Apple Claims Ownership of Shareware 759
(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.
Apple, what's your problem? (Score:4, Insightful)
Besides, I don't think they said "Please?"
Shocking... (Score:3, Insightful)
So, let's all rant and rave for 500 messages. Then, in 3 days, the real story will come out and be the complete opposite. And it won't ever be mentioned again on slashdot.
Knee-jerk-pot-smoking hippies! The whole bunch of you!
the lesson... (Score:5, Insightful)
I felt like I was being a little paranoid when I demanded that my last contract - which stated that my "full productive capacity" belonged to my employer - be modified to make it clear that work I did on my time was my own.
Heh. I'll never silly about making such demands again.
Read your contracts, folks. Point out absurdities ("all your thoughts are belong to us") and refuse to sign until they're fixed. If they say "well, we don't mean that..." - get it in writing.
Re:Are they psychic? (Score:2, Insightful)
For the same reason you don't post anonymous on slashdot
That's Funny! (Score:5, Insightful)
The one foolproof way of ensuring a particular bit of information is forever available on the net is to declare it illegal...
Expect the source code to show up any minute now...
Sherlock (Score:4, Insightful)
Sherlock never really impressed me- until I tried the latest version; they've included a fair bit of stuff, and at least at work and at home on cable, it's pretty zippy compared to getting the same info via the web. The dictionary search has been pretty handy.
What amazes me is the near vacuum of useful sherlock modules- there's a website here or there that has maybe a dozen or two, of which only a few are actually interesting. There's a fedex module, but no UPS module.
What is MUCH worse is the distribution model for sherlock modules- you don't actually get the module, you get a LINK to the module, and if that website goes down, the module essentially stops working after a while even if you've added it to Sherlock; it only caches them, doesn't download them(which is why it takes a while to access a module if you haven't used sherlock in a while). Stupid, stupid, stupid, STUPID! Not only is it unreliable and a waste of bandwidth, but it has great exploit potential- breaking into one account and an author's module could deliver all sorts of goodies right to an attacker's doorstep, and nobody would be the wiser. Not to mention, maybe Fedex decides they don't like Joe Blo's module and DMCA him- everyone looses their Fedex module.
Re:Are they psychic? (Score:3, Insightful)
IANAL, but I don't see the problem... (Score:5, Insightful)
From a legal point of view, that is. Section 2870 disallows claiming of rights over software written entirely in the employee's own time
Surely this is covered by the first of those provisions - and possibly the second, depending on what the guy's job at Apple is...Re:I can't wait! (Score:2, Insightful)
Re:I've said it before... (Score:4, Insightful)
We don't know the facts (Score:3, Insightful)
If the answer to any of these questions is yes - he would be liable to their claims. That's why you REALLY gotta go the extra mile in separating yourself from your employer. If you work for Apple - develop software for Windows as an example.
I don't know if the guy is being screwed or if Apple is within their rights. I think Apple is being heavy handed - but I don't know all the facts either.
Re:That's how it works... (Score:5, Insightful)
Buying you flowers and candy after they've ravaged your ass, does not "make it right".
If you or I so much as copy a song, it's a crime; if a large corporation claims to own your creation, it's buiness as usual. Welcome to modern corporate capitalism.
because (Score:3, Insightful)
Jumping the gun a bit... (Score:3, Insightful)
Don't get me wrong - I hate the thought that what I work on on my own time would get claimed. But we really have no way of knowing for certain that the developer was on the right side of the law.
Contracts have two purposes (Score:3, Insightful)
(1) To clearly outline the rights and responsibilities of all parties. By putting these things in writting, you force yourself to really analyse just what it is you are agreeing to.
(2) To establish a legally defensable position in court. Should the two parties have a disagreement about any of the conditions set forth in the contract, the contract is used to "remind" them of just what they agreed to.
So for all those who say Apple should leave him alone or should buy it from him or whatever, they are considerably late to the party. If in fact the employment contract stated the rules clearly, (no company time or equipment) and he wilfully violated that agreement, then the options become:
(1) Submit to Apple, or
(2) Find a providion of the contract which Apple violated, allowing room for a counter suit, negotiation of a new contract, or possibly having the contract thrown out.
IANAL
Re:Program under a psudoname (Score:2, Insightful)
Non-compete is completely different from "all your ideas are belong to us".
Uh, his employer tries to lay claim to work done in his off hours, and he's the one with the bad attitude?
Re:We don't know the facts (Score:5, Insightful)
If this guy was designing racing cars as a profitable sideline, I think he'd probably have a case, but as he seems to be designing useful utilities for MacOSX, he's just putting in overtime as far as Apple is concerned. Apple should give him a bonus and then take the software as stipulated in their contract.
People who don't read the small print are the bane of modern life.
Re:No logon required ? (Score:2, Insightful)
Re:Apple, what's your problem? (Score:5, Insightful)
Employee morale?
Not looking like assholes in public?
An action like this can easily undo millions of dollars spent on public relations, especially when their whole company message is about being "different" and not the faceless, corportate company so many other computer businesses have become...so in the end doing this may cost them much more than just buying the code off the employee would have.
Re:Are they psychic? (Score:3, Insightful)
It's not dumb. What he does in his spare time is his, period. Why should he assume his employer will try to steal it?
Why didn't he release it under an alias?
Why should he? How is he going to get paid for it if he does?
Do you think he should have been PLANNING on Apple trying to steal his work?
And how did Apple get started? (Score:5, Insightful)
Re:Apple compote (Score:2, Insightful)
Yeah, that'll be much more objective than current
All sarcasm aside, this is not a story about Apple, this is a story about a company claiming ownership of an employee's work in his spare time.
It doesn't matter if it's Apple or any other company.
And the MS-bashing isn't that bad anymore, just look at the "Microsoft to Launch MSN Music Service in 2004" 2 topics down.
What's bashing about that one?
It's objective and plenty informative.
Silly zealots.
It's Interesting. (Score:5, Insightful)
If this was Microsoft doing this, there would already by 700 comments and the Slashdot site would be bogged down and unresponsive because of the fury.
This is dangerous stuff, folks. If this is a precedent, then all the employers of people who have contributed to the Linux kernal, and to various GPL's and BSD licensed products can step forward and claim their chunk of code, too.
It's dismaying that so many 'Apple Loyalists' have joined in on the Slashdot 'Anything Microsoft Does is Eeeevile but any other company is okay' choir. We don't need a 'new master, same as the old master' ascending to power, but some here seem to think it would be okay.
Shareware? (Score:3, Insightful)
Re:Apple, what's your problem? (Score:5, Insightful)
Re:Apple, what's your problem? (Score:2, Insightful)
Mac OS is a "trade secret" (Score:2, Insightful)
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
According to commonly used EULAs, wouldn't Mac OS X itself be considered "trade secret information of the employer"?
Re:Apple, what's your problem? (Score:4, Insightful)
Anyway, if the guy really developed the code at his house, on personal time and this project isn't competing againt business opportunities of his employer, he should have legal right to the code. If the case is not as clear-cut, Apple has every right to do what it can to gain legal right on what might be theirs.
Re:Apple, what's your problem? (Score:3, Insightful)
Re:We don't know the facts (Score:3, Insightful)
People who WRITE small print are the bane of modern life. People who are victimized by it are just lemmings going over the cliff.
Re:Apple compote (Score:3, Insightful)
You're sounding a whole lot like a Apple fanboy who doesn't want to hear anything but praise for your favorite platform. I'm not here to tell you how great you are because of the system you bought (nor am I here to tell you that you're a moron for buying the system). I'm sure that there's a Mac fanboy page/blog where you can discuss how great your system (and the company who created it) is all day long.
This post has nothing to do with that, nor is it an attempt to tear at the fabric of your favorite platform. This looks like reasonable reporting of some suspicous behavior by a large company to me. Just because you happen to really like that company doesn't mean that the story shouldn't be reported...right?
Re:Apple's Sins (Score:5, Insightful)
Also note the Apple Look-n-feel lawsuit. If Apple had won that one, Microsoft wouldn't have been allowed to produce Windows, nor would the X Window System be allowed to exist without paying heavy royalties to Apple. Apple essentially claimed they owned the GUI and claimed it in it's entirety as their own. It's ironic that Microsoft's legal dollars paid for the right for us all to use common GUI elements that otherwise would be Apple Computer property.
There is a LONG history of Free Software folks being strongly against Apple during the look-n-feel suit that seems to have been airbrushed away in recent years.
Re:Not Free Software (Score:2, Insightful)
I wasn't aware Apple was in the Netflix management business.
If Apple had the same type of program in their roadmap, or were considering it (and can PROVE it), AND this employee had access to that program and/or was working on it, THEN Apple would have a claim as you suggest.
However, now that Apple has fully converted to the Dark Side, he would have been much wiser to release it anonymously or dump it in the public domain. He could have still requested $10 donations.
Let his fate be an omen to all that follow...
Re:Are they psychic? (Score:5, Insightful)
Yes, he should have. He was naive. He probably won't make this mistake in the future.
It's fairly common for companies to let employees develop things on their own time. If nothing comes of it, it's ignored. If the employee starts making money from it, the company claims it. Employees who object to this (perhaps by citing the law) are laid off.
It's a win-win situation from the company's viewpoint. No-risk, no-cost software development, and if it works, the company gets the profit.
Of course, treating employees this way is disastrous policy in the long run. It really kills morale, and usually loses you your most inventive employees. But how many American corporations are capable of looking past the current quarter's revenues?
You folks really oughta learn more about how the world really works.
Intellectual rights? (Score:4, Insightful)
I don't know about the application in question but if there's the possibility it could not have been written by someone other than an employee of Apple even though the author did not use Apple tools or time then Apple does have some rights over it.
It strikes me the guy should have checked his rights first. I discussed this when I joined my company and was told that provided I haven't written anything which is simliar to, or competes with, company products then I should still get approval for open source releases and the like but they would probably be let through on the nod.
what about netflix? (Score:2, Insightful)
Re:That's how it works... (Score:3, Insightful)
If his contract states that whatever he works on at work is the property of Apple, then he is fucked and tough shit to him.
And then the California District Attorney can post an arrest warrant for Steve Jobs...
California's labor-laws are notoriously pro-employee. Contracts like that are illegal [unixguru.com] there. Enforcing an illegal contract is a crime.
Put the shoe on the other foot... (Score:5, Insightful)
He "owns" that code (and maybe some computers too).
Did he commit the crime? Or did Apple Corp. commit the crime? After all, they own his ass and everything he does or creates, they have the right to financially exploit his artwork, code, writings or anything else. That means he should not get in trouble and Apple Corp. should.
Sorry, but no company owns anything not directly related to the job without prior written contractual agreement (and additional financial compenstation). Anything less is slavery, and as my example above should prove it's also obsurd.
Apple is a big company, so I suppose they have their fair share of clueless lawyers and PHBs so moronic attempts to trample on people's individual rights can be expected.
That doesn't mean they are any less a bunch of assholes for the attempt though. The assholes.
Re:Program under a psudoname (Score:3, Insightful)
Just as with software. Just because you are a "software developer" does not mean that all software you develop should therefore be owned by the company if you do it on your own time. It's like being a chef for a restraunt. You can still do catering for parties in your free time and the company doesn't get x% of your profits (unless you use the company's food).
Re:Apple's Sins (Score:5, Insightful)
What functionality? They fixed a bug that people were exploiting and was never emant to be a feature.
What hesitation? They never said they weren't going to update it. I fact, there very first announcement on the matter was to confirm that they were after people had leapt to the wrong conclusion.
A computer that's 5 or 6 years old and likely has hardware that isn't really up to the job any more. I'm curious, does Windows XP run on a PII?
That's a rather misleading way of putting it as it suggests that Apple's problem is with OSS, when the truth is very different.
Re:Apple, what's your problem? (Score:5, Insightful)
to people like us, we see it as a violation of an employees right to own what he does on his own time. But to the other 90%, in a court case, it would appear the employee was trying to steal from Apple was was rightfully owned by Apple. I don't think a case like this will effect marketshare at all.
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. In this case, it is certainly not a "work for hire" because Apple did not ask him to develop this software or anything like it. It was also developed on his own time and with his own equipment. If this developer hired a lawyer, Apple would not have a leg to stand on.
Of course, where would he work then? Apple developers have a very short list fo employers to go to, and honestly Apple is the best place they could work! Maybe he could go to Microsoft, but he would probably not be happy there. :P
Re:Apple's Sins (Score:1, Insightful)
Basically, IMO Apple is and always has been just as anti-competative as Microsoft, but they have not been in a monopoly position and therefore have not been subject to the same rules, and I won't buy one for the same reason I won't buy a copy of windows (or run windows for that matter). With the exception of video games all of my computing needs can be done for less money, and more efficiently, using truely free software.
Re:Intellectual rights? (Score:3, Insightful)
If you think it's fair, that's fine, but I was always careful not to sign contracts with this kind of clause in them. It prevents you from doing contracting work while employed, and makes any contributions you might make to open source projects legally questionable. You should ask youself whether the money you're paid is really enough to cover 24 hours/day of employment.
I can understand that to some extent. While working at an employer you are learning.
So what? You're probably teaching them a thing or two, if you're any good at what you do. You also create a valuable product for them, a product they can capitalize on, and make many times what they paid you in profits on. I think this is a fair exchange, even without claiming everything you do at home as theirs.
Can you guarantee that anything you write has not benefitted from knowledge gained while working for you current employer.
The law defines what you may or may not do in this situation, and your employer has all the legal protection they need even without having you sign a draconian contract. You shouldn't have to prove that you didn't do anything wrong - they have to prove that you've done something wrong.
You can't use code that's copyrighted by your employer without getting your employer's approval, and you probablly have a confidentiality agreement someplace that prohibits you from disclosing trade secrets. That should be enough to cover any real wrongdoing on your part.
If you were a carpenter, and you worked for a furniture maker, would you have agreed if your employer claimed furniture you made at home as his own?
RTF Law. Looks like Apple DOES own it. (Score:5, Insightful)
And if you read the law BEYOND the part that was quoted, you'll see that the mandatory exclusion of transfer of rights DOESN'T cover this situation.
This work would appear to "relate at the time [...] to the employer's business, or actual or demonstrably anticipated research or development of the employer". Apple does consumer multi-media software apps for their own platform. An app to "manage rented media queues" would seem to most reasonable people to be clearly "related" to that business.
The inventor can protest all he wants that it was done on his own time with his own tools and it doesn't matter. Unless he can convince a judge or jury otherwise, 2870. (a) 1 says that 2870. (a) doesn't apply. So his contract to assign his inventions to Apple is valid.
Apple's view is that they already PAID him for this program. If they let him give it away when they could be selling it (or sitting on it for their own business reasons), they're not just letting him take something that they paid him for. They're also jepoardizing their ownership of EVERYTHING ELSE they paid their employees to do. So why are they paying all these people all this money?
Sounds to me like the situation is this:
1) Guy builds a neat software app and, misunderstanding the situation or thinking that Apple is not interested, thinks it's allright to release and/or sell it on his own.
2) Apple says "Wait a minute! We paid you to give stuff like that to US!"
3) Guy says "Oops! You're right!" and pulls the app.
4) Media finds this out and mentions it.
5) Slashdot reader doesn't recognize that the exception in 2870 (a) 1 applies, so he thinks that it's an assault on open source and composes a post saying so.
6) Slashdot editor posts the new item essentially verbatim.
and the flap is on.
2870. is the engine of California's hi-tek booms. By letting inventors keep and develop inventions that are outside their employers' interests and non-competing, it promotes an explosion of inventiveness and startups. But it falls short of giving workers the right to develop potentially competing works that their employer didn't explicitly assign them to create or doesn't wish to pursue at the moment, and didn't give them PERMISSION to take back. Some would even argue that this is deliberate, a necesary provision to avoid killing the succeeding generations of geese just as they start laying the golden eggs.
So let's not misconstrue the law. If the developer decides to press his claim and can show in court that the exception applies, it's his. If he doesn't or can't, it's Apple's. And if you don't like it, get the law changed.
Re:Intellectual rights? (Score:5, Insightful)
No, and I can't guarantee anything I produce hasn't benefitted from knowledge gained anywhere.
Does this mean my 3rd grade math teacher's name goes on my Ph.D. instead of mine?
It's called a job (Score:2, Insightful)
Not long ago, I made some changes that saved my employer in excess of $500,000 per year...but my paycheck covered this activity, so I certainly couldn't expect an _ex post facto_ bonus.
Greed is good as a motivator, but the motivation comes as anticipation BEFORE the act, and it must be uniformly applied.
Re:That's how it works... (Score:2, Insightful)
False. His software is not in competition with any product offered by Apple. Merely creating software doesn't make him a competitor, any more than a technical writer who writes a novel on his own is a competitor to his employer.
Gaining skills is part of the nature of employment; those skills are as much the employee's as is his paycheck.
The only way Apple might have a case is if he used Apple-provided resources, but (despite your assertations) there's no mention of such use in the article.
Not so fast... (Score:5, Insightful)
So let's ask some simple questions.
If Apple can't demonstrate either of these things, it's hard to argue that they already paid him for the work, in which case the guy appears to have a legitimate grievance.
Legally speaking, the phrase "the employer's business, or actual or demonstrably anticipated research or development of the employer" seems to place the burden of proof firmly on Apple: they have to show that they were doing, or definitely going to do, something along the same lines.
At this point, it's up to the legal system to interpret the relevant law given the specifics of the case. Of course, whether one man can hope to fight a legion of Apple lawyers within the current legal climate of the US is a different question, but the theory is sound.
Re:Apple, what's your problem? (Score:2, Insightful)
Not looking like assholes in public?
Jeez, what the hell is it with the automatic assumption that Apple has persecuted their employee, stolen that person's software, and will incorporate it with no attribution or reward?
When I worked there, employees who came up with cool stuff that could be incorporated into the OS KNEW that anything they developed for "personal use" on comapny-owned hardware or at the company at all could be picked up by Apple. When this did happen, the employee was usually reqarded with a bnus of some sort.
There's no "big brother" style theft here. Employees know that anything they create at work or on Apple-owned equipment can be taken by the company - but when that happens, the employee is rewarded anyway.
Re:WTF are you talking about? (Score:1, Insightful)
Now if you read the parent, it said Apple should have bought the code from the guy instead of risking to lose face publicly and affect employee morale by going in a legal fight against the coder to prove they own the code made on his own time. In other words, the guy should have said to Apple : "If you fight against me, you'll affect your nice image and reduce employee morale. If you just give me money I won't say a word". If Apple has legal ownership on the code, that my friend, is extortion.
Re:Apple's Sins (Score:4, Insightful)
People didn't like IBM in the past because they were the dominant player and the rest of the industry couldn't stop them if IBM tried strong-arm tactics. In the mainframe biz this is still true, but now there are alternatives to mainframes (PC farms). People don't like Microsoft now because they are so powerful that they can strong-arm basically at will. Linux is changing that.
Most corporations do some good things and some bad things. Very few are basically evil. And a few are basically good.
Apple is like any other corporation. Not all corporations are evil faceless satans. I realize that to a great many people that what I have just said here is heretical...
Re:Not so fast... (Score:2, Insightful)
They pay him a salary to produce what they tell him to produce.
If they didn't tell him to produce an app with the given functionality, they didn't have any concrete plans to produce an app with the same functionality, and he used his own time and resources, why should they get ownership?
If the three given conditions are true, it seems to me that they're just swiping what ought to be his using the justification 'but we pay him to write other stuff'.
Wrong, Right and Inbetween (Score:3, Insightful)
I also don't know whether Apple is within it's rights or not, but I do know that Apple could have had the decency (or simple common sense in avoiding a PR scandal) to pay him for the software.
And that is what it boils down to really. Decency. I know all the yada yada yada Apple is in the business of making money yada yada and we're hard arsed bastards in this world yada yada, but decency goes a long way to ensuring good PR and employee loyalty and above all customer loyalty.
Whether Steve Jobs knew of this or not, I can only say the following to him: Be careful, Mr Jobs. Losing the loyalty of your employees can lose you the loyalty of your customers, and that it the one thing that Apple has always had above the rest. Don't fuck it up, because in the end, I don't care. I'll drop this Mac and run Linux or Windows if I see no difference between the business practices.