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Open Source Code In a Closed Source Company
Posted by
kdawson
on Tue Feb 05, 2008 09:43 PM
from the finding-freedom-in-an-unfree-world dept.
from the finding-freedom-in-an-unfree-world dept.
An anonymous reader writes "I have code that I've written for my current company that I'd like to open-source. The only problem is that my company has the usual clause that says that anything I write belongs to them. Now that they've decided to abandon my code for another product that replaces its function, I'd like to continue working on my project as well as open it up to the world. The easy part is cleaning it up and posting it on SourceForge and Freshmeat. The hard part is making sure that I am free of any legal complications in the future. I've looked online to try to find a legal document I could present to my employer to get them to sign off on it, but I'm not having any luck. Has anyone else been in this boat or can refer me to some legal documentation that may help out?"
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Submission: Open Source code in a Closed Source Company by Anonymous Coward
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Just walk into the CEO's office: (Score:5, Funny)
It's some of the UI code that people might really enjoy being able to, you know, work with a little better."
No doubt you will chairish the moment.
Re:Just walk into the CEO's office: (Score:5, Interesting)
"This letter is confirmation that [Company] transfers to you all copyrights and license rights for the Lotus Notes screens and databases you developed for us in 2002. You are free to use or sell the product at your discretion without fees or royalties to [Company]. In other words, you now own the software. We do ask that you destroy our client-specific data." It is signed by the CEO.
See? No fancy legalese necessary... plain English works just fine.
Your reply sounds like you would expect ridicule for such a move, but nothing ventured, nothing gained. The best thing that can happen is you get the code. The worst is that they say no. It takes a heap of cowardice to turn down copyrights for fear of one two-letter word, IMHO.
In my case the sales pitch was simple: "You're not going to use it. But I've invested a lot of effort in this and would like to see that not go to waste. Give me the code and I'll continue to improve it and fix bugs. And in the event that the new system doesn't work out for you, I'll license the improved code back to you royalty-free in exchange for the copyrights you transfer to me now. This mitigates the risks of your conversion. It's the best insurance policy you can have, and it costs you exactly nothing."
Parent
you answered your own question.... (Score:4, Informative)
Sometimes they are worried about liability (Score:5, Insightful)
Ask them if they are prepared to release the code and if not, why not.
If their major concern is laibility, then get the code signed over to another party who will shield them from liability. THis might be yourself or EFF or whatever.
If they still won't well you're screwed as it is theirs.
Parent
It might not help a competitor (Score:3, Insightful)
If the company decided to dump a project because they are moving out of that business arena, but the competitor is still staying in that arena, then opening up the code will dilute the competitor's position.
Re:you answered your own question.... (Score:5, Insightful)
Parent
Re: (Score:3, Insightful)
When our little company got merged into a bigger one, their lawyers tried to take my code. I pointed out my modified contract, and told them no way! They came back and said they would keep using my code, but only if I accepted liability for their use of it. I told them they were still welcome to continue using my code, but at their own risk, or, of course, they were free to
Try this instead ... (Score:5, Informative)
Since they've moved on to another project, tell them that it would be a shame if they couldn't at least get some value out of the code. Then say that if they were smart, maybe they could attract some publicity, etc., if they open-sourced the code they're not going to be using any more, and created a site for it, along with links, blurbs, etc., for the other stuff the company makes.
Benefits:
Parent
Actually, his question was somewhat different... (Score:4, Informative)
I've looked online to try to find a legal document I could present to my employer to get them to sign off on it, but I'm not having any luck.
The answer to that is simple for us, old-timers: search FSF.org (or, your tarfile of GCC source
No, they do not have to sign it. Yes, they might (depending on how hip they are and programmer's status in the company -- who wants to keep your star programmer unhappy, after all?
My $0.02 ($0.1, adjusted for inflation).
Paul B.
Parent
Re:Actually, his question was somewhat different.. (Score:3, Informative)
Re:you answered your own question.... (Score:5, Informative)
This is the usual IP hoarding scenario, and there's no point in running through all the issues yet again. Except maybe this one: SLASHDOT IS THE WRONG PLACE TO GO FOR LEGAL ADVICE.
Here's some practical advice: go to your boss and say, "OK, you don't want to this code, why not give me permission to open source it? It will make the company look good." They might well say, "Hey, that's a good idea! Go over to the legal department and have them do the paperwork for you, so you don't get in any trouble."
Parent
Re: (Score:3, Insightful)
Re: (Score:3, Interesting)
Re:you answered your own question.... (Score:4, Insightful)
Perhaps the original poster can clarify. Meanwhile I wouldn't jump to conclusions.
Parent
Re: (Score:3, Insightful)
Blindly assuming that one is better than the other and discouraging anyone in your company from actually finding out if thats the case is a a good example of moronic stupidity.
Re: (Score:3, Insightful)
...if you're like most of the 'business owners' i've ever met, you probably think you're the only one who knows how to do things...
That should be modded insightful. Seriously. Yes, every business owner does think he knows how to do it better than the other guy. That is why he started the business. And it can't be otherwise.
Please consider the possibilities here: when starting a business, you can do it worse, or the same, or better. Nobody in his right mind will start a business with the belief that he will do it worse. Nor will anybody start a business to do just doing the same as the other business, for the other business is
Re:you answered your own question.... (Score:5, Insightful)
Parent
Re:you answered your own question.... (Score:4, Interesting)
Here's an example of proprietary software released as open source, which benefited the original "owner": URL:http://ceps.sourceforge.net/
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You've got it all wrong. (Score:5, Interesting)
Much, much cheaper than developing a complete product on your own.
At least, that's what any smart attorney for your company who bills by the hour would tell your company to do.
Parent
Re:you answered your own question.... (Score:4, Insightful)
There are lots of reasons beyond code quality that a company might choose to outsource some program functionality of variable degrees of goodness. Perhaps there's better support, perhaps it's cheaper than developing and maintaining it internally. Perhaps the new module has similar functionality but the vendor provides it as a part of something with greater overall scope (in my past lives, a lot of internally written code existed to provide a subset of functionality of something that would have been prohibitively expensive to license because of all the stuff we wouldn't have used!).
If I had developed function x for a company and that module was being replaced, it's not a far stretch of the imagination that I would continue to work on code in that general area. Depending on how "black box" the new functions are, I might even see the internal workings of the licensed code. Even if I never saw the implementation, I would certainly see the interfaces and architecture.
If that's the case, then my involvement with a similar open source project is potentially quite toxic. The open source project is tainted by contact with somebody's proprietary work. Certainly, the external vendor isn't going to be appreciative of what's going on, despite any statement of good intent on the part of the programmer.
And this programmer is still an employee of the company that's bought the license, almost certainly including terms to honor the intellectual property. So, it's not only a matter of the external vendor being mad at an individual working on an open source project, this person is an employee of a licensee, and the licensee granted permission and transferred copyright on what is becoming a competitive product.
On top of that, if the employee wants to continue to actually work on the open source project, they're in continued violation of their contract because what they develop belongs to the company.
This one is so easy that it's a total no-brainer. If they release the original code for somebody to open source, then they are open to liability and litigation. The well-meaning but naive employee will probably lose their job. Or they can just say "no" and have no hassles.
The only way that you'll get this sort of copyright release from management is if it's dead-ended work - the company isn't working on it anymore and nobody else is either. And, I imagine that most companies would probably go even farther than that and say that the employees that worked on this code probably can't work on the open source project anymore either.
Now, if it meets these criteria - it's really being cut loose for the benefit of previously uninvolved parties, then it really has the possibility of being positive for the company without downside.
Parent
Re:you answered your own question.... (Score:5, Informative)
As stated earlier, and in other posts, you have essentially answered your own question. The answer depends on how persuasive you are. Management is not going to allow even antiquated code out to pasture in this manner if you cannot rationalize a business (ie: MONEY) reason that they should permit it. Without knowing your industry, product or application I have little to go on, but management in my company (including myself) would rather play it safe & not cannibalize their market by permitting the world access to something they paid for.
Finally: If you don't get the answer you like, don't contravene management. You will pay for it in some fashion.
Parent
Re:you answered your own question.... (Score:4, Insightful)
But I concur. There is too little information to go on to give any counsil beyond general observations.
That said, business reasons include a lot more than just money. Worker satisfaction is another reason, often overlooked. If pitched right to his company, an essentially worthless (to them) piece of code can have a positive effect on morale.
It can also be used for free publicity: require a "sponsored by [company]" tag somewhere in exchange for releasing the code. However, never attach the name of the company to the software without their express consent!
Parent
Why these questions are on /. (Score:5, Insightful)
Why do people always say these questions don't belong on Slashdot? This question is the perfect example of how Slashdot *actually* works vs. how people *imagine* it works.
The question: I want to open source some code I wrote for work that the company is scrapping.
Expected Slashdot answer: Just do it! Don't ask The Man, he'll only push you down... OSS FTW!!1!
Actual Slashdot answer, overall: It's possible, but you definitely don't have the rights to that code, and it's probably not in the company's best interest to give them to you... so it probably won't hurt to ask, but chances are you'll need to find another project.
Included in that actual answer: details from other developers who've been in the same situation, and comments from actual IT lawyers who work with these issues.
So -- wrong place?
Yes, none of this is "official" legal advice (though about as close as you can get for free & online), and if the questioner wants to try something risky, he should pay to get that legal advice... but now he knows what "risky" even means in this situation (he didn't know before) and has some idea of if it's worth pushing for it (probably not).
So: can we just hash out a new feature for Ask Slashdot postings? Have the editor just flag the question as "responses might contain legality discussions"... and automatically include regular disclaimer text saying "reminder: comments in this discussion are not legal advice." Or add a checkbox to the reply form, next to "No Karma Bonus" and "Post Anonymously", called "Include Not-Legal-Advice Disclaimer"?
Then we don't need to fill the comments with all of these disclaimers and warnings, and the actual lawyers don't have to worry about someone pointing back to their comment as "rendered legal advice" and holding them responsible for it being a complete and accurate answer. And (this is not a response to the parent) we can start smacking down the people who always post "Don't ask Slashdot - get a lawyer!" to every single Ask Slashdot story, looking for cheap karma.
Parent
Simple, maybe? (Score:5, Insightful)
Affix the license, the document, and the code. Have a legal officer of the company sign the document, initial all the pages of code and the license in front of a notory, and have the notory do their thing and seal it.
Should work for any trivial amount of code. As was joked about in another post, I doubt you'd want to try this with Ballmer and the Office code base, but if you think your company will let you get by with it in the first place, its probably enough. The key thing is that you've got their sig and its notorized properly so you can't be sued later for releasing their IP into the public spotlight without permission cause lets face it, once the code is out there, they aren't going to put it back in the bottle, they at best will sue you for releasing it.
Not yours (Score:5, Insightful)
You can always ask them if they'll give it to you. I've done this successfully. If they really have no interest in it, they might be willing to discard it.
You didn't read the summary. (Score:5, Informative)
Parent
Explain that it lower your costs (Score:3, Informative)
One approach is to explain that by releasing software components to the open source community, you'll get other people to improve and test your software. This reduces your costs and people in charge tend to like that
There's an example accompanying the GPL (Score:4, Informative)
"You should also get your employer (if you work as a programmer) or your
school, if any, to sign a "copyright disclaimer" for the program, if
necessary. Here is a sample; alter the names:
Yoyodyne, Inc., hereby disclaims all copyright interest in the program
`Gnomovision' (which makes passes at compilers) written by James Hacker.
<signature of Ty Coon>, 1 April 1989
Ty Coon, President of Vice"
I like that copyright disclaimer because it is short and simple. No doubt someone suffering from the brain damage of a legal education could provide you with a longer one.
Re:There's an example accompanying the GPL (Score:4, Funny)
Parent
Talk to your manager (Score:3, Informative)
If your manager agrees with you that open sourcing it might work, he'll know how to do so. If not, it's not happening anyway.
Open sourcing what you don't seem to own (Score:5, Informative)
I'm not a lawyer but...
It sounds like they've paid you for this work. That probably means they are the copyright owner. Copyright does not transfer by accident. So if you haven't got a document in hand by someone who is a principal of the company that unambiguously identifies you as the new owner of the software, you should tread very carefully.
Also, you're talking about having them 'gift' it to you, effectively. You apparently did work they paid for and now you want to own it. That can't happen by magic, and most companies don't give away assets. You might want to try 'buying' it since then there would be a contract you could point to, and you would know who sold it. (I don't know if that makes it better. Ask a lawyer. It just seems to me like it might make a better paper trail.)
You don't say whether the other product is one your company is making or buying from outside. If the company maintains a competing product, your non-compete agreement may be in play.
You might consider writing it again, clean, on your own time and machine, logging the intermediate versions so they can be shown to be different than the backups the company has of its intermediate versions. That may not be enough even. It might address copyright but not non-compete or trade secret.
You might consider getting the company to open source it instead of you. The difference (I think) would be that it would be they, not you, who retains the right to make amended agreements with different conditions than the basic license. In that case, all you need is that they open source it in a way that gives you the necessary rights of use, which may be easier to establish than ownership. Also, in that case, you can probably get the company's lawyers involved in making the license, and all you have to do is worry about whether you can use the license that is finally created. In that case, you've evaded the worries about whether you transferred ownership right, and you're down to just "did they pick a good license.
Did I mention I'm not a lawyer? You should not use this message as a guide to what you can do. Mostly you can take stuff like this that people like me write as conversation starters when you finally get serious and talk with someone who is legally competent to advise you properly.
And, by the way, if you make a mess of this and publish something you don't have the proper rights to, you make a problem for people downstream in the user chain. There was a recent Slashdot article [slashdot.org] where something vaguely of this kind may have been in play. Even if not the same root cause, it illustrates a scenario you don't want to find yourself in.
I do this regularly, but... (Score:4, Insightful)
Your situation is going to be tricky because you (I assume) don't have a precedent of doing it (they didn't hire you based on your other open source work) and don't have any agreement in place. I also assume you are a permanent employee instead of a contractor (it can be easier to open source work as a contractor in some countries).
The above stuff isn't critical, but it smooths the process.
What's tricky for you is there aren't any good BUSINESS reasons for them to do it either.
If either your code, or the code that replaced it, is profit-impacting then forget it. No sane company would open source a profitable codebase, nor will they risk releasing an old product that you could then take and create a competitor.
The best arguments for open sourcing in a company that isn't a software company are:
1. Having other users means free testing, free reports, maybe some free patches. In rare cases, it means you become the industry standard/leader in an area (and control is good, from a company perspective).
2. Because you will continue working on the project after you leave them, they in effect continue to retain you as an employee without having to pay you.
Those are the direct benefits, there's more reasons (mostly more subtle).
Sadly, neither of these apply in your case.
You are in effect dumpster-diving in their repository, asking for charity. And your work on that codebase could well distract you from your new one.
It might be possible, but it's going to be damned hard.
Good luck though.
Just ask? (Score:5, Insightful)
I work for a large software company (about 10,000 employees) and have released a couple of things into open source. We use Linux / MySQL / Apache / Spring / etc in a big way. A colleague and I wrote some MySQL utilities and some other bits and pieces, but the code we wrote didn't really give away competitive secrets, so I went to my management and asked - and they said "yes".
My company has contributors to at least a half-dozen open source projects that I know of. For example, se use Apache Camel and we contribute. It makes sense for us to share, because the sum of what we get back from the community is more than what we put into it individually (and we give away no secrets).
Now, if the code you wrote is something a competitor could use against your company, don't both asking, you already know the answer.
Alan.
Three things you need (Score:3, Informative)
2) A tech-savvy lawyer, once you have procured approval. Your lawyer's job will be to review the contract giving you ownership of the code. That contract will probably be drawn up by your company's legal department, so your lawyer will be making sure nothing is left out and that you aren't getting screwed in some way
3) A very accommodating attitude. If there are any costs to your employer to do the transfer, you may be asked to pay them. If so, and you can afford it, suck it up and do it. If you can't afford it, thank everyone sincerely for their time and approval and effort on your before, and explain that you can't afford to pay that much, and walk away from it. And of course, if they say no, regardless of the reason, be gracious and thank the appropriate people for considering your request.
When was it conceived (Score:4, Insightful)
For example, I had an idea while working for one company. It was to be an internet monitoring software, that would watch multiple points across as many providers as we could manage, map out the traceroutes, and show not only the common peers that those traceroutes passed through, but would effectively show when any peering point was having problems.
They grabbed hold of it, and offered me 5% of the "profits" of the company. That's the day I stopped working on it.
Technically (if they remember), they still own the idea. If I were to start working on it again for a commercial venture, they could lay claim to it. It's not a matter of what was written, but the idea behind it.
You may win in court, but it will be a long drawn out court battle that you probably can't afford to gamble with. If you win (which you may), you may win a lot. If you lose, you're going to lose a lot. Not only your legal fees, but their legal fees, and whatever the judgment is against you, as well as your intellectual property.
My advice is, when you have another great idea for something, STFU. Don't tell them anything. Wait until you're no longer under any sort of contract, and then "start" your development on it. You can start working on it on the side, but be very very careful that there's nothing to document that you were working on it during the period that your contract with another company is under effect.
You may want to re-read your contract too. It may not cover just what you conceptualize while as their employee, but anything for a period (6 months to a year, I've seen in various contracts) belongs exclusively to them.
Ask them (Score:3, Informative)
You have to ask them for permission. But don't just ask, make a good case for it. Explain what the cost to them is (including lost opportunity cost, which sounds like nothing for this case). Explain the benefits (mostly soft and squishy stuff, like contributing to the community and giving your company a good name, etc). Really pitch it.
I know this works on occasion, since I've done this myself: asked for, and received permission, to release programs I've written both internally and for paying customers as free software (in the latter case, our agreement with the customer allows this). You can go download it yourself: JavaSock [sourceforge.net].
It was simply a matter of talking to our commercialization director, pointing out to him that realistically, we probably wouldn't make much revenue off of selling this code, but would make several people (including the client that paid for it) happy, and it might give us some good press in certain circles. They agreed, and we uploaded it to sourceforge.
But don't try to do an end-around. Many things can happen, and most of them aren't good.
I'm not being high and mighty here, my contract says the same. I don't mind, they compensate me well for it. If I didn't think this was a workable deal, well, I'd go find someplace else.
Just get them to license it to you (Score:3, Interesting)
As far as whether you should try to get the copyright, having this company own the copyrights and only license it to you under the GPL and then have you work on it and only license your changes under the GPL means that nobody can change the license, since neither of those two copyright holders are likely to agree on a change. This can be preferable for end users over having a single copyright holder who could legally take future versions closed-source.
Why bother open sourcing the old code (Score:3, Insightful)
I am sure that over time your coding has improved, and you might be able to find a different way to do the same thing that isn't the same as your old code or the code they used to replace it.
That is unless your employment contract states that even coding you do on your own time still belongs to the company. If so, wait until your contract is over, or the employer changes the contract to allow you to write code on your own time that belongs to you and allows you to open source it.
As long as the new code you write doesn't use code from the old code or the code that replaces it, nor is it written on company time or the contract doesn't somehow prohibit you from writing it so it isn't the property of the company you work for, you should be able to write open source code.
The old code can't be that good, as they replaced it with different code. Chances are that you can find a better way to do the same thing with different code that doesn't violate any contract you have with the company.
Anyway I agree with others, you should be talking to a lawyer instead of Slashdot.
Used to be in the boat -- now it's my boat (Score:3, Interesting)
So my employee contracts adjust that infamous clause to say something to the effect of: "any code entirely written by you is yours to use any way you see fit, forever, for as long as you don't restrict the company from using it". It amounts to the programmer granting the company unlimited usage rights, and does not stop the programmer from using it or selling it or doing anything else with it.
The big condition is, of course, that the programmer have written it alone. If two programmers work together on a feature, then neither gets it. But a) that's rare: I don't think that two programmers should be coding the same thing -- extreme programming doesn't count as that's more supervisory than co-programming; b) individual functions and algorithms are not complicated enough to warrant multiple programmers; and c) my product is the entire package, not the individual functions, algorithms, and subroutines; so if my excellent custom e-mail client has an amazing sorting algorithm, my product is the application, not the sorting algorithm; in cases where my competitive advantage is indeed the sorting algorithm, then I promise that not only did it not rest in the hands of a sole programmer, but that I too was a part of its inception and design.
Get the copyright (Score:3, Interesting)
Re:why (Score:4, Insightful)
Parent
Re:why (Score:5, Insightful)
Parent
Re:why (Score:5, Insightful)
And if nothing else, its polite to give help when you can. Responses such as yours are a big reason people don't like to learn about Linux or technology in general; whenever they attempt to get involved and learn, they just get yelled at for being newbies and told to go elsewhere. The open source community may have lost a genius member just now because you decided to be a jerk and therefore put off the asker from even wanting to write open source software anymore.
Just remember this next time you have a question about anything (which is inevitable). I don't want to hear it when you're stuck with no answer because everyone yelled "Get lost! You should know the answer."
Parent
Re: (Score:3, Interesting)
Actually, in Hong Kong the last week there has been a huge "sex photo scandal". A male pop singer, Edison Chen, had a string of actress and pop star girl friends, and apparently had the habit of taking their photos in bed -- very explicit photos too, as became public knowledge when he took his laptop in for repair...
Here's [phimhongkong.com] a forum with the (NSFW) photos and some background.
And unlike, say, Britney or Paris, these girls had squeaky-clean teen-idol images did not benefit
Re:And you came to /. with this problem? (Score:5, Insightful)
All he has to do is ask his employer if he can have the code. Get the agreement in writing, yes. Hire a lawyer? What the fuck? If I was his employer and he hired a lawyer, I'd fire him.. and don't say I couldn't, I'd find a reason.
Parent
It's just the ol' Prisoner's Dilemma (Score:3, Insightful)
Therefore, if you know you're going into a situation in which there is a nontrivial chanc
Re: (Score:3, Insightful)
what is *with* you people always reaching for the lawyer every time some little conflict with another person comes up
My entrepreneurship teacher put it best: "people come after you the second you have lots of money." The reason why everyone says "ask a lawyer" is because if you happen to make lots of money and some big business guy comes at you with a lawsuit and wins, you're fucked. Even if they don't win, as long as they have deeper pockets than you, you will lose the court game or they'll sink you with lawyer fees.
People don't like lawyers because it is an ugly game where the only winners are the lawyers.
Now s
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