14

I created and have been maintaining an open source project on github.com as part of my work for my employer. The project was created during the employment. My employer allows me to open source it on Github.com.

There forms a community - I created a mailing list and the numbers of people are growing. People like it and star it on the official github repo, which is under my username. Most of the links on Internet points to that repo. My employer knows it's under my username. Someone in the organization asked for transferring it to the company's account. But since it would break many links at that time, it was decided not to transfer it.

My question is: If I quit the job, do I still own the maintainership of the project? Do I have to transfer the repo to employer's account on Github.com? I think making a clone repo under employer's account is OK, because the stars will be transferred along with the repo and I think I own those "stars".

(Github stars are similar to "Likes" on Facebook)

Thanks

  • 1
    Hey Aqua, and welcome to The Workplace! Could you make a couple of clarifications? Did you maintain the project prior to starting your current job, or was it handed to you to manage by your employer? Did you decide to do this under your personal account, or was that something your employer asked you to do? Have you asked if you can transfer a clone to the company account now just in case you get hit by a bus, if so, what did your employer say? As-is, it's rather difficult to answer because the question isn't clear, but an edit can help and it will be automatically reviewed. Thanks! – jmac Apr 15 '14 at 4:02
  • 10
    I think this is a valid question. The "correct" answer is that you should go back in time and set up work projects under a work account - not your personal one. If that's not possible (!) you have to accept that work done by you FOR and AT work legally belongs to them. That said, as it is open source (which licence?) they can clone a copy - or you can transfer it, and then fork it back. – Terence Eden Apr 15 '14 at 10:00
  • 4
    You can transfer ownership of a repository. – James Apr 15 '14 at 14:26
  • 3
  • 5
    What @TerenceEden said. If you set up the project and contributed to it at work then technically your employer owns it any anything attached to it (like stars). However, since it's open-source the ownership question is largely moot (except that presumably you want those stars for your own purposes); it's owned by the community. Anyone can fork the project into their own repo. You having personal ownership doesn't stop your company from using the code, and vice versa. But in terms of who should "own" the stars/prestige for the project, I have to say it would be your employer. – aroth Apr 16 '14 at 12:46
5

Reversing the first two sentences of your question makes it very clear your employer owns the project:

[An open source] project was created during [my] employment. I created and have been maintaining [the] project on github.com as part of my work for my employer. My employer allows me to open source it on Github.com.

There may have been an initial failure on the part of the company around defining the governance of the project, but the main repository is theirs. You were asked to start a project during your job, for their benefit and they allowed it to be open-sourced.

Consider if it was never made public. You employer asked you to make a project and write some code to help the business - they clearly own the code.

You can fork it and make your own after you leave, but this seems like a very clear case case that they own it.

Regarding legalities, it depends on where you are, but worst case they could lawyer up and demand your Github account so they can maintain it. They even could make a case that you weren't diligent or acting in your employers interest, by not making an "organisation" on GitHub to control the code and instead managing it under your own private account, despite it being work for them.

Best case you could transfer ownership of the repository and remain a part of the community.

  • making an organization on GitHub involves $$, and unless Aqua was also responsible for purchases at the company, I would say the onus is on the corporation to purchase any applicable licenses they need to maintain their interests. – user2813274 Aug 1 '14 at 18:42
3

Probably the number one answer is, the most definitive guidance on who owns what when, where and how is what your employment contract says. Everything else is speculation and while they are good guesses as to what the default position would be, a bulletproof answer requires inspection of your contract of employment. That said, going by what's usual practice... the answer is that, to put it in facebookesque terms, it's complicated.

First, most people here are entirely correct pointing out that the default position in most contracts of employment is transfer of certain rights to your work. By certain rights, I of course imply that some rights are not transferred. Let us consider an example.

Alice works for Bob Corp. She develops Blodget, a ground-breaking solution for a difficult cryptographic problem, while at work. Implemented as a software, it would net the company millions. Alice then leaves Bob Corp.

Now, Bob Corp would, under the standard transfer of rights clause, be entitled to economically exploit the invention -- there's no doubt about that. However, given that they let you open-source it, it's unlikely there'll be much of that going on.

Moral rights are another thing. Traditionally, artists, writers, performers &c. have certain unassignable moral rights -- these are basically 1) to be known as the author of the work, 2) to 'defend the work' (the right to argue with folks who think your product sucks). How far these are valid in the realm of tech has been a very contested territory, with some even calling moral rights for inventions an oxymoron. Some employers, for this reason limit their claims to economic rights.

In your current situation, what might well be best is to come to an agreement with your employer, such as them getting the right to be credited as your employer during development in return for you regaining control of the project. Agreements are always better than suing it out! Make sure, however, to enter into a properly witnessed, legally binding agreement. And, of course, to read your contract of employment properly (even if it's just for this one point).

  • is this only your opinion or you can back it up somehow? – gnat May 7 '14 at 16:36
  • 1
    @gnat, I am a non-practicing solicitor (UK lawyer) with experience of drafting contracts of employment for companies with sensitive IP issues - and, collaterally, in the tech industry at the moment. I have drafted, signed and advised on IP retention clauses a fair few times over the last years. As stated towards the top, the only definitive way to 'back it up' is to read the actual contract of employment and discuss it with the employer/get a lawyer from your particular state with expertise in IP protection clauses to advise you. This is a 'best possible answer' on the facts presented. – Chris vCB May 8 '14 at 8:14
  • 2
    consider taking a look at site guidance regarding how to back it up – gnat May 8 '14 at 8:18
  • @ChrisvCB and to back up Chris I am an "approved" person under uk employment law and this is my understanding as told to me by our General Counsel. If its related to your day job your employer owns it unless your contract state otherwise – Pepone Aug 3 '14 at 17:40
  • Hey Chris, since you have soliciting experience, would it be possible to include a reference to a source? This would also give people a place to start if they wanted to research this issue in their own locale. Hope this helps. – jmort253 Aug 3 '14 at 21:19
1

I believe there are actually 2 questions here

1) Who owns the "Administrative Rights" to the repo (i.e. to choose a maintainer, which patches are folded in, etc)

2) Who own the code once its written.

Your company clearly owns #1, even if it is under your name. Depending on what Software License was used, they likely do not control the code (#2) in the repository. Most Open Source licenses explicitly grant any user the right to use and change to software as they see fit. Many also require that any changes be made available. Once a copy of the code has been legally released under an OSS license, it all the code is now bound by the terms of that license.

If your concerned about what happens when you leave, almost all OSS licenses give anyone the right to branch/fork code and continue working.

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.