Since I’m boarded up for the night from the storm, I thought I might spend some time writing code. And naturally, the first area I considered for problems to solve is what I’m currently working on at work.
This got me thinking; what is my ability to write software that I can use at work but still belongs to me? More specifically, say I develop some independent package on my own time, using my own resources. But then I am able to apply the software at work, which is pretty much my motivation for writing it in the first place. Who does it really belong to?
The employment agreement I signed has some data:
This relies on the interpretation of “relating to the business” which makes it ambiguous, I think. Thoughts?
IANAL but I would have thought that if you plan to use it at work, then the software is, by definition, “relating to the business”.
I ran a software company and from time to time employees would ask to make use of code they had developed in their own time. We would allow this as long as we had unrestricted rights to use, modify, distribute etc., etc. that software. No software company is going to incorporate or use software that they cannot control.
Did you require them to relinquish ownership of the software? In the most broad interpretation of the terms I agreed to, it would seem to include taking ownership of personal stuff I had written long ago and just happened to be applicable to the current project; which I thought was clearly ridiculous. But you seem to be implying even this scenario is possible, in which, of course, I would have no ownership claim at all.
We only rarely used employee’s own software. We did not require the employee to relinquish ownership as long as we had unrestricted rights to do whatever we wanted with the software. However, there are some companies (for example, start-ups looking to cash out for a gazillion dollars in 3 - 5 years) that will not include in their products any code that they do not own.
It is also possible that your employer will have clauses in its contracts with customers that will prohibit it from using any software it does not own.
In general, using such software is more trouble than it is worth for the employer. The employer will be taking on liability, will have to support and maintain the software (which means you want the code to be written to corporate standards), ensure it has rights to do whatever it needs under customer contracts, indemnify customers against IPR infringements. Something an employee threw together at home is unlikely to make the grade.
Actually, I’m not in a large corporate environment, but rather at a small research company. I don’t have any doubts that I could tell my supervisor “hey, we could use this software I wrote in my freetime” and he wouldn’t even ask questions.
And to flesh out what I’m conceiving a bit more; it wouldn’t be some code that would just be directly integrated into the work project. Instead, it would be a separate executable, or at most a static library, that the project would utilize.
Right. But the language isn’t specific enough to preclude drawing that conclusion. So it still leaves open the question of where the line is drawn for ownership. I feel logically that if develop something entirely on my own, using no proprietary information, it ought to belong to me. But I still can’t reconcile this with the fact that it is motivated by my job.
What do you expect for ownership? What would they?
If it’s part of their project, they will want the source code. They will then want the right to do whatever they want with that source code - modify, include in other and future products, no limitations on selling any and everything including the source code.
Where it comes down to the crunch is copyright. If they expect to be allowed to copyright their final product, how would that clash with your prior work? If the company goes bankrupt and Microsoft when they buy up the pieces decides to compete with you and then sue - can you prove you own the copyright, not them? Can you afford the lawyers to back that up?
You are hired to produce a work and your result is code you previously own a copyright on. This is turned over to them as the result of a work for hire arrangement. Would that not be construed as giving them an equal copyright, unless they specifically agree to leave the copyright with you? (Better get that in writing).
In a commercial environment, that makes no difference.
With respect to anything you had developed before working for your current employer, I do not see how the wording could encompass ownership of that. If it could, then that would also include anything you might have developed while working for a previous, competitive, employer. Clearly that cannot be the case.
If you develop software now that is “motivated by [your] job”, and is relevant to your job, then the wording of your contract does seem to give ownership to your employer. If that bothers you, make an arrangement with your employer under which you keep ownership of this particular piece of code. But why do you want ownership? Are you going to use it for something else?
My university took the position that even if you had developed some software on your own time, using your own computer at home, if it impinged on them in any way, they owned it. They interpreted this to mean that if it were on a diskette (this was a number of years ago, substitute memory stick) in your briefcase and you brought that into your office and placed it on the floor to be supported by that floor, then it impinged on them. That was their example. It seemed to me that if you didn’t put it down, their floor was still supporting the weight of the diskette. Whether this interpretation would have held up in a court case is another question.
I don’t see why that must be true. People use third-party libraries all the time in their application and don’t expect to obtain the rights. The issue would be, as amarone brought up, that the company is unlikely to allow the use of third-party software in the first place, precisely because they have no control over it. If that’s what you were saying too, then well, it doesn’t really say anything against my idea since I already know they would be fine with using third-party libs as long as the license allowed it.
Agreed. My only point is that the sentence is non-specific enough that an ignorant other person reading it might conclude that that is indeed the case. So if the literal interpretation is not valid, how can you conclude what a valid interpretation is for this case?
Even if I did bother to write the package on my own (unlikely), it is very unlikely I would try to assert ownership in some way. I’m asking just because the idea was intriguing and not that clear-cut, IMO.
Yeah, that seems excessive and not at all supportable by law.
Would you buy a product that included compiled modules “the programmer brought in from home” (no source code)? Would you take the liability to sell something like that? Considering how many legit programs have difficulties between XP and Vista, or 32bit vs. 64bit - what would the company plan to do if the programmer quit or got hit by a truck? What if it has a back door or is stolen from elsewhere? Legit commecial libraries published by companies with a track record and the size to support them are one thing. Homemade is something else.
One company I worked for, all their engineers signed a paper saying anything they developed, at home or at work, belonged to the company. After all, what stops you from getting an idea at/from work, even doing some basic research, and then “developing” it at home? Fortunately, the heads of the company were unimaginative engineers and it never occurred to them that mere programmers should sign the same paper. The best inventor I met was a mere technician at the company.
This part of your agreement doesn’t mention software, only “documents, records and files”. The wording suggests that it refers only to descriptive or illustrative material, not something functional. (Of course, the interpretation is debatable.) Is there nothing in your contract which refers to software specifically? If you’re employed in some sort of IT or programming position, then this is almost certainly covered by a separate section. I know it always has been in my contracts.
I have heard from friends that some companies have contracts to the effect of “we own you, forever, period. If you so much as write a line of code while you’re employed here, on or off hours it is ours. Even if you quit, develop a software application, and sell it, if you wrote so much as one relevant standard library function call while you worked here we own it, and if we have reason to suspect that you did and it turns out to be profitable, we WILL get it.” Not sure how defensible those insane ones are in court though, I suspect not very.
I’ve worked at a lot of companies that had such a provision in the employee agreement you signed: any software you developed during the time you were employed by them, even if done entirely at home on your own time with your own resources, belonged to them.
And it would probably stand up in court – after all, you agreed to it when you signed that agreement. And the company likely can afford a lot more lawyers than you.
Note that there is a pretty long history of this stuff in computers & software. Eckert and Mauchley, the developers of the first ENIAC computer, were forced out of their positions at the University of Pennsylvania when a new boss tried to apply such an agreement to them, retroactively.
That’s fairly common for specialized work, though the ones I have seen usually limit the claim to IP that is related to the employer’s business.
It’s not as insane as it first sounds. The reason is that the employee will be given access to all sorts of training, proprietary information, and business secrets. The employer doesn’t want someone inventing something as a result of their access to that info, quitting, and selling it to someone else or setting up as a consultant. Non-compete agreements only go so far.
It’s an interesting issue when you expand to encompass all intellectual property. Personally, I would take the view that a company has no property rights to your ideas, and by extension, what you create from your ideas with your own resources. Proprietary info and trade secrets are one thing, but a company can’t expect to be the sole recipient of benefits for all the info and training they provide. Otherwise, people would only be allowed to have one job their whole lives. I’d be interested to see where the line has been drawn in any previous judicial decisions.