Contributing to the kernel while being employed

Contributing to the kernel while being employed

[Anuradha Ratnaweera]

Slightly off-topic, but not completely ...

(And this has got nothing to do with SCO issue.  I don't like to waste
time on nonexistent issues. ;-))

Shorter version: If I work for a commercial organization, how can I
write a kernel module copyrighted and GPLed by myself?

Now the longer version ...

Before working for a commercial organization, one usually has to sign a
contract which makes all the work done during the period of employment
(including innovations, "hobby" coding done during "after hours")
copyrighted by the employer.  This introduces various problems when one
wishes to do open source development, especially as a hobby.

I am not talking about companies that do open source contributions as
institutions (e.g., JFS, XFS, and numerous device drivers).  But if one
wants to do something as a hobby and host it somewhere (say
sourceforge), or if one wants to send a substantial patch, then it is a
different story.

For example, if I do some changes and send a patch, and hopefully if it
is accepted into the kernel, that code becomes GPL.  But this doesn't
prevent the employer from later questioning my right to do so, because
the patch was never under my copyright according to the contract, and my
applying of GPL (or whatever the lisence I used) is void.

Obviously, there are many folks who work for commercial organizations,
but still actively get involved in the kernel development.  I am keen to
know how they get around with copyright issues and contracts.

Please don't use Linus as an example. ;-)

	Anuradha

Re: Contributing to the kernel while being employed

[Wichert Akkerman]

Previously Anuradha Ratnaweera wrote:
> Before working for a commercial organization, one usually has to sign a
> contract which makes all the work done during the period of employment
> (including innovations, "hobby" coding done during "after hours")
> copyrighted by the employer.  This introduces various problems when one
> wishes to do open source development, especially as a hobby.

If you signed a contract which said that you might be out of luck,
depending on you local law. If your law allows a company to demand
ownership of everything you do in your own time without using company
resources than you can't work on open source projects unless your
employer allows you to. Personally, I would never sign any contract with
a clause like that.

Wichert.

-- 
Wichert Akkerman <wichert@wiggy.net>    It is simple to make things.
http://www.wiggy.net/                   It is hard to make things simple.

Re: Contributing to the kernel while being employed

[Bas Mevissen]

Anuradha Ratnaweera wrote:

> 
> Before working for a commercial organization, one usually has to sign a
> contract which makes all the work done during the period of employment
> (including innovations, "hobby" coding done during "after hours")
> copyrighted by the employer.  This introduces various problems when one
> wishes to do open source development, especially as a hobby.
> 

Isn't this whole "problem" solved if you do your hobbies in your own 
free time? Of course, then you should also NOT use any IP from your 
employer then.

If the employer agrees that you do it partly in company time, then you 
should work out some agreement on GPL-ing it if you want to submit it 
for inclusion.

Regrds,

Bas.

Re: Contributing to the kernel while being employed

[Larry McVoy]

On Wed, Jul 30, 2003 at 10:13:27AM -0400, Anuradha Ratnaweera wrote:
> Before working for a commercial organization, one usually has to sign a
> contract which makes all the work done during the period of employment
> (including innovations, "hobby" coding done during "after hours")
> copyrighted by the employer.  This introduces various problems when one
> wishes to do open source development, especially as a hobby.

Unless you are someone that sticks out from the crowd of engineers, you
are basically in trouble.  If your employer can't easily replace you
then you can negotiate a different employee contract.  This is quite 
common for a certain level of engineers.  I've done it and it is not
easy but one tip: describe the open source work as "pro bono work
for the community at large" and at least the lawyers will have a clue,
that's more or less their idea of open source.
-- 
---
Larry McVoy              lm at bitmover.com          http://www.bitmover.com/lm

Re: Contributing to the kernel while being employed

[Alan Cox]

On Mer, 2003-07-30 at 15:13, Anuradha Ratnaweera wrote:
> Before working for a commercial organization, one usually has to sign a
> contract which makes all the work done during the period of employment
> (including innovations, "hobby" coding done during "after hours")
> copyrighted by the employer.  This introduces various problems when one
> wishes to do open source development, especially as a hobby.

I've always made sure I had paperwork from my employer permitting it,
and I've never had any problems getting that. Most of the time before
Red Hat I was working for companies that were small (so had a low idiot
ratio) or for companies were while I worked in computing it wasn't
directly related (eg as a sysadmin/network engineer). 

Obviously if you are employed to hack OS internals don't be suprised if
the employer says "no", most however seem reasonable or will agree they
have no problem with contributions that don't relate to their business
area. (So they dont see you as taking things you learned through your
employment and 'leaking' knowledge to the outside world.


Alan

Re: Contributing to the kernel while being employed

[Jamie Lokier]

Alan Cox wrote:
> On Mer, 2003-07-30 at 15:13, Anuradha Ratnaweera wrote:
> > Before working for a commercial organization, one usually has to sign a
> > contract which makes all the work done during the period of employment
> > (including innovations, "hobby" coding done during "after hours")
> > copyrighted by the employer.  This introduces various problems when one
> > wishes to do open source development, especially as a hobby.
> 
> I've always made sure I had paperwork from my employer permitting it,
> and I've never had any problems getting that.

If only all stories were so pleasant.  I have never had success
getting the paperwork I asked for, even when the companies were
clearly keen for me to be there, and even when they supported the idea
of free software.

One told me it was better to not rock the boat, to let stuff out
quietly, than to raise the issue.  If I raised the issue, someone
would question it and that would be worse than just not saying
anything.

I have never felt easy with official, verbal "don't ask don't tell"
arrangements, because some company executives like to deny what they
previously agreed verbally - or they may move on themselves.

I've been told at a couple of places that I can contribute to the
community, provided I agree beforehand each and every contribution
with the company - whereas I've wanted a clear understanding
(preferably written) of what is and what isn't in the sphere of interest.

At one employer, I wrote a note stating what I thought was their area
of business, and they wrote one to me stating that while basket
weaving, for example, was clearly outside their business, _any_ area
of computer science was potentially a business interest to them.  They
were keen to support the community, but it had to be a case of their
veto of my works, rather than their interests being limited to a
certain field.

This was difficult for me, since computer science is pretty much my
major hobby, my works in that field will outlive any employment I do,
and obviously there are conflicts of interest in that arrangement.

In particular, it meant I could never write my best, most profound
ideas for them to potentially veto.  They didn't pay enough to own
those (I'm not sure anyone pays enough).

I found it difficult in practice.  Most of what I produce at home is
not in the form of well-defined projects with clear releases, but
rather consists of thousands of small patches and experiments.  Most
of which I don't want to release, but which I may use years later in a
project.  And it made, for example, coding a small program and posting
it to linux-kernel too cumbersome - so on some occasions I have coded
stuff at home, posted test results, but been too unfortable to post
the code.

> Obviously if you are employed to hack OS internals don't be suprised if
> the employer says "no", most however seem reasonable or will agree they
> have no problem with contributions that don't relate to their business
> area. (So they dont see you as taking things you learned through your
> employment and 'leaking' knowledge to the outside world.

That's a good answer.

As a corollary from my own experience, if something really interests
you and you want to develop and share it over many years (and many
employments), you may be better off choosing _not_ to work in that
field precisely to avoid any conflicts of interest - unless you find
an employer who is able to commit to your freedom to work with your
interest in future, e.g. by employing you to actually work on and
release software under a suitably free license.

I am personally much happier having decided to work in that way.  I am
able to give 100% of myself to the work without reservation, now,
which is better for all concerned and also very satisfying.

-- Jamie

Re: Contributing to the kernel while being employed

[Martin J. Bligh]

> Before working for a commercial organization, one usually has to sign a
> contract which makes all the work done during the period of employment
> (including innovations, "hobby" coding done during "after hours")
> copyrighted by the employer.  This introduces various problems when one
> wishes to do open source development, especially as a hobby.
> 
> I am not talking about companies that do open source contributions as
> institutions (e.g., JFS, XFS, and numerous device drivers).  But if one
> wants to do something as a hobby and host it somewhere (say
> sourceforge), or if one wants to send a substantial patch, then it is a
> different story.
> 
> For example, if I do some changes and send a patch, and hopefully if it
> is accepted into the kernel, that code becomes GPL.  But this doesn't
> prevent the employer from later questioning my right to do so, because
> the patch was never under my copyright according to the contract, and my
> applying of GPL (or whatever the lisence I used) is void.
> 
> Obviously, there are many folks who work for commercial organizations,
> but still actively get involved in the kernel development.  I am keen to
> know how they get around with copyright issues and contracts.

I suggest you ask your employer for a written waiver to that contract
for GPL'ed work, and make sure it's signed by the right people. They may 
want it more restricted, in which case, falling back to the position 
of just covering submissions to the Linux kernel.

M.

Re: Contributing to the kernel while being employed

[brian]

On Wed, Jul 30, 2003 at 10:13:27AM -0400, Anuradha Ratnaweera wrote:
> 
> Slightly off-topic, but not completely ...
> 
> Before working for a commercial organization, one usually has to sign a
> contract which makes all the work done during the period of employment
> (including innovations, "hobby" coding done during "after hours")
> copyrighted by the employer.  This introduces various problems when one
> wishes to do open source development, especially as a hobby.

In California, USA:

There is no such thing as a free lunch, even as an employer.

A clause of that sort it technically unenforceable.

However, due to a broken tort system, there is an indirect way for
an employer to enforce such a clause.   However, this same strategy
works whether you signed such an agreement or not and whether 
such a clause exists or not, thus this risk isn't directly related
to the issue.

The bottom line being that having or not having such a clause
in your contract won't change your liability (at least in California).

-- 
Brian Litzinger

Re: Contributing to the kernel while being employed

[Henning P. Schmiedehausen]

Anuradha Ratnaweera <anuradha@ratnaweera.net> writes:

>Before working for a commercial organization, one usually has to sign a
>contract which makes all the work done during the period of employment
>(including innovations, "hobby" coding done during "after hours")
>copyrighted by the employer.  This introduces various problems when one

This is neither possible in Germany ("sittenwidrig") nor can an
employer slap a Copyright on code that you've wrote in your free time
(Copyright stays with the Author (This is "Urheberrecht" und
"Verwertungsrecht" in Germany)).

Exec summary: Don't sign such an agreement. Sounds like slavery to me.

	Regards
		Henning




-- 
Dipl.-Inf. (Univ.) Henning P. Schmiedehausen          INTERMETA GmbH
hps@intermeta.de        +49 9131 50 654 0   http://www.intermeta.de/

Java, perl, Solaris, Linux, xSP Consulting, Web Services 
freelance consultant -- Jakarta Turbine Development  -- hero for hire

"You are being far too rational for this discussion."  
       --- Scott Robert Ladd in <3F1874B0.6030507@coyotegulch.com>

Re: Contributing to the kernel while being employed

[Anuradha Ratnaweera]

On Wed, 2003-07-30 at 20:38, Bas Mevissen wrote:
> Anuradha Ratnaweera wrote:
> > Before working for a commercial organization, one usually has to sign
> a
> > contract which makes all the work done during the period of employment
> > (including innovations, "hobby" coding done during "after hours")
> > copyrighted by the employer.  This introduces various problems when
> one
> > wishes to do open source development, especially as a hobby.
> > 
> 
> Isn't this whole "problem" solved if you do your hobbies in your own 
> free time? Of course, then you should also NOT use any IP from your 
> employer then.

Not always.  Some contracts talk about "employement", while others (most
are of this catagory) are about the "employement period".  The latter
_does_ include all 24 hours of the day (I have checked it with some
legal folks.)

	Anuradha

Re: Contributing to the kernel while being employed

[Alan Cox]

On Mer, 2003-07-30 at 15:50, Anuradha Ratnaweera wrote:
> > Isn't this whole "problem" solved if you do your hobbies in your own 
> > free time? Of course, then you should also NOT use any IP from your 
> > employer then.
> 
> Not always.  Some contracts talk about "employement", while others (most
> are of this catagory) are about the "employement period".  The latter
> _does_ include all 24 hours of the day (I have checked it with some
> legal folks.)

It depends a lot on the country (and in the US even the state). You'll
find everything from outright prohibition of your employer owning
anything outside of working hours through to a default assumption they 
own everything you produce (where one wonders if that entitles you to 
have your sewage delivered to their CEO's office...)

Re: Contributing to the kernel while being employed

[Bas Mevissen]

Anuradha Ratnaweera wrote:

> 
> Not always.  Some contracts talk about "employement", while others (most
> are of this catagory) are about the "employement period".  The latter
> _does_ include all 24 hours of the day (I have checked it with some
> legal folks.)
> 

This sounds very strange to me. Maybe it is usual in some places, but I 
would think twice before signing such contract.

BTW I got a bounce of the direct reply, sent by postmaser@virtusa.com. 
Did you recieve the direct send? I can send you the bounce if you like.

Bas.

RE: Contributing to the kernel while being employed

[Downing, Thomas]

> -----Original Message-----
> From: Anuradha Ratnaweera [mailto:anuradha@ratnaweera.net]
> Sent: Wednesday, July 30, 2003 10:50 AM
> 
> On Wed, 2003-07-30 at 20:38, Bas Mevissen wrote:
> > Anuradha Ratnaweera wrote:
> > > Before working for a commercial organization, one usually 
> has to sign
> > a
> > > contract which makes all the work done during the period 
> of employment
> > > (including innovations, "hobby" coding done during "after hours")
> > > copyrighted by the employer.  This introduces various 
> problems when
> > one
> > > wishes to do open source development, especially as a hobby.
> > > 
> > 
> > Isn't this whole "problem" solved if you do your hobbies in 
> your own 
> > free time? Of course, then you should also NOT use any IP from your 
> > employer then.
> 
> Not always.  Some contracts talk about "employement", while 
> others (most
> are of this catagory) are about the "employement period".  The latter
> _does_ include all 24 hours of the day (I have checked it with some
> legal folks.)
> 
> 	Anuradha

[IANAL] Did you ask about enforceability of such provisions?  At a former
job, (in CT, USA) we were faced with such a contract.  Some of us just
refused to sign.  Others sought legal opinion.  The common opinion was
that such "24 hour" provisions are largely unenforceable in our local
jurisdiction, baring other complicating factors, such as doing work that
might be viewed as either competitive or infringing on the work you do
for your employer. Or of course, using resources owned or paid for by
your employer.

Again, consult a lawyer first, if you are worried about risk!

Re: Contributing to the kernel while being employed

[Anuradha Ratnaweera]

On Wed, 2003-07-30 at 20:36, Wichert Akkerman wrote:
> Previously Anuradha Ratnaweera wrote:
> > Before working for a commercial organization, one usually has to sign
> a
> > contract which makes all the work done during the period of employment
> > (including innovations, "hobby" coding done during "after hours")
> > copyrighted by the employer.  This introduces various problems when
> one
> > wishes to do open source development, especially as a hobby.
> 
> If you signed a contract which said that you might be out of luck,
> depending on you local law. If your law allows a company to demand
> ownership of everything you do in your own time without using company
> resources than you can't work on open source projects unless your
> employer allows you to. Personally, I would never sign any contract with
> a clause like that.

What if the employer _is_ interested in contributing to the open source
under company copyright and doesn't mind using company resources, but
the employee prefers to keep copyright to himself.  The only way he can
do it is by using his own resources and time (off hours).  But this is
not possible if there is a contract that coveres the full employment
period, including after hours.

The reason why I wanted to bring up this matter was to figure out the
possibility of doing open source work purely as hobby.  One can't use
his company name for _that_.  When the company name is used, it is no
longer a hobby. ;-)

	Anuradha

Re: Contributing to the kernel while being employed

[Martin J. Bligh]

> What if the employer _is_ interested in contributing to the open source
> under company copyright and doesn't mind using company resources, but
> the employee prefers to keep copyright to himself.  The only way he can
> do it is by using his own resources and time (off hours).  But this is
> not possible if there is a contract that coveres the full employment
> period, including after hours.

Why do you want the copyright? So you can sue in case of violation?
If so, then giving both yourself and your employer copyright might help ...

M.

Re: Contributing to the kernel while being employed

[henrique2.gobbi]

I don't understand laws.
What you guys think about this ?

Labor Code section 2870 of the State of California:

"Any provision in an employment agreement which provides that an employee 
shall assign or offer to assign any of his or her rights in an invention 
to his or her employer shall not apply to an inventory that the employee 
developed entirely on his or her own time without using the employer's 
equipment, supplies, facilities, or trade secret information..."

henrique

On Wed, 30 Jul 2003, Martin J. Bligh wrote:

> > What if the employer _is_ interested in contributing to the open source
> > under company copyright and doesn't mind using company resources, but
> > the employee prefers to keep copyright to himself.  The only way he can
> > do it is by using his own resources and time (off hours).  But this is
> > not possible if there is a contract that coveres the full employment
> > period, including after hours.
> 
> Why do you want the copyright? So you can sue in case of violation?
> If so, then giving both yourself and your employer copyright might help ...
> 
> M.
> 
> -
> To unsubscribe from this list: send the line "unsubscribe linux-kernel" in
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Re: Contributing to the kernel while being employed

[Martin J. Bligh]

Yes, those contracts normally have an exclusion clause for CA, which
has much more sensible laws (in this case ;-))

M.

--henrique2.gobbi@cyclades.com wrote (on Wednesday, July 30, 2003 09:58:02 -0700):

> 
> I don't understand laws.
> What you guys think about this ?
> 
> Labor Code section 2870 of the State of California:
> 
> "Any provision in an employment agreement which provides that an employee 
> shall assign or offer to assign any of his or her rights in an invention 
> to his or her employer shall not apply to an inventory that the employee 
> developed entirely on his or her own time without using the employer's 
> equipment, supplies, facilities, or trade secret information..."
> 
> henrique
> 
> On Wed, 30 Jul 2003, Martin J. Bligh wrote:
> 
>> > What if the employer _is_ interested in contributing to the open source
>> > under company copyright and doesn't mind using company resources, but
>> > the employee prefers to keep copyright to himself.  The only way he can
>> > do it is by using his own resources and time (off hours).  But this is
>> > not possible if there is a contract that coveres the full employment
>> > period, including after hours.
>> 
>> Why do you want the copyright? So you can sue in case of violation?
>> If so, then giving both yourself and your employer copyright might help ...
>> 
>> M.
>> 
>> -
>> To unsubscribe from this list: send the line "unsubscribe linux-kernel" in
>> the body of a message to majordomo@vger.kernel.org
>> More majordomo info at  http://vger.kernel.org/majordomo-info.html
>> Please read the FAQ at  http://www.tux.org/lkml/
>> 
> 
> 

Re: Contributing to the kernel while being employed

[Richard B. Johnson]

On Wed, 30 Jul 2003, Martin J. Bligh wrote:

> Yes, those contracts normally have an exclusion clause for CA, which
> has much more sensible laws (in this case ;-))
>
> M.

It is generally not a good idea to even think about the piece
of paper you  were forced to sign when you got the job. The
contents of that piece of paper are generally not enforceable
because your signature was, obviously, obtained under duress.
You either sign the paper or you don't get the job.

In general, if your conscience is clear, you will have no
problem --but you don't run up and down the corridors advertising
that you "gave something away" to Linux. Instead, with the
utmost of professional integrity, you do what you can, when
you can. Your company expects that you will contribute 110%
of your time to the company. This leaves -10% for your laundry
and Linux.

Cheers,
Dick Johnson
Penguin : Linux version 2.4.20 on an i686 machine (797.90 BogoMips).
            Note 96.31% of all statistics are fiction.