Ask HN: Can I fork my open-source project I created under an employer?
Released an open-source project I alone created while working for a tech corporate. The project was released under the employer GitHub account with an MIT license. Am I legally allowed to fork the project and use it commercially after leaving said employer? Especially given the draconic corporate contract frofeting rights of any side project to the employer during my employment.
(California law applies)
29 comments
[ 2.6 ms ] story [ 78.2 ms ] threadHowever if I understand correctly the license only applies to code. Any assets should either be covered by a separate license or in the case there isn’t one the employer retains copyright.
I second this.
You have to consider any non-compete and NDA agreements as well however.
The company owns the code but has given permission to use it as specified in the license. Fortunately, the MIT license is very permissive. You thus have their permission to do a lot. You don't have rights, you have a license.
You may have signed an employment contract that puts limitations on what you can do. I wouldn't hesitate to fork a MIT licensed project, but your other contracts with the owner of the code may complicate things.
I'd be first concerned with what your employer might think / what if any restrictions / you agreed with.
MIT license could say one thing, but an agreement with your employer says something entirely different regarding what you can do.
Maybe you have agreed to more restrictive terms than the license for use of the company's software in another agreement that supersede the license grant.
Maybe you knew things about the anticipated development of this open-source project beyond what is currently released and licensed openly, and non-disclosure would complicate your contributions.
Maybe you are subject to a non-compete, and this could fall afoul of some of the provisions.
Maybe the employer could make a claim that he was involved in the license selection, and advocated for the MIT license in bad faith so that he could personally benefit.
Maybe it could be tortious interference, depending upon the individual facts involved.
This is why you should talk to a lawyer.
Lawyers are expensive, this question obviously doesn't warrant the trouble of finding a lawyer and paying them hundreds of dollars to read op's contract with their employer or exegete the MIT license.
If the only value you can provide is to suggest talking to a lawyer, maybe don't reply :-P
The times I‘ve had to pay substantially for legal services have usually involved investments or tax issues related to stock options. It always feels substantial, but pales in comparison to the amounts of money involved and having a reasonably certain confidence that I’m not going to “lose” any more of it.
I would suggest that you weigh the amount of time you think it would take you to recreate this project as part of your startup costs. That is money that you will “gain” by using this project.
Other than that, the MIT license itself should allow you to use it commercially no problem.
You wrote a piece of code while employed. The rights went automatically to the employer, because work for hire.
The employer releases the code under a permissive license on their Github. To everyone.
You don't see any exceptions in the text of the license. The license says that as long as the license and copyright notices are preserved, any rando in the world can do whatever they please with that code. "Any rando" includes but is not limited to: their competitors, the maniac next block who's out to get them, the police, ICE, Hamas terrorists, maybe even their own mothers-in-law. But they don't care, they released it. Period.
Yet somehow you (and a good half of the commenters) imply that there's maybe some unwritten clause that specifically denies the license grant to you, the freaking author of said code, specifically, even though it's not there in the license text.
The mere existence of such thought, and the number of people who subscribe to it, is sickening me to no end. I loathe their filthy minds.
This is licenses and contracts, not theory. It's lawyers and cowboying up.
If it were me, I'd say that the license files should be _authored_ by someone in the company who has a say on such matters. Come on, if it's work for hire, the copyrights by default don't belong to you, so you don't go licensing it left and right, it's your employer's prerogative!
To put it another way, the legality matters less than the relationship. A lawyer can communicate with the former employer in a way that mitigates potential problems. Or say it is unlikely to be a problem.
If it matters, you need to hire a lawyer. Suppose your former employer claims that you acted in bad faith when proposing the MIT license? It doesn't matter if you did or didn't. Your former employer probably has deeper pockets for hiring lawyers.
If you're looking to start a real business, paying lawyers is part of it. This won't hinge on general principles. It will hinge on specifics and the degree of good will involved.
Good luck.
That said, as others are trying to point out, there may be other issues that are NOT related to the code. You may have restrictions in which field you work and for what client. In this case your employer must approve your employment elsewhere and if they prevent it they must pay a significant portion of your salary until you find a suitable different employer in a different field (at least that's what my contract says but I am European so it might be different in the States).
Anyway, the simple case of using the code is allowed to you under MIT license.
There are probably whole countries that forbid these contract provisions, or forbid enforcing them.
Don't assume that any particular right you signed away to get a job is really gone. Ask a local lawyer. Expect to be surprised. In many cases, even when there is no specific law, case law has interpreted such clauses very restrictively, making them de facto unenforceable for, e.g., anybody below company officer level.
Just because the employers approved some code to be released under the MIT, which allows for unfettered competition using the ideas embodied in that code, doesn't mean they approve the leakage of other ideas (either into that code, or any other code).
Nothing in the MIT license itself prevents you from forking the project; from that perspective, it's no different from any other individual's or organization's MIT-licensed program. It's all about what you are allowed to do according to the entirely separate contract with the employer.
A better question is whether your company is ignorant about what the MIT license means. In the real world rules and laws are not the only things that matter. You can be attacked while in compliance with all laws.
Yes, but follow these limitations:
* Always keep your fork at least as open and free as the original license. The more restrictive the open source license you choose for your fork the less willing a business entity will want to entangle themselves with it. That is why I prefer these licenses for my personal projects: AGPLv3 and CC0.
* Never violate the terms of the original license.
* Don’t compete with your employer.
What you can’t likely do is induce previous colleges to quit the company and join your new company for whatever the term is that the contract says you can’t. Usually a year.
When you “fork” it don’t just hit the fork button if you are real concerned. Make sure you have your own copy of the thing and re push it.
They can sue you if they feel like it no matter what the contract says or CA law but they will probably lose on the terms you mentioned in CA. So unless you are high up and going to a direct competitor of say amazon hypothetically, you probably have nothing to worry about.
And yeah, sure, have an attorney read your contract if you really want. It’s 300-400 bucks well spent because then you have an attorney you have worked with when something real hairy comes up.