit/5e4850d4cb74c75e706df509b90befc95263746a

by tianyicui • 16 years ago

128 154 16 years ago

tptacek3• 16 years ago

Not a weird Google thing. Very typical IP contract term.

natrius• 16 years ago

Is it? Doesn't that mean that you can't do any other work for anyone (e.g. contracting, startups, side jobs) while you're working there? That seems wrong.

aaronblohowiak• 16 years ago

It may not be enforceable in California

pingswept2• 16 years ago

It might be typical amongst large companies, but it's more extreme than the three IP agreements I've signed, and several others that I've heard of. It would take a very extreme incentive to make me sign an agreement that took all the output of my mind.

tptacek3• 16 years ago

What are the agreements you've signed? The boilerplate agreement I've seen, over and over, take anything related in any way to the company's business no matter when you build it, modulo a list of specific things you enumerate before taking the job.

eplanit• 16 years ago

I worked for IBM years ago. I remember signing their IP contract on the day I started work, while my manager explained to me "it doesn't matter if you're vacationing on the moon -- if you invent something while there, it's ours".

iWhatever• 16 years ago

Yes, on your first day at IBM you were given the opportunity to declare IP that you owned. Anything else going forward belonged to Big Blue.

markchristian• 16 years ago

Not true in California -- they can only assert copyright claims on anything you build using company-owned property. So, if you did it your own time, on your own hardware, you can actually fight back against this.

bphogan5• 16 years ago

This concept irritates me. You basically can't create things on your own if you work for a company? I just completely disagree with these kind of no-compete things.

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.

llimllib• 16 years ago

My boss crossed off that section of his contract when he worked for Booz Allen, and nobody made a peep.

bphogan5• 16 years ago

It's nice to see more evidence that people do this. I've always believe that contracts are negotiable, so it's good to know that I'm not the only one that does this.

foobarbazoo• 16 years ago

I negotiated my contract with Apple; it had to go through legal and get VP-level approval, but the changes were approved.

I doubt everyone can do this, though.

auxbuss3• 16 years ago

I've always done this with contracts, in any part of life. If I don't like a clause then I amend it or spike it. SOP as far as I'm concerned. No-one has ever complained, although there might be some discussion.

patio11• 16 years ago

I did this at a Japanese megacorp (which are, ahem, not historically known for their embrace of flexibility in employer/employee relations), as a condition of my accepting their offer of employment. My bosses were supportive.

I also got them to OK my ongoing participation in OSS.

protomyth2• 16 years ago

I do wonder how many open source / free software projects have code contributed to them that is actually owned by Google (or some other corporation) and will it come back to bite anyone?

cdibona7• 16 years ago

See above. Since we clear employees for open source work, we can generally say that Google contributions into opens source are reviewed and okay.

protomyth2• 16 years ago

Yeah, but this points to someone who didn't get clearance so I wonder if it is a unique case. Also, I am actually thinking of some other companies. Thinking about it further, some projects want copyright assignment, so one wonders if some of those weren't done properly.

mtviewdave• 16 years ago

In the state of California, Google does not have an absolute right to ownership on all work done in your spare time. From California Labor Code Section 2870:

http://www.leginfo.ca.gov/cgi-bin/displaycode?section=lab...

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:

http://discuss.joelonsoftware.com/default.asp?biz.5.451795.2...

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.

how_gauche7• 16 years ago

I don't work in California.

tianyicui• 16 years ago

According to the author's blog: "Gregory David Collins is a Canadian software engineer living in Zürich, Switzerland."

lrm242• 16 years ago

The boundaries between what's yours and what's the companies is usually outlined by:

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).

bphogan5• 16 years ago

The problem with this line of thinking is that he's not doing it on company time and thus not being compensated for it. This guy built a web server on his own time, and now Google gets to add it to their portfolio and is not compensating him for his work.

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."

enjo3• 16 years ago

The argument from the companies perspective: They hire you not as a implementor but as an inventor. In exchange for a salary they have hired you to provide the full value of your experience and imagination to the company. This extends beyond 'working hours' (after all, you're on salary). It is simply a way of ensuring that the companies gets it maximum value for what you invent while being compensated by them.

enjo3• 16 years ago

This test is only somewhat valid in California, as I understand it. In most states the Company can freely assert copyright over pretty much anything you produce with a simple employee agreement.

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.

mindcrime• 16 years ago

> 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.

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.

auxbuss3• 16 years ago

This is a good post, and I agree with you up until your refinements of point (c).

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.

enjo3• 16 years ago

The law would generally disagree.

btilly2• 16 years ago

You are clearly not a lawyer, and I strongly advise people to not follow your advice. I say this as a non-lawyer who has direct experience with this exact situation.

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.

apenwarr• 16 years ago

Note that these California-style policies are also common, almost word for word, everywhere I've worked in Canada. (BC, Ontario, Quebec)

jrockway8• 16 years ago

direct experience with this exact situation

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 :)

wallflower• 16 years ago

When I was more naive than I am now, I signed the yeah-all-your-IP-belongs-to-us employment agreement as a condition of employment. This was many years ago and I am still at the same company (it is not in California)

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.

AndyKelley2• 16 years ago

I just joined Amazon.com, and they explicitly state that they do NOT own work done on my own time, unless that work is in direct competition with Amazon itself:

"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..."

amock• 16 years ago

The problem with this is that Amazon has so many businesses that almost anything you do could be related the to company's business activities.

writetoalok• 16 years ago

ditto Google.

Silhouette• 16 years ago

This is the problem with any generalised "anything you do that might one day compete with the company" criterion. Even if an employer only claims work that an employee does on their own time that relates to any current company activities, there is still the need for an employee to know about the other project, which is hardly likely in a huge company with 100,000s of staff worldwide.

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.

haberman• 16 years ago

I have worked at Amazon.com and I currently work at Google. The Google policies are much, much better than Amazon's, both in letter and in practice.

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. http://www.leginfo.ca.gov/cgi-bin/displaycode?section=lab...

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.

AndyKelley2• 16 years ago

Thanks for that information. It is interesting that what really matters isn't the actual terms of the agreement, but rather the policies that are implemented by the most powerful party in the agreement.

potatolicious• 16 years ago

Amazon's policy is not as liberal as your impression indicates (I work there).

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.

dstein• 16 years ago

I've seen this type of situation blow up pretty badly. Coworker started a side-project, quit company, side-project becomes really successful, and the company sued the ex-employee. Legally the situation was perhaps iffy (they ended up settling out of court), but it left a bad enough impression on me that I ended up leaving the company soon after, on moral grounds. I just could not work for a company that thinks they own my brain, and I will never do so again.

cdibona7• 16 years ago

So this is really the only proper response. If you work for a company in the US or in Europe, they have claim to your creativity and work. If you don't like it, work for yourself. (see my post above for how we deal with it at Google)

jrockway8• 16 years ago

They have a claim that they can waive. Everywhere I've worked except Doubleclick (bought by Google, incidentally), has done this.

cookiecaper9• 16 years ago

Why do they have a claim on your general creativity? My understanding of employment is that the employer is renting my services for the tasks they want done. They say, "Hello, will you please implement these features in our system today?", and I say, "Sure." A permanent employment agreement simply means this will continue upon a regular pay schedule and compensation package for the indefinite future. It may also come with stipulations like "We'd like to hang out in our office most of the time so you can help us on-demand", or whatever, but all of those things are settled and worked out collaboratively before the candidate becomes an employee.

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?

cdibona7• 16 years ago

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.

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.

cookiecaper9• 16 years ago

Don't you think that this system is at least a little bit unfair? Why does Google automatically get claim on work that has no relation to Google, done without compensation from Google, and without any of Google's equipment or facilities? How come these people need Google permission to assert a claim on their own intellectual property that is entirely distinct from anything involving Google? It sounds like this was established simply so that Google can claim things that they have no real right to claim and misappropriate an employee's work as convenient.

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.

cdibona7• 16 years ago

This is actually a big can of worms, what with it having so much to do with state, federal and international law and treaty (wipo, amongst others). It is often unfair.

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.

state_machine• 16 years ago

Because it's probably not actually "wholly independent".

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?

earl• 16 years ago

First of all, as far as I am aware, Google has been a very friendly contributor to open source, releasing lots and lots of high quality code, including some really cool stuff that isn't available elsewhere such as GWT or Guice. I'm strongly inclined to give them the benefit of the doubt. Further, reread Chris' first sentence. This isn't just Google being jerks; their policy stems at least in part from CA law.

  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.

That said, given their relationship with the web, it's hard to say that any web related tech doesn't compete with them in some fashion. I'd wait for G to actually be dicks before calling them out. Also, being allowed to use 20 percent time to work on this stuff is pretty amazing. I have a bunch of personal projects that I'd love to have a day a week to work on.

HiroshiSan• 16 years ago

This was how it was put in the book How To Get Rich.

nostrademons7• 16 years ago

Very little of the work done on Google products is directly assigned by Google management. I just finished up a week-long demo that fixes a longstanding annoyance with the search results. I saw a need, made a quick 10-minute screenshot mock-up, gave a 3-minute presentation, recruited a few co-conspirators, and we built it. Management will be involved in the decision whether to productionize and launch it, but the demo was all done at the individual-contributor level.

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.

DenisM3• 16 years ago

You're arguing with the wolf that it's a little bit unfair to eat the stray sheep. The wolf retorts that only 25% of the sheep were eaten, and the entire 75% were allowed to safely return to the flock. That, and the system generally benefits everyone - wolfs and sheep. Don't you realize the futility of your argument? The wolf will continue to eat the sheep because that is what wolfs do, and they will come up with any requisite PR to make it look decent.

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.

mark_l_watson• 16 years ago

Thanks Chris, that clears things up and generally makes sense.

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).

rdtsc6• 16 years ago

> you are prescribed from competing with your employer even on your own time or on your own equipment.

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%.

nostrademons7• 16 years ago

"Why isn't the employer prescribed to not compete with the employees' weekend project?"

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.

tocomment2• 16 years ago

This policy is probably preventing hundreds of new startups from being created every year if you think about it. Since most people work on their startups while keeping their day jobs.

Imagine if every company in the country had this policy. Our economy would grind to a halt.

russell_h• 16 years ago

Is there a major US company doesn't have that policy?

jrockway8• 16 years ago

So, has this ever been tested in court? The wording in Illinois law is:

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?

kevinpet• 16 years ago

You are incorrect that this is California. From one message at the link: "Thanks for the advice, but I don't work in California."

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.

trunnell• 16 years ago

My employer, Netflix, has a much simpler policy: whatever I create that relates to Netflix's business belongs to Netflix, and whatever else I create belongs to me.

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.

MoreMoschops• 16 years ago

Am I the only person who thinks he wasn't being serious, and is now just seeing how long he can keep a straight face?

bhickey2• 16 years ago

My employer is sensible about this issue.

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.

dhimes2• 16 years ago

I'm impressed by that. I've never heard of such freedom, but it strikes me that since so many people are considering startups now that such an agreement may be a competitive advantage by which companies can compete for employees.

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?

bhickey2• 16 years ago

I've only been here for a month, and the policy has already been revised since I arrived! The 90-day timeout is new. I'm happy with it. If I got a new idea project idea that wasn't tied to alpha capture systems, I don't think there would be any issue with amending my declaration.

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.

bugsy8• 16 years ago

For this comment, let's assume that Google is correct that it owns copyright on all code he writes, even in his free time and not pertaining to his work at Google.

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.

cdibona7• 16 years ago

But in this case, we released the code , under Google Copyright, into a BSD project and under a BSD license.

bugsy8• 16 years ago

It's not clear who is 'we'? Do you (plural) have the legal right to sign contracts and take out bank loans on Google's behalf? If so, yes, you represent Google legally as the official legal representative and this is all cool. The code should just have a link to the signed document placing the code under BSD.

ig1• 16 years ago

When I was contributing to an Apache project they had a standard waiver form for your employer to sign to protect them in those sort of cases. I imagine most other major open source projects will ave something similar.

comice• 16 years ago

What else of Google's employees stuff do Google get to own? If they get into debt, does Google share that too?

runningdogx• 16 years ago

And, as johnl asked in the github thread, does Google hold copyright on Chris's comments here on HN?

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?

dctoedt2• 16 years ago

1. For inventions, several U.S. states have law protecting employee's off-duty rights in a manner somewhat similar to California. See:

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.

kragen2• 16 years ago

California's law prohibits employment contracts from assigning copyright to the employer in works they do outside of work hours without employer equipment that doesn't relate to the employer's business, which narrows the scope of your 2(ii) considerably.

I think I'd like to read your treatise. Can you post a link?

dctoedt2• 16 years ago

The treatise is The Law and Business of Computer Software, published by West Publishing (now a unit of Thomson Reuters). It has another author's name on the second edition, per my contract with the publisher, because I stopped doing the annual updates after 12 years, which also means I no longer get royalties so I have no financial interest in posting the link: http://west.thomson.com/productdetail/175187/13515117/produc...

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....

bugsy8• 16 years ago

Thanks very much for those citations. I find it quite telling that three of the States with this protection are California, Washington and North Carolina. Pretty sure those are the top states in the US for software innovation. I can see how the two are connected too. Employees retain rightful ownership of their work they do at home for themselves. Many of these employees will then leave and found new, innovative creative companies using the things they made on their own dime using their own personal resources. In States where the rights of people to the fruits of their labor are not respected, there is no where near as much innovation, no where near as many new companies and products and employment growth.

sparky• 16 years ago

I think the high concentration of tech jobs and employee-favorable IP ownership legislation are a great combination for the states you mention. Causality could easily work either way here though. CA, WA, and NC are some of the only states with enough tech companies and tech employees to care about this stuff. Software has a much more favorable cost structure than most industries; employees can easily fully implement their ideas on their own time and their own dime. So it makes sense that these issues have come up enough often enough in the legal system, or tech companies/employees have lobbied hard enough, to fully flesh out the legislation on the matter in these states.

jimmyjazz142• 16 years ago

I'm a little curious as to what legal rights (if any) a copyright holder has over a BSD licensed work. Anyone care to weigh in on this?

how_gauche7• 16 years ago

In the case of a single author, the copyright holder has all the same rights he/she used to have (including to re-license under a proprietary or different open source license), except the right to revoke the open-source license already granted to people who have obtained the source.

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.

kragen2• 16 years ago

My own point of view is that of course it's unjust if employers are able to claim copyright on work that their employees wrote outside of work hours without using company equipment (see e.g. http://unixguru.com/), and that everyone reading this thread should work to reform your state or country's laws so that they are more like California's in this matter, but even California's law isn't as ironclad a protection as explicit agreement on Google's part, because I'm sure there's some way snap-server could be construed to relate to Google's business.

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.

tyn• 16 years ago

The only case where this could be acceptable is when you work in the R & D dept. of a company. If you are hired for specific tasks (which is usually the case) then everything else you do should belong to you, only. Einstein produced most of the work that led to the relativity theory while he was an employee of a patent office. Should the patent office claim anything related to his work in physics? It would be really absurd, if it did.

linuxhansl• 16 years ago

Nope not by California law. Work you do in your own time on your own hardware is yours. Period.

how_gauche7• 16 years ago

Hello,

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?

bugsy8• 16 years ago

Very presumptuous and egotistical to think this is about you. It's not about you, it's about the code that has been contributed which requires a separate line item and which you have contributed which you state is legally owned by someone else.

how_gauche7• 16 years ago

Given that fully three quarters of the comments I've read can be paraphrased as "isn't it mean for the big bad multinational to steal the poor hacker's code just so he can get a paycheck", over a one-line commit message, it most certainly IS about me.

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.

jrockway8• 16 years ago

because the code is BSD-licensed and it REALLY doesn't matter

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.

how_gauche7• 16 years ago

Yes, stuck forever, because there is absolutely no way I could pick up a telephone and have a pleasant conversation with the person responsible for making that decision. He lives in a cold granite tower guarded by dragons and evil wizards. And snakes. Thousands of poisonous snakes.

lukevdp• 16 years ago

This is from the author on that link:

"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."

Seems reasonable

te_platt• 16 years ago

There are two sides to this issue, neither of which are unfair. The employer hires people to solve problems in a given space and has a right to make sure they own what they paid for. On the other side the problem space doesn't (shouldn't) include everything. The better defined the problem space the fewer problems you will have. I've been on both sides of the issue and found that people are willing to accept both sides. The last few places I worked management was willing to change the standard contract from the normal "we own all unless you get an exception" to "we own all related directly to this specific project or done on company time/equipment". If your employer is unwilling to make the change and you are unwilling to work somewhere else consider part of the cost of working.

jellicle2• 16 years ago

If there's one lesson to learn here:

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?

mgkimsal• 16 years ago

I've seen a number of employer agreements indicating that they own everything that you do, whether on the clock or not.

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.

wlangstroth• 16 years ago

Even though I'm certain no comment of mine precipitated this wild overreaction, I'd still like to make it clear that I never intended to encourage anything but academic discussion among Snap developers when I responded to Greg's comment on github.

cdibona's candid description of the situation certainly does not warrant a Marxist interpretation.

zokier2• 16 years ago

I think the copyright statement is just plain wrong currently. It should say "Copyright (c) 2010, Google, Inc. and Snap Framework authors (see CONTRIBUTORS)". Google owns only the parts made by Google employees, other parts are still owned by their respective authors.

jimmyjazz142• 16 years ago

I glad to see everyone is finally giving a shit about a Haskell project!

"Google asserts copyright, even on work I do in my own time." (Snap framework)

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