Conference hydra::amiga_v1

	I view this as a very important issue.
	I like to think that anything I develop on my amiga is MINE,
	to do with as I please!  Remembering the agreement that
	I signed with DEC 10 months ago, I recall that software which
	I develop on my own time, on NON-DEC machines, was my business.

	Making money from it is another issue.  (A question of who
	do I work for).  As I understand it, to sell something I write
	on my Amiga (which couldn't possibly be conflict of interest 
	or competition, could it?) I need corporate approval.

	Do I have these facts straight?
	Does anyone with real knowledge on this subject have comments?

	Where's my blowtorch, I feel the need to flame!
Dave

    For a thorough hashing of this issue, go read the MACINTOSH notes
    file (I forgot which note).
    
    It seems that one Mac hacker had developed a useful piece of software
    for the Mac, and desired to release it to the public domain, and
    through the corporate E-net.
    
    Legal became aware of his intentions, and informed him that any
    software developed during his employment with DEC became the property
    of DEC, even if the work was done entirely with the employees's
    own equipment and his own time.
    
    Upon learning that DEC now owned his work, he requested that DEC
    reimburse him for the cost of the MAC, plus his hours worked. 
    Barring this, he requested that he be allowed to deduct his costs
    as a valid business expense, and have DEC stand by him should he
    be audited.  Still no go.
    
    The bottom line was that anything that tends to enhance the
    desireability or usability of a competive product is verbotten.
    What constitutes a competitor?  Apple was definately considered
    a competitor, but Commodore and Atari were not.  George even considered
    buying an Amiga just to be able to continue his work.
    
    Apparently DEC now considers Amiga and probably Atari as competition
    also.  I wonder if they'll stop distribution of Jeff Lomicka's
    excellent ST VT*** program?
    
    I'm very sorry to hear this, Dave.  It seems that the little guy
    just can't win anymore.  Perry Kivolowitz got tired of bitching
    about how things were being run, so he went and formed ASDG so that
    he could run things himself.  
    
    By the way, I think other companies are just as fickle about these
    things, so don't be too hard on DEC.  Oddly enough, the employee
    agreements seem to vary from state to state and country to country.
    I haven't read mine lately, so I'm not sure what my rights are.
    I just assumed I didn't have any.

    
    
    	Just to add a little, I too at one time attempted to release
    software to the public domain. The software was written for a
    DEC RAINBOW !!  Legal told me that DEC owned any software I wrote
    while I was a DEC employee. I was allowed to distribute the
    software for Internal Use Only. Later I was told I could release
    the software through the DECUS PC SIG.
    
    
    		Steve Peters
    
    P.S. I owned the Rainbow and did all the work in my free time.
    
    

       Not a legal opinion but.....
    
           I know a person who is quite knowledgeable in this area of
    law and he says that the agreements that company's "make" or "coherce"
    you into signing have been beaten many times in court. I think the
    main point he made was the fact that it was done with your resources
    and not the company's,i.e. time and equipment etc.

Re: .3

Did someone contact you about releasing your Rainbow Software or did
you call the legal department?

The legal department is only in the business of protecting DEC's interest.
The DEC employee agreement says that DEC owns all inventions, ideas,
and concepts you make while employed.  The law department is only
able to state that information back to you and isn't empowered to
make any exceptions.

The Business Conduct Committee is able to make exceptions.  If you
want to sell software, they can release DEC's ownership rights to
you.

I have never heard of anyone being hunted down for releasing public
domain software that they wrote.  I don't think DEC cares as long as
the usual good sense rules apply: not a DEC product, doesn't use
trade secret information, doesn't compete with digital products.

Re: .4

It is true that the company cannot coerce you (hold a gun to your head),
but the company IS free to make a condition of employment that you sign
an employment agreement that gives the company all rights to any invention,
idea, or concept made while an employee (or even made a short term AFTER
you are an employee).

This has held up in court many times.

       My source who was involved in the R.I. strike force   ld me
    that you are not employed except during the hours which are reasonable
    for the job you have,therefore during your "own" time you are not
    lilable to your employer unless your product can be linked to have
    been derived or copied from something the company owns. YOUR reasoning
    would have us believe that if I build a better mouse trap then the
    company "OWNS" it, even if that company had nothing to do with mouse
    traps. In his words he states that "It is not worth the paper it
    is written on". BTW holding employment over someones head often
    times is much more coercive than a gun!

    Coupla points here:

    First, if you're an "Exempt" employee (as most of us are), you're
    exempt from the protection of most labor laws (this is what the
    exempt part means).  Works mostly to the employers advantage, but
    then again, most exempt employees get other benefits that non-exempt
    types don't.
    
    Having said that, it's also true that whether you're exempt or not,
    you cannot sign away your rights to any company, no matter how
    consenting the two parties are about it going in.  The only question
    that remains here is whether this is a case of signing away one
    of your labor rights.
    
    That part is sort of a grey area, and the only ones guaranteed to
    win are the lawyers.

Re: .7

Your friend should be careful about giving legal advise.

A good book on this subject is "Who Owns What Is in Your Head?"
subtitled "Trade Secrets and the Mobile Employee," written by Stanley
H. Lieberstein, a specialist in patent law, trademark law, copyright
law, trade secret law, and employee contracts.  The book is from
Hawthorn Books, copyright 1979.

The following quote is from pages 138-139 that book:

	"When an employee is offered a position, it is reasonable to
	condition the offer on the employee's acceptance of company
	policy--including acceptance of an employment agreement
	governing such matters as ownership of inventions, designs,
	and plans, and the protection of confidential information.
	The agreement may go further, including, for example,
	ownership of inventions made subsequent to termination of
	employment, or the right to join competitors, or to set up a
	competitive business.  At this stage the employee who is fully
	aware of the implications in the terms of the offer can simply
	reject the offer if he finds it unacceptable.  (It may be worth
	noting that many people disagree with this line of reasoning.
	They argue that the average scientist/engineer has little
	bargaining leverage.  A number of professional organizations
	have lobbied for legislation that would protect employees
	against 'one sided' agreements imposed by some companies as a
	condition of employment.)  Fair or unfair, a company may
	write its own contract governing conditions of employment, and
	whether describing it as a 'form' or not, the company may
	lawfully impose it, prior to hiring an individual, as a
	condition of employment."

In summary, a company doesn't have to hire you if you don't sign the
contract.  The contract is valid.

>YOUR reasoning would have us believe that if I build a better
>mouse trap then the company "OWNS" it, even if that company had
>nothing to do with mouse traps.

Your reasoning is completely correct.  If you sign the contract that
assigns all rights to all your ideas while an employee to your employer,
your employer owns all your ideas.  About the only limitation that the
law has traditionally placed on such a contract is that it cannot
extend for an unreasonable time after your employment terminates.  For
example, it is legal for a contract to state that the company owns
all of ideas that you think up during the six month period AFTER you
leave the company.

However, lately, some progressive states have decided that it is
unreasonable for an employer to take all rights to your inventions.
(Although, for hundreds of years the English/American legal tradition
has held that this is NOT unreasonable.  Employment contracts were
invented during Medieval times by the guild system.)  Page 153:

	"Minnesota, for example, has passed a law to the effect that
	an employer cannot compel an employee to assign all of his
	inventions made during the period of employment without regard
	to their subject matter.  California has followed suit at least
	to extent that the California Assembly passed a law--which, as
	of this writing, is pending before the state senate--providing
	that if an employee develops an invention not related to the
	employer's business and on his own time with his own resources,
	it is the employee's own invention.  It will be recalled that
	in the absence of such legislation it is possible for an employer
	to provide in the agreement that all inventions, whether related
	to the employer's business or not, and whether made on the
	employer's time or not, will belong to the employer."

Thus, your hypothetical employee only has rights to his mouse trap if
he lives in a state that is considered daring and progressive in its
protection of employee rights.  In most states, and during most of
history, he can be required by his employer to sign away those rights.

>BTW holding employment over someones head often times is much
>more coercive than a gun!

I agree.  But, refusing to hire someone unless they agree to company
policy is considered to be a legal practice.

Anyway, back on track.  I am not sure, but I think that the Digital
contract limits itself only to the ideas relating to the computer
industry.  As such, it is legal even in those states with tough
employee protection laws.

And, a computer program for any computer is considered to be related
to Digital's business.  So Digital does own all your hacks.  Even
those made on your own time using your own resources.  Any inquiry
made to the legal department will verify that fact.  However, Digital
does not usually hold on to that right.

Please note that the legal department does not make policy or grant
exceptions.  They merely advise the policy makers as to what is legal,
and when policy is given to them, write the appropriate legal documents.
The Business Conduct Committee is the group capable of waving Digital's
ownership of one of your midnight projects.

If you have some software that you want to give away that doesn't
give away any of Digital's secrets and doesn't put Digital at a
competitive disadvantage, go ahead and do so.  I have never heard
Digital hunting down an employee who was giving away free software
and making him or her stop.  (I have heard of people checking with
the legal department and being told that Digital does own their
software and that they are not free give it away unless Digital 
gives permission.  I haven't heard of anyone checking with the policy
committee and being prevented from giving away software.  But, then
I haven't heard of anyone asking for permission when they are just
giving the stuff away--they just do it.  I do know of people that
have asked if they can sell their software and being given the right
to do so.)

The following is the official policy from the on-line copy of Personnel
Policies and Procedures, section 6.06:


                    Work Product And The Employee Agreement

	IV.  WORK PRODUCT AND THE EMPLOYEE AGREEMENT

	  	  Under the terms of the Employee Agreement executed  by each
Digital employee as a condition of employment, Digital's ownership  rights in
developments  made  by  an  employee  during  the  employee's employment with
Digital  are  defined.  Questions of interpretation of the Employee Agreement
when ownership  of such developments is in question are to be resolved by the
Business  Conduct  Committee.    A  decision  by  that  Committee  to  permit
consulting or other business  activity  by  an  employee  shall spell out the
extent of Digital's ownership rights  under  the  Employee  Agreement.    Any
request for waiver of Digital's rights of ownership in work product under the
Employee  Agreement  must  be directed to the  Engineering  Law  Manager  for
consideration by the Patent Committee.

        I think Digital was wise when they limited their contract to
    computer related "ideas". I still belive that it would very hard
    for a computer company to claim they own your "ideas" concerning
    an unrelated product especially if it did not compete with their
    market. You can see where patent laws don't even prevent this
    kind of controll of "ideas",i.e. C Itoh's copy of a Digital terminal.
    I believe most of it is intimidation, of course who has the resources
    to challenge a large company. There may also be some "civil rights
    violations" that have not been fully challenged concerning this issue.
    

        A fellow employee related a like story about another Computer
    Manufacturer [In this case a book].  His wisdom was that until
    Digital supports or pays for someones work it must take the stance
    it owns the product; otherwise Digital claim on the invention is
    weakened.
    
        As to whether an Amiga home computer is a competitor, it is
    listed in Digital Competitive handbook (Q1 FY88) right along with
    Apollo and Macintosh.  It seems the definition of competition hinges
    on whether another piece of gear sells into a "Digital Solution
    space."  [Paraphrased from Digital Competitive Support Services
               Introduction]
    
        As to advice, I once read a "Winning through Intimidation" book
    that stated that lawyers by nature are "Deal killers."  If I were
    the inventor, I'd get to that aforementioned Business committee
    and then review my position.
    
        Good luck....

    If the Amiga is listed as a potential DEC competitor, I'd say you
    don't stand a chance of swaying anyone on the Business Conduct Comittee.
    
    One of the respondants to the original MACNOTES topic regarding this
    problem made a very eloquent statement regarding the responsibilities
    of a DEC employee.  His stance was that a professional employee
    is much more than a '9 to 5' worker in that as you share experiences
    with other DEC employees, you gain experience, wisdom, and insights
    during your working hours.  Since these insights have mainly been
    paid for by DEC, they feel that they own any fruits of your
    professional growth while at DEC.  
    
    I'm not sure I buy all of this, but it seems hard to argue against. 
                              

re:	672.*

Thanks for all the input. Obviously I can't comment too much at this time but
I will add some information.

I was told to contact the "Business Conduct Committee" headed by Jeff Sackman
to get a waiver for V2.0 of DBW_Render. However, when I contacted his office
I was told that the committee did not exist any more! I was further informed
that John Doherty was taking over responsibilities in this area. When I spoke
to John I was told that yes, he is trying to get the process started up again
and that it would be a two step process:

	1)	Deciding whether or not there is a conflict of interest.
	2)	Granting a waiver.

The reason they are starting the process up again is that there are two other
requests pending (open since last October and February). He said that my
software was a good candidate for passing part one but they STILL don't have
anyone in authority who can sign a waiver for part two (no estimate on how
long before they DO have someone).

So It Goes

Re: .13

>His stance was that a professional employee is much more than a '9 to 5'
>worker in that as you share experiences with other DEC employees, you gain
>experience, wisdom, and insights during your working hours.  Since these
>insights have mainly been paid for by DEC, they feel that they own any
>fruits of your professional growth while at DEC.

>I'm not sure I buy all of this...

This argument doesn't hold up.  If it did hold up, DEC wouldn't need
an employee agreement.

The common law, which holds in the absence of any contracts, recognizes
that an employer does have certain rights to the ideas of an employee.
Namely, if the the invention was made on company time, or using company
resources, or was a direct outgrowth of a product of the company, or
even it the idea was one that the employee was hired to invent.

In most cases, under common law, the company's right to an invention isn't
absolute.  For example, if I invent something on my own time but use the
tools of my employer, my employer has a "shop's right" to the invention
because I used the company's tools.  Under this right, the employer has
a non-exclusive license to use or sell the invention.  Likewise, I can
use or sell my invention.

Arguing that because I gained skills while a company employee, I owe
the fruits of those skill to my employer is ridiculous.  The common
nature of things is that any employee doing any type of work for any
employer will increase in skill.  This is called experience.  If I was
a wood carver, I would not owe my employer the rights to all of my carvings 
simply because, with practice, I had improved in skill while employed.

DEC has no intrinsic right to all of my computer related ideas.  The
situation is that I have something that DEC wants (all of my computer
related ideas) and DEC has something that I wants (a job).  So we trade.

Regarding .2

>    Apparently DEC now considers Amiga and probably Atari as competition
>    also.  I wonder if they'll stop distribution of Jeff Lomicka's
>    excellent ST VT*** program?
    
Thank you, Ed, for making it easier for DEC's lawyers to find out about me :-)

(So far,  I have not been contacted,)

Actually, and just so that nobody get's any ideas, the "About" menu of "Whack"
(the aforementioned VT300 emulator) makes it VERY CLEAR that the program
was, in fact, written with information that Digital considers proprietary
and confidential, that being the specification for the TD/SMP protocol.

[Part of the reason for writing "Whack" is to convince TBU management that
DEC should be building real terminals that behave like "Whack" does.]

Also, I am aware that Digial has sought patent protection for portions
of TD/SMP.  (The VAX/VMS implementation of TD/SMP was supervised by my own
supervisor.  Unfortunately, my name isn't on the patent, so no reward for me.)

The program is clearly marked, in the code as well as in the documentation,
as "Digital Internal Use Only".  I have no intention of releasing any of this
technology to the outside.  No Digital employee that receives a copy should
allow it to leak to the outside.  If you leave Digital, you should erase
any copies that you have.

If a DEC customer uses Whack in conjunction with VAX/SSU, they may be in
violation of their software license agreement with DEC regarding the use
of SSU.