Interesting legal question

[Reshef Mann]

http://answers.onstartups.com/questions/19422/if-im-working-at-a-company-do-they-have-intellectual-property-rights-to-the-stu/20136#20136

Does anyone know how the law handles these issues in israel?

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Reshef
http://reshefmann.com/

[cool-RR]

I consulted a good lawyer about this some time ago, and he said that the employer does hold the copyright to your open-source projects in Israel.

Look at חוק זכויות יוצרים, specifically:

מעביד הוא הבעלים הראשון של זכות היוצרים ביצירה שנוצרה על ידי עובדו לצורך עבודתו ובמהלכה, אלא אם כן הוסכם אחרת.

So I guess you're down to the ambiguities of whether the work was done לצורך עבודתו. Good luck explaining to a judge that your open-source WSGI plugin has nothing to do with the PHP website that your employer makes...

So if you want your open-source project to have a clean future, you should get an agreement from your employer, either that the copyright will belong to you or that the employer will maintain copyright but release the project under a specified open-source license, as Google employees do sometimes.

Disclaimer: I am not a lawyer, don't use my advice without consulting a lawyer.

Ram.

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Sincerely,
Ram Rachum

[Ori Peleg]

So far employers have been great when I've arranged to work on specific open-source projects in my own time - it was for them easy enough to send a "you retain the copyright for work done as part of open-source project XYZ" email.

Does anyone have positive experiences getting permission to work on non-open-source, possibly for-profit, projects in their spare time?

I tried to get this one time for work during vacation but was denied because of the legal ramifications it may have for the company, identical to that described by Joel in his answer.

Check out my blog: http://orip.org

[Lior Sion]

Jonathan Klinger (http://2jk.org/praxis/) pitches in:

he Israeli law states that the employee grants his employer the rights in his work created during the course of his work. The remainder (side projects) are owned by the employee unless there is an agreement stating that the employee grants these rights to the employer as well (where in most cases there is).

If the employee contributes code to an open source project on behalf of his employer, then the rights are granted to the general public, but the employer is the one to choose whether to grant them or not to release the code.

thanks,
Lior Sion

Skype: sionlior | GTalk: lior.sion

[cool-RR]

Hm, what law is that? Is there an online version of it we could look at?

[Shlomi Fish]

Hi Ori,

On Thursday 17 Feb 2011 12:31:54 Ori Peleg wrote:
> So far employers have been great when I've arranged to work on

> *specific*open-source projects in my own time - it was for them easy

> enough to send a
> "you retain the copyright for work done as part of open-source project XYZ"
> email.
>
> Does anyone have positive experiences getting permission to work on
> non-open-source, possibly for-profit, projects in their spare time?

well, I didn't ask my employers' for permission but usually did not work on
FOSS during my work. And I was usually hired due to my reputation in the FOSS
community or at least in part of it. Here are some of my experiences:

1. I took two projects during my Technion's Electrical Engineering degress.
One involved the IP Noise simulator which was above and later for the Linux
kernel:

http://webee.technion.ac.il/labs/comnet/projects/winter02/cn01w02/

This was released as mostlye dualy licensed GPL/MIT-X11L with some derivative
work under a different licence (GPL and LGPL etc.). My instructor said all
projects in the Technion that are not sponsored and paid by the industry are
released as FOSS.

My other project was called Zavitan and was a Perl, CPAN, and MySQL web app
engine for tracking seminars. It kinda sucked, but back then some web
framworks for web were not as mature, and the CPAN infrastructure was not as
advanced.

2. During my Technion's study I worked on some of my own FOSS including
naturally Freecell Solver ( http://fc-solve.berlios.de/ ) which back then used
a Technion domain for hosting its Public Domain (now mostly X11L) code and
I've used some Technion E-mail addresses for contacts. I did not ask for
permission to release it as FOSS, but I don't think the Technion minded.

I was told that in .us some universities make claim to all code that their
undergraduate students wrote in their free time, including some state
universities. I don't think that's the case in the Technion and hope it will
remain this way. The situation might be a bit different if I were a graduate
student (for M.A./M.Sc., Ph.D. etc.) - don't know for sure.

3. When I worked at Tehuti Networks our drivers for Linux and for FreeBSD were
released as GPL and the BSDL respectively. This was not the code of the
hardware itself (which was not open) but what powered it in the kernel. I
worked there in the Linux/UNIX team, but it would have been a stretch to call
me a kernel hacker, as I mostly took care of making sure our cards behaved on
Xen, Xen Enterprise and VMware ESX (and helping my co-workers (a team leader
and another junior programmer) who were more qualified with various stuff I
could help with.), as well as doing some hacking in Perl and other high-level
languages.

4. I generally worked on various stories, essays, open source programs, etc.
after the offical working hours, or during the weekend, and chatted on IRC and
IM a lot (often to get help), and that was OK.

5. During my work for Insurgent Software and for Reask.com some of our Perl
code ended up at CPAN as CPAN distributions. The Insurgent Software code is
hosted on github and I think my boss wants to make a lot of it something like
the Affero GPL (which I like even less than the GPL) but whatever - I got paid
to write it so any use done with the code is OK. The Reask.com code was a
complex web app, which was "all rights reserved" and done inhouse to power a
web-site.

-----------------------

Hope it helps,

Shlomi Fish

> I tried to get this one time for work during vacation but was denied
> because of the legal ramifications it may have for the company, identical
> to that described by Joel in his answer.
>

> On Thu, Feb 17, 2011 at 12:15 PM, cool-RR <coo...@cool-rr.com> wrote:
> > I consulted a good lawyer about this some time ago, and he said that the

> > employer *does* hold the copyright to your open-source projects in

> > Israel.
> >
> > Look at חוק זכויות

> > יוצרים<http://he.wikisource.org/wiki/%D7%97%D7%95%D7%A7_%D7%96%D7%9B%D7%
> > 95%D7%AA_%D7%99%D7%95%D7%A6%D7%A8%D7%99%D7%9D>, specifically:

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[Lior Sion]

I would ask Jonathan @ his blog..

[Lior Sion]

The best way would be to mention it on your contract to begin with. With my last 2 positions that's what I did.

On Thu, Feb 17, 2011 at 12:55 PM, cool-RR <coo...@cool-rr.com> wrote:

[cool-RR]

Shlomi: I really doubt what your multiple "it was OK" experiences mean. You can't really know whether one of your employers would, in five years from now, suddenly claim IP for a project and sue you and your users. Very unlikely that they will, but the question is whether you have legal protection if and when that happens.

[Shlomi Fish]

Hi Ram,

thanks for your E-mail.

On Thursday 17 Feb 2011 14:46:31 cool-RR wrote:
> Shlomi: I really doubt what your multiple "it was OK" experiences mean. You
> can't really know whether one of your employers would, in five years from
> now, suddenly claim IP for a project and sue you and your users. Very
> unlikely that they will, but the question is whether you have legal
> protection if and when that happens.

You are right, of course. I did sign an NDA in most jobs and never disclosed
any of our copyrighted, internal source code to other people, but I don't rule
out that they will still press charges against me in the future. There was
something about a Texas court of law saying that an *idea* that a certain
employee got while working for his employer (a big tech corporation - Alcatel
) was his while he even did not even write it down and it has existed solely
in his head:

http://www.out-law.com/page-2845

I think my NDA allowed me to work on FOSS (which almost all my original code
is BSD-style and so everyone is free to use and even sublicense it, including
my former employers), and other forms of media/content, but again, I may be at
the mercy of my employer. Did anyone here heard of an employer who press
charge against a developer who created a FOSS (or maybe even
commercial/proprietary ) project in his free time and off hours? Naturally, we
can often assume that the kind of employer who hire FOSS enthusiasts (so-
called software "hackers" or what Ben Collins-Sussman calls the 20% here:
http://blog.red-bean.com/sussman/?p=79 ), will not be obsessive about that,
but stranger things could happen.

Most web companies who hire "star programmers", will even expect to use FOSS
and so would probably like to give back based on the Golden Rule, but the
world does not stop at the web, and I had several jobs as a non-web-developer
before my time at the Technion or since. Many hackers even find it acceptable
as system adminstrators or database administrators (DBAs - Oracle, etc.) at
some companies, who are completely non-tech-related. Who knows what they will
do?

Regards,

Shlomi Fish

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