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andrew.mcmillan.net.nz
cd /var/www; more /dev/rant >>index.html
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Contracts for people to work on Open Source Software
A few years ago we needed to introduce employment contracts for all staff at Catalyst. When we got the example contract back from our HR consultant, she had quite naturally biased it strongly in the employers favour, and as a consequence it had a very anal and lawyerly clause in it regarding the ownership of intellectual property. This clearly wasn't going to work well in our environment so I decided to take the opportunity to try and write a clause which was fair and reasonable, which considered the likely desires of both parties, and which expressed an understanding of the sort of environment which often happens with free open-source software. It seems that many people who are interested in working on open source software are also people who will work on (i.e. fiddle with :-) things in their spare time, but they will not necessarily consider the possible consequences of using conmpany resources to do so. I have heard of situations where employment contracts (or perhaps even government enacted legislation) will give ownership of an individual's work to their employer in such situations, so I also wanted the contract to make it clear where and how this might happen. I would like to hear people's comments on the contract clauses which we use here. Is this fair to both parties? Have I missed something? Is the meaning clear? Also, I need to make it clear that it is OK for people to use this text, so I hereby place the text of the following Intellectual Property clause in the public domain. Intellectual Property
Over To YouI wrote that because I couldn't find examples around the place of similar things. I guess I still see people looking for that sort of thing so I'm publishing it here with the idea of providing a seed which can perhaps grow into something else. A few specific questions I would like you to think about:
Then, perhaps, if we can see some general agreement on what would, or would not, be a useful standard we can encourage people to use it in their future contracts. I am hoping that through your collective wisdom I will be changing this clause in Catalyst's standard employment contract. |
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Lawyer
Make sure to have someone lawyer this up for you.Terms like IP and OSS probably need to be suitably well defined so that they don't cause loopholes.
Looks good to me. A few
Looks good to me. A few comments:
* Please, s/Intellectual Property/Copyrights, patents, and trademarks/g, and the same with "IP" and "property".
* Please clarify "use" in clause 2. It seems reasonable that if you incorporate your previous code into ${COMPANY}'s code, ${COMPANY} can actually use/copy/modify/distribute it. However, as currently written, if you write an editor, a script, a version control system, or some other tool, and use them to get work done at ${COMPANY}, ${COMPANY} gets them; that seems unreasonable.
* I think the second half of clause 4 seems quite generous, but I suspect most companies would prefer "if you use company time or resources, the result goes to ${COMPANY}", and that seems perfectly reasonable. I want the ability to hack on FOSS on my free time, and I want a job where I get to hack on FOSS at work too, but I fully expect that anything I do on work time or resources belongs to ${COMPANY}.
* Many companies will want one additional clause, stating that if you work on your free time on something based on your work at ${COMPANY}, ${COMPANY} still gets it. While some such clauses reach for far too much, the premise seems basically reasonable: if I work on ${FOO} for ${COMPANY}, and I have information about ${FOO} that the general public does not, I shouldn't go home and use that information about ${FOO} to write ${FOO}+, even if I don't use the code from ${FOO}.
I don't see the point.
I don't understand why these clauses exist.
I'm a contractor, with a company that previously employed me full time.
When I was full time, the employment contract was pretty draconian. It said, pretty much, "Everything you do is owned by us."
Now, my employment contract says, "No plagiarism".
That's it... "Write your own code".
So, let's see. I'm paid more, have less stress, and my employment contract lets me tinker on my own time with no restrictions. All so the company can sack me with 1 month notice (something that they are inclined to do to full timers anyways). Where do I sign?
So, how about:
"If it is done on work time, or with work resources, $COMPANY owns the copyright and work. Otherwise, it is owned by the employee. However, $COMPANY expects the employee to not compete with $COMPANY during the time of their employment. If the employee produces a new idea that is related to our current field of effort, we expect first right of refusal prior to the employee working on the invention. If we refuse, that refusal is non-reversible."
What's the point?
Firstly, I imagine that if you don't see the point, then it is highly likely that none of this applies to you or is even of interest to a person in your situation.
There are enough people who aren't in your situation though for this particular post to have been prompted by discussion on a mailing list enquiring about just such a thing.
Many people come to Catalyst who are actively involved in existing open-source projects in their spare time (or more) and they regularly want reassurance that any pre-existing work or ongoing work is not suddenly going to become awkwardly owned by ${COMPANY}.
Catalyst's business is not built around the ownership of intellectual property, and my own experience with previous businesses is that the care and feeding of the intellectual property beast is a significant and frequently valueless distraction. This also means that we don't have a "current field of effort" as such.
In the (many) cases where Catalyst staff are working on software owned by someone else then the case is pretty straightforward too, and much more like the case for contractors such as yourself. In that situation neither Catalyst nor the employee have copyright over the work.
We do thoroughly encourage plagiarism however, or "code reuse" as it is sometimes more jingoistically called, so long as acknowledgement happens and the source is known, primarily so that the effects of licensing are understood. A peculiarity of our client base perhaps, but it has so far been rare for open-source licensing terms to conflict with the desires of our clients.
Misunderstood.
I think you misunderstood my post, and I'm pretty sure I misread yours. :)
It was "What is the point of having an IP contract at all." I don't have one, and there aren't any complaints from my employer. I don't think they even know there isn't one.
It wasn't an argument against open source. It wasn't a slight to Catalyst in any way. In fact, I've heard nothing but good things about Catalyst!
My point is, why the paranoia over who owns what? Say what you want copyright/ownership over, and leave the rest to the employee.
I've seen many different IP contracts. The clearest is my current one (nonexistent, assumed "Work For Hire"). The worst was the one I last had when permanent (same employer). It said, "Everything you do, if we ever decide it's related to our field of endeavour is owned by us."
That was a terrible, draconian agreement. One of the reasons I left, actually. :)
I think your agreement is a bit wordy, but it should give everyone the feeling of safety they need to work on their own stuff. In fact, I really like your proposed handling of the "use of company resources" issue. That is a great donation back to the community that most companies wouldn't do.
Some consideration of code
Some consideration of code that is already under a license. I hack on open source project on my own time, but with the company laptop. My employer can't choose the licence becuase i didn't found the project and it's already under an Open Source licence. Whether the $COMPANY agrees with that license or not.
See also the SAGE-AU OSDA
http://sourceforge.net/projects/osda/
In theory, the official link was http://www.sage-au.org.au/osda but it seems to have atrophied.
The clauses go through a number of scenarios....
I thought that CyberSource (http://www.cyber.com.au) had something similar, but I can't find anything based on a brief look.
ownership does not matter, license does
i have been in the situation where i needed to change the contract wording as an employee because the standard was not acceptable.
basicly the core issue for me is, that i do not care who owns the code, but i do care about what i can do with it.
consider the situation that you learn how to solve a particular problem during work. now, later you find yourself in the situation needing to solve that same, or a similar problem in a free software project.
quite likely you will come up with the same solution?
but that solution is owned by your employer, so you can't use it and must go through pains to come up with a different solution.
that is something i can not accept.
you wrote above, you encurage plagiarism, but the clause above does not reflect that.
in the jobs that i accept i simply demand that:
all code that i write, i may reuse in any free software project under the GPL.
if i don't get that into the contract, then i don't take the job.
since i only entertain job offers where i'll get to work with free software anyways, that change to the contract so far was always accepted.
greetings, eMBee.
It would be nice to be able to
It would be really nice to be able to say that, but it is only really possible when we have control over the client's desires for licensing.
Since we sometimes do work where we don't own the IP ourselves, we can't do this. On a few occasions we have wanted to use elements of code developed for one client at another client - similar to you wanting to use code in another project - and have had to seek relicensing of portions of code from our clients. Since the code in question is unlikely to be business-related (it's usually some way we think we've done a particularly good job in some infrastructure) we haven't had problems with clients refusing us.
Nonetheless, we can't *assume* that it will be OK automatically, so we can't provide any such assurance to staff either. Maybe one day all of our work can be on FOSS projects, and we could do that, but I won't hold my breath!
Cheers,
Andrew McMillan.
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