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mlinksva committed Aug 15, 2017
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Expand Up @@ -42,23 +42,23 @@ Broad adoption of BEIPA should have similar beneficial effects for the communiti

### What does BEIPA mean for open source?

BEIPA makes it clear that an employee can contribute to open source projects in their free time, without needing employer permission. But BEIPA is not specific to open source: An employee can also work on a closed source project in their spare time, and own it. BEIPA controls when an employer owns IP created during a period of employment, and when an employee does. Open source adds another dimension, permission to *anyone* to use a knowledge product (e.g., software), subject to at most very limited conditions concerning provenance and sharing.
BEIPA makes it clear that an employee can contribute to open source projects that aren't related to the employer's business, without needing employer permission. But BEIPA is not specific to open source: An employee can also work on an unrelated closed source project, and own it. BEIPA controls when an employer owns IP created during a period of employment, and when an employee does. Open source adds another dimension, permission to *anyone* to use a knowledge product (e.g., software), subject to at most very limited conditions concerning provenance and sharing.

The IP owner of a knowledge product can decide to release the product as open source, whether the owner is an employer or employee, but doesn't have to. So BEIPA is mostly orthogonal to open source, but it will probably result in somewhat more open source developed by employees in their free time, simply because it removes a barrier or uncertainty around doing so.
The IP owner of a knowledge product can decide to release the product as open source, whether the owner is an employer or employee, but doesn't have to. So BEIPA is mostly orthogonal to open source, but it will probably result in somewhat more open source developed by employees, simply because it removes a barrier or uncertainty around doing so.

A different employee IP agreement *could* stipulate that all IP created by the employee will be released as open source. That's not what BEIPA does, but if you know of such an agreement used in the wild, we'd love to hear about it (and about other more esoteric employer/employee balanced or generous to the public employee IP agreements, perhaps involving joint ownership).

### What does BEIPA mean for patents?

BEIPA covers all forms of IP. A BEIPA covered employee can file a patent on a free-time project unrelated to the employer's business, and the employee would own it.
BEIPA covers all forms of IP. A BEIPA covered employee can file a patent on a project unrelated to the employer's business, and the employee would own it.

If employer and employee have particular patent objectives, they could be spelled out in a different or complementary IP agreement or other policy. One example of such an agreement is the [Innovator's Patent Agreement](https://github.com/twitter/innovators-patent-agreement) from Twitter, a commitment from a company to its employees that the company will not use patents in offensive litigation without the permission of the inventors. Other pertinent policy choices include participation in anti-troll and non-aggression networks such as [LOT](http://lotnet.com/) and [OIN](https://www.openinventionnetwork.com/), as well as contributing to open source projects.

### In what jurisdictions is BEIPA applicable?

BEIPA was written for the United States. Feedback on making it more useful in any jurisdiction is most [welcome](CONTRIBUTING.md).

Even within the United States, limits on employer ability to claim *all* employee-created IP vary. In [California](http://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?division=3.&chapter=2.&lawCode=LAB&article=3.5.) the main difference made by BEIPA is that IP developed with company equipment or relating to the company's business, but in an employee's free time and which the employee is not involved in as an employee, is not owned by the company – the employee owns anything done in their free time which does not relate to their work as an employee. This recognizes that segregating one's life activities based on ownership of devices at hand or relatedness to an employer's potentially vast range of business that an individual employee is not involved in as an employee imposes significant cognitive overhead and often doesn't happen in practice, whatever agreements state. In some states with less employee-friendly law, BEIPA makes a bigger difference relative to the maximum employer control allowable by law often baked into employee IP agreements.
Even within the United States, limits on employer ability to claim *all* employee-created IP vary. In [California](http://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?division=3.&chapter=2.&lawCode=LAB&article=3.5.) the main difference made by BEIPA is that IP developed with company equipment but that does not relate to the company's business, is not owned by the company. This recognizes that segregating one's life activities based on ownership of devices at hand imposes significant cognitive overhead and often doesn't happen in practice, whatever agreements state. In some states with less employee-friendly law, BEIPA makes a bigger difference relative to the maximum employer control allowable by law often baked into employee IP agreements.

See [Exhibit A: Laws Concerning Employment Agreements and Intellectual Property Assignment](Balanced_Employee_IP_Agreement.md#exhibit-a-laws-concerning-employment-agreements-and-intellectual-property-assignment) for a collection of some laws regulating employee IP agreements. Some of these may be helpful information for or even required notifications to covered employees. Currently only U.S. state laws are included. Contributions to coverage of other jurisdictions are welcome.

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