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Apple Claims Ownership of Shareware 759

Posted by CowboyNeal
from the we-takes-it-now-we-does dept.
(54)T-Dub writes "Cricket Media recently released 'Netflix Fanatic', an OSX based shareware app that lets you manage your rental queue without logging on to Netflix. An article on Think Secret reveals the reason behind it's mysterious disappearance. Apparently the developer's employer, Apple, has claimed ownership over the application's name and source code. The developer claims that under Section 2870 of the California Labor Code this is illegal. The law states that if a company has an employment agreement with provisions saying employees must assign the rights of their inventions to their employer, those sections do not apply if the employee developed it on his or her own time, without using the employer's equipment, supplies, facilities, or trade secret information. Within Apple, there's unsubstantiated speculation that Apple wants to include the Netflix Fanatic code in a new version of Sherlock." Also, they're presumably not too worried with employee morale.
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Apple Claims Ownership of Shareware

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  • by davidu (18) on Tuesday November 18, 2003 @10:55AM (#7501794) Homepage Journal

    I hate to say it, but that's how it works. Companies do this all the time and I'm sure apple will make it right.

    Let's take the Stickies application written by Jens Alfke for example:

    For a while it looked as though Apple was going to get Antler Notes / Stickies at no cost -- wotta deal! As it happened, however, some of the nice people mentioned earlier in this story arranged for me to get a bonus, not officially in any way related to Stickies of course, but it made me feel better.

    You can read the whole story about how Jens wrote the stickies program as an Apple employee and had it claimed as Apple's while they made sure it was dealt with at the same time here [mooseyard.com].

    -davidu

  • by spankalee (598232) on Tuesday November 18, 2003 @10:56AM (#7501812)

    This was discussed a while ago on MacSlash. The author directly wrote in apparently.

    Here's the link: Employer Grabs Netflix Fanatic Software From Creator [macslash.org]

  • by Marsala (4168) on Tuesday November 18, 2003 @10:58AM (#7501830) Homepage
    And I'll say it again:

    Section 2870 does *NOT* protect you if you're a software developer. Check out sub section 1. It includes an exemption for the company if your invention relates at the time of conception .... to the employer's business.

    The company's case against you is pretty straighforward: "We're in the business of making and selling software. Your invention is software. Hand it over."

    And they don't even have to pat you on the head for writing it.

    I hope homeboy has more luck trying to exert his rights under the CLC than other people who've fallen for it have had. :(
  • by Daniel Dvorkin (106857) * on Tuesday November 18, 2003 @11:00AM (#7501843) Homepage Journal
    Because the boilerplate agreements that employees sign these days almost always have something in them to that effect. It's evil; it's also, in most cases, a condition of getting (or keeping) a job, and with the tech economy the way it is, most programmers will sign away the rights to their firstborn if it means getting paid enough.

    I have to worry about this kind of thing all the time. I work in biotech, and am a grad student in comp. bio.; although the applications I develop for school are in a somewhat different field than those I develop for work, it's conceivable that my employer could lay claim to some of my academic work -- and, of course, that my school could lay claim to just about anything I do. By and large, I trust both my boss and my professors, but ... Does it suck? Hell yeah. Is there anything I can do about it? Not if I want a job and a degree.
  • Re:Other Laws? (Score:2, Informative)

    by Alan Partridge (516639) on Tuesday November 18, 2003 @11:02AM (#7501854) Journal
    Such laws are actually very common - certainly here in Britain. The hard part is to try and enforce them, I'm rather surprised Apple is doing so. In some industries it's also common to try and prevent temporary workers employed through agencies to take full time employment with the same company - the agencies often have ludicrous clauses that try and extract fees from both parties, no one ever pays them, of course.
  • by IWorkForMorons (679120) on Tuesday November 18, 2003 @11:11AM (#7501947) Journal
    Hell...I had one company offer me a job with the conditions that 1) anything I code, at any time, belongs to them, 2) any ideas I have, at any time, belongs to them, 3) in the event the I leave the company, I would not work in any field that competes with them for at least 2 years. The theory behind the "any time" clause was that I *might* be influenced by my work and create something using that influence, therefore it was in their best interest to claim everything. The non-competition clause is standard, but if I had taken the job then I wouldn't have been able to take any programming job for 2 years considering their software *could possibly* be used in many fields. The entire contract was written to make sure they owned you. Someone could fight a lot of it in court, but considering you wouldn't have a job it would be hard to pay for a lawyer. I pity the poor bastards that work at that place...the entire thing was family-owned and run, and they worked 12 hour days. And they expected you to keep up with them when needed, which was pretty much all the time. Some jobs just aren't worth taking, no matter how desparate you are.
  • Re:the lesson... (Score:2, Informative)

    by unborn (415272) on Tuesday November 18, 2003 @11:11AM (#7501952)
    Know your rights!:

    California Labor Code Section 2870:

    Employment agreements, assignment of rights:
    Any provision in an employment agreement which provides that an employee shall assign or offer to assign any of his or her rights in an invention to his or her employer shall NOT apply to an invention for which no equipment, supplies, facility or trade secret information of the employer was used and which was developed entierly on the employee's own time, and (a) which does not relate (1) to the business of the employer or (2) to the employer's actual or demonstrably anticipated research or development, or (b) which does not result from any work performed by the employee for the employer. Any provision which purports to apply to such an invention is to that extent against the public policy of this state and is to that extent, void and unenforceable.
  • Re:Are they psychic? (Score:4, Informative)

    by GeorgeH (5469) on Tuesday November 18, 2003 @11:20AM (#7502010) Homepage Journal
    It's not dumb if you think that your employer will respect the law. Section 2870 (linked in the story) says that the clauses you mention don't cover creations made on your own time with your own equipment, which I assume that this guy did because he's claiming 2870. From the law:
    Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an invention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the employer's equipment

    Why should he have to hide his identity if he's not doing anything wrong?
  • Re:Are they psychic? (Score:2, Informative)

    by Anonymous Coward on Tuesday November 18, 2003 @11:27AM (#7502067)
    these kinda of clauses (where employers maintain rights to your creations) seem pretty common.

    They are kinda common, have been kinda common for 28 years, and are illegal!

    28 years ago, I was hired by a company in Ohio. They had just such a clause (i.e. owning ANYthing I developed whether on company time or personal time) and a paper that I had to sign stating such things in black and white. 28 years ago, home computer equipment wasn't nearly as common, so the natural assumption was that ANY computer work done was done on company equipment. I had an ancient and venerable PDP-8 in my basement, was interested in developing hardware for it and had some real concerns about that damned agreement they wanted me to sign. Under the advice of a lawyer, I refused to sign and made it stick.

    According to my lawyer at the time, these agreements are NOT legal (under FEDERAL law, overriding state's) and the signing of the agreement does not make them legal, just harder to fight. I have run into this many times during the past 28 years, have always refused to sign them and have never been denied a job because I wouldn't sign. Check with a lawyer, YMMV.
  • by Tim Fraser (16824) on Tuesday November 18, 2003 @11:31AM (#7502107) Homepage
    > but how can you claim anything on
    > what people do in their own time.

    This is a question I once wondered about, too. Based on my experience with software companies, the short answer is that employers will insist you sign an "intellectual property agreement" that specifically grants them ownership of anything you create while under their employ.

    How do they get you to sign such a silly thing? Well, here's how it's gone down in my life (outside of California); YMMV:

    You work for company A. You want to work for company B. You negotiate with B, get an offer letter, and resign politely from A. You've crossed your Rubicon at this point; you've cast your lot with B and going back to A would be hard. But, you're happy to be free of A so you enjoy some time off between jobs.

    At the apppointed time, you show up at company B and start working. Some time on or after your first day of work, your new masters present you with an "Intellectual Property Agreement" and demand you sign away your entire soul. If company B has played their cards optimally, this will be the first time you have seen this document. They will tell you that your employment cannot continue unless you sign, and will attempt to intimidate you into signing on the spot.

    This is a tough spot to find yourself in. Company B has chosen the time and place for the argument - you have much less bargaining power now that you have started with B than you had when you were still at A and negotiating with B for a new job. Your choice now is: sign or find a new job.

    So, your best defense is to demand to see their "IP" agreement during salary negotiation, and refuse to sign while you still have your company A job.

    Failing that, if Company B is small - like a dozen-person startup - you can organize collective bargaining. The tables are turned if at least half of the company's employees refuse to sign. I've been involved in a group that did this. Ultimately, we still had to sign, but we managed to force management into including the "your work is yours" provisions from California law into their IP agreement first.

    Good luck dealing with all the Company B's out there...

    - Tim
  • Overly Broad IP (Score:4, Informative)

    by Sunlighter (177996) on Tuesday November 18, 2003 @11:35AM (#7502147)

    OverlyBroadIntellectualPropertyAgreements [c2.com] discusses exactly this sort of problem.

    The "Fine Arts Waiver" described on the page is definitely something I will not work without. With some companies it's just a matter of asking for it.

  • Re:the lesson... (Score:3, Informative)

    by ahg (134088) on Tuesday November 18, 2003 @11:35AM (#7502155)
    While I don't agree with Apple's actions...

    Apple can claim that they have the right to usurp this guys program based on the exclusion clause in the Labor Code -- (see a1) "which does not relate to the business of the employer". As Apple has become the significant application developer for thier own platform, they could claim that any application that enhances the MacOS X platform relates to thier business.

    They could also make the more dubious claim that they anticipated developing such a program and the clause "a2" as well.
  • Re:the lesson... (Score:3, Informative)

    by poofmeisterp (650750) on Tuesday November 18, 2003 @11:36AM (#7502164) Journal
    1. It was created in relation to the business of the employer (Apple; providing music online from the iTunes music store).

    2. It does result from the work performed for the employer. Without knowledge of the system, the employee wouldn't have been able to craft the application.
  • Re:Other Laws? (Score:3, Informative)

    by gl4ss (559668) on Tuesday November 18, 2003 @11:45AM (#7502230) Homepage Journal
    in almost any western country there are limits to what of your rights you can sign off(to your employer, for example). these laws make additions like "all your ip ever belongs to employer" "you can't work in the same field for another company" pretty much unenforceable.

    slavery is illeagal, so are contracts that make you the equivalent of a slave.
  • by Anonymous Coward on Tuesday November 18, 2003 @11:55AM (#7502315)
    "Apple Claims Ownership of Shareware" suggests that Apple is claiming ownership of the shareware concept.

    "Apple Claims Ownership of Shareware Title" is more accurate but gives little sense of what the story is actually about.

    "Apple Claims Ownership of Employee's Shareware Title" is optimal.

    i.e. the /. `editors' suck.
  • Re:Are they psychic? (Score:5, Informative)

    by Gekko (45112) on Tuesday November 18, 2003 @12:00PM (#7502365)
    As it has been pointed out there are exceptions to that clause.

    The rest of the clause is
    "
    and (a) which does not relate (1) to the business of the employer or (2) to the employer's actual or demonstrably anticipated research or development, or (b) which does not result from any work performed by the employee for the employer. Any provision which purports to apply to such an invention is to that extent against the public policy of this state and is to that extent, void and unenforceable."
  • Old Hat (Score:2, Informative)

    by milatchi (694575) on Tuesday November 18, 2003 @12:04PM (#7502415)
    Old, this was on Ars a month ago.
  • Ironic..... (Score:3, Informative)

    by wheresjim (412717) on Tuesday November 18, 2003 @12:09PM (#7502451)
    Ironic that the initial formation of Apple was initially threatened because Woz was working for HP when he invented the Apple I! A supervisor at HP inspected the Apple I and deemed it insignificant enough as to not be a threat...
  • by Mr. Slippery (47854) <`ten.suomafni' `ta' `smt'> on Tuesday November 18, 2003 @12:16PM (#7502511) Homepage
    it's likely that this particular programmer had greater-than-average privilege to Apple documentation, OS source, engineers who developed the source, and future business plans.

    If Apple can show that such inside information was used, they have a case. At best, though, it's a rebuttable presumption, not grounds for automatic seizure of copyright.

    More importantly, Apple may decide in the future to partner with Netflix (not saying they were going to, just that it could have been an option). So, if they did, Apple competes with their employee.

    Future possibility of competition can't rationally be a criterion. My employer might decide to get into any line of business at some future date. They might buy out a martial arts school someday, does that mean I'm competing with them [seidomd.com] now?

    What would they say? "We didn't have this agreement with Netflix when you released your shareware, but we do now so now we're going to take possession of it."?

    In a rational system, they would say, "As of $DATE we will have this agreement, and any further work you do after that on your program would be competition. What you do before $DATE - sell the code to someone (we'll offer $PRICE!), open source it, burn it, whatever - is your choice as a free adult citizen of this great nation of ours."

  • by black mariah (654971) on Tuesday November 18, 2003 @12:20PM (#7502542)
    Hey, dipshit, read your own fucking link.

    That specifically states that anything he does on his own time is his. I said that as well. I ALSO said that if he worked on his personal project at work, HE IS FUCKED.

    2870. (a) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an invention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the employer's equipment, supplies, facilities, or trade secret information except for those inventions that either:

    I've put the relevant portion in bold. What that means is that if he did work on it at work and his contract with Apple gives them rights over all on-the-clock inventions like it appears to, THEN HE IS COMPLETELY AND TOTALLY SCREWED. But wait, there's more!

    1. Relate at the time of conception or reduction to practice of the invention to the employer's business, or actual or demonstrably anticipated research or development of the employer; or 2. Result from any work performed by the employee for the employer.

    There could always, and justifiably, be an argument that software developed at home is most certainly related to the business of his employer, in which case, if his contract stipulates as such, HE IS STILL FUCKED.

    But, and I hate having to type this again, if he didn't work on this at work then Apple can pretty much line up to kiss his ass.
  • by Fulcrum of Evil (560260) on Tuesday November 18, 2003 @01:10PM (#7503013)

    If you're a writer for a newspaper, it may prevent you from starting your own newspaper.

    Possibly, but the idea of starting a paper while working at another job is patently ridiculous - you wouldn't have time to sleep!

    If you're a telemarketer, it may prevent you from creating some super-whamodyne call-making machine to sell on your own.

    You know, those things are mostly illegal. I think only charities and political campaign workers are allowed to dial you and play a message automatically

    You're right, a judge would agree with you, because the examples you cite are much broader than the issue at hand. The issue at hand is that the individual appears to be a programmer for Apple. Thus, Apple may have a legitimate claim to programs that he develops that run under an Apple OS.

    That doesn't really make sense - it would mean that if an Apple employee write a photo retoucher or a recipe database, or anything that ran on a Mac, Apple would own it. You have to be more specific, such as relating it to a specific product that Appple produces, such as iTunes or system extensions.

  • I just love how you free-market capitalists like to pretend that changing jobs is easy or that it is even possible. Hopefully one day, when you lose YOUR job and feel its impact, you'll realize that it isn't as easy you say it is. Jobs don't just come because you change fields. In many cases, you still won't get anything decent after changing jobs because you don'thave the experience.

    I don't know about the original poster, but a lot of people (like me) are new grads or have very little experience. Changing careers, although possible, is not exactly easy. And people like me are the ones that are supposed to have it easy (eg. young, no family, no debt, no mortgages, etc). Imagine older workers who actually have families, have to pay for kids, etc.

    I just love how capitalists (I bet you don't think of yourself as one) love to cite change as some bottleneck. Maybe you'll see what life is all about before you die... Or maybe not...

    Sivaram Velauthapillai
  • by Anonymous Coward on Tuesday November 18, 2003 @01:45PM (#7503380)
    I would like to point out that Apple does not pay employees to create things or *do* anything.

    The idea of employment is thus:
    We pay you for your time.
    In order to be paid for your time, you must do (x) in the time we are paying you for.

    If you do something outside company time and you are not being paid for it, it is common sense that the work is yours.

    Here's how things like this work in the UK:
    I have a manager that noticed a few problems vetting Independent Financial Advisers within our company, so he set up a company and systems for vetting IFAs on-line. Under californian law, this would be the property of our respective employers (especially as it is now a fundamental part of our business). The system of which I speak is practically the definition of parts (1) and (2).
    Yet our employer has no rights to it.
    Why? Because it's stealing. Innovation and improvement are not caused by large companies getting their hands on everything their employees create. Even Apple does not have the vision or creativity to drive every big development.

    "Apple... let it go!"
    --Nick
  • by LionMage (318500) on Tuesday November 18, 2003 @05:28PM (#7505513) Homepage
    Regarding the additional compensation: bullshit. Lots of companies require contracts that give them rights to all of your IP while you under their employ. They don't have to give you a penny, either.

    Except that such contracts contravene most state and federal labor laws. And, if you read the original Slashdot article, or the original web site describing the dispute (which the author of Netflix Fanatic took down recently), you'd know that Apple is probably in the wrong, as they appear to be violating California labor law. Granted, I am not a lawyer, and I don't have all the facts (and neither do you), but such broad contracts assigning all of an employee's IP to their employer are in fact illegal in many areas. That doesn't stop employers from putting such clauses into contracts, but it doesn't make them valid or enforceable either. Quite the opposite.

    Stop rubber-stamping legal abuses by corporate lawyers!
  • by LionMage (318500) on Tuesday November 18, 2003 @05:35PM (#7505610) Homepage
    Apple says "Wait a minute! We paid you to give stuff like that to US!"

    Guy says "Oops! You're right!" and pulls the app.

    Except that I spoke to the shareware author for this app back when this started weeks ago (before Slashdot picked this up, before the Netflix Fanatic website got recently altered to omit mention of the specific laws), and the author never said, "Oops! You're right!" He pulled the application pending negotiations with his employer's legal department. At the time, I had no idea this guy was working for Apple.

    Paraphrasing from the private e-mail that Cricket (the shareware app's author) gave me, he said his employer was making their claims based on 2870 (a) 1, but that this was a sham, and they had no interest other than in putting the application on a shelf and never doing anything with it. Therefore, they're in the wrong. Since the author can't afford to fight this for several reasons, justice will not prevail.
  • by notsoanonymouscoward (102492) on Tuesday November 18, 2003 @10:23PM (#7507768) Journal
    I believe this doesn't hold in California.
  • by odin53 (207172) on Tuesday November 18, 2003 @11:06PM (#7508004)
    IANAL, but no employer has ever won a court case on these IP agreements, even when the software was developed for the company on company time and on company computers.

    This is completely and utterly wrong. The norm is to enforce these provisions in favor of the employer, except in the most egregious cases and absent local statute to the contrary (like California's). Provisions that require assignment of all inventions (created at home or at work) are also very often enforced.

    I'm not going to bother giving any cites, but I will point you to this interesting article [harvard.edu] by Rob Merges, which he published back in 1999, entitled "The Law and Economics of Employee Inventions." In the beginning of the article, it gives the default rules on employee inventions (i.e., the rules that apply when no contract exists), and then talks a bit about what happens when an explicit contract does exist. (Hint: there's a reason why that subsection is called "the (almost complete) primacy of contract.")

    Btw, the interesting part is the law and econ analysis that makes up the meat of Rob's article. (At least, it's interesting to me.)

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