GitHub allows employees to own their own ideas with new IP policy
Intellectual property and copyright law is byzantine by design and extensively litigated by very well paid lawyers. In a surprise move, GitHub’s new intellectual property policy throws decades of established IP precedent out the window.
GitHub is making waves as they announced a substantial change in their intellectual property policy this week. Their new policy, the Balanced Employee IP Agreement (BEIPA), is a drastic shift away from traditional intellectual property law.
GitHub claims that BEIPA is a more balanced approach towards intellectual property agreements; BEIPA “only claims control of what the employee creates during the period of employment, and only creations made for or relating to the company’s business.”
Eric Allman once said that “the intellectual property situation is bad and getting worse. To be a programmer, it requires that you understand as much law as you do technology.” This new policy is an attempt to move towards a more equitable and transparent arrangement.
Github’s new policy is even open-source, making it easy for other companies to copy and reuse for their own practice. They’re even soliciting issue files or pull requests to help improve the policy, because in the eternal parlance of the internet, IANAL.
BEIPA in a nutshell
The United States is a particularly zealous protector of intellectual property rights. Without an express agreement, employers usually own and control works subject to copyright or a “shop right” to use inventions. These IP agreements with employees are weighted heavily towards the employer; companies can control over everything created at any time by employees during their employment period. To some extent, the non-compete clauses in employment contracts even allow companies to claim work done after an employee has left.
BEIPA is different because it only claims control of intellectual property created during work hours that directly relates to the company. GitHub notes that employees are creative all of the time; this rewards the innovative and allows them to maintain their autonomy while still retaining a pioneering worker.
GitHub claims this will improve retention, morale, and productivity. In short, employees who feel they need to hide personal projects from bosses are not motivated. GitHub also bluntly noted that “controlling employee side projects unrelated to the business does not contribute to revenue or profit”.
That’s not to say GitHub is giving up all intellectual property rights to everything. GitHub still retains the intellectual property rights to any creations or inventions made during company hours to anything company related. So if a GitHub developer comes up with a brilliant new way to store footballs during their 9-5, their IP rights are in the clear, but if that same developer comes up with a revolutionary program for code security, the IP belongs to GitHub.
Who owns your thoughts?
Traditionally, the rule for IP boils down to one simple aphorism: if it’s on the company’s time, it’s the company’s dime. “Time“ is notoriously fuzzy here; companies have sued (and won!) cases where employees had come up with ideas on their off-hours or even before or after their employment period.
The famous case of Alcatel vs. Evan Brown is something of a object lesson for employees everywhere to keep their mouths closed if they have a brilliant idea. Evan Brown was an employee at DSC Communications when he came up with the “Solution” during his off-hours in 1996. The Solution, or the code to convert low-level code into high-level code, would make legacy code usable instead of completely obsolete. When he went to his company to negotiate an agreement to share the profits, they refused and demanded the code. Brown said no, so they fired him and sued him in short order for his “invention”. A Texas appeals court agreed with the employer; Brown was eventually forced to pay the legal costs and share the code.
However, Alcatel vs. Evan Brown was tried in Texas. According to GitHub, California’s notoriously lax enforcement of these kinds of employment agreements has helped Silicon Valley prosper. The state laws allow “employees to own the work they produce on personal equipment and time”. That means, if you have a brilliant idea, it stays your brilliant idea.
GitHub is venturing into relatively uncharted waters, as only Rackspace has a similar policy. Rackspace allows employees to work on Open Source projects and maintain their own IP on their creations. This new agreement is going to be an interesting legal test case at the bare minimum. BEIPA is definitely a step in the right direction for intellectual property and copyright.