Looks like the employee is based in the UK. As you might expect, most of the responses to his announcement are Bad Legal Advice. This comment is also going to be Bad Legal Advice (IANAL!) but I have some experience and a little background knowledge so I hope I can comment more wisely…
The way FOSS (and indeed all private-time) software development works here for employees is that according to your contract your employer will own everything you create, even in your private time. Opinions I’ve heard from solicitors and employment law experts suggest that this practice might constitute an over-broad, “unfair”, contract term under UK law. That means you might be able to get it overturned if you really tried, but you’d have to litigate to resolve it. At any rate the de facto status is: they own it by default.
What employees typically do is seek an IP waiver from their employer where the employer disclaims ownership of the side-project. The employer can refuse. If you’ve already started they could take ownership, as apparently is happening in this case. Probably in that scenario what you should not do is try to pre-emptively fork under some idea that your project is FOSS and that you have that right. The employer will likely take the view that because you aren’t the legal holder of the IP that you aren’t entitled to release either the original nor the fork as FOSS - so you’ve improperly releasing corporate source code. Pushing that subject is an speedy route to dismissal for “gross misconduct” - which a sufficient reason for summary dismissal, no process except appeal to tribunal after the fact.
My personal experience seeking IP waivers, before I turned contractor (after which none of the above applies), was mixed. One startup refused it and even reprimanded me for asking - the management took the view that any side project was a “distraction from the main goal”. Conversely ThoughtWorks granted IP waivers pretty much blanket - you entered your project name and description in a shared spreadsheet and they sent you a notice when the solicitor saw the new entry. They took professional pride in never refusing unless it conflicted with the client you were currently working with.
My guess is that legal rules and practices on this are similar in most common law countries (UK, Australia, Canada, America, NZ).
The way FOSS (and indeed all private-time) software development works here for employees is that according to your contract your employer will own everything you create, even in your private time.
This seems absurd. If I’m a chef, do things I cook in my kitchen at home belong to my employer? If I’m a writer do my kids’ book reports that I help with become privileged? If I’m a mechanic can I no longer change my in-laws’ oil?
Why is software singled out like this and, moreover, why do people think it’s okay?
There have been cases of employees claiming to have written some essential piece of software their employer relied on in their spare time. Sometimes that was even plausible, but still it’s essentially taking your employer hostage. There have been cases of people starting competitors to their employer in their spare time; what is or is not competition is often subject to differences of opinion and are often a matter of degree. These are shadow areas that are threatening to business owners that they want to blanket prevent by such contractual stipulations.
Software isn’t singled out. It’s exactly the same in all kinds of research, design and other creative activities.
I think it’s a pretty large problem if someone can become a colleague, quickly hoover up all the hard won knowledge we’ve together accumulated over the past decade, then start a direct competitor to my employer, possibly putting me out of work.
You’re thinking of large faceless companies that you have no allegiance to. I’m thinking of the two founders of the company that employs me and my two dozen colleagues, whom I feel loyal towards.
This kind of thing protects smaller companies more than larger ones.
…start a direct competitor to my employer, possibly putting me out of work.
Go work for the competitor! Also, people can already do pretty much what you describe in much of the US where non-competes are unenforceable. To be clear, I think this kind of hyper competitiveness is gross, and I would much rather collaborate with people to solve problems than stab them in the back (I’m a terrible capitalist). But I’m absolutely opposed to giving companies this kind of legal control over (and “protection” from) their employees.
Who says they want me? Also I care for my colleagues: who says they want them as well?
where non-competes are unenforceable
Overly broad non-competes are unenforceable when used to attempt to enforce against something not clearly competition. They are perfectly enforceable if you start working for, or start, a direct competitor, profiting from very specific relevant knowledge.
opposed to giving companies this kind of legal control
As I see it we don’t give “the company” legal control: we effectively give humans, me and my colleagues, legal control over what new colleagues are allowed to do, in the short run, with the knowledge and experience they gain from working with us. We’re not protecting some nameless company: we’re protecting our livelihood.
And please note that my employer does waive rights to unrelated side projects if you ask them, waives rights to contributions to OSS, etc. Also note that non-compete restrictions are only for a year anyway.
Who says they want me? Also I care for my colleagues: who says they want them as well?
Well then get a different job, get over it, someone produced a better product than your company, that’s the whole point of capitalism!
They are perfectly enforceable if you start working for, or start, a direct competitor, profiting from very specific relevant knowledge.
Not in California, at least, it’s trivially easy to Google this.
As I see it we don’t give “the company” legal control: we effectively give humans, me and my colleagues, legal control over what new colleagues are allowed to do, in the short run, with the knowledge and experience they gain from working with us.
Are you a legal party to the contract? If not, then no, it’s a contract with your employer and if it suits your employer to use it to screw you over, they probably will.
I truly hope that you work for amazing people, but you need to recognize that almost no one else does.
Even small startups routinely screw over their employees, so unless I’ve got a crazy amount of vested equity, I have literally zero loyalty, and that’s exactly how capitalism is supposed to work: the company doesn’t have to care about me, and I don’t have to care about the company, we help each other out only as long as it benefits us.
Why did the original company need the person who started the competitor? Companies need workers and if the competitor puts the original company out of business (I was responding to the “putting me out of work” bit) then presumably it has taken on the original company’s customers and will need more workers, and who better than people already familiar with the industry!
Laying off and reducing the workforce can be regulated (and is in my non-US country). The issue with having employees starting competitor products is that they benefit from an unfair advantage and create a huge conflict of interest.
If California enforced non-compete agreements, Silicon Valley might well not have ended up existing. Non-enforcement of noncompetes is believed to be one of the major factors that resulted in Silicon Valley overtaking Boston’s Route 128 corridor, formerly a competitive center of technology development:
https://hbr.org/2016/11/the-reason-silicon-valley-beat-out-boston-for-vc-dominance
I don’t think we are talking about the same thing. While I agree that any restriction on post-employment should be banned, I don’t think it is unfair for an organization to ask their employees to not work on competing products while being under their payroll. These are two very different situations.
If the employee uses company IP in their product then sure, sue them, that’s totally fair. But if the employee wants to use their deep knowledge of an industry to build a better product in their free time, then it sucks for their employer, but that’s capitalism. Maybe the employer should have made a better product so it would be harder for the employee to build something to compete with it. In fact, it seems like encouraging employees to compete with their employers would actually be good for consumers and the economy / society at large.
An employee working on competing products on its free time creates an unfair advantage because the employees have access to an organization IP to build its new product while the organization does not have access to the competing product IP. So what’s the difference between industrial espionage and employees working on competing products on their free time?
These kinds of epic dunks are funny but not productive in the real world, where yes, the employer risks suffering damages if an employee tries to relicense or revoke the implicit (tort) usage agreement between himself and said employer.
If the balance of power was different, I might be concerned. But I’m not, because what we actually see in the real world is rampant exploitation of employees and, in relative terms, essentially zero exploitation of employers by employees. So I actually think that these “dunks” are productive because they help reveal how absolutely absurd it is to worry about employers being “victimized” by their employees.
Joel Spolsky wrote a piece that frames it well, I think. I don’t personally find it especially persuasive, but I think it does answer the question of why software falls into a different bucket than cooking at home or working on a car under your shade tree, and why many people think it’s OK.
Does this article suggest the employers view contracts as paying for an employee’s time, rather than just paying for their work?
Could a contract just be “in exchange for this salary, we’d like $some_metric of work”, with working hours just being something to help with management? It seems irrelevant when you came up with something, as long as you ultimately give your employer the amount of work they paid you for.
Why should an employer care about extra work being released as FOSS if they’ve already received the amount they paid an employee for?
EDIT: I realise now that $some_metric is probably very hard to define in terms of anything except number of hours worked, which ends up being the same problem
Does this article suggest the employers view contracts as paying for an employee’s time, rather than just paying for their work?
I didn’t read it that way. It’s short, though. I’d suggest reading it and forming your own impression.
Could a contract just be “in exchange for this salary, we’d like $some_metric of work”, with working hours just being something to help with management? It seems irrelevant when you came up with something, as long as you ultimately give your employer the amount of work they paid you for.
I’d certainly think that one of many possible reasonable work arrangements. I didn’t link the article intending to advocate for any particular one, and I don’t think its author intended to with this piece, either.
I only linked it as an answer to the question that I read in /u/lorddimwit’s comment as “why is this even a thing?” because I think it’s a plausible and cogent explanation of how these agreements might come to be as widespread as they are.
Why should an employer care about extra work being released as FOSS if they’ve already received the amount they paid an employee for?
As a general matter, I don’t believe they should. One reason I’ve heard given for why they might is that they’re afraid it will help their competition. I, once again, do not find that persuasive personally. But it is one perceived interest in the matter that might lead an employer to negotiate an agreement that precludes releasing side work without concurrence from management.
I only linked it as an answer to the question that I read in /u/lorddimwit’s comment as “why is this even a thing?” because I think it’s a plausible and cogent explanation of how these agreements might come to be as widespread as they are.
I think so too, and hope I didn’t come across as assuming you (or the article) were advocating anything that needs to be argued!
I didn’t read it that way. It’s short, though. I’d suggest reading it and forming your own impression.
I’d definitely gotten confused because I completely ignored that the author is saying that the thinking can become “I don’t just want to buy your 9:00-5:00 inventions. I want them all, and I’m going to pay you a nice salary to get them all”. Sorry!
There is a huge difference: We’re talking about creativity and invention. The company isn’t hiring your for changing some oil or swapping some server hardware. They’re hiring you to solve their problems, to be creative and think of solutions. (Which is also why I don’t think it’s relevant how many hours you actually coded, the result and time you thought about it matters.) Your company doesn’t exist because it’s changing oil, the value is in the code (hopefully) and thus their IP.
So yes, that’s why this stuff is actually different. Obviously you want to have exemptions from this kind of stuff when you do FOSS things.
I think the chef and mechanic examples are a bit different since they’re not creating intellectual property, and a book report is probably not interesting to an employer.
Maybe a closer example would be a chef employed to write recipes for a book/site. Their employer might have a problem with them creating and publishing their own recipes for free in their own time. Similarly, maybe a writer could get in trouble for independently publishing things written in their own time while employed to write for a company. I can see it happening for other IP that isn’t software, although I don’t know if it happens in reality.
I think the “not interesting” bit is a key point here. I have no idea what Bumble is or the scope of the company, and I speak out of frustration of these overarching “legal” restrictions, but its sounds like they are an immature organization trying to hold on to anything interesting their employees do, core to the current business, or not, in case they need to pivot or find a new revenue stream.
Frankly if a company is so fearful that a couple of technologies will make make or break their company, their business model sucks. Technology != product.
This is pretty much my (non-lawyer) understanding and a good summary, thanks.
If you find yourself in this situation, talk to a lawyer. However I suspect that unless you have deep pockets and a willingness to litigate “is this clause enforceable” through several courts, your best chance is likely to be reaching some agreement with the company that gives them what they want whilst letting you retain control of the project or at least a fork.
One startup refused it and even reprimanded me for asking - the management took the view that any side project was a “distraction from the main goal”
I think the legal term for this is “bunch of arsehats”. I’m curious to know whether you worked for them after they started out like this?
The way FOSS (and indeed all private-time) software development works here for employees is that according to your contract your employer will own everything you create, even in your private time
Is it really that widespread? It’s a question that we get asked by candidates but our contract is pretty clear that personal-time open source comes under the moonlighting clause (i.e. don’t directly compete with your employer). If it is, we should make a bigger deal about it in recruiting.
I would think the solution is to quit, then start a new project without re-using any line of code of the old project - but I guess the lawyers thought of this too and added clauses giving them ownership of the new project too…
When my previous employer went through a hostile takeover (in the US), the new overlords forced us to sign an agreement that anything we create in our spare time is wholly owned by them. Even to the point where if I design a left-handed potato peeler for my wife, they would claim it as theirs.
Prior to the takeover, my employer graciously hosted the entirety of the HardenedBSD build infrastructure. Conversations regarding whether the new overlords could take ownership of the project were had.
After 18 months trying to make things work, I decided I needed to find new employment. Not only for HardenedBSD, but for my own very literal sanity. When I say hostile takeover, the word “hostile” doesn’t really do it justice. I especially felt that I needed to protect HardenedBSD.
In May of 2020, I found that new employer. Turns out, they were already using HardenedBSD as the basis for their product. They’re now the hosting provider for the HardenedBSD build infrastructure. I report directly to the executive team, who are incredibly supportive of all my extracurricular work, not just HardenedBSD.
I’m so glad I made the switch. My mental health situation has improved, and I feel HardenedBSD isn’t being threatened anymore by my employer (as above, it’s the exact opposite: they’re enabling the success of the project, and thereby enabling the success of their product.) Yay synergy!
Another person who didn’t read (or take seriously) the Intellectual Property Agreement form they signed when they took the job. Typically this states that all inventions of yours during your employment, regardless of time, place, or ownership of equipment, are assigned to your employer if they’re related to their area of business.
I have been burned by this, I’ve seen co-workers burned by it, and every year I read about people in this situation.
If you’re going to start your own side project, FOSS or not, talk to your employer and get an exemption first.
This confirms me that I was not too paranoid when I rejected a well-paid job in past for these reasons (copyright and patent). And remember that such contract clauses endanger not only free software projects you participate on but also your future customers or employers. Having certain companies in CV is rather a threat than advantage. Company A could attack company B through such clauses signed by their former employees.
This really sucks for the OP, but they shouldn’t have signed that contract in the first place. As developers, we’re fortunate to find ourselves in a seller’s market: companies are dying to find good talent, and if they’re stupid enough to put restrictive clauses in their contracts, we should negotiate them out, and if they won’t, there’s always another company you can work for.
This should not be taken lightly: you should also consider what kind of people you want to work with. If you want to work with other passionate free software talent, they’re likely to take a hard pass on contracts like this (I know I would).
If you find your free software work even slightly important, you should never ever go along with a clause that states “all work you do in your spare time is owned by the employer”.
Of course, when negotiating you would be wise to show an understanding for your employer. For instance, you could have the clause replaced by something that reads “you can not produce software in your spare time that directly competes with the software we’re selling”. In the end, that’s probably the reason the lawyers put in a clause like this in the first place: they’re afraid you’re going to steal their secret sauce and opensource it, or start your own competitor company. Their willingness to negotiate about a clause like this should be a good indication of how reasonable they are in general.
This really sucks for the OP, but they shouldn’t have signed that contract in the first place.
In some countries, like the Netherlands software written in your free time belongs to your employer unless your contract stipulates otherwise, and many people are unaware of it :)
Oh yeah, I remember that post. If you look down through the comments, you see Arnoud responds that it has to be code that pertains to your specific tasks at work for the employer to stake a claim (his clearest example: Microsoft employees working on MSOffice shouldn’t work on LibreOffice in their spare time, but if they make a FPS game the employer can’t claim ownership). So it’s (IMHO) not comparable to a blanket statement in a contract that everything you build in your own time is theirs.
Are people regularly getting their own custom language written into contracts?
I’ve attempted it once before, where a contract essentially said I couldn’t work in the entire state in any “similar industry” (which includes every industry since they were so diversified) for a year. For a summer internship!
But I didn’t get that exception since “everyone has to be under the same agreements”. Do regular HR people ever want that kind of liability without laundering it through “Legal”? A process which would take an unknown amount of time and effort and has very little precedent?
Still baffles me that in the US at least, the duty of not being screwed by a contract is almost always placed on regular people with no legal training, no union to back them up, and a short time span. Then when people naturally get screwed over, they get blamed somehow.
At my previous job as a senior developer I negotiated several tweaks to my contract, including changing a clause that was similar (but less extreme) to the one you encountered. I had it changed to have a time limit. So it’s certainly possible, but I guess that as a “mere” intern you won’t have as strong a negotiating position. And in my case, it also was a small company without separate “legal” or HR departments, though; my negotiations were directly with the company’s founders.
But even if they’re not willing to change the contract, you’re still responsible for ultimately accepting or declining what they put in a contract. There’s no shame in walking away from job if there’s an unreasonable contract, no hard feelings. Just see it as a good exercise for your interviewing and negotiation skills ;)
Looks like the employee is based in the UK. As you might expect, most of the responses to his announcement are Bad Legal Advice. This comment is also going to be Bad Legal Advice (IANAL!) but I have some experience and a little background knowledge so I hope I can comment more wisely…
The way FOSS (and indeed all private-time) software development works here for employees is that according to your contract your employer will own everything you create, even in your private time. Opinions I’ve heard from solicitors and employment law experts suggest that this practice might constitute an over-broad, “unfair”, contract term under UK law. That means you might be able to get it overturned if you really tried, but you’d have to litigate to resolve it. At any rate the de facto status is: they own it by default.
What employees typically do is seek an IP waiver from their employer where the employer disclaims ownership of the side-project. The employer can refuse. If you’ve already started they could take ownership, as apparently is happening in this case. Probably in that scenario what you should not do is try to pre-emptively fork under some idea that your project is FOSS and that you have that right. The employer will likely take the view that because you aren’t the legal holder of the IP that you aren’t entitled to release either the original nor the fork as FOSS - so you’ve improperly releasing corporate source code. Pushing that subject is an speedy route to dismissal for “gross misconduct” - which a sufficient reason for summary dismissal, no process except appeal to tribunal after the fact.
My personal experience seeking IP waivers, before I turned contractor (after which none of the above applies), was mixed. One startup refused it and even reprimanded me for asking - the management took the view that any side project was a “distraction from the main goal”. Conversely ThoughtWorks granted IP waivers pretty much blanket - you entered your project name and description in a shared spreadsheet and they sent you a notice when the solicitor saw the new entry. They took professional pride in never refusing unless it conflicted with the client you were currently working with.
My guess is that legal rules and practices on this are similar in most common law countries (UK, Australia, Canada, America, NZ).
This seems absurd. If I’m a chef, do things I cook in my kitchen at home belong to my employer? If I’m a writer do my kids’ book reports that I help with become privileged? If I’m a mechanic can I no longer change my in-laws’ oil?
Why is software singled out like this and, moreover, why do people think it’s okay?
There have been cases of employees claiming to have written some essential piece of software their employer relied on in their spare time. Sometimes that was even plausible, but still it’s essentially taking your employer hostage. There have been cases of people starting competitors to their employer in their spare time; what is or is not competition is often subject to differences of opinion and are often a matter of degree. These are shadow areas that are threatening to business owners that they want to blanket prevent by such contractual stipulations.
Software isn’t singled out. It’s exactly the same in all kinds of research, design and other creative activities.
Sounds fine to me, what’s the problem? Should it be illegal for an employer to look for a way to lay off employees or otherwise reduce its workforce?
I think it’s a pretty large problem if someone can become a colleague, quickly hoover up all the hard won knowledge we’ve together accumulated over the past decade, then start a direct competitor to my employer, possibly putting me out of work.
You’re thinking of large faceless companies that you have no allegiance to. I’m thinking of the two founders of the company that employs me and my two dozen colleagues, whom I feel loyal towards.
This kind of thing protects smaller companies more than larger ones.
Go work for the competitor! Also, people can already do pretty much what you describe in much of the US where non-competes are unenforceable. To be clear, I think this kind of hyper competitiveness is gross, and I would much rather collaborate with people to solve problems than stab them in the back (I’m a terrible capitalist). But I’m absolutely opposed to giving companies this kind of legal control over (and “protection” from) their employees.
Who says they want me? Also I care for my colleagues: who says they want them as well?
Overly broad non-competes are unenforceable when used to attempt to enforce against something not clearly competition. They are perfectly enforceable if you start working for, or start, a direct competitor, profiting from very specific relevant knowledge.
As I see it we don’t give “the company” legal control: we effectively give humans, me and my colleagues, legal control over what new colleagues are allowed to do, in the short run, with the knowledge and experience they gain from working with us. We’re not protecting some nameless company: we’re protecting our livelihood.
And please note that my employer does waive rights to unrelated side projects if you ask them, waives rights to contributions to OSS, etc. Also note that non-compete restrictions are only for a year anyway.
Well then get a different job, get over it, someone produced a better product than your company, that’s the whole point of capitalism!
Not in California, at least, it’s trivially easy to Google this.
Are you a legal party to the contract? If not, then no, it’s a contract with your employer and if it suits your employer to use it to screw you over, they probably will.
I truly hope that you work for amazing people, but you need to recognize that almost no one else does.
Even small startups routinely screw over their employees, so unless I’ve got a crazy amount of vested equity, I have literally zero loyalty, and that’s exactly how capitalism is supposed to work: the company doesn’t have to care about me, and I don’t have to care about the company, we help each other out only as long as it benefits us.
Go work for the competitor?
Why would the competitor want/need the person they formerly worked with/for?
Why did the original company need the person who started the competitor? Companies need workers and if the competitor puts the original company out of business (I was responding to the “putting me out of work” bit) then presumably it has taken on the original company’s customers and will need more workers, and who better than people already familiar with the industry!
Laying off and reducing the workforce can be regulated (and is in my non-US country). The issue with having employees starting competitor products is that they benefit from an unfair advantage and create a huge conflict of interest.
Modern Silicon Valley began with employees starting competitor products: https://en.wikipedia.org/wiki/Traitorous_eight
If California enforced non-compete agreements, Silicon Valley might well not have ended up existing. Non-enforcement of noncompetes is believed to be one of the major factors that resulted in Silicon Valley overtaking Boston’s Route 128 corridor, formerly a competitive center of technology development: https://hbr.org/2016/11/the-reason-silicon-valley-beat-out-boston-for-vc-dominance
I don’t think we are talking about the same thing. While I agree that any restriction on post-employment should be banned, I don’t think it is unfair for an organization to ask their employees to not work on competing products while being under their payroll. These are two very different situations.
If the employee uses company IP in their product then sure, sue them, that’s totally fair. But if the employee wants to use their deep knowledge of an industry to build a better product in their free time, then it sucks for their employer, but that’s capitalism. Maybe the employer should have made a better product so it would be harder for the employee to build something to compete with it. In fact, it seems like encouraging employees to compete with their employers would actually be good for consumers and the economy / society at large.
An employee working on competing products on its free time creates an unfair advantage because the employees have access to an organization IP to build its new product while the organization does not have access to the competing product IP. So what’s the difference between industrial espionage and employees working on competing products on their free time?
That was literally in the comment you responded to.
[Comment removed by moderator pushcx: Troll.]
These kinds of epic dunks are funny but not productive in the real world, where yes, the employer risks suffering damages if an employee tries to relicense or revoke the implicit (tort) usage agreement between himself and said employer.
Employees also risk suffering damages (getting fired) if they find a way to do their work more efficiently, yet this is encouraged.
I’m not saying employees don’t risk damages!
If the balance of power was different, I might be concerned. But I’m not, because what we actually see in the real world is rampant exploitation of employees and, in relative terms, essentially zero exploitation of employers by employees. So I actually think that these “dunks” are productive because they help reveal how absolutely absurd it is to worry about employers being “victimized” by their employees.
Joel Spolsky wrote a piece that frames it well, I think. I don’t personally find it especially persuasive, but I think it does answer the question of why software falls into a different bucket than cooking at home or working on a car under your shade tree, and why many people think it’s OK.
Does this article suggest the employers view contracts as paying for an employee’s time, rather than just paying for their work?
Could a contract just be “in exchange for this salary, we’d like $some_metric of work”, with working hours just being something to help with management? It seems irrelevant when you came up with something, as long as you ultimately give your employer the amount of work they paid you for.
Why should an employer care about extra work being released as FOSS if they’ve already received the amount they paid an employee for?
EDIT: I realise now that $some_metric is probably very hard to define in terms of anything except number of hours worked, which ends up being the same problem
I didn’t read it that way. It’s short, though. I’d suggest reading it and forming your own impression.
I’d certainly think that one of many possible reasonable work arrangements. I didn’t link the article intending to advocate for any particular one, and I don’t think its author intended to with this piece, either.
I only linked it as an answer to the question that I read in /u/lorddimwit’s comment as “why is this even a thing?” because I think it’s a plausible and cogent explanation of how these agreements might come to be as widespread as they are.
As a general matter, I don’t believe they should. One reason I’ve heard given for why they might is that they’re afraid it will help their competition. I, once again, do not find that persuasive personally. But it is one perceived interest in the matter that might lead an employer to negotiate an agreement that precludes releasing side work without concurrence from management.
I think so too, and hope I didn’t come across as assuming you (or the article) were advocating anything that needs to be argued!
I’d definitely gotten confused because I completely ignored that the author is saying that the thinking can become “I don’t just want to buy your 9:00-5:00 inventions. I want them all, and I’m going to pay you a nice salary to get them all”. Sorry!
There is a huge difference: We’re talking about creativity and invention. The company isn’t hiring your for changing some oil or swapping some server hardware. They’re hiring you to solve their problems, to be creative and think of solutions. (Which is also why I don’t think it’s relevant how many hours you actually coded, the result and time you thought about it matters.) Your company doesn’t exist because it’s changing oil, the value is in the code (hopefully) and thus their IP.
So yes, that’s why this stuff is actually different. Obviously you want to have exemptions from this kind of stuff when you do FOSS things.
I think the chef and mechanic examples are a bit different since they’re not creating intellectual property, and a book report is probably not interesting to an employer.
Maybe a closer example would be a chef employed to write recipes for a book/site. Their employer might have a problem with them creating and publishing their own recipes for free in their own time. Similarly, maybe a writer could get in trouble for independently publishing things written in their own time while employed to write for a company. I can see it happening for other IP that isn’t software, although I don’t know if it happens in reality.
I think the “not interesting” bit is a key point here. I have no idea what Bumble is or the scope of the company, and I speak out of frustration of these overarching “legal” restrictions, but its sounds like they are an immature organization trying to hold on to anything interesting their employees do, core to the current business, or not, in case they need to pivot or find a new revenue stream.
Frankly if a company is so fearful that a couple of technologies will make make or break their company, their business model sucks. Technology != product.
I know of at least one online magazine’s contracts which forbid exactly this. If you write for them, you publicly only write for them.
This is pretty much my (non-lawyer) understanding and a good summary, thanks.
If you find yourself in this situation, talk to a lawyer. However I suspect that unless you have deep pockets and a willingness to litigate “is this clause enforceable” through several courts, your best chance is likely to be reaching some agreement with the company that gives them what they want whilst letting you retain control of the project or at least a fork.
I think the legal term for this is “bunch of arsehats”. I’m curious to know whether you worked for them after they started out like this?
https://www.youtube.com/watch?v=Oz8RjPAD2Jk
I left shortly after for other reasons
Is it really that widespread? It’s a question that we get asked by candidates but our contract is pretty clear that personal-time open source comes under the moonlighting clause (i.e. don’t directly compete with your employer). If it is, we should make a bigger deal about it in recruiting.
I would think the solution is to quit, then start a new project without re-using any line of code of the old project - but I guess the lawyers thought of this too and added clauses giving them ownership of the new project too…
When my previous employer went through a hostile takeover (in the US), the new overlords forced us to sign an agreement that anything we create in our spare time is wholly owned by them. Even to the point where if I design a left-handed potato peeler for my wife, they would claim it as theirs.
Prior to the takeover, my employer graciously hosted the entirety of the HardenedBSD build infrastructure. Conversations regarding whether the new overlords could take ownership of the project were had.
After 18 months trying to make things work, I decided I needed to find new employment. Not only for HardenedBSD, but for my own very literal sanity. When I say hostile takeover, the word “hostile” doesn’t really do it justice. I especially felt that I needed to protect HardenedBSD.
In May of 2020, I found that new employer. Turns out, they were already using HardenedBSD as the basis for their product. They’re now the hosting provider for the HardenedBSD build infrastructure. I report directly to the executive team, who are incredibly supportive of all my extracurricular work, not just HardenedBSD.
I’m so glad I made the switch. My mental health situation has improved, and I feel HardenedBSD isn’t being threatened anymore by my employer (as above, it’s the exact opposite: they’re enabling the success of the project, and thereby enabling the success of their product.) Yay synergy!
That sounds awful. Sorry that happened, and I’m glad you’re somewhere better now.
Another person who didn’t read (or take seriously) the Intellectual Property Agreement form they signed when they took the job. Typically this states that all inventions of yours during your employment, regardless of time, place, or ownership of equipment, are assigned to your employer if they’re related to their area of business.
I have been burned by this, I’ve seen co-workers burned by it, and every year I read about people in this situation.
If you’re going to start your own side project, FOSS or not, talk to your employer and get an exemption first.
This confirms me that I was not too paranoid when I rejected a well-paid job in past for these reasons (copyright and patent). And remember that such contract clauses endanger not only free software projects you participate on but also your future customers or employers. Having certain companies in CV is rather a threat than advantage. Company A could attack company B through such clauses signed by their former employees.
Read your contracts carefully!
Bumble asked the employee to delete that tweet, but don’t seem to have offered a clear answer on what their next steps are.
This really sucks for the OP, but they shouldn’t have signed that contract in the first place. As developers, we’re fortunate to find ourselves in a seller’s market: companies are dying to find good talent, and if they’re stupid enough to put restrictive clauses in their contracts, we should negotiate them out, and if they won’t, there’s always another company you can work for.
This should not be taken lightly: you should also consider what kind of people you want to work with. If you want to work with other passionate free software talent, they’re likely to take a hard pass on contracts like this (I know I would).
If you find your free software work even slightly important, you should never ever go along with a clause that states “all work you do in your spare time is owned by the employer”.
Of course, when negotiating you would be wise to show an understanding for your employer. For instance, you could have the clause replaced by something that reads “you can not produce software in your spare time that directly competes with the software we’re selling”. In the end, that’s probably the reason the lawyers put in a clause like this in the first place: they’re afraid you’re going to steal their secret sauce and opensource it, or start your own competitor company. Their willingness to negotiate about a clause like this should be a good indication of how reasonable they are in general.
In some countries, like the Netherlands software written in your free time belongs to your employer unless your contract stipulates otherwise, and many people are unaware of it :)
Oh yeah, I remember that post. If you look down through the comments, you see Arnoud responds that it has to be code that pertains to your specific tasks at work for the employer to stake a claim (his clearest example: Microsoft employees working on MSOffice shouldn’t work on LibreOffice in their spare time, but if they make a FPS game the employer can’t claim ownership). So it’s (IMHO) not comparable to a blanket statement in a contract that everything you build in your own time is theirs.
Are people regularly getting their own custom language written into contracts?
I’ve attempted it once before, where a contract essentially said I couldn’t work in the entire state in any “similar industry” (which includes every industry since they were so diversified) for a year. For a summer internship!
But I didn’t get that exception since “everyone has to be under the same agreements”. Do regular HR people ever want that kind of liability without laundering it through “Legal”? A process which would take an unknown amount of time and effort and has very little precedent?
Still baffles me that in the US at least, the duty of not being screwed by a contract is almost always placed on regular people with no legal training, no union to back them up, and a short time span. Then when people naturally get screwed over, they get blamed somehow.
At my previous job as a senior developer I negotiated several tweaks to my contract, including changing a clause that was similar (but less extreme) to the one you encountered. I had it changed to have a time limit. So it’s certainly possible, but I guess that as a “mere” intern you won’t have as strong a negotiating position. And in my case, it also was a small company without separate “legal” or HR departments, though; my negotiations were directly with the company’s founders.
But even if they’re not willing to change the contract, you’re still responsible for ultimately accepting or declining what they put in a contract. There’s no shame in walking away from job if there’s an unreasonable contract, no hard feelings. Just see it as a good exercise for your interviewing and negotiation skills ;)
Well, I know where I’m never going to work.
https://twitter.com/FiloSottile/status/1467597659523399686