Confidentiality
It was interesting to read Julian's comments about how his blog affected his new job. Personally, if an employer told me I could only have their job on the condition I "cease and desist" codestore I would have to seriously consider whether I wanted to work for that company. Well, actually, no I wouldn't have to consider it. I wouldn't take the job.
As work slowly trickles in for my new business venture so do a) the requests that I keep details to myself and b) the confidentiality agreements, written in the finest of legalese. Not sure how much of this is standard procedure and how much of it is people worried about the fact that I talk almost daily on this site and may leak something they don't want me to.
I understand the need for these agreements and have no problems in going along with them. However, for me, it really goes without saying that I would never behave in this way from the outset. All that's needed is a good dose of common sense. I would never disclose sensitive information about a client or their product.
What bothers me is the notion of intellectual property rights (IPR) over the designs I work on. I consider the ideas for solutions stored in my head mine. Obviously if I work on something such as say a CRM for a client then that CRM is theirs and I have no right to use it otherwise. However, if in creating this CRM package, I learn some fancy new trickery to do some task or other, that trickery is mine and I will do with it what I like. Be that passing it on to you guys or using it in other solutions.
Imagine every piece of work you ever did was the IPR of ACME ltd. What then when you move to the next client? Forget everything you know and start from the bottom!? And what of this site? Well, it simply wouldn't exist. As I said, it's all down to common sense. It's just a shame we live in a world of lawsuits nowadays.
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I've had two companies in a row aske me to sign IPR's, and both times I flat out told them "I don't sign those. I'm a developer by hobby as well as profession and I'll be doing a lot of work outside of that which I do for you. Therefore, you do not own anything I think up, weather I apply it to your project or not." or something to that effect with the same meaning.
So far, nobody has balked at this and the form usually goes directly from the hiring managers desk to the dust bin. Seems they really don't care too much about them if you're up front about you distaste for them. They'd rather have you working for them than haggling over quarters.
I agree with you both: there is a lot going on in this little head and a lot of it is done outside business scope (and/or hours as well), so I can't see myself signing one of these.
I think it is fairly easy to see what is yours and what is the company's as far as programming is concerned: if you work for a software compression company and you code a super dupper algorythm at home, it is clear that this will be the company's. If you work for an insurance company and develop the same compression algorythm from home and apply it at work for a specifi application, I think it's debatable wether it's yours or the company's.
What about the guy who thinks about a new burger to make in a McDonalds???
I guess what you have to wangle is a licensing arrangement. Such that the software is licensed to the client in pertuity, but you keep the IPR. These kind of agreements are quite typical.
[Ben] I don't agree with you there. If you develop an algorithm at home, its yours, period. Unless you then take it into work and embed it, unless you have specific agreement, it belongs to your employer the moment you do it. But who you work for is not the issue, the time and the place is whats important. Your time, your place, your code, your invention.
Employment is often the key in these things. If you are an employee of a company and working on their time (and in their premises or on their equipment), then anything you create, ideas, proposals, real code, becomes their IP. Most smart companies have a clause in their employment contract to that effect.
If you are self employed and contracted to a company, the principle is much the same. However, in 15+ years I have never had a problem with the following:
1. Any idea, process or procedure that I develop remains my IP.
2. Any code or depiction of that idea becomes the property of the customer (source, images etc)
3. Except - I build a library of code that I use in all my contracts - the customer gets the benefit of this in terms of improved productivity. Any code embodied in the library is my copyright, but the customer is granted a licence to use that library in respect to the project. If necessary, the source is placed in escrow in case of need (at the customers expense).
With the library principle, it forces you to abstract your own code as much as possible. Every line you write you want to stay yours where possible, so that you can reuse it next time. If your customer needs to reduce the bandwidth for their data, you aim to create a generic compression algorithm to do that, so that you can use it again. If you just trim and reformat their data, then most likely you haven't created anything that is not customer specific.
Much of the above will depend on the type of project that you are working on, and the type of client. Most of my work has been in providing complete systems or sub-systems, so that above always works. If you were coding into a much larger project, some of that may not apply. Most of these things are common sense at the end of the day. As for Jake, you should draft something that you can present to your customers when you quote them, so that it at least raises the issue up front. And because your run this site, you want to be up front about that, that you may discuss the generics of problems that you encounter and reveal solutions, and that you will not disclose the identity of entities (companies, people, projects).
I don't know about the rest of you, but the lines aren't nearly as clear cut as that. Where does the actual development start? For me I might have an idea in the shower, in the ar on the wa to work, or reading an article here at codestore. I may then work on the idea at home or at work.
The point is that software development is not a traditional occupation where you can draw a line and say anything on that sides is yours and anything on the other side is ours.
Granted there should be some ethics and loyalty as far as your employer is concerned, but intellectual property in our case almost certainly belongs to the individual, not the company.
I think there are 3 issues with intellectual property that seem to be relevant:
1. Did you do the work on company time? We as developers will invariably answer this question with "No, of course not. I would NEVER do that...". Is that always true though (come on, really)? More importantly, can you prove it?
2. Did you do the work using company resources? Even if you're doing the work on your own time, are you using the company laptop to do it? How about the company software??? How many Notes developers do you know who actually own and have a license for their own Notes client software? How about their own Domino server software?
3. Did you use code that was the property of the company? This is the greyest of the grey areas, really. From the philisophical "What is code?" question (if I take your function and rename the variables, is it now my code? What if I try to memorize the code as best I can, and then turn around and reproduce it without looking?) to the esoteric open-source arguments (code wants to be free...), this isn't always easy to answer.
Granted, if you have an idea for code that was never used at all in any way at your company, then it's a lot more clear cut, but how often does that happen? If it's a cool idea, then of course you want to use it in production. If you used it in production, then you usually used company time and company resources to write it. The company paid you to write it. Doesn't that make it the property of the company?
In that case (which is a common case), it just ends up coming down to how the company feels about it. Some companies don't care. Some do. I think that the issue that we, as developers, have is that we sweated and toiled and actually wrote the stupid code. We become emotionally attached to it. It's our baby. It's our art. We created it, and it's ours. I'm sure that painters feel the same way about their paintings.
Then again, maybe this issue is very clear cut for everyone else in the world but me. Maybe everyone else has clean lines between work and "hobby".
- Julian
In the case of Ben's compression algorithm, I think you'll find that every court in every country that cares about such things would find that the "my time" version actually belongs to the company as "work for hire". Since the hypothetical developer is being paid to develop compression algorithms for commercial use by the company, developing a better mousetrap and withholding the work for possible competitive benefit is a nasty no-no. That may not apply if the company markets only lossless compression technologies (for data, for instance), and Mr. Hypo has developed a lossy methodology with smaller files and higher fidelity than existing tech.
And if there is someone working on such a thing, will they PLEASE hurry up about it before we get stuck with MP3s forever (I find them utterly unlistenable, not unlike AM radio, no matter what the codec).
Don't get me wrong - I'm not advocating stealing libraries. I'm just saying that the ownership of an idea is not obvious in situations without an NDA.
I'm not sure about other countries, but most States in the US make IP the property of a contractor by default. You would either have to be a work for hire of sign you rights away. In fact, this is how most software companies start. They write a system for a client then sell the whole system to another. Isn't America great.
I consider intellectual property rights as rather irrelevant. How can someone claim to have rights to what I think up.
In any case, how would they know that I thought it up with them rather than my previous employer?
In fact, isn't that what Silcone Valley is all about? How would we progress if we had only our own ideas to work from?
It is tricky questions such as these that finally convinced me to go out on my own. Now, I do virtually no consulting or custom work for anyone, and when I do, it is stated in writing before we start that it all belongs to me. Phew! No issues.
Now, if I had to go back to work for someone else ever, I'd try and be very firm about my rights, but since that would require extreme financial hardship, I might not be in much of a mood or position to haggle.