Contract forbids writing open source

Question

I'm offered a job as a programmer. I read the contract and it states that I'm not allowed to do programming for anyone else (even not for free) besides this company.

In the past I have participated in some open source projects and I'm planning to do it in the future too so I refused to sign the contract. My future employer understood the problem and asked me to propose how this should be stated in contract.

So my question is how it is stated in your contract. Do you have limitations what you can do in your free time? Does it say that you are allowed to participate in writing open source or does it come in more detail?

Answer 1

I once had a similar clause in my contract. We changed it to allow explicitly work for 3rd parties except they share same field of business or have same customer.

However, you are searching fo a legal advice and I am not sure you will find a fitting (exact) answer here..

Answer 2

Mine vary between the following:

For salaried, longer-term positions, I have a list of explicitly named "project exclusions" attached to the contract, with an agreement that:

• My work on the project is not a conflict of interest with my salaried position
• I am free to work on the project when I am not at work to the extent that it does not interfere with my work performance
• My employer releases all claims to IP related to my work on that project

For contract positions, it generally states that my on-the-clock time will be spent on the particular contract, but I am free to pursue other contracts with the sole restriction that I not violate the NDA.

Answer 3

One could refer to the Open-Source Initiative's definition of open source in the contract, with a line along the lines of 'The employee may participate in open source projects as per the OSI definition in his own time, or on company time with permission'. The latter also provides for making enhancements to open-source projects if that becomes necessary as a part of your work.

You will have to get a contract lawyer to sort out the phrasing and I expect the company will probably also want to put some provisions regarding their IP if the contract doesn't already cover cases involving open-source projects.

Answer 4

I used to have quite a 'stringent' contract that forbade me to do pretty much any programming work at all, especially in the business i was working at. I asked my boss by email whether they were actively using this policy and i pretty much got told:

'as long as you don't work for competing businesses with knowledge from your current position it wont be a problem'

So whatever you do, keep track of all the mails and information exchanges about your contract, even emails can be binding.

Answer 5

I have an awful contract that I signed in haste because the money was good. Never, never again! My contract states that any IP I produce is the property of the company. Therefore I am allowed to work on open source projects but the company would then own it. Of course they can't own it - it's open source! - but this is in effect my violation of the open source licence (GPL, BSD, et al.) and I get it in the neck from lawyers on both sides.

I've never actually violated this contract to find out what would happen. However, we've just gone through a painful round of redundancies and the company has openly threatened to pursue ex-employees who violate their non-compete clauses. (Personally I don't know how somebody can compete with a position that's been made redundant.) Anyway, it's nice to know that the company is willing to spend money on lawyers to chase employees it couldn't afford to pay. This indicates to me that they are serious about these things, including the IP rights to my daughter's nursery web site I put together one weekend.

I have several ominous clauses in my contract. There's the IP ownership you mention, and mine includes any IP whatsoever, even if it's completely unrelated. Then there's the broad non-compete that stops me making a living in my field of expertise. I also have a 6-month notice period, which coupled with the 6-month non-compete means that if I am offered a job today I can't start it for 12 months (who's going to offer me a job on those terms?)

So let me get this straight...

1. If I quit I can't start another job for 12 months.
2. If I start a side project during those 12 months then they'll own it.

My non-legal advise to anyone signing a contract of employment is to negotiate such terms out of it completely or pin them down very specifically based on bonafide legal advice. For example on IP you must be able to work on your own outside of work hours. Or you must be able to work on any open source project. Or include a clause whereby you can seek agreement to work on specific open source projects on a case by case basis. Name every single company that you may not work for in a non-compete clause. Make sure that non-compete period is paid at full salary.

Don't just sign anything like I did.

Answer 6

Don't sign it. Start negotiating. Sell them on the value of open source software.

Answer 7

I'd look elsewhere for work. A reasonable restrictive clause prohibits you from competing directly with your employer while employed and for a period not to exceed one year thereafter. Anything more restrictive suggests an exploitative employer... if they're unpleasant before you've committed to them, imagine how they'll try to take advantage of you after you've signed aboard! So long as I'm not using company time or resources and there's no conflict of interest, if I want to do side work at home on my own time, either pro bono or for profit, that's my business and my business alone.