Good Employment Agreement

[bmcculley at rcn.com]

Various comments inline.  

Greg, thanks for posting a very pertinent topic!

---- Original message ----
>Date: Mon, 19 Jan 2004 15:10:02 -0500
>From: Greg Rundlett <greg at buzgate.org>  
>Subject: Good Employment Agreement  

[...snip...]

>I'm trying to come up with a 'good' employment agreement or
corporate IP 
>policy that covers 'itellectual property' (apologies to RMS.
I know that 
>term is overly vague and encompasses at least three separate
areas of 
>law and history, but...).
>
>When I say 'good', I mean I would like to create an
employment agreement 
>/ company policy that is balanced, versus the standard 'if
you think of 
>it while employed by ACME, then ACME owns it' approach.
>
>The other thing I'm trying to achieve is to cover the issues of 
>copyright, and patent rights in an environment where GNU
software is used. 
>
> From a practical perspective, I am a web developer who
writes PHP 
>scripts and tools on my own time, possibly releasing those
scripts as 
>GPL projects.  I also use GPL projects and other OpenSource
code from 
>MySQL to Apache, PERL etc.  How should a company that
supports the 
>concepts of free software create an employment agreement that
respects 
>the contributions of the employee and also implements a
'defensive 
>copyright and/or patent' strategy?

That's a very interesting problem.  Seems reminescent of the
GPL motivation, if you don't have a sound strategy others will
eat your lunch.

Seems to me that there are two somewhat contradictory factors
at play.  One is the open-source paradigm, the other is the
desire of any responsible enterprise to protect their own
interests.  Question is whether these can be reconciled in any
coherent and harmonious fashion?  If not this is a major
problem for the open-source paradigm in business.

I think they can be.  Seems to me that the guiding principle
is the "work for hire" rule.  Based on that, the company
should get the rights for whatever work they commissioned, and
nothing more.  If they so choose they can release some or all
rights to some or all works under the GPL, or some other
licence (this could get complicated, depends on whether the
components were GPLed or whatever - leave this to the
lawyers!).  However as I understand the GPL if they do not
release or resell the software they do not have to open-source
it (WARNING, known oversimplification here) but if they do
release or resell then they have to open-source it.  

So this area might need to be ad hoc because so much of it
depends on the specific business situation.

>
>I bring all my accumulated experience, and knowledge of GPL
software, 
>and my personal projects to work, and build on those ideas in my 
>professional capacity.  Most employment agreements I've
signed in the 
>past basically ask that you list all the things you've ever
done that 
>are not subject to assignment to the company.  Then they say
something 
>to the effect that anything you do, think, or reduce to
practice is the 
>property of the company.  It seems to me to be an exercise of
complete 
>nonsense to claim any rights in software, since my ideas are
just added 
>to the ideas of others, but given that the US legal system
does not 
>share my attitudes toward software patents and copyright,
does anyone 
>know of a good example of copyright, patent, trademark,
employment 
>and/or non-compete agreements specifically in the field of web 
>development?  Does a system comprised of PHP scripts
constitute 'software'?

We could all share a great rant about the patent/copyright
system treatment of software, but that's all moot here and
now, the place to have that dialogue is in the political arena.

As far as the PHP scripts, I would say yes, certainly a system
comprised of PHP scripts is software.

>
>I found a fairly good example from the Embedded Linux
Consortium. (the 
>second half of their bylaws) at 
>http://www.embedded-linux.org/files/ELCByLawsPlusIPRA.pdf,
but I'm 
>looking for more feedback from the community.  I am
frustrated not to 
>find more information about how companies can best implement
the GPL in 
>their IP policies at gnu.org, or the many free software
advocate sites.
 
I have yet to look at the embedded-linux site, will do so.

Maybe this is a good opportunity for us to contribute
something of value, by helping to develop some ideas and
suggestions for incorporating open-source principles into
corporate IP policies.  I'd be interested to know how that's
addressed in major corporate open-source vendors such as IBM.
 Anyone have any insights to share?

Thanks again for starting what promises to be an interesting
thread!

-Bruce McCulley
freelance CISSP