Sun accused of hardball open source project tactics
Weighs ex-employee's claim
Neil Wilson, a recently laid-off Sun Microsystems employee and a former owner of the OpenDS project, has accused his ex-boss of using strong-arm tactics to keep control of his project.
In an open letter Wilson said he's finally gone public to "clear the air" having kept quit for fear of potential retaliation from Sun. Retaliation in this case meant lost severance.
Wilson helped found OpenDS, which aims to build a free, open-source directory service. Written in 100 per cent Java, it includes a directory server and such related services as directory proxy, virtual directory, namespace distribution, and data synchronization. Wilson served as project architect, and claimed to have contributed "more code than anyone else."
He and four other OpenDS committers were laid off when Sun closed an Austin, Texas, facility in late September and moved the Directory Server engineering group's activities - which included OpenDS - to a facility in Grenoble, France. The other OpenDS project owners were Stephen Shoaff, Don Bowen, and David Ely, and OpenDS community manager Trey Drake.
In an open source project, "owners" are the participants who establish the governance scheme, set the projects goals, guide the community effort, and resolve disputes among project contributors.
According to Wilson, the group planned to continue working on OpenDS after the layoff. But in mid-November, they clashed with Sun executives over the project's governance. According to Wilson, they were informed of Sun's intention "to change the OpenDS governance policy so that the project was controlled entirely by a Sun-selected committee."
Then, during a conference call, Sun "demanded that the owners approve a governance change that would grant Sun full control of the OpenDS project. During this call, we were threatened that if we did not make this change we could face immediate termination and loss of all severance benefits."
The soon-to-be former Sun employees decided, Wilson wrote, they couldn't, in good conscience, approve the change, but didn't want any trouble about their severance. "After first trying to resolve the issue through more amicable avenues," Wilson continued, "we were ultimately compelled to resign our ownership and end our association with the project on November 19, 2007."
Sun insists that, though some executives were probably playing hardball in this exchange, no one was ever asked to leave the community. And in his letter, Wilson said that he believes this clash was not representative of Sun's true open source strategy, but was "a relatively isolated incident brought on by middle management acting of their own accord."
At press time, Wilson had not returned our calls. You can read his entire letter here.
Simon Phipps, Sun's chief open-source officer and ombudsman, was reluctant to talk about the incident, because he said he's still looking into it. But he did want to set the record straight on a few points.
If the OpenDS bylaws had said STEWARD or TRUSTEE & not OWNER, then Sun wouldn't have a claim...
If the Open Source Community wishes to ensure that commercial companies don't usurp their employees' positions as representatives on Open Source projects, then the community should NOT USE THE TERM OWNER IN THEIR BYLAWS when the people are in fact holding positions as STEWARD, TRUSTEE, GUARDIAN...take your pick.
If the OpenSource Communities don't want to play in a world that includes BUSINESS controlling the landscape...then the OpenSource project players should not voice or signaturely endorse the use of any BUSINESS TERMS or CONTEMPORARY BUSINESS LEGAL CONCEPTS that can end up in legal documents adversely affecting the project!
In fact, the word "King" comes to mind as a better choice than owner. How much power would Sun have if the OpenDS bylaws said: "The King is Steward over the Programmer Peoples. The King is Trustee over the properties created by the Peoples. The King reserves the right to give policy decision making authority to another Knight, then that Knight becomes King".
If the former Sun employee was merely Steward or Trustee, then Sun would not have any claim to Ownership. As it stands, Sun does in fact retain OWNERSHIP of any claims that an employee might have as OWNER if they obtained it on BUSINESS TIME in the COURSE OF BEING EMPLOYED WITHIN SUN'S BUSINESS...even if they are given to the employee by another organization. Any organization! Even the Queen of England!
If a Sun employee were visiting the Queen of England and she Knighted him and gave him a sword & coin-filled cash box for writing JAVA for JESTERS...the sword & cash belong to Sun.
If the Queen made the Knighted Sun employee STEWARD of the SWORD and TRUSTEE for the DISTRIBUTION of the ROYAL CASH Sun wouldn't have a leg to stand on.
As far as the alledged threats, it depends on how it was presented. I'm betting that the managers said something like this to the employee:
"We request that you release any personal ownership claim you have on OpenDS & allow the transfer any held Owner position to an active employee of Sun as a matter of the Business Conduct Agreement you signed. I am telling you, that as your manager if you don't do this you would be insubordinate. One consequence of insubordination is that by law you can be terminated then for Corporate Misconduct. When you are terminated for misconduct, you by state law are not entitled to an Unemployment Claim. That is not Sun's run...that is state law. Also, depending on Sun's current policy at this time, you can lose your opportunity to elect COBRA Continuation of Health Care Benefits. You then have 63 days to obtain new coverage under an insurance policy. If you don't do this within 63 days, any medical preconditions that you might have can make you ineligible under some individual medical policies. In addition, a future employer's group policy may also exclude any coverage for preconditions subject to a waiting period."
What I've just shared with you, Mr/Ms. R. U. AlmostInsubordidate is a combination of Sun Separation Policy (offer of COBRA) and Federal Law (continuation & portability of insurance coverage under HIPAA-the Health Insurance Privacy & Accountability Act). My point is, it is not just all about Sun's rules. Laws apply here as well.
Therefore, I recommend that you not be insubordinate at this time. When you became a Sun employee you agreed to the Standard Business Conduct Guidelines. Sun retains ownership of any Ownership claim you might have as to OpenDS."
Would the above be a threat? No....merely statements of fact. The facts just happen to be ~very harse realities.~ Could the manager's statements be misunderstood as a threat by someone on the defensive? Most certainly it could be perceived as a threat.
I'm told that when programmers & engineers sign on to Sun they sign a Business Conduct statement which states in the Sun "Standards of Business Conduct" that "Any work developed by Employees or Contractors within the scope of their employment with Sun belongs to Sun.
If the former employee thinks that the Business Conduct Guide only applies to the WORKs and doesn't apply to OWNERSHIP OF A BOARD POSITION....they are of course free to dispute that. But, they better make an effort to truly understand the other sides position with an open mind & a clear understand of the facts, policies, & applicable law. And most of all, understand that WORDS MATTER.
Not about code but control
As with most issues with open source projects, the issue wasn't ownership of the code but control of the project. There are a few open-source projects that have successfully moved from company to company with the founder - Python is probably a good example.
One way that this stacks up
Sure, the code is most likely owned by the company if developed in company time and most likely they can do what they want with it.
There is is a possiblity though that this might not be the case. If the programmers were hired into the job with a promise of this being open sourced, then that might be binding on the company. ie. the employee might have attached some value to the opensoured-ness of the project and by changing this the company are violating the agreement with the employee as much as if they only paid half his salary, or promised him free coffee and then gave him decaff instead.
Of course any sensible company well staffed with lawyers is unlikely to commit themselves without a rash of get-out clauses in their favour.