Kuhn: It Matters Who Owns Your Copylefted Copyrights [LWN.net]

Kuhn: It Matters Who Owns Your Copylefted Copyrights

Posted Jul 1, 2021 22:26 UTC (Thu) by dvdeug (guest, #10998) [Link] (10 responses)

If a company is paying you to make something, they should own that thing by default. They need a product, they hire you, and you work on it during your working hours, it's their product. If I take off my capitalist hat and put on my Marxist hat, I would get a bit more salty; to imagine that fruits of the labor of the fruit picker or the car assembler are all the property of the bourgeoisie but fruits of the labor of the petite bourgeoisie is somehow different is classist nonsense.

Kuhn: It Matters Who Owns Your Copylefted Copyrights

Posted Jul 2, 2021 2:14 UTC (Fri) by mpr22 (subscriber, #60784) [Link]

Excellent points

(Small point of order: while certainly not part of the proletariat in the conventional sense, the educated salariat are not, generally speaking, part of the petite bourgeoisie :)

Kuhn: It Matters Who Owns Your Copylefted Copyrights

Posted Jul 2, 2021 9:04 UTC (Fri) by oldtomas (guest, #72579) [Link] (8 responses)

"If a company is paying you to make something, they should own that thing by default."

Kind of makes sense. OTOH, in the US, there seems to be enough contractual leeway for companies to claim the fruits of your free time's labour. They pretend to own *you* (old traditions, perhaps?), and seem, contractually, to get away with it (most of the time? some of the time? I don't know exactly).

It's... complicated. For some random sample:

[1] https://news.ycombinator.com/item?id=2208056

Kuhn: It Matters Who Owns Your Copylefted Copyrights

Posted Jul 3, 2021 0:13 UTC (Sat) by NYKevin (subscriber, #129325) [Link] (7 responses)

The *intent* is not necessarily wrong here. In the US, software engineers are "salaried exempt," meaning that you receive a fixed salary per annum regardless of actual hours worked. Depending on the company, working hours might be anything from strictly enforced to a polite fiction, as there are no economic consequences for work done outside of working hours.* Of course, "hours worked" is a notoriously useless metric for developer productivity in the first place (see The Mythical Man Month by Fred Brooks), and there are precious few (if any) good metrics for that.

More pragmatically, software engineering is a creative industry, and it is impractical to force a creative person to always and only think about work during working hours. If a SWE comes up with some clever new idea in their free time, and that idea is reasonably related to the employer's business, then the employer has a reasonable expectation that they get to own the resulting patent.** It would be quite silly if the employee could patent the idea in their own name, and then turn around and try to sell it to their own employer (or worse, a competitor). It's not that great a leap to "what if the employee actually writes working code in addition to thinking of an idea?" - and then you get all-hours copyright assignment, for precisely the same set of reasons.***

The real problem**** here is that "reasonably related to the employer's business" is a very blurry line. IMHO employers should be expected to explicitly lay out with exhaustive clarity the exact set of things that they consider to be "related" to their business. My own employer, Google, has the unfortunate-in-this-context property of having numerous unrelated lines of business, any one of which might potentially want to own any of the code I write. As it happens, Google does have processes for dealing with issues that arise here, but this should really be an industry standard or law, not something that each company figures out by itself on an ad-hoc basis.

With regards to open source, IMHO the question of whether an employer should be allowed to own an open source contribution is heavily context-dependent; if your employer is specifically paying you to write Linux (kernel) code, then that's a very different thing from the case where you write Linux code in your spare time, and your employer retrospectively decides to own it.

* Ideally, if this "extra work" is a real job requirement, you should get some kind of on-call compensation or the equivalent. This varies dramatically by company.
** Personally, I believe that software should not be patentable in the first place. But that's an entirely separate discussion.
*** Therefore, the question of "should software be patentable?" is irrelevant to this discussion. But I can pretty much guarantee that at least one commenter will respond to it anyway...
**** If any company is actually claiming to own the copyright to all code, without regard to whether it is related to their business, then that would also be a problem. But I'm not aware of any company actually making such a claim. In my experience, there is nearly always some kind of "related to the business" carve-out.

Kuhn: It Matters Who Owns Your Copylefted Copyrights

Posted Jul 3, 2021 0:43 UTC (Sat) by pizza (subscriber, #46) [Link]

> But I'm not aware of any company actually making such a claim. In my experience, there is nearly always some kind of "related to the business" carve-out.

*every* employer I've worked for in the past twenty years (save one) has had an "we own everything copyrightable you create during the period of your employment" clause. The last one relented when I made it clear I would explicitly be notifying them of (and requesting a formal release for) *every* *single* email/sms/IM, forum comment, photo/video, napkin doodle, etc etc I created that was not within the scope of my employment.

> IMHO employers should be expected to explicitly lay out with exhaustive clarity the exact set of things that they consider to be "related" to their business.

As you pointed out that's often not practical, especially for larger organizations, but one process I've seen that is reasonably effective is declaring up front what F/OSS projects you are materially active in, and it's on them to object up front, with mutual notification if something changes.

Kuhn: It Matters Who Owns Your Copylefted Copyrights

Posted Jul 3, 2021 2:25 UTC (Sat) by mathstuf (subscriber, #69389) [Link] (3 responses)

> In the US, software engineers are "salaried exempt," meaning that you receive a fixed salary per annum regardless of actual hours worked.

Hey, not everyone is salaried in the US; I'm hourly. Still exempt, so there's no overtime multiplier, but we track hours pretty explicitly. We also don't have ridiculous stock options though…but we are employee-owned now which I find a way better option than offering up to rabid honey badgers playing in the stock market.

> then the employer has a reasonable expectation that they get to own the resulting patent

What if the employee files it as prior art to the USPTO nullifying any attempt to patent it? I forget the official name for it, but it basically publishes into the database that patent office reviewers have to search within when reviewing applications.

Kuhn: It Matters Who Owns Your Copylefted Copyrights

Posted Jul 3, 2021 6:08 UTC (Sat) by Cyberax (✭ supporter ✭, #52523) [Link]

> I forget the official name for it
"Defensive publication"

Kuhn: It Matters Who Owns Your Copylefted Copyrights

Posted Jul 3, 2021 22:12 UTC (Sat) by NYKevin (subscriber, #129325) [Link] (1 responses)

> Hey, not everyone is salaried in the US; I'm hourly. Still exempt, so there's no overtime multiplier, but we track hours pretty explicitly.

That is illegal (in the US). The Fair Labor Standards Act says that an exempt employee must be paid "on a salary basis" to qualify for the exemption. It is possible to give the employee a fixed weekly amount and *supplement* that with *additional* hourly pay, but that fixed amount must be high enough to qualify as a "salary" under the FLSA all by itself.

In other words, one of the following is legally required to be the case:

1. You are paid a salary, and not hourly.
2. You are paid a salary, and also hourly on top of the salary.
3. You are paid overtime.

There is simply no such thing as an hourly-exempt employee in the US.

Kuhn: It Matters Who Owns Your Copylefted Copyrights

Posted Jul 4, 2021 0:28 UTC (Sun) by mathstuf (subscriber, #69389) [Link]

I think things may have shifted since you last looked? As per [1], "computer employee" exemption's compensation bullet point is:

> The employee must be compensated either on a salary or fee basis (as defined in the regulations) at a rate not less than $684* per week or, if compensated on an hourly basis, at a rate not less than $27.63 an hour;

[1]https://www.dol.gov/agencies/whd/fact-sheets/17a-overtime

Kuhn: It Matters Who Owns Your Copylefted Copyrights

Posted Jul 3, 2021 9:29 UTC (Sat) by mjg59 (subscriber, #23239) [Link]

> My own employer, Google, has the unfortunate-in-this-context property of having numerous unrelated lines of business, any one of which might potentially want to own any of the code I write.

During my time at Google, as an employee in California, I wrote (on my own time, on my own hardware) a Linux driver for the CD drive in the Commodore CDTV - a device that was last manufactured in 1991, by a company that went out of business in 1994. Google, a company founded in 1998 (and who has, to the best of my knowledge, never shown any business interest in the Commodore CDTV), asserted that this driver was related to their business. In this case I don't think the problem is that the company has numerous unrelated lines of business, I think it's that they feel entitled to assert that all software falls within their claims.

Kuhn: It Matters Who Owns Your Copylefted Copyrights

Posted Jul 9, 2021 19:39 UTC (Fri) by ecree (guest, #95790) [Link]

> The real problem here is that "reasonably related to the employer's business" is a very blurry line.

The sad part is that there is (imnsho) a much more equitable _and_ judicable line that those contracts could use instead: "in the course of your employment". That is to say, if I'm working on some piece of code in order to meet a specific objective given to me by my management chain (e.g. boss says "make our new hardware work on Linux" and I decide to add a feature to kernel subsystem XYZ in pursuit of that), then that's work-for-hire. Whereas if I have an idea that doesn't relate to any of the stuff I'm working on, even if it happens to overlap with another part of the employer's business that I'm not involved in, I don't see why the employer should reasonably expect to have any claim on that idea at all, except inasmuch as it may derive from company-internal know-how to which I may have been exposed.

My usual example of this is: I work for an FPGA company, but as a network driver developer. I have almost no contact with the people who work on, say, Place-And-Route algorithms, and I've not seen any of their code, or technical papers, or patent submissions. So if tonight while lying awake in bed I suddenly have a brilliant idea of how to make a better PAR, I think that is a fundamentally different situation from if I have an idea about network device queue allocation.

Of course there are still grey areas — a good SWE doesn't require detailed direction from management, so they could just be told "work on stuff you think will be beneficial to the business" in which case "reasonably related" comes back in by the back door. But in practice managers don't let us on _quite_ that loose a leash, so it's usually possible to distinguish between work and non-work. (If you're telling your boss at the team stand-up "I wrote a patch to $foo to make it betterer" so that it doesn't look like you've accomplished nothing all week, then even if that was on your own initiative without the boss asking for it, $foo is probably 'work' ;-)

Kuhn: It Matters Who Owns Your Copylefted Copyrights

Posted Jul 1, 2021 22:43 UTC (Thu) by bkuhn (subscriber, #58642) [Link] (2 responses)

> the reason for this ... which is that the USA, unlike Europe, had always been a business-run enterprise, and this concept that your employer always owns your copyrights *by default* is [a bad policy]

I had a footnote drafted that addressed the USA vs. European issue specifically, but as LWN pointed out, the missive was already lengthy and I didn't want to make it longer. TL;DR on that point, IANAL and TINLA and Conservancy's isn't a law firm, but from my understanding from many conversations with European lawyers: (a) highly typical that in most European countries that your employer gets an exclusive explotative rights in their employee's copyrights in most situations (i.e., for the exploitative right, the situation isn't all that different from the USA) (b) employees *do* keep their moral rights in the copyright but (c) no is really sure how exactly to enforce the GPL on moral rights alone. If a European lawyer wants to verify those details for me and response, that would be appreciated of course.

But I agree with you that the system is broken, and the USA is largely to blame as we've exported so much of our bad copyright system around the world. But, I had nothing to do with it other than being born here, so I apologize for my country and assure you I've never voted for any candidates who were involved with such policies. Conservancy, as mentioned, works on the Contract Patch project to try to assist people in fighting this system.

Kuhn: It Matters Who Owns Your Copylefted Copyrights

Posted Jul 2, 2021 2:57 UTC (Fri) by clugstj (subscriber, #4020) [Link] (1 responses)

"I've never voted for any candidates who were involved with such policies"

Then you've never voted for any candidate!

Kuhn: It Matters Who Owns Your Copylefted Copyrights

Posted Jul 2, 2021 13:29 UTC (Fri) by bkuhn (subscriber, #58642) [Link]

> Then you've never voted for any candidate!

… not a major party candidate for federal office, anyway. (Please note that any political views are my own and not necessarily the views of my employer.)

Kuhn: It Matters Who Owns Your Copylefted Copyrights

Posted Jul 2, 2021 10:23 UTC (Fri) by pgeorgi (guest, #74838) [Link] (3 responses)

> which is that the USA, unlike Europe, had always been a business-run enterprise

Since Europe doesn't have a single unified copyright law I'll take German copyright law because I'm most familiar with that (but IANAL): https://www.gesetze-im-internet.de/englisch_urhg/englisch... (non-binding english translation):

§69a UrhG specifically disclaims all the "regular" remuneration rules once software is involved.

§69b UrhG is a specific rule on software to disenfranchise employed software authors unlike any other author: You draw the blueprints of a building as employee or on commission: Your copyright. You write software in the same circumstances: Their copyright.

This doesn't extend to work done in your spare time[0], and it doesn't touch on moral rights[1], but "USA bad, Europe reasonable" seems a bit of a short cut...

[0] Although there are provisions that employees must offer their spare time inventions to their employer first and can only exploit them themselves once the employer rejected the offer, so there's some overreach here, too. (ArbnErfG §18-§19, https://www.gesetze-im-internet.de/arbnerfg/BJNR007560957..., doesn't seem to have an english translation). Given the BPMA's (German patent office) and especially EPO's (European patent office) habit of trying to extend patentability by simply handing out patents on whatever people send in, that might create issues for spare time programming down the road...

[1] I've seen attempts to reject the idea of moral rights on software altogether, using §69a UrhG to reason: "No other criteria, especially qualitative or aesthetic criteria, shall be applied to determine its [the software's] eligibility for protection", and therefore if there's no impression of the author's self on the work, there's no ground for protecting the author's moral standing.

Kuhn: It Matters Who Owns Your Copylefted Copyrights

Posted Jul 2, 2021 12:06 UTC (Fri) by kleptog (subscriber, #1183) [Link] (1 responses)

> This doesn't extend to work done in your spare time

I think this is where the major difference is. Employment contracts here in NL tend to include clauses stating that they own your work-product. The thing is that what you do in your free-time is simply out of scope of your employment contract. They're not paying you for your free-time. This extends to other things, like whether they can call you when stuff breaks, etc, etc...

Now, of course it gets fuzzy if you start writing products in your spare time which are direct extensions to what you're doing at your work. But that's more trade-secret related than anything else. If you're building accounting software at your day-job and write computer games at night, your employer is going to have a very hard time claiming that. They might complain that you're spending so much time on it that it's impacting your day job though.

Now the US is its own patchwork of laws, but my impression is that employment contracts are much more intrusive there.

Kuhn: It Matters Who Owns Your Copylefted Copyrights

Posted Jul 3, 2021 10:00 UTC (Sat) by nilsmeyer (guest, #122604) [Link]

I haven't been an employee in a while, I work as a freelancer. I usually put some provision in the contract that any work-product is licensed temporarily to the client, irrevocably once payment is received. Never exclusively.

> I think this is where the major difference is. Employment contracts here in NL tend to include clauses stating that they own your work-product. The thing is that what you do in your free-time is simply out of scope of your employment contract. They're not paying you for your free-time. This extends to other things, like whether they can call you when stuff breaks, etc, etc...

I would think that if the employer claims ownership of any work you performed in your spare time with your own resources they would at least have to pay you and likely run afoul of labor laws like the maximum number of hours worked.

> Now the US is its own patchwork of laws, but my impression is that employment contracts are much more intrusive there.

A more charitable reading would be that the parties have a lot more freedom in how they set up their contracts. Corporations often act like they are the party with more negotiation power, very often though that's just posturing.

Kuhn: It Matters Who Owns Your Copylefted Copyrights

Posted Jul 4, 2021 14:56 UTC (Sun) by tzafrir (subscriber, #11501) [Link]

[1] The Israeli copyrights law does have a concept of moral rights, but that concept explicitly does not apply to software. I guess software was considered immoral.