legal question

[Crisler, Jon]

The other thing I would worry about was a non-compete clause.  I work
and live in Maryland, but Wash D.C. and Virginia are part of the same
metro area, so lots of people commute back and forth.  Labor laws are
different in MD and VA:  A contract with a restrictive non-compete
clause is enforceable in MD, as contract law takes precedence.  But the
non-compete clause is mostly unenforceable in VA, the feeling being that
you cannot deny somebody the right to work and support themselves.

 Unless you feel that you will be working on some off-hours projects, or
work that you might later publish/sell for profit, I personally would
not worry about the intellectual property rights.  But if you fit the
above model, then it is a big worry.  When it comes to litigation,
patent infringement and intellectual property cases are much harder and
more expensive to pursue, compared to employment contracts and
non-compete clauses.

That said, I agree that you should contact a lawyer familiar with
employment issues to review the contract.

-----Original Message-----
From: fedora-list-bounces at redhat.com
[mailto:fedora-list-bounces at redhat.com] On Behalf Of David Liguori
Sent: Wednesday, March 23, 2005 10:56 AM
To: Marc M; For users of Fedora Core releases
Subject: Re: legal question



Marc M wrote:
> Hello:  
> 
> I have a 'technical' question that does not involve technology
> specifically, but I am hoping that someone on the list can help me.  I
> have an employment possibility doing Red Hat Enterprise Linux and a
> lot of security stuff.  I really want the job but they are making me
> sign this Stalinist contract to the effect that ANYTHING now or in the
> future (thoughts, concepts, software, plans, processes, RECORDINGS,
> images, etc.) -- is THEIRS.  You wouldn't believe it if I had time to
> type everything.  Basically I am a slave to them from now on.
> 
> That's right, anything NOW OR IN THE FUTURE, on the job or off.  So if
> you are configuring/writing/tweaking software all day, one would
> <think> that you would later be liable or subject to just about
> anything they want to claim.  Think about it.   Who doesn't learn and
> grow from one job to another?  Who doesn't apply
> things/practices/habits/processes, from place A to place B?
> 
> I beat out every other candidate from multiple agencies with this.  I
> have come a LOOOOONG way in this process with the recruiter and I am
> formulating a letter to the effect of 'I am sorry but I am not signing
> my life away and if it's a dealbreaker so be it'.   I also included
> some HUGE info to show that I am interested in 'educating' these
> recruiter types as to the restrictions they are placing on something
> that is suppossed to be 'open'.   I am beginning to conclude that some
> people and opportunities are not worth fooling with, since they come
> with more headaches than they are worth.
> 
> Does anyone know a qualified lawyer in the space of OSS that
> understands contracts, employment, and the GPL for starters?  If
> someone can represent me in this matter I may actually be able to go
> forward and strike through terms and conditions.   And have any of you
> run into similar situations?  What did you do?   Finally let me
> underscore that this goes WAAAY beyond the typical 'trade
> secrets'/proprietary information type verbiage, which I would consider
> normal and reasonable under most circumstances.
> 
> Thanks
> Marc
> 
Is there a time limitation from the time the employment is terminated by
either party, or is it just "forever"?  I highly doubt that kind of
indentured servitude is enforceable anywhere.

I'm not a lawyer either, but I don't think you necessarily need
expertise in OSS/GPL. Any competent practitioner of general law or
contract law should suffice.  In fact, from what I've read of GPL it's
written specifically in non-technical language.  Legal expertise is what
you need.

If other than the contract you consider the career move highly favorable
to yourself, I can offer some advice just as someone who's been around
the block a few times.  First, don't get on a soap box about open source
software when "educating these recruiter types".  Concentrate on your
own interests--which presumably include getting your dream job under
terms that are mutually acceptable to you and your prospective employer.
To start with, hopefully you've already expressed your misgivings about
the contract and your intention to go over it with your lawyer.  Better
still if other candidates got to the point of being shown the contract
and expressed similar misgivings.  If you suddenly blindside them with
the contract your own lawyer has written  with a "my way or the highway"
attitude I don't think it will go favorably with you: they might
conclude *you* come with more headaches than you are worth.  On the
other hand, the fact you are willing to hire a lawyer at your own e
xpense and negotiate a contract that is mutually acceptable shows you
are really serious about the job.  Maybe you could work out a deal with
the lawyer where part or all of the fees are contingent on the job
working out for you.

Don't forget your prospective company does have a legitimate interest.
You would be dealing with security, which entails being privy not only
to trade secrets but the means by which outsiders could discover them.
>From your description it sounds like their own lawyer wrote everything
they could possibly want in the contract, perhaps with the expectation
it would be subject to negotiation.

In my locale (New York State) a TV news reporter had been given a break
by one of the stations and hired with zero experience.  She was quite
popular and eventually had an opportunity to work for a competitor in
the same market.  She had a contract pretty standard in the broadcast
trade not to work for a competitor for some number of years after
termination of employment by either party.  But her lawyer was able to
shoot holes in it, and she took the job.  Some considered it a major
breech of ethics brought about by a shyster lawyer, against the people
who took a risk and trained her.  I myself was inclined to see it as
just business.  Both parties want the earth, sun and stars, but
something has to give.  The first station trained her not out of the
goodness of their hearts but with the expectation she could help them
make money.  People who stand up for what they want tend to get at least
some of it.  

Employment gurus are forever harping on this, but I'll repeat it: the
hiring decision will ultimately be made based on the perception of who
can do the most for the company's bottom line.  You are the top
candidate so far by that criterion.  But the equation could shift if you
start looking like a major hassle.    Aim for getting the type of
contract you consider reasonable, always emphasizing what you can do for
them, and they should be willing to dispense with the ludicrous and
obviously unnecessary provisions--unless they're such a dysfunctional
organization that you wouldn't want to work for them anyway.

I hope I don't sound too preachy, and that something works out for you.

p.s. You sound like you might be familiar with Dave Barry: "You can't
spell "Florida" without "duh".

p.p.s. I just watched a DVD of the old "Rumpole of the Bailey" series
where a woman got arrested by an undercover cop for marijuana trade.
Her case was going favorably when Rumpole shot holes in the entrapment
by which the crime was apparently created, but then she decided what she
really wanted to do was stand up to the unjust drug laws.  She got three
years.  I was thinking that might be where you are with open source
software.  If I'm wrong, just ignore me.
 

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