llvm dev - Oct 2015 - RFC: Improving license & patent issues in the LLVM community

On Thu, Oct 22, 2015 at 9:54 PM, Joerg Sonnenberger via llvm-dev <
llvm-dev at lists.llvm.org> wrote:
> On Wed, Oct 21, 2015 at 09:10:40AM -0700, Daniel Berlin wrote:
> > Let's start with: In just about every country in the world, anyone
> > contributing on behalf of their company are exercising their employers
> > copyright (in most cases, even if they do it in their "spare
time", since
> > most people misunderstand what the law grants them there).
>
> At least under German law, there is a clear separation between what I do
> during work time and outside. Ignoring questions like anti competition
> issues, my employer has no claims to what I do outside work time.
Again, this is a common misconception, or so multiple german employment
lawyers have told me.

> That
> leaves the part of "contributing on behalf of their company".
>
>
> > Both actual (They told me i could contribute), agent (I am also
actually
> > authorized to contribute anyway), and apparent authority (Everyone
else
> in
> > the community would normally believe i have authority to contribute,
and
> > thus, there is apparent authority, regardless of whether Google said i
> > could contribute) would all bind Google when i contribute stuff.
>
> I don't think you will be able to convince a German court of that.

and I do.
With all due respect, these issues have been vetted with actual legal
counsel, and they disagree with you.
Strongly.

When push comes to shove, i take their viewpoint over yours.
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Am 23.10.2015 um 17:11 schrieb Daniel Berlin via
llvm-dev:
> On Thu, Oct 22, 2015 at 9:54 PM, Joerg Sonnenberger via llvm-dev <
> llvm-dev at lists.llvm.org> wrote:
>
>> On Wed, Oct 21, 2015 at 09:10:40AM -0700, Daniel Berlin wrote:
>>> Let's start with: In just about every country in the world,
anyone
>>> contributing on behalf of their company are exercising their
employers
>>> copyright (in most cases, even if they do it in their "spare
time", since
>>> most people misunderstand what the law grants them there).
>>
>> At least under German law, there is a clear separation between what I
do
>> during work time and outside. Ignoring questions like anti competition
>> issues, my employer has no claims to what I do outside work time.
>
> Again, this is a common misconception, or so multiple german employment
> lawyers have told me.
Either these employment lawyers are delusionary, or there has been some 
misunderstanding between you and them. Whatever the reason, your 
statement about German law is flatly wrong.

By German employment law default, your private time is your private 
time, and your employer has no say in it. He can forbid activities that 
detract your ability to work for him, so no binge drinking and no 
secondary job that might sap your ability to fulfil your first work 
contract, but that's about all.

There can be anti-competition clauses. These are uncommon but, but they 
can be enforceable if properly worded (put one claim too much into it 
and the court may rule the entire clause invalid - German employment law 
is VERY pro-employee).

For creative work, there may be some non-competition clause. This kind 
of clause, however, is forbidden by law unless the employee has some 
kind of executive level.
There might be special contracts for inventors or artists, I don't know 
these areas. But I know what kinds of contracts are standard for IT 
employees, having signed several ones of them; I'm obligated to keep my 
trap shut about employer and customer internals, abide by the usual 
legal constraints when dealing with other people's data, and that kind 
fo stuff, but never ever once have I seen anything about invention or 
code I create in my free time. In fact I'd expect such a clause to fall 
down on its face in any court.

Things become different at the executive level - at the highest levels, 
anything goes.
At the standard employee level, employers are very, very restricted in 
what they can put into contracts.
>>> Both actual (They told me i could contribute), agent (I am also
actually
>>> authorized to contribute anyway), and apparent authority (Everyone
else
>> in
>>> the community would normally believe i have authority to
contribute, and
>>> thus, there is apparent authority, regardless of whether Google
said i
>>> could contribute) would all bind Google when i contribute stuff.
>>
>> I don't think you will be able to convince a German court of that.
>
> and I do.
> With all due respect, these issues have been vetted with actual legal
> counsel, and they disagree with you.
> Strongly.
>
> When push comes to shove, i take their viewpoint over yours.
Where these lawyers working exclusively for the employer side?

If yes, I'd flatly ignore their opinion. German employment law is harsh 
towards the employer side; a success rate of 10% should be considered 
excellent - I have no idea what kind of personality or work ethics can 
survive under this kind of pressure, but I suspect it does warp one's 
sense of legal reality.

Talk to a union lawyer to get the other side of the picture - probably 
just as biased, of course, but at least then you see which points are 
contentious and which aren't.

Regards,
Jo

On Fri, Oct 23, 2015 at 08:11:11AM -0700, Daniel Berlin
wrote:
> On Thu, Oct 22, 2015 at 9:54 PM, Joerg Sonnenberger via llvm-dev <
> llvm-dev at lists.llvm.org> wrote:
> 
> > On Wed, Oct 21, 2015 at 09:10:40AM -0700, Daniel Berlin wrote:
> > > Let's start with: In just about every country in the world,
anyone
> > > contributing on behalf of their company are exercising their
employers
> > > copyright (in most cases, even if they do it in their "spare
time", since
> > > most people misunderstand what the law grants them there).
> >
> > At least under German law, there is a clear separation between what I
do
> > during work time and outside. Ignoring questions like anti competition
> > issues, my employer has no claims to what I do outside work time.
> 
> Again, this is a common misconception, or so multiple german employment
> lawyers have told me.
You aren't even given a justification for that position, which makes it
kind of difficult to have any reasonable form of discussion. Let me
still clarify exactly what I mean and why this is relevant for the
discussion. German UrhG§ 69b covers the "monetary" parts of copyright
for employed developers. The employer is (exclusive) owner of those
rights if the software was developed as part of the job or in
fulfillment of work obligations. Unless my boss has explicitly told me
to write a patch for LLVM to fix an issue I found at work, any such
patch developed outside work hours is mine and mine alone. If I develop
the fix outside work hours, the situation becomes a bit complicated when
it comes to the exclusivity. Court rulings up to the BGH (German High
Court) differ. General opinion is that that the employer may get an
implicit permissions for using the software as far as the requirements
of the job mandate it, but it is not generally transferable.
> > > Both actual (They told me i could contribute), agent (I am also
actually
> > > authorized to contribute anyway), and apparent authority
(Everyone else
> > in
> > > the community would normally believe i have authority to
contribute, and
> > > thus, there is apparent authority, regardless of whether Google
said i
> > > could contribute) would all bind Google when i contribute stuff.
> >
> > I don't think you will be able to convince a German court of that.
> 
> 
> and I do.
> With all due respect, these issues have been vetted with actual legal
> counsel, and they disagree with you.
> Strongly.
> 
> When push comes to shove, i take their viewpoint over yours.
A nice summary of acting authority under German law can be found in
http://www.edk.de/2012/05/wer-unterschreibt-was-interne-und-externe-haftung-im-unternehmen/.
It is especially useful how they stress the difference between internals
rulings and external binding power of such agreements. So let me reverse
this and ask you which kind of authority I would be using as employee to
grant a patent license? Especially since I have not declared in any form
that I *have* such an authority. Otherwise clearly BGB § 177 applies my
employer can revoke the contract at any time.

Joerg

On Sat, Oct 24, 2015 at 9:21 AM, Joerg Sonnenberger via llvm-dev <
llvm-dev at lists.llvm.org> wrote:
> On Fri, Oct 23, 2015 at 08:11:11AM -0700, Daniel Berlin wrote:
> > On Thu, Oct 22, 2015 at 9:54 PM, Joerg Sonnenberger via llvm-dev <
> > llvm-dev at lists.llvm.org> wrote:
> >
> > > On Wed, Oct 21, 2015 at 09:10:40AM -0700, Daniel Berlin wrote:
> > > > Let's start with: In just about every country in the
world, anyone
> > > > contributing on behalf of their company are exercising their
> employers
> > > > copyright (in most cases, even if they do it in their
"spare time",
> since
> > > > most people misunderstand what the law grants them there).
> > >
> > > At least under German law, there is a clear separation between
what I
> do
> > > during work time and outside. Ignoring questions like anti
competition
> > > issues, my employer has no claims to what I do outside work time.
> >
> > Again, this is a common misconception, or so multiple german
employment
> > lawyers have told me.
>
> You aren't even given a justification for that position, which makes it
> kind of difficult to have any reasonable form of discussion. Let me
> still clarify exactly what I mean and why this is relevant for the
> discussion.

This is precisely because i'm *not* trying to have a discussion about
this.  Particularly on this mailing list.
You seem to badly want to have a discussion about this.

I've stated what numerous actual employment and IP lawyers who practice in
germany have told me (multiple times, now, and in the past).
You want to argue that it's wrong. Fine. I honestly don't care. But you
should not expect me to take your opinion over theirs, even if you argue
vociferously, because they are the folks who have tried to do these things
in practice.  I don't even have the same lawyers as the foundation, etc,
and i'm sure they've vetted these issue as well.  So i'm going to
say:
believe what you like.   But i don't think it's reasonable to expect
others
 to take the legal advice of random people on mailing lists over a
multitude of their lawyers, or to try to address legal problems you think
you see but lawyers tell them "this is not a problem".
Maybe you differ here as well.

Let me also point out you see to think your argument is one of "hey we
should go with the CLA option or something else that binds individuals".

However, that's not really what you are arguing in practice.
What you are arguing in practice is really "It's super-dangerous to
allow
germans to contribute to your open source project".
Most open source projects have neither licenses like Apache, nor CLA's.
Your argument is essentially "I believe these open source projects get
nothing from employers, etc".

If that turns out to be correct, and a court was to find that in germany,
the result is highly unlikely to be "the open source world realizes what a
horrible mistake it has made and starts to use sane licensing and
contributor agreements that cover german law better".

Instead, the likely result would be "most open source projects would ban
germans from contributing".
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