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(OT) Professional Employees: who owns your thoughts?

by Ovid (Cardinal)
on Aug 12, 2002 at 17:09 UTC ( #189550=perlmeditation: print w/ replies, xml ) Need Help??

When tilly left us, he left behind a caution that your employer may own your "open source" code. While I realize this is a significantly off topic follow-up, I thought that fellow monks may also wish to be aware that your employer may also own your thoughts.

In the above story, the grammar is awkward so it's a bit difficult to follow the timeline, but it appears that a gentleman had an idea in 1975¹ and mentioned it to his employer about 1996. His employer claimed rights to the idea and fired the employee when he wouldn't share the details. Regrettably the courts have agreed with the employer, stating that the employee does not own his ideas. Perhaps the employee shouldn't have mentioned this idea because for him, free speech has become very expensive.

My employer, fortunately, has been very clear that any ideas that I develop on my own time that are not directly related to my work are my own, but we're not all that lucky. What about you? Have you read your employment contract recently?

Cheers,
Ovid

1. Reading the gentleman's Web site reveals that this is the correct interpretation of the article.

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Comment on (OT) Professional Employees: who owns your thoughts?
Re: (OT) Professional Employees: who owns your thoughts?
by abaxaba (Hermit) on Aug 12, 2002 at 17:36 UTC
    This is certainly a sticky subject:

    Any time you share knowledge or idead with someone, be it your pal in the next cubicle, or the CEO of the company, there's risk of that person swiping the idea and making it their own. The approach I take is to share my ideas only with those people who would have little/no chance of a) Either duplicating my efforts or b) waging a legal battle for my thoughts.

    Most companies I have worked for utilize a similar approach: If you build it, invent it, or concieve it while under the employment of said company, they own it. Now -- There was an addendum to the employee agreement of one company, that allowed me to itemize any "inventions" concieved prior to my employment. These belonged to me. But that has been a rarity in my experiences.

    ÅßÅ×ÅßÅ
    "It is a very mixed blessing to be brought back from the dead." -- Kurt Vonnegut

Re: (OT) Professional Employees: who owns your thoughts?
by neilwatson (Curate) on Aug 12, 2002 at 17:44 UTC
    If one plans on developing an idea on their own then the idea should never be mentioned to the employeer. The employer employs you for your work and ideas. If you present an idea to your employer you can expect them to try and use it to there best advantage.

    In a world where companies, more often than not, are able to copyright anything, you have to protect yourself. I realize that not sharing information is not productive in the big picture. However, companies have proven time and time again that ethics take a backseat to profits.

    Finally I'm going to depress you even more. You may think that not sharing many of your ideas is disloyal. Let me ask you this: Over the past 20 years, how loyal has the company been to its employees? Layoffs to please the shareholders, moving production off shore to decrease costs, and out sourcing are all common ways that the company shows loyalty to its employees.

    Neil Watson
    watson-wilson.ca

Re: (OT) Professional Employees: who owns your thoughts?
by BrowserUk (Pope) on Aug 12, 2002 at 18:38 UTC

    Depressing indeed.

    This kind of reenforces a random thought that has been floating around my brain for some time. (I'm currently my own employer, so unless I loose another arguement whilst talking to myself and take umbrage, I'm unlikely to get sued for sharing it! :)

    Maybe we (I, the employee speaking now), should start presenting prospective employers with our own contracts?

    I actually had IBM accept my changes to one of their Contracts of Service a few years ago...limited though they were, so why not.

    I guess it would take enough of 'us' doing it to create a critical mass before 'they' would accept it, and its unlikely that it would become universal. It would also take enough of that 'enough of us' to be sufficiently 'highly desirable' (a group from which I currently exclude myself) for the move to have meaning.

    Maybe we need a GPL for wet-ware!

Re: (OT) Professional Employees: who owns your thoughts?
by cidaris (Friar) on Aug 12, 2002 at 18:57 UTC
    When I began work for the company that employs me, we had a very liberal policy. Since the shop was mainly composed of tinkerers and engineers, we didn't want our homebrew Tivo style toys and anything else we cooked up, including programs on our own private sites, to be company property. If you were working, you were working. If you were at home, you were at home.

    However, we were later purchased, and things changed.

    The parent company attempted to make claims on works I'd done on my own time. I balked. I declined to sign their employment contract, which stipulated any ideas I'd come up with, devices I made, or code I wrote, on my time or theirs, belonged to them. However, they continue to pay me, contract or no, and I continue to show up at 9am every day, and my key still works in the lock.

    Will your employers allow you to call their bluff? Only one real way to find out.

    cidaris
      The parent company attempted to make claims on works I'd done on my own time. I balked. I declined to sign their employment contract, which stipulated any ideas I'd come up with, devices I made, or code I wrote, on my time or theirs, belonged to them.

      You called their bluff. Good for you. If it wasn't a bluff, you'd have heard back.

      Much of this nonesense is thanks to lawyers who're trying to tilt agreements to be maximally advantageous to the corporation. It's easy and inexpensive to thrust a one-sided agreement in front of people. Most people will just sign. If you push back, it's no longer an inexpensive process for them to pursue the issue.

      I had the fortune of starting working for a very big IT company, doing hardware support. At the same time, I was still spending personal time developing perl and HTML for friends / my wallet.

      Luckily for me, this was roughly two or three days after tillys most famous node. When the day came to sign my contract, I did something I would have never done otherwise - I read the smallprint. I objected to one particular section related to this thread, Intelectual Property. After a few casual chats with their lawyers, they agreed that the clause was not too important. However, 3 months down the line, the contract is still lying on my desk, unsigned.

      Am I getting payed? Yes.
      Has anyone ever mentioned it since? Nope.


      SMiTZ
Re: (OT) Professional Employees: who owns your thoughts?
by dws (Chancellor) on Aug 12, 2002 at 18:57 UTC
    <caveat>
    I'm in California, where the laws are fairly liberal in this regard, so YMMV.
    <caveat>

    If you run into an employement contract that includes a "prior inventions" disclosure, look it over very carefully. If it indeed protects you, use it!. Disclose, in broad language, ideas that you want to protect. Be only as specific as you need to be to avoid ambiguity.

    If your employement contract doesn't include such a disclosure, negotiate one in.

    To establish that an idea is yours, it might help (depending on the laws in your area) to keep a private "lab notebook" for personal work. But be very, very careful not to mix in non-private work. I rather suspect that the guy who ran into problems with someone else claiming his thinking had no documentation on his prior thinking.

Re: (OT) Professional Employees: who owns your thoughts?
by erikharrison (Deacon) on Aug 12, 2002 at 19:23 UTC

    I currently have a bottom of the barrel computer job. I am a BellSouth Dial Up Internet Services technician - tech support. Please, hold your sympathies.

    I currently work on a contract which very specifically gives my employer ownership of my thoughts. My only protection is that the "thoughts" owned by my employer are only those directly related to my job, and my employer is a third party contractor, not BellSouth. Any thoughts I have or intellectual property I create up to one year after my employment that is directly related to operating a call center is the property of my employer. Shitty, but clear and explicit and pleasantly limited.

    It's easy for us to say "tough beans, you shouldn't have told your employer." I'm sure that none of us mean any harm by saying it, and certainly no malice, but other than a bit of advice from one to another, it doesn't really hit the core issue here.

    What Mr. Brown's employer is doing is wrong, of that there is little doubt in my mind (though I try to keep an open mind). That it is legal is an issue outside of my expertise, though offhand I'm confidant that it is. What is needed is a cultural change, not a legal one (though a legal one would help). Those of us who code for a living know that generally the owners of the program are not responsible for any damages resulting from the use of that program. This is to some degree wrong and often abused. It should probably cease to be true. It probably should also stay legal, because it is a valid position for software companies to take at times. The answer to this is customer awareness - know what the End User agreement says - and the Open Source movement - take resonsibility for your own software. An analogous series of changes could be made here.

    What needs to occur is for makers of intellectual property - engineers, designers, programmers - to be aware that they are under the yoke of such right - claiming contracts. Begin convincing employers that intellectual freedom is a carrot to draw in good employees. Take your own contract to job interviews - they are hiring you after all, so shouldn't you have a standard contract? All these are cultural changes which address the problem more effectivly than attempting a change in the law.

    And until then, if your such an employee, keep your mouth shut - one seasoned pro to another. :-)

    Cheers,
    Erik

    Light a man a fire, he's warm for a day. Catch a man on fire, and he's warm for the rest of his life. - Terry Pratchet

Re: (OT) Professional Employees: who owns your thoughts?
by tbone1 (Monsignor) on Aug 12, 2002 at 19:26 UTC
    This is something I ask prospective employers during the interview process. If they have a lein on my free time, then I ask for an additional 20%, minimum, and explain to them why. I am willing to negotiate, but if they aren't, then I have to tell them no thanks, it's a matter of trust. The reason is, I used to work for a place that had such a rule. One time, they asked me to help with a problem, but I said that I couldn't. I'd learned the solution at a previous job, and my former employers who own the solution would want the current/grasping company to pay for it. This did not get a smile from teacher.

    Luckily, I now work in a state that is fairly labor friendly, as opposed to Labor friendly. It's a right-to-work state, so unions cannot keep people out of a place if a business wants to hire them. (Well, except the teacher's union.) Likewise, intellectual property rights are fairly well-defended in the laws here, so we don't have to deal with it too often. But still, I keep my eyes peeled.

    One thing I've found helpful is the nuisance factor. If you follow management directives to the letter, or rather to the sublime/ridiculous, things back off. Just go in one day and say "Mr Marketing VP, I just had a brilliant idea that is now the company's: meat-flavored ice cream." Do that enough and you're left alone.

    --
    tbone1
    As God is my witness, I thought turkeys could fly.

      If you follow management directives to the letter, or rather to the sublime/ridiculous, things back off. Just go in one day and say "Mr Marketing VP, I just had a brilliant idea that is now the company's: meat-flavored ice cream." Do that enough and you're left alone.

      Neat idea as a though experiment, but in practice this'll get you high on the list of "people who waste our time", which is one of the lists consulted when layoff time happens.

Re: (OT) Professional Employees: who owns your thoughts?
by tjh (Curate) on Aug 12, 2002 at 20:07 UTC
    This all makes one want to remember to include points like these in any renegotiation or new negotiation of employment doesn't it? And given the legal tone of the times, maybe opening renegotiation talks along these lines might be advisable.

      Exempt an approved list of prior inventions, and ongoing research, contract work and outside involvement in Open Source initiatives;

      Anything new, (1) on my own time, or (2) unrelated to empoyers line of business, is mine (and be sure both of these concepts are as closely defined as possible);

      Right of first refusal to employer?

      Any or all these specifically mentioned in master contract - no handshake deals.

    Does that cover it or are good starting points? Take the tack that if I have to give up rights during relevent employment activities, the employer likewise must acknowledge their lack of rights on these other things.

    This all seems appropriate to me and is similar to my recent work.

      Right of first refusal to employer?

      I am unfamiliar with that term. What does "Right of first refusal" mean?


      LAI
      :eof
        Right of First Refusal has a variety of applications. In this thread it was meant as the employer somehow getting the legal right to be the first entity to view any invention, idea, etc., and, if they refuse it, in writing, then the author/inventor/employer could take it elsewhere.

        The employer would get to see everything before anyone else and reject what they didn't want. Normally they'd have to evaluate and reject such things within an agreed upon time frame.

        hth

Re: (OT) Professional Employees: who owns your thoughts?
by ignatz (Vicar) on Aug 12, 2002 at 20:20 UTC
    I make it a point at any interview to go over this stuff when we get to the "Do you have any questions about us" portion of the interview. So far everyone has been very cool about taking care of such things in advance. Better to do it then instead of when things start getting bumpy and they start looking for stuff to hang on to.

    One of the things that I started doing a long time ago was keeping an online diary of my ideas. When I come into a company, I list that diary as part of my previous work, so that I have a record that it's something outside of their company. I also make it a point to save emails with other developers that I've worked with, just in case. One thing nice about doing open-sourced developement is that there is an open record of what you've been doing.

    So far I haven't had any ideas that a company has considered worth trying to claim as their own, but when I do, by golly, I'll be ready.

    ()-()
     \"/
      `                                                     
    
Re: (OT) Professional Employees: who owns your thoughts?
by Marza (Vicar) on Aug 13, 2002 at 00:28 UTC

    Interesting. What you have basically described is a "look and feel" lawsuit which companies never win. There was probably much more then what the article mentioned. The company can not claim your "thoughts" unless they can show it affects their business aspects. Is your idea involved with current revenue production? Did you use company resources to develop it?, etc. etc.

    The man probably pitched it asking for a certain reward and they refused.

    Then again, he might have mentioned it, they wanted it, he said no and then they decided to bury him in court costs. Hoping he will settle.

    I don't know if it is still valid but I recreated a small routine for a obscenly large goverment company. The question of ownership was raised. The boss spoke to the legal department and they ruled that unless the routine gave the previous company an economic advatage over their competition, you can recreate routines as long as you pull it from memory and not from source code.

Re: (OT) Professional Employees: who owns your thoughts?
by Abigail-II (Bishop) on Aug 13, 2002 at 08:54 UTC
    I'd like to point out that this happened in the USA, the land where everyone has the right be screwed. Laws in other countries differ. I believe that in most European countries the company wouldn't even have gone to court, and if they did, would have lost.

    So, if you people are generalizing in this thread (as in "most companies do ...") they are just generalizing for the USA (and mean "most American companies do ..."). The world doesn't stop at the US borders.

    Abigail

        Do you really think the US government would allow French laws to have any jurisdiction on US soil?

        The fact that Alcatels headquarters is in Paris is irrelevant. It's US law that's used. I used to work for the same (US) company in both the UK and the US - and believe me, the contract had quite some differences in both countries.

        US based companies don't get away with giving their employees of European offices only 10 or 15 days vacation a year - they are subject to Europeans laws; just as European companies are subject to US law for their USA based offices.

        As for the "spirit" of those companies, don't forget the law suit was stared when the company wasn't owned by Alcatel yet. And don't get the impression that if Alcatel buys a company everything is going to change instantly. That will take quite some time, if ever.

        Abigail

      It is true that ordinary people in the US enjoy 2nd class status since the Supreme Court's landmark 1886 ruling of Santa Clara County v. Southern Pacific Railroad Company that gave corporations the same rights as people without many of the obligations (death, sentience, corporeal existence, etc). Still, in these exciting times of globilization I would take heed. Just because you don't live in the US, doesn't mean that you can't be sued here. ;-)
      ()-()
       \"/
        `                                                     
      
Re: (OT) Professional Employees: who owns your thoughts?
by vagnerr (Prior) on Aug 13, 2002 at 08:56 UTC
    By coincidence my contract was up for review just as tilly posted his Works for Hire article. It did indeed have a clause regarding IP rights and I queried it. I was told that it was only in regard to what I did in work time, and that my own personal IP was protected by UK law. Our company lawyer said that in 1977 the Government at that time accepted a number of principles which were incorporated with in the Patents Act 1977 ss39-43, or "the Employees Inventions code."

    Now I'm no lawyer, and I havn't read the Patents Act but we are afforded some protection I think (in the UK at least).

    An interesting point that was also made was that unless they put a clause in to specificaly protect them, if an element of the contract is found to be in contravention to the local laws then the entire contract can be ruled invalid :-).

    As I said I'm no expert, and its well worth discussing such contract clauses in advance of employment when possible. That way both parties know where they stand and things can remain amicable. I decided to join the MSF Union in order to have access to free legal advice that will be working for me :-)

    Epilogue:
    As it came to it, my concerns with my employer became mute as my role was made redundant shortly after the contract negotiations and before I had to sign the new contract :-}, so I am available for work at no notice :-)

    ---If it doesn't fit use a bigger hammer
      By coincidence my contract was up for review just as tilly posted his Works for Hire article. It did indeed have a clause regarding IP rights and I queried it. I was told that it was only in regard to what I did in work time, and that my own personal IP was protected by UK law.

      What divides work time and personal IP? What happens if you work from home, even if only occasionally?

      Sorry to here you were sacked :(

      Neil Watson
      watson-wilson.ca

Re: (OT) Professional Employees: who owns your thoughts?
by LAI (Hermit) on Aug 13, 2002 at 14:27 UTC

    Just like pretty much everyone else, I had to sign an IP - waivey - thingy when I started working where I am. I of course read all the fine print, and it was relatively non-fascist. The one section I objected to was the clause that said all the work I created while employed belonged to the employer.

    I mentioned my objection to this right away (I was reading the contract while in the presence of one of the directors of the company), and the director was perfectly happy to amend the clause to read something like "any work done while in the employ of the company AND within the scope of the employment..."

    This suited both parties, because on the one hand the company couldn't claim IP on any personal work of mine or any OSS involvement, and on the other hand I couldn't memorize how a part of the software I'm building works, go home and rewrite it, and claim it as my own.


    LAI
    :eof
Re: (OT) Professional Employees: who owns your thoughts?
by TacoVendor (Pilgrim) on Aug 13, 2002 at 15:06 UTC

    The company I work for is not a technical company at all. The office I am in has a staff of about 20. We own a few companies, and of all of these, I am the only real technical person. Recently I was handed one of these contracts that said in effect: anything you create is ours.

    Now, being that I have good relationships with all of the top management (I report directly to the president) and with the owner this may have gone over much easier for me...

    I let them know that there was no way I was going to sign the agreement due to other work that I do, have done, or may do. I explained to them that I understand that they employ engineers of many flavours, but many things can be learned or developed that are not learned from on the job experience. I gave them examples of ideas that I have that have nothing whatsoever to do with the company or any they owned. Some had to do with certain code I am trying to work on, one specific electronic circuit I have been hacking away on would improve a few logic issues in my pinball machine, etc.

    Then, the oddest thing came about. They understood! They had me write up changes to the agreement that I thought should be in there. I wrote up one bit that said they had no rights to any idea developed or improved upon outside of company time and not using company equipment. They came back with a stipulation that we would *share equally* any 'invention' that was related directly to the company's primary business (not computer related at all) and that any disagreements would be settled by a mutally chosen independant arbitrator. As long as any other idea is not created on their equipment or time, they would not claim any rights. For any ideas that had nothing to do with the company but were developed using an office computer, etc., they would have first shot at claiming it. Again, disagreements sent to an arbitrator first.

    All of this got sent to their lawyers and translated into legal jargon. My lawyer looked it over and said that he agreed that it was very fair for both sides.

    The moral here is that asking for changes is not just blanketly seen as a bad thing by most companies. They usually just don't want someone stealing their ideas and taking them to a competitor if you happen to leave. Show that you have good intentions, and they will usually do the same.

    I am the TacoVendor (on my own time of course)

Re: (OT) Professional Employees: who owns your thoughts?
by Anonymous Monk on Aug 13, 2002 at 18:41 UTC
    Posted as Anonymous Monk rather that my real account, please forgive me.

    Engineering students, be advised that the exploitation can begin far before you graduate. In my final year, I developed some software as a senior project. Before commencing, I made sure that the school's policy was that all works are owned by the student. In addition, every line of that code was written on my own computer, with no university resources involved. Furthermore, a significant part of the code was written months before the course even started as a hobby project, and recycled for the course. You can, perhaps, predict the next part of this story.

    The prof decided that my software belonged to HIM (not the university, HIM). Not only that, but even the code that I made on my own free time, using my computer. A meeting with the Dean (with him present as well!) confirmed that, yes indeed, I owned the software, and could do with it what I wished.

    Afterwards, my prof took my aside and explained that, what the Dean said notwithstanding, unless I gave him the software, he would fail me, and I would not graduate. Sure, it could be appealed- but my transcript would still show that when it was mailed out in May.

    Well, what could I do? It's not like this was ground-breaking software that would make the owner millions. It was, in fact, rather useless outside of its niche application. So, I caved. But I also graduated.

    Be forewarned, monks, there are lazy people out there who have realized it's much easier to steal than to create, and these people are attracted likes moths to a flame to anything they think they can snatch.

      This is a great story. I would advise anyone in this situation to hide a small tape recorder, and try to get the prof to speak to it. He should be in jail for extortion. But it might be even better to find out who he selling the code to, and politely ask them if they are linked to his illegal activities. Once they find out what he is up to, they would probably drop him like a hot potato, he wouldn't even learn why, and you wouldn't have to fool with the legal system.

      Many professors sell the work of their students without informing their university of the arrangements. It's not nice, but it is to be expected given the power relationship between professors and students.

      The most important program ever written (which is still widely used as the basis for all computer design) was actually assigned as a series of homework assignments. Many people made a lot of money. The better professors will share the wealth by providing referrals to high-paying jobs.

      It sounds like your professor was stuck in a small market, causing him to need to strongarm the code instead of sharing the wealth. This makes it much easier to figure out who he is selling the code to.

      You're not paranoid if they are really out to get you!

        Actually - there's nothing you can do to change your grade. If you had NOT 'caved in' and relinquished your code he/she could have failed you & there's nothing at all you might have been able to do.

        There are paralells of a less despicible nature. For example, there are a number of professors who will announce, quite casually, that they don't give out A's. Ever. Period. That in itself has severe ramifications for persons relying upon a scholarship for their tuition. That has serious implications towards that now utterly inattainable 4.0 grade point average you may have been working your convenient appendage off for. And you know what you can do about it? The same thing. Nothing.

        It is completely within the domain of the professor to grade their own students... at least in this country. And since professors (and teachers even less) don't make a lot of money, most of them supplement their income with either careers as writers of books, or in your case apparently software.

        (...ahem...In My Personal Opinion:) It is a well established fact that (at least here in New York) teachers in general have the worst record for software-related abuses. I can remember personally growing up in a computer store as a family business, and in the computer labs at elementary through high school teachers and faculty would constantly hit me up for pirated copies of software because they knew who I was related to. (Back in the days of PFS:Write & such...) The ethical abuses of an authority figure in a public school extorting software from a student, IMHO exceeds even sexual harassment in the workplace - but there's no real protection under the law designed for the likes of geeks. Such abuses are common because they are easy to get away with. Any legislation adopted in the future should be phrased to protect students - though it should probably be marketed more as protecting children if it were ever to get enough public outcry...

        But I think this is the same sort of thing. In your case it was simply more direct. This was also a movie plot for the film Real Genius with Val Kilmer, and even in that film he had to get someone from Congress involved to stop the exploitation of his work.

        And naturally I think the most ironic part of all of it is that you have to pay them a lot of money for the privilege of being used for cheap skilled labor in this manner.

        Ultimately - the answer lies in direct secrecy. As with the original Texas case sited previously in the thread, the mistake was in exposing your work to others prematurely. History is replete with examples of usurpers of the credit for inventions. One doesn't have to look far - take the case of Thomas Edison (gasp!) and how he worked over Tesla in the same manner. No one would be having this lovely chat on this or any other thread without that deal...



        Wait! This isn't a Parachute, this is a Backpack!
      I've never had more than a joke I've told friends passed off as someone else's work. (That is, I told the joke, they passed it around as their own.) I don't feel too strongly about humor being passed around.

      I feel much more strongly about non-humor intellectual property.

      I personally would have gone back to the Dean, first. Explained the situation. If the Dean believed you once, they'd probably believe you a second time.

      After that, I suspect I may have figured some elaborate revenge. As you said, it wasn't super-useful. Probably nothing more than setting the professor's car on fire would satisfy my need for revenge in the matter.

      Had it been more valuable, I probably would have attempted to kill the professor.

      You can steal my money and my car and my house and my lovers and food and coffee; but when you start stealing my thoughts, you've gone just one step too far.

      I am of the opinion that it is never too late to make a point or to (for lack of a better term) seek revenge for previous actions. Tell us, tell the media, tell the dean now what happened and maybe be will be punished.

      (Not on the topic of intellectual property, but to show how actions after the fact can effect the outcome) In my last year of college one of my professors could barely speak english. I maintained a 100% till the final and received a final grade of 87%. Practically mathematically impossible. After his grades were turned in, I spoke to the department head and complained about the lack of communication and grading. The department head had the grade changed and (I assume) spoke to the professor. I am sorry that I do not know if the professor was relieved because I do not go back to the campus, but I think this shows (through an anecdote) that it is never too late to make things right.

      the_Don
      ...making offers others can't rufuse.

Re: (OT) Professional Employees: who owns your thoughts?
by John M. Dlugosz (Monsignor) on Aug 13, 2002 at 21:44 UTC
    When I was in the hire process about 7.5 years ago here, I asked the HR person specifically about my writing and freeware projects. She flagged down the "big boss" who was passing by, who summarily ruled that this was not a problem.
      I live (and work) in Switzerland, so I have a bit less reason to be paranoid than people in the U.S. have, from what I hear. But still...

      From my experience with anything a boss may say, you want to get that in written form.

      I tend to expect things to be forgotten if they're ruled between door and angle...

      --cs

      Just because you're paranoid, doesn't mean they're not after you!

Re: (OT) Professional Employees: who owns your thoughts?
by Steve_p (Priest) on Aug 14, 2002 at 11:06 UTC
    The tricky part here is what exactly is work related. Some employers may argue that if you are a programmer, all programming is work related. Be careful with your employer and any open source work you do.
Re: (OT) Professional Employees: who owns your thoughts?
by gregor42 (Parson) on Aug 14, 2002 at 13:46 UTC

    Disclaimer: I am NOT a lawyer. This does not constitute legal advice in any way and as always - your mileage may vary...

    Preface: I work in the USA for American companies under American Federal and New York State laws locally..

    What I have been told by my own legal council is that during the interview process, the job procurement process and the job orientation process - and at any time thereafter - always read every contract you are given to sign. Bring a thick black marker with you. ANYTHING you don't agree with, cross out in black marker & then initial the margin next to the change.

    Do not draw attention to this, nor make any effort to hide it. If you are called on it as a matter of procedure then you say "I can't sign any of the conditions I have excluded without consulting my lawyer first." Period. Any strong-armed tactics that might therefore ensue will largely set the tone for how you would have been treated were you on the wrong end of that signed contract. I would say that in my own personal experience, a good 90% of the time they will drop it without going a single step further.

    I have had to go into a round of direct negotiations however in a case where the company was about 110 employees. Due to the smaller size of the firm I had direct access to the CEO. As it turns out, not only was he a contract lawyer, he's a judge! I had to go over every single point that I excluded. (He took umbrage since he had written the contract personally.) When I rationally explained to him my position on each, he agreed with me, point by point & subsequently dropped the entire matter. It did take about 40 minutes of intense debate however.

    The sort of things that you want to watch out for, especially as a programmer - are broadly phrased clauses which imply that writing code in a particular programming language is an act of competition. PERL skills that I came to the job with, and develop on my own in parallel with working at my job - as well as learned at my job - belong to me. I can not and will not be barred from practicing my chosen career because a corporation is paranoid. I can and should be barred from developing the same software for a company in direct competition with my proir employer. However, similar applications must be protected. For example, I developed e-Commerce software for a cosmetics company. I now develop e-Commerce software for a computer equipment supply company. They are extremely similar in nature, and there is no question that I am leveraging my skillset from one job at the next. However, aside from the original company being defunct now, they were never in direct competition with one another. So I'm in the clear. But only because when I worked for the original company I had the foresight to go through that contract with a marker also.

    Tilly's tale raised one point to spotlight status for all of us at the Monastery. .. And the poll in today's voting booth underlines it: "I surf PM during...work hours?" What about Open Source Projects?

    I submit to you that it all comes down to where you draw the line. It's as important as how you seperate your own funds from your family business's funds for when you do your taxes. It's all about staving off the audit... If you only work on these projects on your own time - then you're in the clear. But that requires discipline & a clearly defined methodology. I for one, bring in my own laptop to work. I prefer using by TiBook running OS/X to develop with then the NT box they stuck on my desk. Right there I'm mixing codebase access. So I have everything packaged nicely & in seperate directories. I also employ a time-tracking system for when I'm working on what project. This enables me to clearly seperate personal work from business work.

    But, of course, the minute you use their network to access anything personal - you have crossed the line.

    I don't think I am alone in promoting Perlmonks to coworkers. As such it becomes recognized as a necessary 'evil' to companies. You get it taken off the filter list so you can get access & you get your manager/director to undertand that participating in the community only gives back to you when you need a problem solved. Then you listen carefullly as they read you the riot act about disseminating Trade Secrets. You remind him that you already had to sign your life away when you were hired if you did something just that stupid. And then everything calms down...

    But this remains a grey area. Clearly we all contribute to what might be thought of as Open Source licensed PERL development information. If you write that node from home it is clearly different than if you wrote it at work. But only their own network logs could possibly track/legally prove that.

    So now we split hairs about if you write a node asking a question for a problem at work that needs solving - that would seem to be fair conduct - but say ... me writing this node right now...probably not....

    And while I'm getting myself into hot water right now... I have a new area of vagueness to worry about: What if your company changes it's focus after you sign the contract?

    In my case, the company I work for developed software internally that they now want to turn into a marketable product and launch a sub-venture as an actual software company. Obviously I can say no more on the subject and have already probably said too much to be safe, but my own dilemma is now: the contracts I signed were designed to protect a computer supply company from competition by me - but how does it now apply to competing with a software company? Especially one where I have intrinsic knowledge of Trade Secrets, etc....

    I would hope that they would need to get me to sign another contract - but since there's been no news forthcoming about that - I am duly concerned.



    Wait! This isn't a Parachute, this is a Backpack!

      ...the contracts I signed were designed to protect a computer supply company from competition by me - but how does it now apply to competing with a software company?

      The situation now bears remarkable resemblance to quicksand, and that plank you're walking extends out over it - and it seems that nobody is actively seeing to your risk.

      ...by my own legal council ...

      Time to see the legal beagle again, and push for an addendum. Don't wait.

      Good luck, and, from the sounds of it, it will work out all right.

        Here's an interesting development...

        To follow up on the legal situation I find myself in; as the company I was hired by is incubating a future spin-off project that will in fact be a software company; I sought professional legal advice to find out how much of my 'cheeze was hanging out in the wind...'

        Well - you all might find this interesting - it would seem that the reason why they have you sign all of that documentation when you are hired is to 'protect them from you.'

        I have been informed that in my particular situation, where I have already signed non-competition agreements with a retail company, and due to the wording of same, it is up the The Company to chase Me down to protect themselves. I am legally unbound beyond the realm of standard ethical conduct.

        I look at that as Good News. What it is saying is that, at least in MY legal environment (New York, USA) your rights are indeed rights until such time as you agree to sign them away consciously.

        Now, all that being said I'm going to shut up & hope that no one in management here reads this node.



        Wait! This isn't a Parachute, this is a Backpack!
Re: (OT) Professional Employees: who owns your thoughts?
by Abigail-II (Bishop) on Aug 19, 2002 at 09:26 UTC

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