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Doug Nebeker ("Doug")
I've always done small side-projects at home on my own equipment to learn new languages and technologies and also just for the fun of it. It is obvious that they are just small projects.
There was a recent post here about supporting software and mixing it with a day job. I am re-posting my reply as a new post as a warning about stupid, bullying companies and how they react after surfing the Internet and encountering a small hobbyist project on the Internet, even one that is very much removed for anything they do.
This happened sometime ago. But I was shocked on many different levels. What their aggressive lawyer was hinted at was almost physically impossible. Despite their promise to take me to court, they couldn't even have the courtesy to tell us they dropped the case after we replied to them.
It was a huge waste of money on lawyer's fees for me. At the time I was obviously younger and naive. It always show you can do maximum damage - even without a proper legal case - just by making aggressive threats and demands. Then walk away without even filing a court case.
Anyway here is the re-post.
I lost my job during a recession and had to get a replacement job. Nobody was hiring in the city I lived in.
I ended up working in a company that only had software development as a very small side-line. Their application hadn't be updated to years and years and was falling apart. It wasn't legacy technology, it was the previous technology before the legacy technology.
Their hardware was old and even for the old stuff it was barely workable.
I was wasted there. My boss was an idiot. He didn't listen to me. He wasted my time with a series of pointless tasks.
I always tried to tell the truth and do the right thing. But he just didn't listen. I pointed my boss in the right directions but he wasn't interested.
Unsurprisingly I left there eventually.
I have always done side-projects in my own time, at home and on my own equipment. I don't make a secret of them. I put them on my resume so future employers can see examples of what I have done and know that I keep my skills up to date.
I know what is right and what is wrong and what can lead to accusations and ambiguity.
I never used any of their equipment or time for my own work. Further to that their equipment and development environment was so useless and old, I couldn't have even if I wanted to.
I always got the gut feeling my boss was a dishonest scumbag and that he would try any trick to make a dishonest buck.
Even what clients we had practically told him the same thing to his face.
I left that company. Several years after I left, I got a letter for a lawyer representing this scumbag little company. I hadn't even spoken to them for years.
The lawyer presumably was constrained by what he could say. So he hinted at every thing. Most things were phrased as questions. One paragraph contradicted the previous one. Nothing was said directly. There was not one single shred of evidence, nor any specific details or times and dates. It was just a load of jelly.
Nonetheless they said for a fact my behavior was illegal (but contradicted almost elsewhere in their letter) and they were taking me to court, despite not one single specific thing or shred of evidence.
The lawyer made threats about court costs and said I had to reply immediately.
I wrote to my local political representative who forwarded my letter to the government department of justice. The department said lawyers are not allowed to make threats about costs as it is against such and such laws and regulations. Also you must be given sufficient time according to the rules to reply. So the lawyer broke at least two rules.
I should have referred their lawyer to the relevant regulatory body I guess, but it just didn't occur to me at the time.
I hired a local lawyer. He took a load of cash for me and then I never heard from him for months and months. I then had a brief meeting with him which was a little strange I guess because the other side had never followed up despite months having gone by and they did say they wanted an immediate reply.
I never heard from my lawyer or the other side again.
In retrospect I should have just thrown the silly letter in the trash can. I had not done one single thing wrong. I never used their equipment or time for any of my own work.
It was doubly stupid as their equipment and development environment was too old to be usable for anything modern and my boss just asked me to do stupid things when I was there.
Thursday, March 21, 2013
Not sure what to make of all that.
No doubt, we've all worked at places like that over the years and it is always best to walk, as soon as you have a better offer.
OTOH, if you signed a contract that said they owned everything you did during the time you were employed, they have a point. Sadly, some people have been known to sign such contracts, even though with hindsight they are shown to be unreasonable. Not saying you did, of course, but that might be root of this whole story. Or maybe it was just simply a dodgy boss and an even more dodgy lawyer.
Thursday, March 21, 2013
I was quite upset at the time as I recollected the scumbag boss lying at company meetings (about stupid things that had no need to be lied about) and also lying to my face when I was there.
I was quite naive about civil law and probably still am today. I didn't know if they had to prove anything or whether I had to disapprove everything.
I imagined I would have to prove absolutely I did nothing wrong. It is impossible to prove negatives. How can you prove either way you didn't write a sentence at work and then somehow bring it home? They never provided any evidence for anything. A big zero from them.
So I spent some time amassing documentary evidence that I couldn't possibly have done anything wrong.
But it seems they dropped the case without telling us.
I think even my own lawyer was dishonest and just arranged a meeting with me to justify all the money I had given him for no work.
At the time I was just about to do rather involved things in my life. I cancelled them to handle this case. But the months rolled by. I couldn't get in contact with my lawyer. The other side never wrote back. I was wondering what was going on. I was a little worried.
But poof! Nothing happened. They were probably never going to court.
I've heard it said that dishonest people never want to go to court as their lies and half-truths will unravel, plus all the dirt they are involved in will come to light.
So it messed me around a lot. It wasted a bundle of my cash and wrecked my plans, because I cancelled them to defend the case. The case never happened. It was all like some bad, sick joke.
Thursday, March 21, 2013
I don't know how much " a load of cash for me" is, but getting a lawyer to respond to the letter from your ex-employer was a good move. Never, ever throw a letter concerning legal matters in the garbage. Next time find a better lawyer to represent you. Most bar associations have a directory and in order to be in the directory, lawyers usually offer a deal on an initial consultation. It doesn't hurt to shop around for a lawyer.
"I left there eventually"
Another good move, for lots of reasons.
"in my own time, at home and on my own equipment"
Yup, that's the only way to do side projects, and keep records to prove you maintained a complete separation between your job duties and personal projects. If you are successful with a side project, you become a very attractive target for lawsuits, and in most situations, the burden of proof will be on you.
"I should have referred their lawyer to the relevant regulatory body"
No, it would have been a waste of time and resources on your part.
Other than possibly paying more than you needed to for your lawyer, you couldn't have handled this better.
You can't count on employers treating you fairly, and there is no loyalty anymore from either employers or employees. Build up your employability by yourself, because odds are no one else will.
Always read the contract and do not agree to terms you don't agree with.
There are always stupid people in these discussions who say "I think the contract was dumb so I signed it, it shouldn't be upheld because it is unfair." Wrong. If you agree to it you agree to it. It's very rare for contract clauses to be tossed out in court, and when it happens that's after you've spent a lot on legal fees (figure an absolute minimum of $1 million for any case involving IP that actually goes to trial and results in a jury verdict).
Family lawyers that do wills and such, or even handle DUIs might cost $150-$300 an hour.
Lawyers that can handle business and simple IP matters like filings are $300-$500 an hour.
Lawyers that know patent law and can handle disputes are $400-$800 an hour.
Lawyers that can handle international patent and IP law who can handle disputes are $1000+ an hour.
If you are paying $100 an hour for a small town lawyer for this sort of stuff, you have no one but yourself to blame when you get a bad result.
+1 to Scott fro telling it like it is.
Friday, March 22, 2013
for, not fro. Doh!
Friday, March 22, 2013
If I launched a collection of products in my own time called the iPhone, iPod etc..., I wonder if my employers would be happy being the target of Apples's lawyers since they claim ownership of any thing I produce in my own time?
I'd love to see a test case of an employee using their employment contract in this scenario to move the responsibility away from them and onto their employer.
As an employer, the last thing I would ever want is to take responsibility for any potentially illegal activities my employees got up to on their own time when they are outside of my control.
Sure, I'll run that case right now, that's an easy one.
Let's assume you're an employee and you've signed a contract with SoftCorp saying everything you do is work for hire, and it includes ideas you have whether at work or at home, on work equipment or your own as long as that work is related to the business of the company, which is defined as "software". This is a pretty common situation.
So you develop software and sell it on the internet, calling it an "iPad".
And it goes to court.
Here are the findings for you.
1. All software and hardware is the property of SoftCorp since the contract clearly specified.
2. Employee in violation of contract, and criminally, illegally converted the property of SoftCorp for his own purposes when his sold the property of SoftCorp on the internet. Fined triple damages for bad faith conversion, and case file is being remanded to the district attorney who is considering filing criminal charges with up to 15 years prison time.
3. SoftCorp was not told of, and did not approve of illegal use of iPad trademark. In the lawsuit by Apple against Company and Employee, Company is dismissed as party to the defense, and trademark violation damages are levied against Employee.
It is so ruled.
I perversely actually wish they had actually submitted a complaint to court, but that was never going to happen. It would have been a farce and I guess they knew that.
A previous poster did suggest an extreme case to poke fun at how ridiculous these sort of things can be and Scott responded seriously to it.
I can see many problems with surfing the Internet and saying you own the copyright of something that you were never a part of.
As an academic exercise here are some problems:
1) You don't know who actually wrote the software, when and in what country.
2) You don't know what hard proof there is when the software was written. It could have even been published before the scumbag company was incorporated.
3) It may have been written by 1 person or 2 or several. It could have even been written by people that you have never heard of. It would be very stupid of a company to claim copyright of a piece of work and then for it to come out it was published in a journal by a man they had never heard of before their company was even incorporated.
4) The source code could have even been published in a journal or given away free with records in various places. Some of the source code could have even been given away free to a government department before the scumbag company was even incorporated.
5) The work may have been government sponsored and so have hard records of when and where it was done.
6) The work may have been done at a university with appropriate records.
7) The work may have been sent to a government department as a means of proving copyright with hard dates.
8) How can you own something you were never given?
9) How can you own something you never directly ordered?
10) Was it written before or after the relevant times?
11) How can you own something you didn't even know it existed until several years after the person left?
Friday, March 22, 2013
I was about to do something important in my life and I wanted a clear head.
I did think the whole matter could be cleared up with one phone call between the lawyers or even the disclosure of one fact - that was already public, but for some reason the idiots on the other side were too stupid to see.
If they had submitted it to court, they would look like complete idiots, because there were public facts that made they case look stupid.
But for some reason, my lawyer practically eluded my attempts to contact him. Months went by and I didn't know what was going on. And probably nothing had gone on.
The other side couldn't do anything, because their aggressive letter was just a bluff because they were sitting in a pile of nothing.
I was stewing for months over a matter I thought could be resolved in seconds.
It wasn't good.
At the time I was shocked because the boss of the scumbag company was a complete liar, was involved in abuse of software licenses and I don't think in the time I knew him had one sensible software discussion with him. And he was suing me! It didn't make sense.
I also couldn't understand how a professional lawyer would take up a case that was a big nothing and then write an aggressive shake-down letter.
There was some karma. A couple of scumbags involved in this lost their businesses, which is something.
Saturday, March 23, 2013
Time to let it all go...
Saturday, March 23, 2013
I'm with Scorpio on this one, look after yourself and leave those you feel have wronged you behind. And I'll vouch for Scott's legal advice. Using extreme examples is a common technique in legal arguments. In the legal world (and in most worlds) there is nothing special about software and IT. The same issues could turn up in finance or engineering. At this point, the only way your former employer can damage you is if you don't let it go.
Scott is practical when he tells you don't sign bad contracts or you will pay. Listen to him.
My not so few words on the subject:
Jurisdiction does have a lot to do with outcome. I know of one case where the employer had to pay legal fees and time lost at work. The case was found frivolous exactly because it was defined broadly as "software". In another very similar case in another state, also known for its love of capital punishment, the employee was practically destroyed. Some jurisdictions don't like it when employers get cute with contracts and try to lock people down. Some jurisdiction could not care less. Same as with non-competes. These issues are getting very politicized in the US at least . California outlawed non-competes. MA and other blue states have similar legislation in the works. Many tech workers have moved back to CA to get out of their non-competes.
But even if you win, you lose financially, unless you live in those jurisdiction where employer has to worry about going bankrupt because you can sue him for having signed a non-compete or broad work-for-hire terms. California man sued for and won lost wages for the time he was unemployed. He claimed he was intimidated to look for work due to having signed a non-compete with his employer before non-competes were illegal in CA.
No matter which way you go, laws provide a way for scum and predator types, Employers or employees, to look for ways to harm people.
People blame the market and capitalism for these things, but in reality these things are legal/government inventions that hamper the market.
Scott is spot on here.
Although a very different kind of case, I took out a court order to prevent my ex and her dodgy husband leaving the country with my children.
I knew I couldn't permanently prevent them from going but thought it worth spending the money to let a court look at my concerns.
Looking at the case law it seemed there was no way that the court would accept their stupid proposals, and they they decided to ignore the court order and just move despite being explicitly told by a judge not to do so my solicitor was confident that they wouldn't be allowed to go.
However... the judge took the opinion that despite the fact they'd ignored the court order, since they had already moved it would be less disruptive for the children to let them go without even looking at my many concerns!
Never think that just because any reasonable person would consider the other side to have a weak case that they can't win.
As someone else said though, you have to let it go or it will go on eating you up.
John W King
Tuesday, April 02, 2013
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