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Bob writes software for employer A and employer B. Bob has a general contract with employer A which states that any IP generated in the course of employment (whether during work hours or not) can be claimed by employer A. On the other hand, Bob's contract with employer B has no claim over IP generated.

The purposes of the software at each company are different, but from time to time he implements the same code in both systems.

Bob has a specific release contract from employer A regarding work at employer B. Specifically employer A will not claim ownership over IP produced at employer B, if it is not derived from the work at employer A (let us call this the release condition).

Overlap in code potentially goes against the release condition. To avoid this situation, Bob releases all software at employer A under CC-BY-4.0. This is justified because the code will be released as open source due to the nature of the field. The software at employer B is commercial and not open source.

My question is whether the following statements are correct: (1) if company A agrees to open source licensing suggested by Bob (which is justified by the field), they cannot claim that work at company B is derived from work at company A, since the code which belongs to both is in the public domain; (2) company B has no licensing conflict due to CC-BY-4.0 not requiring them to release their code under the same license; (3) CC-BY-4.0 can be a valid choice of license for software (I see that GNU recommend against it for code); (4) Between GPLv3 and CC-BY-4.0 there is no difference in terms of IP claims, while GPLv3 is more limiting for subsequent commercialisation (by any party).

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  • "Bob's contract with employer B has no claim over IP generated" - This is probably false. Even if your contract doesn't specify it, basically in most areas, if you are hired to do a job and then you do a job creating something (such as software), then your employer implicitly has ownership of that because he hired you to do that job ("work for hire"). So basically both employer A and employer B have a claim over the software you are writing. The only way to avoid this is not to work for both employers, or to write separate software for each employer (no sharing of code).
    – Brandin
    Nov 25, 2019 at 5:54
  • This hypothetical situation is possible and important for the question though I know it is not usually the case. We can assume that company B is a community project which Bob contributes to without any contract, the point is that there is an unevenness in the claims on either side.
    – blobber2
    Nov 25, 2019 at 15:16
  • If you work for a company, there is a contract, whether it is written or not.
    – Brandin
    Nov 25, 2019 at 18:37
  • Can you elaborate? What constitutes "work" in your definition?
    – blobber2
    Nov 26, 2019 at 10:13
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    There is usually implicitly a contract, even if you do not sign one explicitly.. See e.g. Claiming intellectual property theft with no contract?
    – Brandin
    Nov 26, 2019 at 10:56

2 Answers 2

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[...] Bob releases all software at employer A under CC-BY-4.0. This is justified because the code will be released as open source due to the nature of the field.

No, this is not justified. The code that Bob writes at employer A is the property of employer A and they are the only ones that can definitively state under which license terms the code gets released. Bob can at best offer a suggestion.

(1) if company A agrees to open source licensing suggested by Bob (which is justified by the field), they cannot claim that work at company B is derived from work at company A, since the code which belongs to both is in the public domain;

No, this statement is false. There is a very big legal difference between code that is in the public domain and code that has a (permissive) open source license. And for determining if something is a derived work, it doesn't even matter what license applies to the original. That only determines if creating the derived work was legal and what you are allowed to do with the derived work.

Assuming that employer A agrees to the permissive open source license suggested by Bob and employer B has obtained a copy of the software through the proper channels, you get into an interesting legal situation.
According to the license terms, employer B is allowed to create a derivative work and use that in their commercial product. They just have to give the proper credits to employer A. However, based on the release contract Bob has signed, Bob is not allowed to work on that derived work. In law, the more specific contract usually trumps a more general terms.

(2) company B has no licensing conflict due to CC-BY-4.0 not requiring them to release their code under the same license;

That is correct.

(3) CC-BY-4.0 can be a valid choice of license for software (I see that GNU recommend against it for code);

The CC BY license can be a valid choice for software, but in general it is not recommended to do so, because the CC licenses were not created with software in mind. There are already enough licenses for software in common use, also with similar terms like the MIT and BSD licenses. Bob should have recommended one of those licenses.

(4) Between GPLv3 and CC-BY-4.0 there is no difference in terms of IP claims, while GPLv3 is more limiting for subsequent commercialisation (by any party).

There is no difference in which rights are licensed under the GPL and CC BY licenses, but there is a big difference in the conditions under which you can exercise those rights. The GPL requires that you pass on the same rights and obligations to the people that receive your product, while the CC BY only requires attribution of the creators of the work.

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  • So (1) if Bob integrates some code (algorithm A) into the code at both companies, prior to licensing, it constitutes a breach of the release, and (2) if Bob integrates algorithm A after it is licensed as open source into code at company B it also constitutes a breach of the release, but (3) if another person at company B uses this code after it is licensed, there is no conflict. But who can say whether algorithm A was developed by Bob in his work at either company? Could it not equally have been developed at B and integrated into code at A? How is such evidence presented if A makes a claim?
    – blobber2
    Nov 24, 2019 at 13:57
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    @blobber2, much of it depends on the exact wording used in the release that Bob and employer A signed. But if the code was first developed at B and then copied to A, then it is likely to be a violation of the copyrights that B has. How the evidence needs to be presented, I can't tell as I am not a lawyer.
    – Bart van Ingen Schenau
    Nov 24, 2019 at 15:36
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When this happens to me, then I work it so that it is to company A's disadvantage. E.g. write for B, then distribute to A after ward (The delay is to A's disadvantage, but is inline with the contract).

In addition, I will tell them that the contract is bias and thus not complaint with contract law in my jurisdiction. As there is disagreement on this, I will until the contract is re-written, not bring into the company anything that I have written / learnt outside of it. That is Nothing out = nothing in. If I can't take what I learn here with me, then I will assume that this has always been the case, and bring nothing with me. You can not dismiss me, as this is your rule not mine. Then tell them that it is there move, and sit around reading xkcd manuals on new and exciting ways to do things.

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  • Define "distribute to A". As pointed out above, it's not straightforward to copy either way, so the overlap itself constitutes an issue regardless of the "origin". I've also pointed out that this origin is ambiguous. I understand what you mean about not contributing etc., but if this prevents the employee in doing their job, this would be a problem for other reasons. Note that the point here is to understand how such a situation can be navigated without causing conflicts between the companies.
    – blobber2
    Dec 1, 2019 at 15:03
  • There is a big difference between taking ideas with you between companies (which is allowed unless the idea is protected by a patent) or taking assets with you like source code (which is generally not allowed).
    – Bart van Ingen Schenau
    Dec 1, 2019 at 17:41

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