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Say you were hired to create education software that will be sold to students of a particular academic institution. You are the only developer working on this project and have written all of the code. An open source alternative to the project has the potential of benefiting underprivileged students from around the world. In short, a free alternative would contribute to the greater good of humanity. Would it be "OK" to create an open source alternative to the software that you are being paid to develop?

P.S. The software will only be used by the students of the institution. There are no plans to distribute it commercially. The application does not make use of other people's intellectual property.

Ijichi
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    Elephant in the room: Creating and distributing a free competing version of the product that your current (or recent) employer is paying you to create would almost certainly be shooting your future job prospects in the foot. Prospective future employers *will* see that you've done this in the past, and will be (rightly) concerned that you might do it to them as well, if they hired you. – Trevor Powell Oct 27 '11 at 21:23
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    why not suggest this to them? that they release it as freeware with their name all over it. Positive publicity and public goodwill have value, after all. – Drew Oct 28 '11 at 08:54
  • While I applaud your progressiveness, unfortunately doing so is likely to draw a lawsuit from your former employer. (Keep in mind an angry business owner can file a lawsuit whether or not the case has any merit. The defendant is going to suffer lots of stress and costs, even if the defendant eventually wons.) In other words, if you see signs that the business owner will get angry because of that, you have to consider more than legality and ethics when you work out your vision. – rwong Apr 06 '15 at 02:56

4 Answers4

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In your situation, I'd take your question to the people who hired you, and see what their views on the matter are first. The big question of ethics is that of conflicts of interest, when you have two different interests or requirements pulling you in two different directions. One of them is your obligation to the client here, and if the client doesn't mind you building an open-source project on this idea, then their interests are not in conflict with yours.

Mason Wheeler
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Ethical?

Many times over yes. In the same way it's ethical for you to take the skills you learn at the current employer and use them at your next job, it's ethical to use your skills in your free time, however you want to

Legal?

Maybe. While it's not up to the company to control what you do with your free time, it's standard for the company to have NDA and non competition agreements as part of your contract. You also will likely not be allowed to use any kind of proprietary information and patents etc... developed and owned by your current company in your work, as well as, very obviously, you'd have to start from scratch when writing the code. It's neither ethical, nor legal, to steal from your current employer.

Notes

  • I am not a lawyer. Ask a lawyer for advice regarding your contract.
  • I assume you're a regular employee. A shareholder or co-owner of the company has other obligations
  • This may not be obvious, but working on the OSS alternative while working for your current employer is a bad idea. I assume you're talking of developing it after the end of your employment
  • How you do it is just as important as what you end up doing. The professional way to do this is to do it openly - to let your current employer know what you're doing.
  • Consult a lawyer, especially regarding the nitpicky details of NDA and non compete agreements. The enforceability, legality, applicability and various consequences of breaking NDA, non-compete and other agreements is extremely context specific; it varies between states, countries, industries, etc... Also be aware of the potential cost of litigation - there are many corner cases where you can be forced to pony up legal fees just to prove your point, costs which might be debilitating even if you've done nothing wrong
blueberryfields
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    +1 For the legality part, it's quite common to have non compete clause in contract. – HoLyVieR Aug 28 '11 at 00:04
  • I heard that in the United States, some states don't allow non-compete clauses. Sometimes depends on the industry too. –  Aug 28 '11 at 03:55
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    If you did this AFTER LEAVING and any no-compete has expired, I think it would be borderline. If you did this while still employed it would not be ethically or morally right. – quickly_now Aug 28 '11 at 09:32
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    Why not ask your employer for permission? Maybe a licensing model for the original software is possible that would yield your intended benefit without hurting sales? – tdammers Aug 28 '11 at 11:54
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    @quickly_now It's heavily in your employers' interests to convince you that is true. The truth of the matter is, as long as you are not stealing from your employer, there are no ethical or moral obligations to keep you from working on any other projects. It's actually quite the opposite; in some jurisdictions it's even entirely illegal for the employer to include clauses in their contract preventing you from competing, and in many others the clauses, while legal, are not enforceable (again, IANAL, check with a lawyer before making a local legal call) – blueberryfields Aug 29 '11 at 00:29
  • @blueberryfields: this kind of thing comes up again and again on this forum. And my response is always the same. If you are in USA, UK, Australia, or any place where employment law is derived from English common law, then WATCH OUT. Because under the English common law the employer owns ALL the fruits of your labour irrespective of the time of day created. Statue law may change this but it depends very much on where you live, the field of work, and how related or unrelated your private acitivies are to your employment. BE CAREFUL. CONSULT A LAWYER. – quickly_now Aug 29 '11 at 01:23
  • @quickly_now Your second comment sounds a lot less certain than the first. The "WATCH OUT. CONSULT A LAWYER" advice is very sound here. What do you base your common law comments on, though? The most recent reviews I've seen on this subject matter contradict your conclusions – blueberryfields Aug 29 '11 at 04:30
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    @Blueberryfields: In Australia, what is proposed would almost certainly be illegal. Employment restraints are commonly used here too :) – quickly_now Aug 29 '11 at 10:03
  • @quickly_now beware the difference between 'potential violation of a contract' and 'illegal'. You might get sued for it, but it's not an illegal act. – Kirk Broadhurst Oct 28 '11 at 04:44
  • Sigh. If you got sued and lost then you would have been judged in the eyes of the law as having broken it. This is shaky ground. Time to get off the open-source-I-can-do-what-I-damn-well-like bandwagon and live in the real big nasty world. – quickly_now Oct 31 '11 at 04:43
  • most non-competes would be struck down in court. A company is not allowed to limit your use of skills even if you're working on the same stuff as long as you aren't using any relationships and materials gained from the company (for example working on the open source version on a work laptop while you're employed, or using your connections to get clients to switch from the proprietary project to open source) –  Apr 05 '15 at 18:34
  • @omouse be very careful of voicing strong legal advice of that kind - especially when considering the wide range of international (and, even assuming you're restricting yourself to the US, inter-state) law. – blueberryfields Apr 06 '15 at 02:34
  • There is absolutely nothing ethical about expecting a client to pay you to write code and provide access to their staff and business practices for a developer to to give that knowledge to others (at all, free or paid) unless specifically agreed up front. While a non-compete clause might not be legal, they would not be able to say there wasn't a confidentiality breach. I would bury that developer in lawyers until they literally pooped red tape... – James Snell Apr 06 '15 at 18:11
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Ethical? Maybe, ethics are a personal decision. Legal? Possibly, depending on your contract with the company. Smart? Heck no, when future employers see you as their competitor, your resume will go in the trash can.

Ross Patterson
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  1. If you take up actual code and some critical design which is already developed in your paid project - copying that and giving in Open Source - that is Un-ethical and Illegal.

  2. Even if your code is fresh - if yo are taking away any Intellectual property it is Un-ethical and illegal.

  3. If you use time or other resources of the company for what you are paid to use that towards open source project instead of contributing to your real project - that is Un-ethical (and might become illegal if you are caught).

The balance seems to be governed by natural laws of competition in the society.

Dipan.

Dipan Mehta
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