1) If you are a technology company, this is Harakiri (http://en.wikipedia.org/wiki/Seppuku). You are alienating every developer who is worth her salt. If you have a recruiting arm, and they are trying to recruit, god be with them. Ofcourse, you think people will never come to know, but this has the potential to be a good story and press will pick it up. I will not be surprised if Techcrunch or Wired Enterprise picks this up first.
2) Strategically, this is so uncool. You could have leveraged this open sourcing in several ways. Made the codebase part of your official Github ( ever heard of Bootstrap?) and drummed up participation. If THIS was the product, you could leverage the free PR to accelerate user-acquisition. Nick had some amazing documentation, and he even got SUCH a cool domain for you guys.
3) Eventually, you will lose Nick, who seems quite competent, who will move on to do better things under the umbrella of better employers.
You have only one side of the story. Maybe the company doesn't have the rights on the code and cannot decide to open source it. Maybe they're making money with the code and open sourcing it is killing the business. Maybe they have a procedure before open sourcing code.
If tomorrow I wake up with a developer open sourcing part of the work he does for us I would sure be very unhappy.
You just can't condone that kind of initiative or in a couple of days your whole IP is on the Internet.
Often that means that the university claims rights in the IP produced, certainly [way back] when I matriculated it was required of all students to sign a waiver giving rights to the Uni for any works created whilst being a student. The first I heard about it was at the matriculation table when I'd already gone up. Perhaps this sort of thing doesn't happen elsewhere or as been deemed inappropriate.
This is only true for graduate programs where the school is paying for your tuition via a research or teaching assistanceship. For undergraduates, who traditionally pay for their own tuition, or for graduate students under scholarship, they own all of their own work.
>For undergraduates, who traditionally pay for their own tuition, or for graduate students under scholarship, they own all of their own work.
This depends on what the work's being done for. If it's for a class or a credit giving research project, the university usually does own the IP in most cases.
However, if it's a side project that's not using any of the university's resources, the university shouldn't have any rights to it.
Where I have been (in the US), work done for a course is always owned by the person who is paying for the course, which in the case of an undergraduate paying their own tuition, is the student.
Basically, the person paying owns the work. If you pay, then you own it.
My university owns anything you make while you are a student there. The example they used was something along the lines of: if you worked on it only in your dorm room and it had nothing to do with the university and received zero university funding, it was still theirs and you couldn't ever file a patent on it.
University of Kentucky claims rights to almost anything (even "drawings") students make while in any of "certain University units" (including the "Computing Center"):
http://www.adec.edu/intellectualproperty/uky.html
It's not clear whether a dorm room is one of those "certain University units" or not. I don't think so, but it'd depend on the phrasing of the dorm room mission statement.
Ooh, my new favorite is North Carolina A&T State University:
"We don't have any such policies in place at this time. The university has initiated a faculty interest group which meets regularly to discuss these issues and similiar DL opportunities. Some interesting things are coming out these discussions."
That isn't/wasn't the case at either of my undergrad or graduate institutions – in fact, at my graduate program, the official policy on student work is that it is ours and if a team project, we all had non-exclusive rights to the work.
True, but "my final year university project" has many different possible explanations, and it is analogous to one of the iPad developer saying that "my project is the iPad" but doesn't mean that the IP belongs to the iPad developer.
If Nick's University has a claim on the code, then the company probably don't have the right to use the library themselves.
If the University decided to assert their IP rights they could either demand a licence fee or the removal of the library from any of the company's products.
'Sadly though, due to concerns from my employer regarding intellectual property and similarities in projects I've worked on, I've been asked to take down the site.'
We have no way of assessing the validity of these concerns from what has been said. If the company feels the open source project contains work they have funded, and don't want to release, then it is their right to ask him to withdraw it.
Also, unless Nick is primarily driven by open source participation there's nothing to say they will eventually lose him.
People aren't arguing that it's illegal or incorrect for them to take it down, or that they don't have the authority here. They are arguing that it's a stupid move.
I think it's more of a grey area than that. Certainly I can imagine a situation where the overlap was insignificant and this was an overreach by the employer, but there is currently no evidence to suggest that.
One could also say that in this case, Nick should have discussed this with the employer. It seems as if he was aware he should have, and by not doing so, the situation is no worse off than it would have been.
It's also possible that they (he and his employer) performed the "related work" on commission and have signed over IP rights to a client. In this case, open sourcing the work would expose them to liability from the client.
Was he also asked by his employer to take down his "final year university project" that this was supposed to be? That sounds a little bit incongruous to me. Or was the "final year university project" also somehow related to his job output preceding in the creation of said final year project?
Are you sure? I employ PhD students to work on commercial products and there is a strict rule in the university that any work done by the student is owned by the student. We are granted an irrevocable, fully transferable licence to use their work, but the student is not locked out from doing whatever they like with the stuff that they did. I'd be surprised if that was not the same for undergraduates - although I am aware that university boards are becoming very greedy with respect to I.P.
In North America, that is an atypical arrangement. Here in Canada, Waterloo is unique for being one of the few (only?) schools that doesn't claim IP ownership. My university (Manitoba) does, although it is negotiable and for commercially sponsored projects the sponsoring company generally owns the IP.
EDIT: From personal experience, I can also tell you that IP policies are less clear at the undergraduate level around here.
In California it is more complicated. First there is copyright law -- students and academic personal manual employees own their copyright. The Education code limits how public university students may share notes (a matter of conduct, not copyright). Non-academic personal manual appointments have copyright owned by the university. Students who are not also otherwise employed by the University would own their patents (subject to any details of their non-university employment agreement). Anyone employed by the university (student, academic or staff) get to keep a cut of their patents; but have to share it with the university.
I was pretty sure this policy of students/academics own their own copyright but share in patents was the standard in United States higher education.
Correct--where I said "IP" above, I should really have said "patents/patent rights". Copyright, to my understanding, becomes more of an issue when publishing, as some (most?) journals are greedy in that regard, but I haven't had to cross that bridge yet.
What you're describing sounds pretty similar to the way it works here, but the gross majority of full-time graduate students in engineering are employed by their universities (as "research assistants" or similar) and thus effectively waive their patent rights.
(FWIW, I think it's great for schools to share in patents which originate within them, but I would like to see students and staff be more well-informed on the subject, and commercialisation efforts which span beyond a single industry--I know of very few schools which have accomplished that.)
I think it's about the same thing in Sweden (the student has the rights).
At the sime time, there are two different rights; copyright and "usage right" (not sure if that last thing is translated correctly), which means that you own the stuff you've created, but you can transfer the right of using it to someone else.
Even if you are a fully paid scholar at univ? I mean not even a penny in scholarship at an institution? I don't think it will be such an umbrella rule. Is it?
Seppuku is a method of expressing extreme regret: apology, protest, and similar things. What I'd agree that Nick's employers are acting in an extremely foolish manner, it doesn't sound like they regret anything.
Reality check: the HN echo chamber isn't the world, not even the programming world. This is a totally minor matter that most people (even most programmers, even most programmers in the startup scene) will never hear about and forget quickly if they do.
EDIT: Many people have pointed that its not the correct company.
EDIT2: http://www.expert-24.com/ seems to be the correct company, and seems more plausible to have IP problem with chart.js (don't got lynch them, seriously!)
I've worked at many companies who claim to "support" FOSS, without ever contributing. What that really means is that they support getting free software. Take + no give = parasite, end of story.
My old job used their "Open software initiative" as a feel-good marketing pitch. Translated, it means "We charge you to install stuff we got for free." All of our clients couldn't tell the difference and their one experience with FOSS is paying money to get a (bad) install.
I don't know what's worse, the abuse of the spirit of FOSS or the bad taste left in our client's mouths.
Loyalty is reciprocal. I've never understood why companies expect complete loyalty while simultaneously showing none in return. I also think that it's very unlikely they are 'good employers'. They may pay well, but that's a totally different thing to being a good employer.
If (and this is hypothetical, obviously) the guy open sourced something uncomfortably close to one of their products and uncomfortably close to what he does for his day job, I don't think this is unreasonable.
I am a huge fan of Open Source, but not every company is, and I don't think it makes them a bad employer to have acted this way, given these supposed preconditions. You're correct that pay is only part of the equation, loyalty and respect are also very important. This action doesn't necessarily mean that these things are lacking.
It may well do of course, the world is full of assholes :)
To the people who make decisions like this, it's all 1s and 0s. I mean literally there will probably be some policy pertaining to "software", or some manager freaked about "software" being released. No-one will stop to care about the deployment model when making this call.
Obfuscation is more than enough to protect the code. You need only to make the cost of ripping it off greater than or equal to the cost of creating it. IP is so much more than the code. It's the concepts, the graphics, everything.
I don't think so at all,even without trying to reverse it you can inspect the DOM and debug the event flow etc. I think "construction is more difficult than verification" is a good adage for engineering. JS/CSS is transmitted in the clear and it should move towards open source, plus it's not hugely valuable. Now, if this guy was doing projects at work to do charting and then he decides to open source that on his own? Not cool, you need to make your personal projects clear to your employers to avoid this nonsense. That being said if it was just charts and it was my company and he managed to get press on it... I'd probably give him a bit of a lecture about it and then probably a raise and continue it as open source.
I wasn't advocating for the company to use obfuscation. It's largely irrelevant in this regard. I was replying to the comment above mine which was left by someone who seems to think that obfuscated code is somehow less secure than compiled code.
I agree -- if I was the boss in this situation the open source thing would be allowed to continue.
I've used Highcharts in a commercial inhouse project and can confirm it's awesome, well documented, with a ton of examples and the guy is very responsive to support queries. Well worth the few quid asked for commercial use. Also, it uses SVG and is therefore suitable for PDF conversion (which Canvas is not).
I've used Highcharts in two different production level projects and I think its only okay. In trying to heavily style the graphs and such, there were tons of difficulties, errors, and such. IF what you need is out of the box, though, it does go a long way.
I use flot on one of my sites. It's nice, I only have positive things to say about it. Especially if you are still using something like openflashchart I recommend taking the time to switch over, it doesn't take long at all.
Personally, I'd only use libraries that are based on D3.js so that in case you need some individualization you can more easily hack it. AFAIK, nvd3, rickshaw and xCharts are based on D3.js
I've used both Rickshaw and NVD3, was not happy with the quality or APIs of either project and ended up building directly on D3. Unfortunate since I don't feel like D3 has an ideal API for charting and a simpler abstraction would be desired.
Hightcharts is amazing. I've done some very nice in-house custom charts with it. Very easy to customize, very well documented. I'd highly recommend it.
NVD3, a d3.js reusable chart library, was taken down by Novus several months ago. At first they asked all the GitHub forks to close down. Eventually, after an outcry on the d3-js Google Group, Hacker News, and other forums, Novus relented and re-released the library with this statement:
Yes, this is EXACTLY the response that we are looking for.
Not that the company is necessarily in the wrong to ask that the open source code be taken down, but that the community should persuade that company that it is in their interest to keep the code available. (For reputational reasons AS WELL AS all the other benefits of supporting open source.)
Perhaps the cleanest and most polite thing people could do with this would be "keep the API, completely rewrite the implementation, throw away the original".
Get some advice on how to handle this. I know plenty of lawyers who'd gladly spend a few minutes listening to your story and giving you some "unofficial" advice (by that I mean that unless you actually pay them, they won't write a letter or represent you - you're stuck implementing that advice yourself.)
I'd wager this was a threat from an immediate manager. Go over his head. Explain you did this as coursework. Have someone explain the company's view of these "similarities" - Just because their app sorts entries in a table on an iPad doesn't mean publishing that sort.js you built in class is an IP problem. See if they'd be willing to generate some goodwill amongst the OSS community by allowing you to put chart.js back online.
DO NOT SIMPLY ROLL OVER.
And if you get stonewalled, these are probably not the kind of people you want to work with. Start looking for a new job. Don't fear for this one. Programmers, developers, software engineers (pick your flavor) are in high demand.
There are a lot of knee-jerk reactions here that may very well be completely justified - but the facts are that we don't know where Nick works and in what capacity. We can't know if there is legitimate concern over IP or competitive advantage here? It's unlikely, but for the sake of a thought experiment: What if Nick's employers sell a JS component that does the same+10% as chart.js?
EDIT: Apparently he made it before starting his job. Yes, that makes it quite a bit more fishy.
He built it during University, so before he started working for the employer. They may have a legitimate business concern, but that doesn't change the fact that it's Nick's IP and he can do what he wants with it.
That's true if and only if he didn't continue to refine and contribute to the code after entering employment, and specifically, didn't use it at his place of employment.
Many places have terrible and unhealthy, but legally binding contracts regarding work done in your own time while employed. :(
Without more information we can't know, but its far from given that their position is legally ambiguous.
I've seen employment contracts that try to claim IP developed before you even took the job. Probably completely unenforceable, but I really wish that over-reaching contracts like that were punishable to prevent the ultra-conservative "ask for everything, and maybe get less" approach.
"That's true if and only if he didn't continue to refine and contribute to the code after entering employment, and specifically, didn't use it at his place of employment."
The same could be applied in reverse: if he wrote a considerable part of the code before entering employment and did use it at his place of employment, what does it say about the employer's right to use it? Or is it "since you're working here now, we can use all you ever wrote exclusively even if you didn't license it to us"?
Without a specific licence there would be an implicit contract that the employer could use the library for any projects that Nick has used the library on.
If after Nick leaves they would be on shaky ground if they used it on other projects that Nick hadn't worked on.
IANL but that's my understanding of the law in the UK.
Agreed, but he's based in the UK, so the 'we own all your IP' thing doesn't apply here. On company time yes, in your own time I believe not. Your own time would not be "in the course of his or her employment."
I've seen employment contracts in the UK that try the "own time" thing - these are probably not enforceable, but you probably wouldn't want to go through the process of putting that to the test.
It is widespread practice in the UK for "a certain type of organisation" to include a blanket IP clause in their standard employment contracts. I don't know of any robust legal argument that such a clause should not be enforceable (which isn't to say that none exists, but I've been involved in some fairly heavy negotiations on this score in the past and no lawyer on either side has ever questioned that aspect to my knowledge).
If you choose to work for that type of organisation, it is therefore similarly widespread practice for anyone who's any good to demand that the clause be replaced with something more equitable, probably using magic words like "in the course of your employment" or something similar.
I don't know what default rules apply under all possible circumstances in the absence of any explicit agreement, but if you work in an IP-related field and don't have an explicit agreement about IP rights in your contract, you're crazy. :-)
What I actually meant was the kind of company, usually large, often foreign-owned, where HR is run by droids who think creative people are interchangeable commodities whose souls should rightfully belong to the company 24/7 in return for paying their salary.
If they're smart enough to let the managers who need to get real work done override the paranoia of the corporate legal and HR departments, they can still hire good people by allowing flexibility in the contract when these over-reaching terms are almost inevitably challenged.
Some places just won't deviate from their standard contract and if you want a job with them then you just have to suck it up. Strangely, I don't know many good creative people who work for those places.
Definitely worth doing that as it is actually a lot more common in the UK for these clauses to be part of any developer's contract than what people realize.
It's a trickier area. Post-docs are usually paid, so the universities have a clear work-for-hire claim. Because Undergrad students aren't usually paid, it's a much harder claim to make (
I'm aware of post-doc agreements being litigated and upheld, but am not aware of any litigation on the undergrad side.
This happened to me, once. I can't go into details but I know from experience what you should do now.
Start looking for another job, immediately. Don't hesitate. Don't think these guys are 'ok'. As soon as you find another job, resign. There is more and worse coming down the line. You need to get out of there as soon as you can.
At midnight on the 18th March 2013 I posted Chart.js online. On the morning of the 19th March, I've had to take it down due to IP concerns with my current employer.
It had been my final year university project I had been working on for a couple of months. I had intended it to be an open source project for the web design and development community.
Since posting it online, I've been completely overwhelmed and hugely grateful for all the support and kind words.
Sadly though, due to concerns from my employer regarding intellectual property and similarities in projects I've worked on, I've been asked to take down the site. My job and livelihood have to be my primary concern. With this in mind, I have closed down the site, and removed my master branch from Github.
I'd like to personally apologise for taking this away, I'm just as disappointed as you.
Hooray! It would appear so. An hour ago, Nick was apologising for removing the project, as there was apparently an ownership conflict with his employer.
A normal employer with a normal-world mindset. This is their competitive advantage and they're keeping it for themselves - even though they didn't (in his reading) buy the original code he wrote.
Sad, but a fact of life if you deal with businesses.
"Employer" is not quite so simple. Organizations are multilayered and complex.
In some cases, your whole department (i.e., bosses and bosses' bosses) could be in open support of this project, but the legal department could shut it down.
Hell, the CEO could be even in support of it, but still be overridden by the legal dept for a bunch of valid reasons.
Don't just take it down. Destroy it. Make sure that any benefit your employer was receiving from it vanishes. If they claim ownership, despite the work having been done in your free time, demand the overtime pay. Make it clear that OSHA will be involved if they decline.
Hardline dickery deservers to be repaid in kind.
Ah: Edit still available: Destroy was the wrong word. Make inaccessible to everyone, including the employer as if erased. If the employer claims exclusive ownership you have a bargaining chip. They may own it, but they should pay for it.
The company didn't get a lawyer involved and force him to take it down, they expressed concern - the author apparently agrees that it's related or similar to work he did while an employee, or there would have been a bit more argument than "oh, ok".
What you're proposing would of course be fine - the company isn't claiming 'ownership' of that code, just suggesting that it might be infringing. But I don't get the impression that they're using that charting library, just similar code written by the same author. They wouldn't be hurt by that at all.
...my fault, should of A-OK'ed everything before putting it online. Didn't expect anywhere near that sort of reaction though. (from the author's twitter feed)
Sounds kinda fierce to me. I suspect if he'd refused, lawyers wouldn't be far behind. Perhaps I'm just jaded. I've seen some pretty egregious overstepping by companies in my time.
I'm still calling it a dick move. A great deal of what makes him valuable to them, he likely learned at home doing this sort of thing. He may even be driving the product's direction somewhat with his personal exploration.
Didn't Expect anywhere near that sort of reaction though
I read that as reaction to the project by the public (i.e., tons of page views), not as the reaction of his employer. It's quite possible that his company was quite friendly about the issue.
While it's unfortunate to lose an open-source project, there is not enough information to know whether Nick or his employer is the overstepping their bounds.
Not if the company are claiming ownership (even in the vaguest of ways) of the code and think there is some value in it - in that case "destroying" it could be a remarkably bad thing to do.
[NB I have been involved in litigation over ownership of code and although we were 100% in the right it was an appallingly stressful experence - mostly because logic seemed to go completely out the window once things turned nasty].
Destroy might not mean quite what I'd hoped in this context. I more meant make completely inaccesible to everyone. If the employer claims exclusive ownership, require the overtime pay before you allow them to benefit from it again.
No matter what you signed as an employee, OSHA(1) has rules about how long you are required to work without overtime. Its a clever end run I've seen used around "we own everything you do at any time" BS that employment contracts often have in them. Yes, they may own it, but they will have to pay for the time taken to create it. Usually when faced with a big bill, thy decided it wasn't so important to own it after all.
(1) Sorry, that was dumb. OSHA just enforces some of these rules. The rules are actually The Fair Labor Standards Act.
I am only guessing from the contents of the post, but it sounds like they were asserting possible infringement against his own previous work, not ownership of the library he developed on his own time. It is best to be careful though, I much agree.
They'd have a tough time proving ownership of that code unless he was also using it in one of their applications, but that crap can get very complicated.
More importantly, this is UK-based employment, and consequently, unless specifically available in the contract, overtime would not generally be available in this scenario.
Maybe in places like USA which has very poor employment law. However in the EU there isn't really that distinction, and employment law applies to all employees.
Not true. Software developers are mostly exempt, but there are some that will be non-exempt from overtime based on their salary. If the person makes less than $455 a week as salaried or less than $27.63 an hour as an hourly employeed then they will be non-exempt (http://www.dol.gov/whd/regs/compliance/fairpay/fs17e_computer.htm). However, I have a feeling it would be hard to find somebody paid at that rate.
I have a developer working for me who HR has decided is overtime-eligible, and he makes more like 3x that.
If I understand the law correctly (e.g., http://www.itstime.com/may2006.htm) having pay above the $455/week threshold is only one of the conditions for being overtime-exempt; the other conditions have to do with extent of job responsibility.
If they want it, they pay. If they don't want it, don't pay, but don't get it either. Isn't that how you work as a contractor too? And doesn't that apply regardless of whether the work was agreed on in advance?
The suggestion in the post I was replying to was to involve osha and demand overtime pay for work previously done in spare time.
So no. The agreements the OP had with his company are irrelevant to his work hours. If OP did open source work on his free time, then later is asked by his company to take down said work, and complies, he is not entitled to any compensation, other than what his employer voluntarily offers him.
"If they claim ownership, despite the work having been done in your free time, demand the overtime pay."
OP is not saying "make them pay for having to take chart.js down", OP is saying "make them pay if they want to claim ownership of chart.js and want to use it internally". Big difference.
why is it that someone thinks they can retroactively demand overtime pay for work that wasn't agreed in advance
They shouldn't. They then also have no duty to supply that work free of charge to someone who never agreed to its creation. (Which is what he was willing to give by open sourcing it btw)
Make it clear that OSHA will be involved if they decline.
I'm not sure, but I think the author lives in the UK. OSHA appears to be some USA thing. But this is good for the author. The EU has better employee law.
Yeah, I have been working for Rails shop that did exactly this.
I wasn't able to do anything, not even in my spare time, to contribute to open-source projects or do other work. The other work I can understand, because I could help a competitor for an example.
But that they owned ownership for every line of code written by me, even on my time off, was killing my inspiration.
One solution to this problem that I found is to be a freelancer instead of an employee. It also tends to work well in terms of "Hey, the surf is good, I won't be working today. Kthxbai"
Somehow, as if by magic, as soon as you become a freelancer people stop caring about butt-in-seat time and start caring about results. Same goes for IP, I have never had a client complain about opensourcing something I made on their buck.
Working in Denmark. I took it up with my Union, and they said that I couldn't do anything about it.
The rule initially was made to own rights to images and articles from photographers and journalists, so they couldn't sell to third parties, but was extended to also include code.
We do have a similar rule (with similar origins), but it has to be contractually asserted, and it would only apply to portions of code integrated into a larger 'visual work' - mostly it doesn't come into play outside of contracting.
That is OFTEN how US employment contracts work though... Perhaps not in CA, but the rest of the US...
Every employment contract I've been asked to sign has had some level of owning stuff I do off-hours (up to everything you do any time on your own computers, everything you've done in the past, etc...).
I've always pushed back and gotten it changed to meet my needs.
It's how they're written, but not how they work. In reality, that type of claim is not enforceable.
It is a good signal that they will attempt to prove infringement on your outside work though, and you can't ever guarantee a win in that kind of court case; the case-law is too messy and depends heavily on unproveables like 'intent' and 'reasonability'.
Yes, yes it can. It all depends on the contract you sign. At present, it seems as if most tech shops allow you to moonlight on your own boxes. But I've looked over company policies which were "we own your brainz". HP circa 2006 was one of those, iirc.
No, it literally can't. It can be somewhat similar with contracts that promise a transfer of IP, but you'd get sued for breach of contract, not for copyright infringement.
That doesn't stop companies from putting draconian claims in their contracts and manuals, and it doesn't stop them from trying to prove infringement anyway (no copyright case ever is a 'sure thing'), which is enough to scare most employees into toeing the line. But they can't actually make unrelated work you do on your own time automatically 'work for hire'.
The pivotal words are "within the scope of his or her employment" - these words can get a little fuzzy, but http://www.wisegeek.com/what-is-scope-of-employment.htm is a reasonable (though not authoritative) discussion of the topic.
I've encountered this clause in a few employment contracts. It seems to be becoming standard language, but you don't have to agree to it. A contract's a starting point for negotiation, not something set in stone. If you don't want your side projects owned by the company, then ask for the clause to be removed/amended.
One place said they couldn't amend the contract, but wrote that they had no interest in code I wrote outside of work. A lawyer friend said that was close enough to be a contract amendment and I needed the job, so I signed. Another place happily amended it so they only owned what I made on company time with company resources. Problem solved in an amicable way.
> A contract's a starting point for negotiation, not something set in stone. If you don't want your side projects owned by the company, then ask for the clause to be removed/amended.
The problem was also that we had two legal documents, the contract, and the "house"-rules. The contract just stated that "The contract refers and includes the house-rules".
It would require a lot of rework for them to rewrite my contract so only the part about ownership of code was amended, but all the other house-rules still applied.
It was my first job after finishing school, and the place was nice, and I figured it wouldn't be a problem, but I was wrong, and it kept irritating me.
This has been pretty typical of my experience, I get a contract that says, basically, they own all things I create during the course of my employment. I offer changes to the subsection, that indicate they own only those things which I create specifically related to the problem spaces+ the company works in, with specific exclusions around any existing creations I have. Usually, in the contracts I've been offered, there has been a specific schedule to fill out for pre-existing invention disclosures.
Yeah, many places will offer you exclusions on pre-existing work and offer you the ability to add to the list of excluded works later on. As long as you're not working on anything that's competitive they're usually fine with it. I won't take a job that won't allow me to keep working on my own projects.
Is this even legal ? In Switzerland, I don't think an employer can claim ownership of a piece of work that was produced on the employee spare time (and on his own computer and so on).
By my understanding it certainly isn't legally enforceable in the UK. It isn't actually illegal to have such a clause in the contract, but if it were to come to court it would be thrown out as an unreasonable clause.
The problem from the employee's point of view though is that it may have to come to court before the employer will back down and there are costs in terms of money, time, and relationships associated with that especially if the company goes for the appeal cycle afterwards. Most individuals can't afford the time or cost of such a case (though costs are likely to be recovered from the company eventually, you need to find the funds up front) if it comes to that, and the software industry can be fairly judgemental and nepotistic so it'll be hard work getting a new job (once life becomes unpleasant at the old one due to the court case) now you have a reputation for being difficult. These considerations are why individuals back down quickly, as the assume the conversation will go:
Company: We own that.
Individual: No you don't.
Company: Contract says so.
Individual: You can't enforce that.
Company: We can try. Wanna fight?
Individual: Er, no. Here, take it.
Companies know the clause is not legally enforceable, but they have it in there because they know it generally doesn't have to be as most people will not argue as far as the legal status of the clause being relevant (in fact most people don't even know that it isn't legally enforceable). This is particularly the case for younger people or those otherwise near the start of their career.
Most non-compete clauses are in a similar legal position.
In Australia, I worked for a company that had what amounted to a "we own all your brainz" clause in their contract. I queried it, and they modified it: they owned anything I produced using their hardware, during paid time (excluding lunch breaks) or using knowledge I'd gained directly from working for them. Everything else, even stuff I did in the lunchroom using my laptop, was mine. The boss's son apparently agreed with me that the original clause was silly and may have been instrumental in getting his Dad to change it; or maybe the boss was just a reasonable guy. Actually, I think the latter is true. They were a good mob, and I was sad to leave.
> or using knowledge I'd gained directly from working for them
I wouldn't be comfortable with that. If you have gained knowledge on Redis, you should be able to use Redis in a personal project. It would be different if you had developed a super secret ranking algorithm that you later re-implemented in another project.
They made it clear (I don't recall the wording) that knowledge I gained for myself while working -- from co-workers, from research done as a necessary part of solving problems, etc -- wasn't the issue; it was specifically knowledge about the business and the topic it covers, which was related to the medical field, rather than knowledge of computer-specific issues. So: software projects relying on my knowledge of XSLT gleaned from working there: fine, not a problem; software projects to prescribe warfarin safely: not so fine. This was a good balance, and I had no trouble with it.
They are not required to give back. If you find that wrong, there are licenses you can use to enforce that. The licensing of code is your chance to say what you expect. Expecting them to do more is a "shitty policy." You can hope. But being angry that you failed to sell the value of contributing back to your particular project is silly.
Let's not turn into an angry mob please, Internet.
- Nick Downie (chart.js author) on twitter just now.
This is between Nick and his employer at this point, and trying to enact swift internet revenge on his employer is not going to help Nick, particularly when we've only heard one side of the story, it's hard to draw any meaningful conclusion.
I'd misunderstood some of the issues I wrote about earlier in regard to the library. It is now back online for good, licensed under MIT. Sorry for all this kerfuffle.
Its worth remembering that the conflict might not be to the company's activities, but rather, to activities performed for a client. Some clients may be substantially upset if they feel that they have paid for development, to have that development later released as open-source. Of course there would be no reason to assume Chart.js reuses client's code, and the developer not have even worked on any projects with the company yet, but the challenges of convincing a client might not be worth the stress.
I suppose the key question is what came first - was code that the creator was exposed to whilst in employment incorporated into Chart.js, or was code created by the creator incorporated into projects at work.
Clearly in the former case, the employer would have a more legitimate reason to express concern than the latter. However, in any event, as other posters have identified, there could be very positive PR benefits from supporting the open sourcing of the project.
In any event, the main justification for retaining the secrecy of a project would be to maintain a competitive advantage however, the extent of the competitive advantage is dependent on the complexity of the code and the ease with which equivalent functionality could be reproduced independently. That's a subject which I would be interested to hear more on.
Someone exposes code, FOS'ing it (apparently MIT), here comes "the internets", it likes what it sees, exposes to both forks and HN positive comments, along comes employee's manager and cuts the story short, IP issues and whatnot (for JS, really?!)...
The internets will either rename it; rewrite it, use it anyways and ignore the anonymous business, maybe keep the Nick name either associated/thanked or a part of it anyways...
Now the company can either get ready to start some bound-to-loose IP fight over this, which I'm sure has a great ca-ching sound on some poor manager's brain; along with zero chances. Or the business can capitalize on the positive feedback, maybe become a part of a greater good.
Ca-ching sound vs. boring rationality... How can rationality work if nobody can know how those weard hackers think? Ca-ching for the world! (Yeah, in case you are wondering, I know what is wrong with that, you don't need to point out.)
Anyway, the most likely explanation is that Legal is following their procedures, and as usual for procedures, there can be no exception (or rationality).
That's a shame. This serves as a reminder to us all to be very careful when signing employment contracts. We're fortunate enough to be in an industry with huge demand for talent at the moment, so in addition to salary / benefits, things like having the right to open source your work should be included in your negotiations. In my experience, most good companies are OK with it.
>This serves as a reminder to us all to be very careful when signing employment contracts.
If he was a full-time employee in the US, a contract wouldn't be necessary for this to be an issue. All work done by an employee on company time or using company resources is 'work for hire' (a term often misused in the software contracting industry, where it rarely applies), and that IP belongs to the company.
>In my experience, most good companies are OK with it.
Most good companies are sometimes 'OK with it'. It depends on how much it will affect their competitive advantages in their field. My employer would probably sign off on open-sourcing a charting library, but not a graph layout library, for example - displaying complex data as graphs is near the core of our business.
Certainly most companies will not grant you a blanket right to open source all of your work for them.
I agree that it's worth bringing up, though investigating yourself is likely more accurate (if they haven't released any open projects previously, I'd be hesitant to believe their newfound commitment to the cause).
But it's not really something they can honestly negotiate with - they can't commit to releasing anything until they can see what it is, and how likely it is to help their competitors.
> All work done by an employee on company time or using company resources is 'work for hire' (a term often misused in the software contracting industry, where it rarely applies), and that IP belongs to the company.
Even if the company is friendly today, it's worth noting that one should -never- use company-owned resources or time (including laptops) for personal projects. You can get into a situation where the a claim could be made that since company resources were utilized, that real financial value was contributed by the company towards its creation, and some ownership could be claimed.
Whether or not such a claim would eventually prevail in court is orthogonal to one's ability to fund the experience in discovery.
My thought is aligning with the policy what nevinera mentioned. The company should have the right to say whether to open src certain project or not programmed by the staff during the work time.
But the code written by the same staff during the off-hour should belonged to the same staff.
I am running a startup in Hong Kong, and I am thinking of adopting this kind of policy.
Definitely! Emcien (from mCn - we deal with a lot of combinatoric problems) is focused on analysis of large-scale data by constructing and operating on relationship graphs of tokens within that data.
We use Rails pretty heavily for presentation, though our apps have been leaning more and more on Backbone.js, and most of the core science is performed in some C code largely written by one of the founders, O.R. prof Roy Marsten.
The business/marketing site is at emcien.com, and the (fairly new) engineering blog is at engineering.emcien.com. Management sadly isn't interested in long-term remote devs yet - we're in Atlanta, GA. It's a great environment though, in the sweet-spot between risky startup and heavy corporate work.
If he's working in the US, then debatably yes. Though 'jurisdiction' isn't the right word.
Work performed by an employee during the course of operations is considered 'work for hire', and is the intellectual property of the employer. If he then goes on to replicate a large quantity of that work 'on his own time', he is most likely infringing on that work that he previously did (unless he's very careful about it. Since he didn't seem aware that it was a potential issue, he probably was not).
Now, it's not obvious that the employer would have won such a suit, but it's not a frivolous and un-winnable case either. It's generally best to talk to your employer about this sort of thing before releasing it - if they had been real jerks, they could have sued him for infringement despite his taking it back down when they asked.
As a non-American, that concept is very alien to me. Say, if a burger-flipping cook at a fast-food joint cooks burgers for himself and a few friends at home, is he infringing? Are those burgers company property? Baffled...
Let me explain. My company's employee manual had a clause stating (and I paraphrase here) that any intellectual property (patentable invention, copyrightable materials, etc) created by the employee was owned by the employer.
Technically, this means that they own the bedtime stories that I make up for my kids. And certainly any open-source code that I may write in my free time, even if I used absolutely NO company resources and worked only on evenings and weekends.
But this story has a happy ending: I signed it (I like getting paid), then went to the company lawyers and raised the issue. I used the "you own my kid's bedtime stories" example and provided alternate language they could consider. (My alternate language said they owned it only if it was written using company time or company resources or if it related to the line of business the company was in.) The next year, they changed it to a variant of my proposed wording (actually, they used "only if written on company time or using company resources" which was an even more expansive exception).
Of course then a few years later we got bought by a new company, and they had a different clause. So I started a conversation with THIS company's lawyers. . .
Well... this strays into the territory of unenforceability and severability.
You know how practically every contract you sign anymore has something to the effect of 'invalidating some portion of this contract does not invalidate the rest of it'? The courts have held that an unenforceable clause in a contract that is not indicated as 'severable' will make the entire contract unenforceable. Instead of doing the pleasant thing, and making contracts that stay within in the bounds they are allowed by law, companies started claiming that every portion of every contract was severable.
What this means is that they can throw any kind of crap in there, whether they could actually invoke it or not. Add that to the fact that the majority of the population of the US doesn't even read the contracts they sign (seriously, they don't), and companies are incentivized to throw the kitchen sink into their documents, and leave the decisions about what is enforceable until later.
Specifically, the region of your work that they can claim ip rights over is tightly limited by the definition of 'work for hire', regardless of what they try to claim in your contract.
Yes, but severability just means that a clause which is illegal will not be enforced. It doesn't mean you can ignore clauses which are undesirable or just plain stupid. Any clause which is LEGAL will still stand. And as far as I know, both state of PA and US law permit a person to sign away the copywrite on any work they wish to. So I think (although I am not a lawyer) that this clause would have had a good chance of being enforceable.
> And as far as I know, both state of PA and US law permit a person to sign away the copywrite on any work they wish to
They do, but not until it exists. You can't sign away work until you've done it, unless it fits the work-for-hire definition.
Now, you can write a contract agreeing to transfer the IP afterward, but then you have to actually perform that transfer, and if you don't you can get sued for breach of contract, but not for infringement.
It's possible that there's case-law interpreting this type of contract to imply a commitment to transfer IP, but I don't think it's very likely.
> Let me explain. My company's employee manual had a clause stating (and I paraphrase here) that any intellectual property (patentable invention, copyrightable materials, etc) created by the employee was owned by the employer.
Is that the same manual that starts with the statement: Nothing in here should be construed as a contract?
No, burgers aren't "intellectual property". If he wrote the burger-flipping manual for work, and then wrote another one and published it online, he'd have more of a problem.
And yes, the entire concept of IP is on the strange side and needs some dramatic revisions, I'd agree.
> If they'd been real jerks they could have sued him for infringement despite his taking it back down when they asked.
That is a good point. I know we all want to get out the pitchforks and torches, but they may have a legit reason for needing him to take the project down. I can say that I could not open source ANYTHING that was remotely related to work right now, and my current employer has no say in the matter.
Nick seemed to be sad, and disheartened, but not upset at his company and I think he is in the most informed person we have here, so lets take his advice and not form a mob.
What if that's the other way around? He wrote something for himself and at later time was hired and did some work for company and that work was based on his previous work that he had all copyright for.
Wouldn't company had no right to use the code that he wrote for them because it would mean infringing on his copyright, or copyright of his mom if he sold the rights to the original software to her?
I'm not a lawyer, and the rules get messy - I'd need to do at least a few hours of research to answer you with any confidence. The type of stuff you're talking about is not addressed by the code itself, it's tangled up in case law, which is the reason that lawyers go to school forever.
Personally, I would write that 'previous work' as a library, open-source it, and then use the library at the company later. That's clearly safe.
This is one side of the argument. The other side is that attempts to own the code the employee does outside of work hours may constitute restraint of trade.
Pretty much the run of the mill employment contract will claim ownership of an employees creations, most regardless of whether that creation has anything to do with their every day activities. Some go so far as to claim all creations related to their discipline, even if conducted outside work hours.
The problem is simply that its too hard to challenge if such an issue ever arose. Any decent business wouldn't just claim everything under the sun. It is a worrying grey area though.
Well in the contract with my current employer, it pretty much states that every IP I create during my employment belongs to my employer.
So if I wanted to create a project that I own, I would have to terminate my contract first. This is especially annoying being a Student and having many ideas all the time. Oh well.
Speak to them and get an exemption, even on a case-by-case basis. Those ideas need to not die out, and you might find that being able to give life to them makes you simply a better employee.
Unless an employee contract says otherwise, the default copyright position is that all work done is part of "work-for-hire".[1] There are a few reasons for this, and Joel Spolsky covered them pretty well.[2]
Every employment contract I have had (I'm not in the US and, I think, neither is crazysaem) has had rather a lot to say about copyright and IP - not all of which might be enforceable in a court (I have had lawyers look at contracts).
I give employers/customers a copy of all my pre-existing open-source or private work on a DVD and have them sign a document stating "This code/IP existed before our work agreement and have no claim to any of it, now or in the future, including derivative works." They sign it before I sign any contract of theirs.
This can be hard to demand from larger droid-run companies. The more entrepreneurial businesses understand: they want solutions to immediate problems, and don't care about collecting vague legal hammers that are only useful in the future.
Ugh, why? Would a better move not have been to ask the employee to move it to a company affiliated site? Get your name out there and in to developers minds as good guys?
Somewhat related, I released the first version of http://datafa.me . It is a web app where you can paste data and generate a chart. Not exactly a charting library, but it will certainly evolve to provide some of the same functionality.
Strange that all the charts shown are the worthless kind. Time series, pie-style, all are the lowest common denominator of graphic information. No scatterplot, no multivariate analysis of any kind.
Yesterday we saw Hans Rosling show the developing world's progress in 30 seconds of brilliant graphics. Today: pie charts.
Perhaps the reason this resonates so strongly is that it's a painful reminder that, after all of the enthusiasm and excitement of living in the information age, we still live in a world where ideas can be bought and sold. Nothing, not even a good idea, is immune to the corrosive influence of money.
This is exactly why intellectual property systems (as they exist today) hinder, more than help, innovation. Chart.js was a good step forward for web data visualization tools. It deserves to exist.
Very sad to see this happening. I liked the project a lot... Good luck with your job though and you will sure have more opportunities in life to do open-source projects. :)
What a great lesson Nick has been offered by working there. He got the opportunity to learn what kind of employers aren't worth HIS time at a young age.
I was able to find at least 3 extant forks on Github, but the fact that the project author's employer was concerned about IP rights would make me wary about using such code. If the author "borrowed" similar code from work he previously did from the employer, it is likely that the MIT license of chart.js is invalid.
1) If you are a technology company, this is Harakiri (http://en.wikipedia.org/wiki/Seppuku). You are alienating every developer who is worth her salt. If you have a recruiting arm, and they are trying to recruit, god be with them. Ofcourse, you think people will never come to know, but this has the potential to be a good story and press will pick it up. I will not be surprised if Techcrunch or Wired Enterprise picks this up first.
2) Strategically, this is so uncool. You could have leveraged this open sourcing in several ways. Made the codebase part of your official Github ( ever heard of Bootstrap?) and drummed up participation. If THIS was the product, you could leverage the free PR to accelerate user-acquisition. Nick had some amazing documentation, and he even got SUCH a cool domain for you guys.
3) Eventually, you will lose Nick, who seems quite competent, who will move on to do better things under the umbrella of better employers.
Pretty lame, on several counts.