|go ahead... be a heretic|
Professional Employees and Works for Hireby tilly (Archbishop)
|on Mar 20, 2002 at 17:46 UTC||Need Help??|
This post is somewhat long, so I would like to start by saying that this is very much relevant to PerlMonks even though it is not about Perl or programming. It is also very relevant to CPAN, perl, and the broader open source community. This is about aspects of being an employee which generally get ignored, and really, really, really shouldn't be.
I will talk about New York State's laws, since that is what I know best. However in discussions with legal types it appears that New York's provisions are not unusual, and therefore what I say is applicable in some way to most of the US, and likely in many other countries as well. I should also disclaim at this point that I am not a lawyer, nor is this legal advice. But the general outline of what I am saying has been verified to me by both lawyers, and people who are merely interested in the legal profession. I have also been told that this is bound to become a huge issue for the open source world.
In New York State there are three basic classes of employee:
But who is the creator?
One would think that the creator of a work is the author, the person who actually produces it. But the realities of life are not so simple. What if one person conceives of an idea, and then gets multiple people to implement it? Is it owned by the implementers, or the person who thought it possible and paid for it to be done?
The legal resolution is the doctrine of a work for hire. A work for hire is a work that you produced for someone else, and they own all rights to any potential intellectual property that might arise from that work. (Including, obviously, both copyrights and patents.)
Now what happens if you combine these two legal areas?
The answer is unambiguous both in theory and practice. All work covered under your employment terms belongs to your employer. In the case of professional employees, this is everything. If you go home and write something on the weekend, you do not own it. You might be unaware of this issue and naively put a copyright notice on it, then distribute it. That was your mistake.
Now let me make this personal.
I am a professional employee. I signed a routine employment contract while I was still pretty much of a novice as both a programmer and an employee. As is common, 6 months later I had completely forgotten about the terms of the contract and was blissfully unaware of the laws I live under.
Over the course of this job I have slowly become more and more involved in open source work. I write software for fun and release it. I have put code into posts here, released stuff on CPAN, and even contributed a core perl module. All of which I thought I had the right to do, but as it turns out none of which I did. There isn't even a legal issue to contest, I simply didn't know better.
My very bad.
As of today here is the status. This came up from an incidental issue about a month ago. I have been told that if I wish to continue being employed, I cannot post code. If I continue being employed, then I will be admonished for the code I have released so far. If I leave my employment then the decision about what happens with any and all of the code of mine that people here have seen is not mine. (Stupid comment removed.)
I live in NYC. It seems likely that my wife is going to have no option about moving any significant distance for at least a year. I am carefully considering my employment options. I have a likely job prospect near Philadelphia which would allow me to work on open source stuff. That is farther than I want to commute, and the pay cut would be painful, plus it does not resolve the other issues. I have not seriously searched for any potential jobs which are closer.
Now my food for thought for everyone is this. How many more people are in the same position I am, and are not aware of it? How much open source software has been put out there by authors who thought they owned rights that they do not? If you are an employee, are you one of them?
These are, as I have just learned, extremely non-hypothetical questions.