In contrast to the restrictions many companies place on their workers, GitHub believes it can loosen the reins through the release of its Balanced Employee Intellectual Property Agreement (BEIPA).
Technology companies often require that employees, as a condition of their employment, sign away the intellectual property rights to any work created while employed, even on personal time. Such contracts may even give companies ownership rights to work created during a limited period after employees leave the company.
In a 2014 paper, "The New Cognitive Property: Human Capital Law and the Reach of Intellectual Property," University of San Diego School of Law professor Orly Lobel recounts several examples of conflicts arising from such contracts.
For example, computer programmer Evan Brown was forced to assign ownership of an idea he had in the mid-1990s while driving one weekend, because he happened to be an employee of Alcatel at the time and had signed the company's IP contract. His idea involved a way to adapt old software to new hardware through the use of a decompiler.
As a result of a court order in 2002, "Brown was forced to travel to Alcatel's offices for three months and write down hundreds of pages of computer code without pay," Lobel wrote.
While these agreements are often expansive, assigning the employer ownership of anything the employee conceives while employed, their terms are seldom enforced.
What's more, agreements of this sort are not enforceable in some states. As Mike Linksvayer, head of open source policy at GitHub, observes in a blog post, the limits California places on non-compete agreements are widely seen as one reason the tech industry has thrived there.
Unless a side gig presents a clear potential for conflict of interest – an Apple App Store reviewer developing his or her own apps, for example – employees involved in personal projects can often continue to do so by seeking permission from a manager and ensuring that corporate resources aren't diverted for personal gain.
Even so, such agreements may deter participation in open-source projects, limit external creative activities that advance employee skills, and stifle workers unnecessarily.
GitHub suggests that a more relaxed approach is better for work-life balance, a concept not fully embraced in Silicon Valley.
"The legal reality should reflect practice and what companies are telling their employees, which is all about having a work-life balance," said Linksvayer in a phone interview with The Register.
According to Linksvayer, these agreements can affect worker mobility, innovation, and regional competitiveness.
GitHub's BEIPA is an open-source contract – available to any interested organization – that recognizes employees may have creative projects of their own. It attempts through its contractual language to outline a more balanced intellectual property ownership arrangement between companies and workers.
"The Company doesn't want you looking over your shoulder every time you work on something personal or worrying that the Company will some day seize your open-source non-lethal mousetrap simulation software," the BEIPA contract says. "In other words, the Company isn't interested in appropriating your personal projects."
Linksvayer said GitHub's more relaxed policy evolved toward the end of 2013. While he could not point to specific ways GitHub's more tolerant approach to IP rights had helped the organization, he said that employees, many of whom have experience with more restrictive contracts, appreciate it.
"Many companies do encourage employees to contribute to open source or have other activities outside work," he said. "And their employment agreements often do not line up with the message they're getting." ®
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