Ever wondered who really owns the IP of the stuff you work on out of
hours? What about the little perl gem that is essential for your
company's continued operation that you plonked on sourceforge for neat
value? Ever wondered what would happen to your code, your bank
balance, your life for the next few years if your boss turned into a
case study for an episode of "When good bosses go bad"?
Read on for more details.
Wonder no more! SAGE-AU, the
System Administrator's Guild of Australia, have
released OSDA, or the Open
Source Developer's Agreement. Although we are sounding awfully like
a free set of steak knives, it's actually a very important question.
OSDA tries to provide certainty by having the most pertinant option
included (by negotiation, of course) in your employment contract. Once
it's there, you and your employer (or you and your employees) will have
absolute certainty about who owns the IP of code developed under
The four legal clauses and sample letter we had drafted by an Melbourne
IP law firm are for the Australian workplace landscape, but since
they're so simple and relatively loophole free, it's likely that a
lawyer or solicitor in your jurisdiction can make a working version of
it as well. We'd really like to see new clauses contributed back into
The first four clauses are as follows:
- Option 1: could be for a software developer who is employed to work
on non-Open Source software, and detailed clauses are desireable
- Option 2: allowing the employee to develop Open Source software
without using their employer's
- Option 3: a variation on Option 2, except that the employee retains
the rights to any work not performed with the employer's resources
- Option 4: similar to Option 2, except that if work is performed
using the employer's resources then the intellectual property is
jointly owned and a license may be granted for use in Open Source
We have provided a sample letter, which may help those of you who are
already within employment agreements and wish to add the clause to your
As this is an open source project, we have not only made it available
on the SAGE-AU website, but it also has a SourceForge project.
If you modify an existing clause, add an extra one, or as an employer
you contribute your developer contracts, we'd be happy if you can
contribute new clauses on SourceForge.
The project is currently BSD licensed. We are determining which of the
documentation licenses is the best for our needs, but for the time
being, feel free to use it as you feel fit.
The contract uses the term "Open Source." This raises the issues of,
can the Open Source Definition be relied on as a legal document? I
believe the original Debian Free Software Guidelines was not intended
to serve as a legal document--the Debian developers did not want to be
burdened to defend the Guidelines as a definition legally.
Imagine a dispute between an employee and an employer whether a piece
of software released by the employee under some license is "Open
Source" or not...
The contract uses the term "Open Source." This raises the issues
of, can the Open Source Definition be relied on as a legal document?
Such terms should be explicitly defined in the document. Better,
though, would be to list specific licenses (and append copies).
In my contract, I simply got a clause added that said any
work I do on my own time, that is not directly related to my company
work, whethere it is open source or not, whether it is on my company
computer or not, belongs to me.
Unfortunately, this is too vague for some of us. What an employer
does today, they may abandon tomorrow for some new avenue. Software
houses can be notoriously bad for that, for example. Thus, spelling out
what is and is not permitted is always a good idea.
I have to agree with jhasler, using the SAGE-AU
terms is really only useful with a carefully-prepared definition of what
exactly constitutes "Open Source". The DSFG has done a relatively good
job of satisfying that for laymen, but I'd prefer to have a lawyer go
over it before including it in a contract.
(This is not legal advice. Everyone should consult a licensed
attorney about this stuff. Yadda yadda yadda.)
Eh, licensed attorneys are for wimps. If it is reasonable to me, and it is reasonable to my
manager, then it is enforcable. If the company did take me to court over me keeping as my own
what the contract, as was understood by me and the manager, says is owned by me, I would get
a very high-priced lawyer and sue their assess off. And I would surely win. I don't worry
about it. I would own them.