Employers should not own open-source contributions

A growing number of companies across industries depend on open-source software one way or another, and there is substantial research to back up that claim. The canonical example is the 2018 Open Source Security and Risk Analysis by Synopsys report, which finds that 96% of more than 1100 analyzed applications include open-source components and that on average 57% of the codebases consist of open-source code. Even as early as in 2003, Lakhani and Wolf (2003) found that approximately 40% of software engineers that contribute to open-source are paid by their employers to do so and that “one-third of the respondents in their survey felt a sense of obligation to give back to the free and open-source software community.” Furthermore, such hacker spirit seems to be finding its way up to software companies too. For example, Andersen-Gott, Ghinea and Bygstad (2011) found that every company they interviewed expressed a moral obligation to contribute to open source.

What do employment contracts say?

Despite the benefits that companies get from open-source and their desire to contribute back, many companies still offer employment contracts that are not friendly to open-source contributions from an intellectual property point of view.

Almost every employment contract I’ve seen outlines strict intellectual property ownership claims over any work that cannot be unambiguously proven to not be related to the company. Some companies go the extra mile to claim full ownership of every idea, invention, or contribution that the employee might create during their time of employment, even if such work was performed during their free time and without competing with the employer in any way.

In other words, companies typically own a part of your intellectual property that includes open-source contributions and in some cases unquestionably own all of it.

So what is the problem?

Depending on the type of work you do for your employer, such intellectual property conditions make sense. However, I argue that such clauses often become a problem for software engineers for whom open-source is a key part of their roles.

For example, imagine that your company develops an application using a certain open-source framework. Sooner or later, your company will be interested in hiring software engineers that are intimately familiar with such framework. The natural way the find these people is to look for those involved in the open-source project either as casual contributors or appointed members of its governance. When one of these software engineers joins your company, they will likely produce open-source contributions that are directly related to the company’s application. They will also produce open-source contributions in their free time as part of their overall involvement which might have an impact on the company’s application either directly or indirectly. Under such a scenario, whether an open-source contribution is owned by the company or not quickly becomes ambiguous. Such ambiguity then results in various problems:

• Contributor License Agreements (CLAs): The contributor might not be able to sign CLAs as an individual as in many cases, the potential contribution might not be their intellectual property. Contributors don’t sign CLAs for every individual contribution, so typically employees need to get the company to sign the CLAs to be on the safe side. Getting companies to sign CLAs, adhering to any additional requirements they might impose (like using a company e-mail for commits), and having them maintain the white-list of employees that are allowed to contribute involves a significant overhead for both the contributor and the company. On top of that, not every open-source project has a process in place to accept contributions that involve company-owned intellectual property.

• Current Contract Violations: The ambiguous nature of such contributions often means that there is a surprising amount of existing employees unknowingly violating their contracts by signing CLAs as individuals and upstreaming contributions that are arguably owned by the company. Employers do not typically chase down employees for these minor violations but employees are still likely to feel uncomfortable once they realize what the contract has to say about that.

• Scare Away Open Source Talent: Attracting key open-source talent into a company can have a significant positive impact on the organization. However, open-source talent is typically sensitive to intellectual property clauses. An excellent candidate at the offer stage might object or even refuse to sign a contract that significantly impacts the roles that such candidate might have in one or more open-source projects. On the flip side, a set of intellectual property clauses that are friendly to open-source attracts open-source talent into the company.

How can we fix this?

To solve this problem, contracts can be modified to permit and encourage open-source contributions with no intellectual property rights back to the company, while still protecting the competitive advantage of the proprietary software developed by the company. An example clause that serves this purpose reads like this:

The Company shall not own any intellectual property, under any circumstances, over contributions made to open-source projects not owned by Company, independently of whether these external open-source contributions impact Company directly or indirectly, resulted from work done at Company, and independently of whether or not these external open-source contributions are created using equipment provided by Company or not.

This clause helps employees from accidentally violating their contracts regarding open-source contributions, allows employees to sign CLAs as individuals, allows them to easily upstream any open-source patch they create, encourages them to make open-source contributions time and attracts and retains key members of the open-source community.

Parting thoughts

A company’s competitive advantage is rarely a set of “secret” patches to a set of external open-source projects. If that was the case, the company would not exist if it wasn’t for such open-source projects. Liberating open-source contributions from intellectual property ties benefits employees and employers while fostering the idea of free software that has undoubtedly changed the world.