A question of ethics or practicality?

[notageek]

Okay, I've got a question for you.

Say you write a computer program, using the laptop given to you by your company but on your own time and certainly not related to anything your employer does.

Can your employer claim your computer program as theirs?
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[BoneKracker]

I'm not a lawyer and I don't know, but here's my opinion.

They can try. I don't think most courts would uphold their assertion, though. Courts have been fairly reasonable about intellectual property rights of individuals, in cases like this.

For example, at one of the consulting firms I've worked for, we all had to sign fairly restrictive non-disclosure, non-compete, and intellectual property rights documents upon getting hired. One of them stated that anything we produced during our term of employment that was materially related to the nature of our work for the company belonged wholly to the company. In other words, even if you came up with something on your home computer, while on vacation, if it was the same kind of work you do for the company, they claim ownership.

A friend of mine left the company and started his own firm, and the company sued him for intellectual property theft because he was reusing the same boilerplate documents he had produced for clients, including the same diagrams, tables, charts, research, and even lots of verbatim text. He had written it at work, on the company's computer.

The court ruled against the company, and stated that in situations like this, "joint intellectual property ownership" generally applies, meaning that both the company and the individual can continue to use and profit from the intellectual property. I don't recall if he recouped any of his legal costs, though.

So, what those documents we have to sign really mean is, if you do this, be prepared to be sued. Most people just hide such situations, but if you're a highly-placed individual with a valuable reputation, it's more likely to result in a legal case.
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Oldthinkers unbellyfeel INGSOC.
-- Headline of a document on Winston Smith's terminal in his cubicle at the Ministry of Truth, seen briefly in the background in one scene of the movie rendition of Nineteen Eighty-Four.

[notageek]

Thank you.


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What looks like a cat, flies like a bat, brays like a donkey, and plays like a monkey?

[Dr.Willy]

[notageek]

Good point.
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What looks like a cat, flies like a bat, brays like a donkey, and plays like a monkey?

[sikpuppy]

I thought India wasn't in the US. In fact, according to my copy of the CIA Worldbook it's not even in the same hemisphere. It's unlikely any advice from anyone living outside India would be worth anything, unless your workplace is the US embassy in India somewhere. Perhaps you should visit your own government's contracts and torts website? Or you could ignore me, most people do.

[notageek]

I don't work for the Indian government. Almost all employment contracts are similar.
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What looks like a cat, flies like a bat, brays like a donkey, and plays like a monkey?

[pjp]

The issue isn't the employment contract, but how your legal system rules on them.
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lolgov. 'cause where we're going, you don't have civil liberties.

In Loving Memory
1787 - 2008

[notageek]

True, regardless of the legal systems though, employers can be expected to lay claim to your work wherever you are.
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What looks like a cat, flies like a bat, brays like a donkey, and plays like a monkey?

[pjp]

To some degree, but it depends on the job of the individual. Here, it seems the lower level the employee, the less likely the restriction. Another recent example is HP's former CEO who went to work for Oracle. Even then HP settled out of court. There are often ways around it. They usually involve sham titles to disassociate the person from the contentious role for a period of a year or so (or whatever the contract was).


Another option is to use their laptop only for learning, not the exact code (even a POC that does something similar). Then write the actual code on a separate system.
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lolgov. 'cause where we're going, you don't have civil liberties.

In Loving Memory
1787 - 2008

[notageek]

Yeah, that's what I plan on doing. I'm going to use my desktop via NXclient to write the actual code.
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What looks like a cat, flies like a bat, brays like a donkey, and plays like a monkey?

[juniper]

[BonezTheGoon]

I am not a lawyer, but I do know that many employers have strict written policy about such issues. I'd say that could considerably change the outcome if the employer does have such a policy in place -- it still isn't a guarantee on the ruling but I would think it could affect it.
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[notageek]

[BoneKracker]

Like I said, the policy is itself a warning of intent to sue if you do such a thing. Being sued itself can be damaging financially and professionally, not to mention stressful and exceedingly inconvenient.

They get you to sign a document, at the time of employment, so they can claim that the agreement is an enforceable contract, and you are willingly giving up the rights to anything you produce during that time in exchange for your employment, by which you earn compensation. It can be argued pretty easily that this is not an enforceable contract because the value of everything you might produce, even on your own time and outside the requirements of your job, is impossible to even speculatively estimate (unlike with, for example, the value of mineral rights) before-hand, or that this value, in addition to the actual work you performed, was in fact completely out of line with what you were actually compensated. Counter-suits have been made to this effect, claiming compensation.

Most corporate lawyers will, in cases like this and in non-compete agreement violations, at least send a "cease-and-disist" letter, threatening to sue. That's nothing more than a verbal request to some clerk followed by a signature. Then, depending on the facts, they may initiate a suit, but will probably back down, knowing that the courts will favor the poor little individual against the giant corporation. If you've gone to work for a real competitor, however, of corporate stature, they may well follow through with the suit in hopes of reaching some kind of settlement with the other corporation, or extracting a concession from them in some other ongoing legal matter.

Note: I am talking out my ass and have no idea of what I am saying.
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Oldthinkers unbellyfeel INGSOC.
-- Headline of a document on Winston Smith's terminal in his cubicle at the Ministry of Truth, seen briefly in the background in one scene of the movie rendition of Nineteen Eighty-Four.

[big dave]

it depends on what the employment agreement is, and what local law is. ask a lawyer in your jurisdiction to read through your doc.

[gabrielg]

"ethically" you should give them a piece of your profit, assuming you ever make one, since you are using their equipment. In my particular employment contract (EU), it says that whatever I do in their equipment is theirs. The law doesn't specify. Like many others said: depends on your contract and the law.
More often than not the employment contracts want you to give them 100%, while the law only allows them to take 70%, the trick is to fall in the latter rather than the former, and/or to not get caught/go to trial (as this one is very expensive).

Simplest solution: ssh to your server at home. If you don't have one, it is perhaps time

[pjp]

[sikpuppy]

[pjp]

Naturally, but at that point neither the ethics nor the legal issues are relevant.
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lolgov. 'cause where we're going, you don't have civil liberties.

In Loving Memory
1787 - 2008

[notageek]

What is likely to happen here is I'm going to be threatned of legal consequences and some good old arm-twisting. They're going to be bring out that clause and also say that my behavior was unethical because I used company resources to my gain.

That's the reason why BK's post accurately describes what is likely to happen. In American context, this would actually see it resolved in courts but here if they chose to bring suit, it is likely to drag on for ages. Most of our laws are xerox copies of the British law.
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What looks like a cat, flies like a bat, brays like a donkey, and plays like a monkey?

[BoneKracker]

[notageek]

They don't. I'm trying to look at probable scenario.
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What looks like a cat, flies like a bat, brays like a donkey, and plays like a monkey?

[ratmonkey]

It's not a perfect analogy, but if you worked at a machine shop that made specialty parts for aircraft, would you find it acceptable to use their machining equipment during your off hours to make parts for a side business you have selling custom motor bike parts? Even if you paid the electrical bill, paid for the metal stock, and bought your own cutting tips, so it had damn near zero financial impact, there are very few companies that would allow this.

If it were me, I'd stay away from this, and do the work on my personal laptop on my own time.
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[notageek]

Yes.
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What looks like a cat, flies like a bat, brays like a donkey, and plays like a monkey?