open source clause for employment contract?

[tbs-Gb/NUjX2UK8 at public.gmane.org (ref)]

On Thu, 2008-12-11 at 12:10 -0500, David Rosenstrauch wrote:
> I'm looking at one of those employment contracts that are increasingly
> popular these days, where the employer claims ownership of any
> "inventions" you create.  I participate in a lot of open source
> projects, though, and would like to add some wording to the contract to
> make sure that my ability to work on open source is protected by doing
> things like exempting my open source work from employer ownership
> (assuming of course that I don't use any of their proprietary code,
> don't work on something that competes with one of their products, etc.)
> 
> Anyone know if there's any standard legalese floating around the FOSS
> community that I could use as a starting point for this?  (My lawyer's
> reasonably tech-savvy, but not totally up on FOSS issues, so I'd like to
> give him a something to start from.)  I'm sure I can't be the only one
> who's needed something like this.
> 
I moved here from LA two years ago and went to a multitude of interviews
where this came up. I also work on my own projects at home, in FOSS, and
also for other companies as a contractor (bills bills bills).
What I argued in the interview (well, less argued, more put across
politely) was that the experience gained from working as a FOSS
developer in my own right was why they wanted me in the first place, and
that prior inventions I have made were useful to them and I would
happily bring them with me to the position. Therefore any inventions I
made while in their employ, while automatically belong to them (as in
lives in their SVN repository as typed code), will also exist in my head
and will influence every other decision I make when approaching a
similar problem. Therefore the "owning of all inventions" clause is
unenforceable and unreasonable. When put across nicely and politely, all
the interviewers said something to the effect of "oh, okay, well we just
put it there coz it is a standard thing nowadays, and we can change it
for you."
The place where I finally accepted an offer has benefited from my
bringing in my own "inventions" and sharing them with the company. In
return, I can take the logic involved in solving a problem and apply it
elsewhere. This does not mean I can steal thousands of lines of code,
but there is nothing to stop me re-using the concept that caused the
code to be written a certain way in the first place.
In the end the employers are really only trying to stop you becoming a
direct competitor to them or releasing their IP to their competition
should you leave and join a competing firm. This is usually all covered
in the "you cant work for our competitors for xxx years" clause, so is
irrelevant in the "owning code" clause. At least, that is how I look at
if from a senior developer point of view, ands how I have got round the
ownership clauses...
YMMV ... but it is worth a try ;)

Richard






> Thanks,
> 
> DR
> 
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