How about creating / developing FOSS? Re: what is the situation wrt. ideas created by employees while employed ? who owns them ?

[ted leslie]

I think its infinitely complicated, especially since,
a employer and even a knowledgeable lawyer can put in
"employer owns all intellectual property created by employees at any time during their period of employment" rule,
but can it hold up in court? of course not, its too broad a statement and can't be enforced in any way.
if you win 10M$ in vegas at the card tables (and of course you have a system, and that system is your IP),
will your employer take your winnings, of course not, extreme example, but it proves the point.
(  oh except if your actual job was working on card gambling systems, then maybe :)   )



see
http://en.wikipedia.org/wiki/Non-compete_clause
as an example, and especially the  Europe examples at bottom (or the California example).

many years ago in Canada, people had 2-3 years in NCC, 
and eventually people fought it (as it restricted their ability to make a living, etc,etc),
and those thought to be 2+ years NCC, turned out, by finally fought out precedents  setting cases,
to all be scrap (except in very special cases).


bottom line is, it will come down to, are you damaging the employer with what you did (at the time you were employed with them,
or during the enforceable NCC time period), and YOU will probably know this more then anyone! 

if you are moonlighting in a gray area, you will never get the answer you are looking for, a lawyer will tell you maybe its
50/50 ..... or even 90/10  10/90 ... you are looking for 100% assurance ... if you
invented the slinky, while working as a digital designer at intel, you would get your 100% assurance of being in the clear,
but if your doing software, and your employer is "doing software" good luck trying to get 100% assurance without spending
huge amounts of money. 

SEE  http://www.lbwlawyers.com/publications/writtenemploymentcontract.php

"Such restrictive covenants are rigorously examined by the courts as a result of the employee's inequality of bargaining power vis a vis his or her employer. In drafting such clauses, the Employer must be careful to strike a balance between the two primary competing considerations: the right of every individual to earn a livelihood and pursue opportunities in an effort to advance their career versus, the right of employers to protect their legitimate business interests and not to be harmed by the misuses of its proprietary or confidential information." 

"If an Employer wishes to impose a restrictive covenant such as that regarding moonlighting which is enforceable, that covenant must: (1) protect a legitimate propriety interest such as a trade secret or trade connection; (2) the restraint must be reasonable (the use by an employee of general skill and knowledge cannot be restrained); (3) not be used to solely preserve the employer's competitive advantage (covenant's whose object is solely to prevent competition are void). "

The above kinda says it all. Basically, if your not damaging them in any way, you are in the clear. This last paragraph seems to me also to mean,
if there isn't a covenant in the EC, you are in the clear, but again, assuming your not damaging them.
Perhaps you might want to contact this law firm.


-tl



On Tue, 30 Jun 2009 18:41:24 +0000 (UTC)
Peter <plpeter2006-/E1597aS9LQAvxtiuMwx3w at public.gmane.org> wrote:

> Christopher Browne <cbbrowne at ...> writes:
> 
> > If your employment contract indicates that intellectual property
> > belongs to the employer, then yes.
> 
> The initial question (mine) was, are such contracts valid in Canada,
> specifically Ontario, or not, are there precedents, and what's the position on
> this in this FOSS oriented Linux group, which, as others have astutely noticed,
> is very much interested in the matter for practical reasons. You seem to know
> more than many others on this theme. Could you go one step further, if possible,
> and dot the i's: are they common (the shackle type contracts), or not, and is
> there a recent enough precedent (FOSS oriented obviously, although I did not
> imply that in my case that would be connected to FOSS in any way).
> 
> Along the same lines of thought, is a work contract made with a subsidiary of a,
> say, US (just hypothetically), company which does business in a US place that
> *enforces* the 'employer owns all intellectual property created by employees at
> any time during their period of employment' rule (yes, there are several such),
> when the contract is made in Canada (with the Canadian subsidiary or directly),
> enforceable, legal, or ...
> 
> thanks,
> 
>   Peter
>  
> 
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-- 
ted leslie <tleslie-RBVUpeUoHUc at public.gmane.org>
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