Fog Creek Software
Discussion Board




Developing software independently while employed.

http://www.thinksecret.com/news/netflixfanatic.html

Here's a guy who developed a popular shareware program on his own free time while still working at Apple Computer. Now Apple has claimed ownership of the software including the name and related source code.

What is your opinion on this? I know that most employee agreements stipulate intellectual property ownership by the company, but this is really horrible.

Bill
Tuesday, November 18, 2003

My only question is: what does he do (program) for Apple?

If his Apple job and the shareware he developed have _any_ overlap, then I think Apple has a point - even if I still think it sucks.

If, OTOH, he was writing something totally dissimilar, then he should be OK and, at most, Apple might be able to invoke a "you can't be an officer/owner of an outside company while employed at Apple" clause (if it exists).

When I took my current position, I knew well ahead of time that there was a "you can't be an officer/owner of an outside company" clause. This company has it because of SEC regulations (being a financial services company).

RocketJeff
Tuesday, November 18, 2003

Some companies actually have a "we own anything you create, 24/7, while you are employed with our company"

Whether or not such a claim is enforceable is a different issue.

Philo

Philo.
Tuesday, November 18, 2003

Maybe it's just easier to find a job that pays you well enough that you don't have to do independent shareware? Which ever way you go you should try to do the right thing, give whatever your baby is the full attention.

Li-fan Chen
Tuesday, November 18, 2003

Didn't Woz work for HP when he designed the Apple I? Good thing for them that HP wasn't as draconian back then as Apple is now...

BC
Tuesday, November 18, 2003

If he worked on similar applications at work, or used IP that was developed at Apple by himself or someone else, then it likely isn't his. If not, it likely is.

The story doesn't say, so who knows.

NC
Tuesday, November 18, 2003

If you sign a contract, this is what _you_ agree to do.  Why are people surprised or outraged when a company acts on it?  As for the idea it is not enforceable in California, does that change anything?  Is his word only as good as the lawyer who can invalidate it? 

This is the world of grown-ups.  If someone from Fog Creek went off an built CityDesq+, would we be claiming Joel was being unreasonable for attempting to protect his business?

If what he signed said something about "and agrees to all items listed in the employee handbook..."  or some other legal slight of hand, that is different.  Here it sounds pretty cut and dried. 

MSHack
Tuesday, November 18, 2003

Makes you wonder if Apple would have saved money in the long run by just paying this guy off for this software instead of paying for all the PR time that will soon to follow with the bad press.

On the other hand, this guy should have gotten his manager to sign something stating "it's okay" that he is working on this. I don't know why anybody would invest time into something they want to make money from if there were some uncertainty about the outcome with your employer's rights. Be up front about it with the employer. Odds are the managers you deal with are not as hard core as the lawyers who drafted the "sign your soul away to the company" documents.

m
Tuesday, November 18, 2003

Heh. One interesting solution for Apple - offer the guy a choice:
- Formally sign over the rights to the software
- Find a new job

Philo

Philo.
Tuesday, November 18, 2003

Talking about bad press... Looks like this story has got legs. It was just Slashdotted. Expect to see it in the WSJ by the end of the week. Seems to be the pattern...

If that happens, expect Apple to make good and pay the poor sap for his effort, in order to save face.

oh.the.humanity
Tuesday, November 18, 2003

What really sucks is getting handed one of those contracts 1 month after you've started working at a new place and being told that all employees have to sign it or else not work there.

ted
Tuesday, November 18, 2003

> What really sucks is getting handed one of those contracts 1 month after you've started working...

If it's a big company and you're dealing with HR, you can usually say you need some time to review it and conveniently "forget" to hand that back in... For smaller companies that expect it back and will hound you for it, you better start looking for another job quick. I had to do that once back in 1995 after being handed one of these to sign 2 weeks after starting.

oh.the.humanity
Tuesday, November 18, 2003

"What really sucks is getting handed one of those contracts 1 month after you've started working at a new place and being told that all employees have to sign it or else not work there."

Then just sign it and forget about it, after researching your local law.  Most states will find contracts presented under those circumstances to be unenforceable.  If the state you work in is not "at will", they can't fire you for not signing it. If the state is "at will", the contract will likely be found unenforceable because ongoing employment is generally not adequate consideration in an "at will" relationship, since they would still maintain the right to terminate you at any time after you signed the agreement.

As usual, IANAL so check your local law.

--
Tuesday, November 18, 2003

During my last salaried job I decided to work on some software.  It would be of use to the company, so I negotiatied a deal where I would own the copyright to any software I developed in that area in return for granting the company access to the source and royalty-free rights to use it.  It's nice to have a clear conscience.

Every time I read a story like this, I wonder if the real problem is that the author didn't have enough savings to be comfortable addressing the issue with his employer.

Scot Doyle
Tuesday, November 18, 2003

What really sucks is getting handed one of those contracts 1 month after you've started working at a new place and being told that all employees have to sign it or else not work there.

--

At my current job I had to sign a typical one of these "we own all your stuff" type contracts. I used some whiteout tape and a photocopier to eliminate the more onerous clauses. The document looked pretty similar to the original except it was missing a few lines/words here and there.

The only thing the company has a right to now are patents related to work done by me onsite and the right to use anything I produce (but I also have the right to be able to use things I produce).

I don't think anyone really reads these document except to make sure you've signed them.

unsure if I'm clever
Tuesday, November 18, 2003

What possible relationship could a helper program for NetFlix have to Apple's business?  As far as I can tell, it slaps a GUI on top of NetFlix's normally browser-based interface. 

Whether they have a legal right to do this or not (we don't know), I think it's a really stupid move.  It makes Apple look bad, it pisses off the employee (and probably some of his coworkers), and has zero business value (it's just a simple little utility app). 

The only way this makes any sense to me is if Apple is planning the movie equivalent of iTunes...

SomeBody
Tuesday, November 18, 2003

"What really sucks is getting handed one of those contracts 1 month after you've started working at a new place and being told that all employees have to sign it or else not work there."

That's why software developers have to be active about this stuff, not just wait for things to be handed to them. If they don't make you sign these agreements before you start, *ask about them*. You know you're going to need to come to some sort of agreement about it, and the clearer that agreement is the better for the both of you.

In fact, you should ask about these agreements in one of your final interviews so they get an idea that you take your IP seriously. If their answers indicate that continuing to write any sort of software (not just competitive) outside work is a problem, maybe you shouldn't work at such an inflexible company. Or maybe the job is good enough that you'll decide you don't need to work on that opensource project anymore. At least you can make an honest tradeoff rather than trying to have your cake and eat it too.

Chris Winters
Tuesday, November 18, 2003

> What possible relationship could a helper program for NetFlix have to Apple's business? <

I haven't read the story, but doesn't Apple have a software program that plays MP3's and a way to buy them online? Aren't the two somehow integrated?

www.MarkTAW.com
Tuesday, November 18, 2003

Scot Doyle,

Thats a really interesting idea.  I never thought of that.  Perhaps companies would be more inclined to let people keep the rights or release something open source, knowing that they won't work on it if they arn't "allowed to". 

Vince
Tuesday, November 18, 2003

From the *ahem* indisputably accurate film documentary "The Pirates of Silicon Valley", Steve Wozniak DID present the Apple  to an HP representative so that he would be in the clear.  They passed on it, and we know...
...the rest of the story.

The End

anon
Tuesday, November 18, 2003

If Apple wants to do business in the state of california, they need to follow the law. Apple is not above the law.

State law negates Apple's contractual clause. Furthermore, state law invalidates any contract containing such a clause which does not also include a notice to the employee of their rights under the law. Apple did not include this notice, therefore their employment contract is negated and unenforceable. Because of this, the work cricket has done for them on iMail falls under the common law. Which is that cricket is the copyright owner of that code.

IP Expert
Tuesday, November 18, 2003

anon, indeed. My point being that if HP had acted like Apple now, there would never have been an Apple computer. Did you know that HP was developing their own microcomputer at the time?

By the way, that "Pirate" movie is fun but you should really go to the source: the book "Fire in the Valley" by Paul Freiberger and Michael Swaine. Good stuff.

BC
Tuesday, November 18, 2003

"Apple did not include this notice, therefore their employment contract is negated and unenforceable."

So what legal resources are there for someone in Cricket's position?  Does the EFF deal with this kind of thing?  Can we all pass around the virtual hat for a "Programmers Intellectual Property Defense Fund"?

Fundamentally, this is a humans rights issue.  If a corporation can claim ownership of your thoughts off company property and off company time, what is to stop them claiming your home, your car, etc. etc.?

In China, a business that manufactured fake eyelashes used "intellectual property" agreements to prevent workers from going to a competitor.  That is the direction we are heading in here in the U.S. as well.

Jim Rankin
Tuesday, November 18, 2003

The best advice here is that, if you are presented with a contract that attempts to claim everything you do, remove offending clauses and make the ownership clauses specific to the work you do for the employer. Also, exclude work you might have done before starting.

For example, company owns all work relating to gizmos done after 18 November, while employee is employed by company.

It is very important because what you find is that, if a dispute arises, the other side is fully capable of lying and misrepresenting what you've agreed to. This might even just be your manager lying to cover himself or herself to their own superiors.

If your company refuses to fine tune the rights they wish to claim, that is an enormous red flag.

If they present the contract after you've started, it's your call whether to sort it out properly, or just delay dealing with it for a while, and in the meantime make your code difficult to read. They should ensure you know their expectations before you start.

Been there
Tuesday, November 18, 2003

Philo

I see the following scenario:

step 1: the guy hands over all the rights of this shareware.
step 2: Apple will let him go


This is more likely.

Jacob
Tuesday, November 18, 2003

*  Recent Topics

*  Fog Creek Home