To attract top talent, companies need to adopt more balanced IP agreements

According to GitHub’s 2017 open source survey, 37% of contributors to open source projects don’t know whether their work contract allows them to contribute to open source outside of work. Another 12% need to get permission before doing so.

Photo by Parker Gibbons on Unsplash

The big picture: employers regularly seek to hire open source contributors, so much so that the word out on the street today is that if you’re a software engineer, your GitHub profile is your resumé (that’s a an issue in and of itself, but not the topic of this article). Software engineers know that very well, and strive to maintain a healthy open source presence, even when employed; a hole in your GitHub activity calls for justification just as a hole in your resumé would.

Anything that prevents software engineers from contributing to open source is a deterrent to hiring engineers who have a career plan, i.e. the very ones you want working for you. This is why many employers adopt an open source-friendly posture.

Yes, but: in the USA, employers generally own all intellectual property produced by their employees thanks to laws strongly skewed in their favor. And in states where the law is a little more balanced, it’s generally still the case that IP created using company property belongs to the employer. If you thought company-issued laptops were just a perk, think again. They’re a great way to make sure everything developers produce belong to their employer; do you know of many developers willing to lug two laptops around so they can ship a quick fix to their open source project during their lunch break?

This situation is obviously ripe for abusive copyright assignment. I’ve received a first-hand account of developers creating a highly successful open source project on their own time, but on company-issued laptops, and loosing the custody of their project to their employer on copyright grounds. Expected from a legal perspective, but clearly not the outcome most developers would have imagined.

What to watch: The Balanced Employee IP Agreement (BEIPA for short). Created by GitHub and released in the public domain—well, technically under a CC0 license—BEIPA is based on GitHub’s own IP agreement. Its purpose is to strictly limit the employer’s claims to creations made for or relating to the company’s business.

This is much more inline with what developers expect and, frankly, with common sense. It avoids creating lose-lose situations that potentially carry reputational damage to companies which enforce their copyrights—developers talk to one another, you know—and disagreeable surprises to developers contributing to open source (or personal projects) on their own time.

The bottom line: the first companies to adopt BEIPA (or similar agreements) and promote it will gain a tremendous amount of developer goodwill. Overflowing hiring pipelines let you pick the very best. Ultimately, the rest of the industry will follow suit and catch-up, but until it does—and that takes years—it’ll have to content itself with the chaff.

Open Source & Web Standards Consultant.

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