[FoRK] Drafting employment contracts for free-software authors

Justin Mason jm at jmason.org
Wed Feb 23 00:10:19 PST 2005


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Kragen Sitaker writes:
> We're thinking that assuring people that their work will be licensed
> as free software (possibly under some particular license), or that
> they will at least have the option to license it as free software
> under a license of their choosing, may alleviate this concern.
> 
> I'm curious how other employers of free-software hackers have solved
> this problem.  The folks I've talked to so far have said they just use
> a pretty standard "employer owns everything" agreement.

Kragen --

good question!  One that's been very hard to deal with, I can assure you.
As you say, the traditional agreement is along the lines of "employer owns
everything".  I would suggest:

1. code written in non-work hours is entirely up to them, as long as
it doesn't infringe work copyrights or trade secrets.  This is standard
in many places, but not everywhere, and it's an important baseline.
On top of that, then:

2. allow them leeway to agree *with their direct managers*, areas under
which work may be released as open source.  Note: with their managers, not
with your legal dept!  The latter is a recipe for endless frustration all
round.

This is something that is ongoing, btw.  Agreeing areas at the time of
signing on for the job isn't really useful, since jobs change focus over
time, and what someone works on in a year's time may be an entirely
different area.

If it's been signed off, the employee should be considered in the clear,
trade-secret-wise.  Otherwise, there'll be a degree of fear as to
whether they can make something OSS or not, and that makes the
entire process not so useful.

3. When someone's working on patches to existing open source code, there
generally isn't a need for a cumbersome signoff process unless they think
it's giving away some "crown jewels".  Generally if the code in question
is that valuable, they'll know this!  If they do let something along
those lines slip, deal with it after the fact rather than burden them
upfront, in my opinion.

4. Generally ease the path to open-sourcing chunks of code.   A simple
sign-off-by-email protocol, and a degree of trust in the employee, makes
it easier all round on everyone.  If the process is cumbersome it'll
just be frustrating and you'll lose the employee, for very little gain.

This is definitely something that's new out there -- and turning out
to be hard to deal with, esp. since most tech lawyers have been trained
to consider code the "crown jewels" in MS style.

- --j.
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