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Re^4: Code Samples and Previous Employers

by Anonymous Monk
on Mar 23, 2005 at 00:14 UTC ( #441660=note: print w/replies, xml ) Need Help??

in reply to Re^3: Code Samples and Previous Employers
in thread Code Samples and Previous Employers

You can't violate copyright by telling someone what you know

Yes, technically you can, depending on where in the world you live, and what you do. For example, under Canadian copyright law, you can only read a "reasonable portion" of a book out loud: even though reading out loud doesn't make a copy, and certain tells someone what you know about the book. If you completely re-word each passage, you may or may not be okay. After all, translations into another language usually change almost every word of the original text, but they are still legally considered "derivative works".

In short, copyright law here is nasty, confusing, and horribly nebulous: the courts decide almost everything, like what a "reasonable portion" is, or whether your new version consists of a "significant part" of the original. You'll stay on the right side of the law only if you memorize a lot of case law, have a very good IP lawyer, and/or carefully guess how the judge will rule. Unfortunately, the Copyright Act itself is just a very crude jumping off point; the actual law is inside the minds of the judges who enforce it.

-- AC

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Re^5: Code Samples and Previous Employers
by Tanktalus (Canon) on Mar 23, 2005 at 01:19 UTC

    Canadian courts, however, take a very dim view of enforcing non-competes and copyrights of "ideas" in favour of corporations over individuals. I mean, if you actually have a copy of copyrighted code, that's pretty blatant. But merely having learned how a certain framework works, then gaining/maintaining a future employment based on your recollection of that framework (that is, you reimplemented a very similar idea) is not going to be enforced against that individual.

    Corporations that cherry-pick competitors' best talents solely to learn copyrights will have their hands slapped, but the individual is rarely going to be punished for anything. There is a certain "right to work" (which is separate from the union-busting laws of the same name) which Canadian courts feel are superior to any contract to the contrary, thus any contract stating you cannot use knowledge gained in a position in future positions are generally found to be null and void (or at least that part is found that way).

    Disclaimer: IANAL. This is just what my current employer has told me (on my first day at work, I might add).

      You've phrased this as a declaratory statement, but then you fall back on the fact that the entire thing is heresay from your employer. The whole notion that "Candian courts value X over Y" falls into the "carefully guess the will of the judge" category; remember that any precedent can be overturned whenever a judge feels it's appropriate. Judges just aren't predictable: they can rule how they feel is appropriate, outside of external influences. That's good in some cases, bad in others. One of the ways that it's bad is lack of predictablilty: the notion of precedent mitigates, but does not solve, this problem.

      Moreover, it's quite possible your employer's opinions of the Canadian courts are wrong. He does, after all, have a vested interest in getting you to divulge information about past workplaces: and little to lose until you leave. See if he changes his tune during the exit interview.

      Call me cynical, but trusting businessmen without checking the facts isn't always wise. Especially in matters of law. -- AC

        "He". I'm not even going to cry sexist on this (the HR person doing the "welcome to the company" orientation was a woman) largely because someone might confuse me with a feminist.

        During the same "welcome to the company" orientation, my employer, through this HR representative, told us that this company fights every wrongful-dismissal case, without exception, and basically never loses (99%+ success rate). It's not because they have a large purse (they do). It's because they follow the law, case law, etc., overly meticulously (more than is required). This is not a company that would (or needs to) get you to divulge secrets.

        Also, I should expand the context a bit: when telling us about case law, the HR rep was talking about us leaving the job we were just starting, not the other way around, specifically mentioning how our contract has been enforced in the past when leaving a job to go to a competitor. As long as we don't physically bring code, or try to implement something that our (now former) employer has patented, all other knowledge is fair game.

        To that, I'll add that I was hired straight from university - I didn't have anything to divulge ;-)

        Lastly, just within the last week, one of our top architects left our company (in the US) to join our #1 competitor for the product he was working on. The response? "Xyz left the company to work for Abc Corp. While we wish he had stayed, we wish him all the best." If anyone was in a position to divulge our secrets, he would have been in that select group. Few people know more about our trade secrets than he does. Few people know more about our planned (and not announced) future direction in our projects than he does. Not even a whiff of legal action, even though this is "expressly" forbidden in our contracts (which I think is there just to keep physical copying from happening). Even in the US, I presume, courts look disfavourably on corporations trying to keep an individual from being employed.

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