| William H. Magill on Fri, 03 Jan 2003 17:50:33 -0500 |
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On Friday, January 3, 2003, at 03:47 PM, Marc Zucchelli wrote: I have been working as an independent contractor for a company almost full time for a few years now, I am just thinking about taking the position as an employee and getting on a payroll so I don't have to worry about taxes, but I am worried about rights to my code. For example, I have *heard* that anything I write on my own time belongs to my employer, etc, things like that. On one end, what if I put together my own software product which I want to sell, does profit really belong to my employer, on the lower extreme, what if I write my own library and decide to use it in a project for work, how do I keep that part of the code as my own. ....Just examples, does anyone know where I can find more info on this? If you are serious about this talk to your lawyer... if you don't have one get one. And I mean a lawyer that you pay! And even then, without a very specific situation, the lawyer will not be able to give anything other than a very general "opinion." In general, when working as an independent contractor, you have a contract with your employer which states what code belongs to them and what belongs to you. The concept of "your own time" may or may not exist in that contract. In general, when working as an "employee," ... it depends. If you include stuff in "their code" it belongs to them, independent of when or where it was developed (or by whom) -- which is why all of the various "Open Software" debates about "contamination" exist. Where you work will determine many things... State law trumps Federal law in such instances, and WHICH State law applies depends upon the state of incorporation, AND where they do business, and a whole host of other minutia. If you have an employment contract (ie something you sign when you are first hired), which is getting to be the norm for any company doing software development, that agreement will trump most all State laws unless it is "illegal." Pennsylvania is an "Employment at Will" state which basically translates into, the Employer holds all of the cards unless you negotiate some sort of "agreement" prior to signing on. In the end, it all comes down to who the employer is and how picayune they want to be -- and how many dollars are at stake. Translated -- if you write a SUCCESSFUL piece of software (one that makes money) you are more likely to be harassed by a "former employer" than if your code isn't very widely accepted. And one last point... any "corporate" attorney (ie not yours) will likely tell you that everything belongs to the employer (i.e. who pays them.) If this sounds seriously sarcastic and cynical, it is. But then that is the nature of anything which smacks of involvement with the concept of "intellectual property," which is more than a slightly hot button topic these days. One last comment... WARNING --you may already be an employee! The idea that you can be an "independent contractor" working for the same company "almost full time for a few years" probably means that you are NOT an independent contractor but an employee of that company. Unless you also have OTHER companies for which you work AND a written contract covering that long term situation, you are likely to be in serious legal limbo. The IRS has some very specific definitions concerning folks on 1099 forms. Companies are notorious for using "independent contractors" to avoid paying taxes and benefits on them... and the IRS takes a very dim view of that. T.T.F.N. William H. Magill magill@mcgillsociety.org magill@acm.org magill@mac.com _________________________________________________________________________ Philadelphia Linux Users Group -- http://www.phillylinux.org Announcements - http://lists.netisland.net/mailman/listinfo/plug-announce General Discussion -- http://lists.netisland.net/mailman/listinfo/plug
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