[FoRK] Drafting employment contracts for free-software authors

rst at ai.mit.edu rst at ai.mit.edu
Wed Feb 23 07:02:05 PST 2005

Kragen Sitaker writes:
 > I work for a non-profit; as part of our current reorganization, we
 > want to hire some free-software (or open-source, if you like)
 > developers.  In the past, we've found that our "intellectual property
 > and confidential information agreement" has caused some concern for
 > free-software developers we've tried to hire, since it provides for
 > trade-secret protection for things the employee develops as part of
 > their employment, in addition to the usual copyright-assignment stuff.
 > 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 not sure I understand what you're trying to do here.  Code
released under an open source license is no longer being held as
confidential, and the methods and knowledge that code embodies
certainly aren't trade secret.  So, if it's your intention to allow
that, for code your employees develop "as part of their employment",
you don't actually want to reserve those rights at all.  

Conversely, if push comes to shove, the language of a contract is
going to trump any verbal assurances that you've given your employees
-- and if they're smart, they know that.  So, if they're nervous about
ironclad confidentiality language in the contract, they may not be
mollified much by verbal assurances that you don't really mean it.

As to what you should do, that depends a lot on particular
circumstances you haven't gone into -- what information you *do* want
to protect, what code you really intend to release (and how soon), and
whether those policies are institution-wide or may vary from group to
group or project to project.  But it sounds like you're willing to
make some commitments to your potential hires about open source
release; if that's the case, you should be willing to agree to legal
language which reflects those commitments.

Good luck.


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