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

[Joerg Sonnenberger via llvm-dev]

On Fri, Oct 23, 2015 at 08:11:11AM -0700, Daniel Berlin wrote:
> 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.

You aren't even given a justification for that position, which makes it
kind of difficult to have any reasonable form of discussion. Let me
still clarify exactly what I mean and why this is relevant for the
discussion. German UrhG§ 69b covers the "monetary" parts of copyright
for employed developers. The employer is (exclusive) owner of those
rights if the software was developed as part of the job or in
fulfillment of work obligations. Unless my boss has explicitly told me
to write a patch for LLVM to fix an issue I found at work, any such
patch developed outside work hours is mine and mine alone. If I develop
the fix outside work hours, the situation becomes a bit complicated when
it comes to the exclusivity. Court rulings up to the BGH (German High
Court) differ. General opinion is that that the employer may get an
implicit permissions for using the software as far as the requirements
of the job mandate it, but it is not generally transferable.

> > > 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.

A nice summary of acting authority under German law can be found in
http://www.edk.de/2012/05/wer-unterschreibt-was-interne-und-externe-haftung-im-unternehmen/.
It is especially useful how they stress the difference between internals
rulings and external binding power of such agreements. So let me reverse
this and ask you which kind of authority I would be using as employee to
grant a patent license? Especially since I have not declared in any form
that I *have* such an authority. Otherwise clearly BGB § 177 applies my
employer can revoke the contract at any time.

Joerg