[llvm-dev] RFC: Improving license & patent issues in the LLVM community

[Joachim Durchholz via llvm-dev]

Am 23.10.2015 um 17:11 schrieb Daniel Berlin via llvm-dev:
> On Thu, Oct 22, 2015 at 9:54 PM, Joerg Sonnenberger via llvm-dev <
> llvm-dev at lists.llvm.org> wrote:
>
>> On Wed, Oct 21, 2015 at 09:10:40AM -0700, Daniel Berlin wrote:
>>> Let's start with: In just about every country in the world, anyone
>>> contributing on behalf of their company are exercising their employers
>>> copyright (in most cases, even if they do it in their "spare time", since
>>> most people misunderstand what the law grants them there).
>>
>> At least under German law, there is a clear separation between what I do
>> during work time and outside. Ignoring questions like anti competition
>> issues, my employer has no claims to what I do outside work time.
>
> Again, this is a common misconception, or so multiple german employment
> lawyers have told me.

Either these employment lawyers are delusionary, or there has been some 
misunderstanding between you and them. Whatever the reason, your 
statement about German law is flatly wrong.

By German employment law default, your private time is your private 
time, and your employer has no say in it. He can forbid activities that 
detract your ability to work for him, so no binge drinking and no 
secondary job that might sap your ability to fulfil your first work 
contract, but that's about all.

There can be anti-competition clauses. These are uncommon but, but they 
can be enforceable if properly worded (put one claim too much into it 
and the court may rule the entire clause invalid - German employment law 
is VERY pro-employee).

For creative work, there may be some non-competition clause. This kind 
of clause, however, is forbidden by law unless the employee has some 
kind of executive level.
There might be special contracts for inventors or artists, I don't know 
these areas. But I know what kinds of contracts are standard for IT 
employees, having signed several ones of them; I'm obligated to keep my 
trap shut about employer and customer internals, abide by the usual 
legal constraints when dealing with other people's data, and that kind 
fo stuff, but never ever once have I seen anything about invention or 
code I create in my free time. In fact I'd expect such a clause to fall 
down on its face in any court.

Things become different at the executive level - at the highest levels, 
anything goes.
At the standard employee level, employers are very, very restricted in 
what they can put into contracts.

>>> Both actual (They told me i could contribute), agent (I am also actually
>>> authorized to contribute anyway), and apparent authority (Everyone else
>> in
>>> the community would normally believe i have authority to contribute, and
>>> thus, there is apparent authority, regardless of whether Google said i
>>> could contribute) would all bind Google when i contribute stuff.
>>
>> I don't think you will be able to convince a German court of that.
>
> and I do.
> With all due respect, these issues have been vetted with actual legal
> counsel, and they disagree with you.
> Strongly.
>
> When push comes to shove, i take their viewpoint over yours.

Where these lawyers working exclusively for the employer side?

If yes, I'd flatly ignore their opinion. German employment law is harsh 
towards the employer side; a success rate of 10% should be considered 
excellent - I have no idea what kind of personality or work ethics can 
survive under this kind of pressure, but I suspect it does warp one's 
sense of legal reality.

Talk to a union lawyer to get the other side of the picture - probably 
just as biased, of course, but at least then you see which points are 
contentious and which aren't.

Regards,
Jo