Prevent IP from hostile transfer to another company Our software company has a kick-ass product, which is the only thing of value to the company. What measures can I take to ensure the IP remains within the company? I have heard stories that a hostile board take over can transfer the IP ownership to another company. This renders any Golden Parachute, founders shares and etc as useless. The founder can have 30% share, but 30% of a ZERO value company is zero.
The board rules. Companies usually go to great lengths to be sure the company owns the IP developed within and for the company. But the company is governed by its board of directors and that board can decide to take the company in a new direction where some IP that the company owns would no longer be a key asset for ongoing business. Selling that IP to another organization might, then, be logical. Boards are elected by, and represent, the owners of the company.
How can you get in trouble? If they see any code you wrote for them show up in your open source project. They own the code you write on company time. Even if your code goes into an open source project owned by the company, you still don't own that code. The only way you can own it is if they directly tell you that you may put it into your open source project. If you make your open source project private so nobody else can see the source code, but they see your side business has the same features you wrote for them. You can try to get around problem #1 by hiding your open source project. But if they see the same features in it that they told you to write for them, they can become suspicious. They might force you to reveal the source to them in court. If you don't want them to see it, they may force you to share it with a third party who is bound by an NDA. The third party can compare your code to theirs and report if you copied any code. Even if your work is not directly related to the company products, your work for them can be a company secret. You reveal that, and you are in trouble. You say your work improves internal procedures, but is not directly related the company products. If a company can reduce its cost, it can lower its prices and still make more money than their competition. That gives them a competitive edge over other businesses. By revealing how your employer does its internal work, you give that competitive edge to their competition. Although you say your open source project does not violate rule #4 - "does not reveal company secrets" - all three explanations mentioned above say it does. What can you do? Quit and start your own company based on your open source project. If you quit, you should do it before you write any code related to your project for your employer. Ask your company to fund your project. Talk to your boss and anybody else there who might be a stakeholder. Tell them what you can do. Make a deal with them that you get to work on your project during work hours. Maybe they could turn it into an additional source of revenue for the company. That changes you from a potential loss into a valuable asset. Their competitors might end up buying products based on your code. Many companies would love for their competition to pay them. Ask your employer to allow you to turn your work into your open source project. Some companies require employees who work on open source projects to give their employers a royalty-free license to use and modify the work as they wish. Ask your employer if they would use a product based on your project. You can start a side business (with your employer's blessing), and turn them into your first customer. They get access to a beta product before their competitors do. Promise them they get it free or at a hefty discount for a year or two before the competition even knows what you have. The first option is win/lose. You win and your employer loses. The other three options are win/win. Good luck!
There is no provision for automatically relicensing infringing works (for example, distributing a program that contains parts covered by the GNU GPL and that is therefore a derived work will not automatically place the infringing program under GPL, even if that is the expected way for derived works to comply with the license. Instead, the derived work becomes at the very least undistributable, as there are competing copyright holders that disagree.
This is not insider trading To be an insider in the USA you must be a company officer, director or a beneficial owner of more than 10% of a class of the company's equity securities. You aren’t any of those. Or you are an “insider” if you trade based on non-public information in breach of a position of trust. The company’s lawyers and accountants, for example. Or if you obtain the information from an “insider” where the insider is behaving unlawfully, leaking it to you for example. You are not an insider if you receive non-public information outside a position of trust, for example, if you hear the CEO and COO discussing precisely why they won’t eat the company’s product at the table next to you in the cafe. In any event, the information you describe is public assuming your “investigation and research” was conducted lawfully. For example, by going through their trash or observing their operations from a place where you are permitted to be. Just because it took a lot of effort to collect it and analyse it to reach your conclusion doesn’t make it non-public.
At least in theory an end user could be sued for infringing on a patent, especially a method claim. Given the cost of a patent lawsuit, this strikes me as extremely unlikely to happen though, unless the user in question were an extremely large company, or something on that order. Theoretically, the only difference between open-source software and proprietary software would be that availability of the source code makes it easier to prove use of a patent in open-source software. Releasing the software as open-source doesn't confer any immunity from patent law or anything like that though. Realistically, however, the chances of being sued for infringement if you're basically giving away the software in question are fairly remote. It rarely makes sense for a patent holder to spend millions of dollars on a lawsuit where they stand no chance of even recovering their cost (but no, that certainly should not be taken as legal advice that you're free to infringe on patents, or anything similar--in fact, none of this should be taken as legal advice at all). If you can actually prove that a technique was published or publicly known and used (e.g., in a product that was offered for sale) well before the patent was applied for, the patent is probably invalid (and if proven so in court, the case would normally be dismissed with prejudice, which basically means the patent holder wouldn't be able to sue anybody else for infringement of that patent). I'd note, however, that in my experience this is much less common than most people imagine--many look at (for example) the title of a patent, and assume it lacks originality because it refers to some well-known technique, and ignore the claims where it details the precise differences between the previously known technique and what the patent really covers. Just for example, the EFF used to have a web page talking about a (now long-since expired) patent on how to draw a cursor on screen. In an apparent attempt at scaring the unwary, they showed code they claimed infringed in the patent--despite the fact that the patent's "background of the invention" specifically cited the technique they showed as being previously known, and not covered by the patent.
There is no fixed rule for this. Every situation is different, and of course there is nothing specific to software in there. It is very much a matter of intent. For example, negative profits are no clear sign. Company X thinks they could make $6 million profit by developing a product and selling it, minus $4 million development cost. It turns out development cost is $10 million. Raising prices is not possible because of competition. Company X will suffer losses of $4 million, without being predatory in any way. The reality is that a judge will look at the situation, take everything into account, and make a decision based on what they see. Since this is all about competition law, the main point is the intent or effect that your pricing makes competition impossible. That's what the judge will decide. For example, if you offer your service for $500,000 while others offer a similar service for $1,000,000 you could be using some super efficient processes that allow you to make money at that price, or you might have an idiotic sales person who will drive your company into bankruptcy, or you are trying to drive your competitors out of business. That's what the judge will decide.
The notice has a lot to do with legacy requirements in the United States to claim the copyright to a work. Up until 1989, the copyright notice was required. Today, the statements are mainly maintained to protect against "innocent infringement" which might reduce what a content owner can get in court. What exactly do those terms entail? That the owner stated owns all rights and you may do nothing with the content. My biggest concern is this: by writing that, is the company claiming to own everything on the website, even potentially copyrighted user-submitted material? That's exactly what they are doing. Depending on the terms of the specific site, content contributors generally either assign copyright to the site owner or license the content in a way that allows the site owner to do exactly what they want with it. Site creators with the smarts or money to do it right/get someone to do it right usually state something like: Copyright [Site Owner] and contributors. Other sites (like this one) state specifically what they hold the copyright to: site design / logo © 2015 Stack Exchange Inc THIS IS NOT LEGAL ADVICE. CONSULT AN ATTORNEY REGARDING YOUR SPECIFIC SITUATION.
This answer to a related question sums up the relevant concepts regarding work for hire. Since, according to your description of your relationship to A, you are not an employee (Commun. for Non-Violence (CCNV) v. Reid 490 U.S. 730), and you do not a written agreement, under US law, this would not be a work for hire: thus you hold copyright to something. I presume Company A gave you the source code and you are rewriting it to fit some technical requirement, so you have been given permission by the copyright holder to create a derivative work. You do not gain copyright to the original code: you only hold copyright to what you wrote. You would therefore need the permission of the copyright holder (of the original program) to sell copies of the modified program (currently A, company B in the future once the transfer is complete). There isn't a special "signing-over" ceremony for permission to copy, but the situation you describe is very messy. Even without a written agreement, you do understand that they intend to make multiple copies of the resulting program which includes your contribution, and you have received something of value in exchange for your contribution. So, one would argue, you have at least given permission to copy your stuff, even without a piece of signed paper -- in hiring you, you have given them an implied license to use what they paid you to create. The unclarity would be in whether you transferred your property rights, or simply licensed them to use it. Hence the recommendation to get an IP attorney.