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Rewriting a Software Product After Quitting a Job? 604

Posted by kdawson
from the clean-room-white-coats dept.
hi_caramba_2008 writes "We are a bunch of good friends at a large software company. The product we work on is under-budgeted and over-hyped by the sales drones. The code quality sucks, and management keeps pulling in different direction. Discussing this among ourselves, we talked about leaving the company and rebuilding the code from scratch over a few months. We are not taking any code with us. We are not taking customer lists (we probably will aim at different customers anyway). The code architecture will also be different — hosted vs. stand-alone, different modules and APIs. But at the feature level, we will imitate this product. Can we be sued for IP infringement, theft, or whatever? Are workers allowed to imitate the product they were working on? We know we have to deal with the non-compete clause in our employment contracts, but in our state this clause has been very difficult to enforce. We are more concerned with other IP legal aspects."
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Rewriting a Software Product After Quitting a Job?

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  • the short answer (Score:5, Insightful)

    by ILuvRamen (1026668) on Wednesday November 26, 2008 @04:00AM (#25896917)
    The can absolutely sue you, but they'll lose. If they can't take two blocks of code and say "he stole this" they have nothing. I assume you didn't sign a non-compete agreement though cuz then you'd lose.
  • Get a lawyer. (Score:4, Insightful)

    by PoprocksCk (756380) <poprocks@gmail.org> on Wednesday November 26, 2008 @04:00AM (#25896919) Homepage Journal

    Subject.

  • by bradley13 (1118935) on Wednesday November 26, 2008 @04:05AM (#25896953) Homepage
    Why not come up with a fresh idea? Spend your time coding instead of in court.
  • by bigmouth_strikes (224629) on Wednesday November 26, 2008 @04:08AM (#25896979) Journal

    ...but the hardest and most important part of running a software product company is selling the product. Your new, better designed, better documented, better implemented product has to compete with the same feature set - you said it yourself - with a more established product. What advantages will your product give the customer, making it easier to sell and possibly making the customers switch ?

    As for the legal issues, IANAL.

  • Short answer: (Score:5, Insightful)

    by ZorbaTHut (126196) on Wednesday November 26, 2008 @04:12AM (#25897011) Homepage

    Get a lawyer.

    Long answer:

    If you signed any sort of NDA, you might be liable for any information you gained while on the job (for example, architecture, business logic, algorithms.) If you didn't, you still might (theft of intellectual property.) I imagine you'd be quite safe if you could somehow prove that you had never inspected the code in any way. Since I'm guessing at least one of you was a programmer, I imagine you can't prove this. I, personally, would find the whole thing dubious and recommend avoiding it, but if you want to try anyway - get a lawyer.

  • by rjh (40933) * <rjh@sixdemonbag.org> on Wednesday November 26, 2008 @04:15AM (#25897049)

    First off, don't ask "can I be sued for this?" You can be sued for eating a ham sandwich. The important question is whether you'll face legal action over this, and only secondarily whether you'll prevail. Court process today is so messed up that paying for a lawsuit, in both time and money, is often more ruinous than the final judgment against you.

    Being in the legal right does not insulate you from lawsuits. It never has. You should be more concerned with pre-emptively preventing a lawsuit from being filed, not whether you would prevail in court if one were to be filed.

    One of the reasons why so many people say "get a lawyer!" is because, believe it or not, lawyers are very good at this sort of thing. Lawyers are excellent business negotiators. Talk to a lawyer, explain what you want to do, explain that you don't want to be sued. The odds are very good the lawyer will be able to get you a way in which you get to do what you want to do without worrying about a lawsuit being filed.

    A good lawyer wins lawsuits. A great lawyer prevents lawsuits from being filed in the first place.

    Good luck! :)

  • Re:Get a lawyer. (Score:4, Insightful)

    by who knows my name (1247824) on Wednesday November 26, 2008 @04:20AM (#25897083)

    IANAL, which is why you shouldn't ask legal questions on /.

  • by hellion0 (1414989) on Wednesday November 26, 2008 @04:23AM (#25897101)

    As mentioned in parent, a non-compete will screw you before you even get off the ground, since your very plan for the software could be construed as very direct competition, even if it doesn't share a single character of code with their product.

    Assuming you didn't, retain a lawyer anyway. Anyone can be sued for anything in this day and age. The trick is, with the help of the lawyer, you can make sure any suit wouldn't be able to stick in the first place. Even if there's never any legal action, the lawyer will still prove helpful to you.

  • by IamTheRealMike (537420) <mike@plan99.net> on Wednesday November 26, 2008 @04:31AM (#25897137) Homepage

    Zing, that's correct. The real question these guys should be asking themselves: are we really sure that management and the "sales drones" are fundamentally incompetent, and that we are fundamentally better? What makes them think that 10 years down the road their company would be any different? Perhaps selling a product to lots of different customers is just hard and hosted vs standalone is not, ultimately, such a big deal?

    They should definitely read The Development Abstraction Layer [joelonsoftware.com] before moving this beyond just talk.

  • by mgblst (80109) on Wednesday November 26, 2008 @04:44AM (#25897187) Homepage

    You are also working against an established company, with possibly great support. This can be a big killer for you. Business isn't all about code.

  • by 91degrees (207121) on Wednesday November 26, 2008 @05:10AM (#25897281) Journal
    Can we be sued for IP infringement, theft, or whatever?

    Yes. All three. They might not succeed but be prepared for a lengthy legal battle which will cost more than losing.

    Are workers allowed to imitate the product they were working on?

    Yes. But only in general, there are many exceptions.

    We know we have to deal with the non-compete clause in our employment contracts, but in our state this clause has been very difficult to enforce.

    You're in a different situation from most other cases. Other cases have most likely been people working on broadly related but ultimately different products. You appear to be planning to directly compete with your previous employer's core product, using knowledge gained whilst working for your previous employer.
  • by cerberusss (660701) on Wednesday November 26, 2008 @05:12AM (#25897291) Homepage Journal

    Sorry to reply to self, but this topic got me because of the whole start-your-business stuff.

    In the past two years, I've started my own business. I've learned that I can do only one thing at a time: either sales or coding. Not both.

    For me it turned out that I'm not bad at sales. I hardly touch code anymore because I just don't have the time; I have to keep the 'pipe' filled with new things. But I'm OK with that.

    Question is: are you OK with that as well?

  • the short hairs. (Score:5, Insightful)

    by Ostracus (1354233) on Wednesday November 26, 2008 @05:15AM (#25897309) Journal

    "Anyone can be sued for anything in this day and age."

    I'm going to sue hellion0 for not translating his post into Chinese. Think it will get dismissed before we even hit the door? How about any lawyer laughing you out of his office?

  • Sales drones? (Score:5, Insightful)

    by russsell (185151) on Wednesday November 26, 2008 @05:45AM (#25897443)

    I think your biggest obstacle to success will be your attitude towards salespeople!

    As fabulous as you may think your software is, selling it is rather important!

  • by Anonymous Coward on Wednesday November 26, 2008 @05:59AM (#25897515)

    If they can't take two blocks of code and say "he stole this"

    Would you bet that neither you yourself nor one of your "friends" (more like business partners) will write code that is remarkably similar to code that was written under employment? It doesn't even have to be intentional.

    If you're going to cost your ex-employer serious money, you will be sued. Even if there is nothing to make the allegations stick, you will have to defend your new business in court. Do you have the funds and nerves to do that? A business is much more than a good product.

  • by TapeCutter (624760) on Wednesday November 26, 2008 @06:02AM (#25897529) Journal
    "a non-compete will screw you before you even get off the ground"

    Maybe but the "short answer" also applies to non-compete's.

    The submitter has indicated that he signed a non-compete clause but knows they are difficult to enforce in his state. IANAL but here in Australia non-compete clauses are SOP despite the fact they are considered a restriction of trade under common law and are totally unenforceable. The only people who pay any attention to them are the ignorant and the agents (same thing in many cases). Agents respect non-competes because the employer is their customer and they don't want to piss off potential/actual customers by encouraging contractors/employees to "break their contract".

    AFAIK the US also inherited English common law but now has ~50 different forks.
  • by davester666 (731373) on Wednesday November 26, 2008 @06:14AM (#25897571) Journal

    And in this specific case, it can easily come down to just getting sued into bankrupcy. The people may not lose in court on merit, but only because they ran out of money to pay for a lawyer to represent them in and out of court. And this type of case (in general, as it depends on specifics really), it's unlikely that a lawyer would be willing to go into the case on commission, as you only get money if the judge penalizes the other side or awards costs (and depending on your jurisdiction, 'costs' may not match what you actually pay your lawyer).

  • by cheater512 (783349) <nick@nickstallman.net> on Wednesday November 26, 2008 @07:33AM (#25897983) Homepage

    The lawyer wouldnt laugh at all.

    He would only ask two questions: How far would you go and how big is your bank account. :P

  • by Anonymous Coward on Wednesday November 26, 2008 @08:03AM (#25898127)

    "The whole firehose view on the mainpage sucks."

    It's off topic ... but oh my goodness yes it's awful. Please keep the firehose-style view in the firehose section.

  • by jotaeleemeese (303437) on Wednesday November 26, 2008 @08:14AM (#25898193) Homepage Journal

    Unless you patent them.

  • by Icarium (1109647) on Wednesday November 26, 2008 @08:22AM (#25898221)

    Heh, some of our former employees tried the exact same tactic, and as an added bonus actually managed to convince one of our sizeable customers to go with them, all based on promises of being able to give them a better system with more features using the latest and greatest programming languages that were the rage at the time. (I'll freely admit that the company I work for still uses COBOL on it's older clients business systems)

    The both lost - 5 years and many, many millions down the line the customer turned round and said "Right, this isn't working, we want our old legacy system back". In that time these former employees and thier new company were unable to provide a rewrite that was as stable, fast or feature laden as the system they were rewriting it on, so the customer simply came back to us and said "Where do we sign?".

    The most amusing part was when the negotiations were taking place, the former employees tried to sell us thier IP and the system they had developed. Our CEO simply laughed at them.

    Don't get me wrong - I fully admire what they attempted, but the manner in which they underestimated what it would actually take to rewrite a legacy system (incorporating 23 years of ongoing development) from scratch was a perfect example of "If it ain't broke, don't fix it".

  • by Anonymous Coward on Wednesday November 26, 2008 @08:31AM (#25898271)

    your friend seems like a giant asshole.

  • by nine-times (778537) <nine.times@gmail.com> on Wednesday November 26, 2008 @08:57AM (#25898433) Homepage

    are we really sure that management and the "sales drones" are fundamentally incompetent, and that we are fundamentally better?

    I would even ask, are these programmers really making the product they think they are? I've seen it happen before that a bunch of developers complain about their sales people, essentially that they were selling it wrong. The salespeople kept focussing on feature set A, while the developers thought feature set B was much more important.

    And the problem there was that the customers cared about feature set A, and the salespeople knew it because they were the ones talking to the customers. The developers seemed to be more interested in developing what was fun/interesting to develop, while the customers just wanted certain specific functionality.

  • by Anonymous Coward on Wednesday November 26, 2008 @09:06AM (#25898481)

    Keep in mind IANAL, but we had a situation where I work that might be applicable. Our company bought another company (I'll call this other company X) that had a product offering we wanted. The founder of company X was paid a good deal of money and signed a non-compete that was in effect for 1 year.

    During this 1 year time period, the founder of X used the money and hired a staff to build a competing platform with a new design and better technology, something he was able to afford while running the business himself.

    On exactly the day after the 1 year non-compete ended, he opened his doors for business and started selling. There was nothing we could do about it because he had not competed with us during the time of the non-compete, he simply used that time to build a new platform. It was all new code, so we couldn't get him for that. We did investigate the data he was using but he had acquired it himself, from the same sources we used.

    His new company sold to our competitor a couple of years later and he made another bundle. He's now under non-compete again, but has already started work on a third generation for when that one ends.

    All this is saying, if you properly document your work to show it is all original, do not attempt to sign up any customers during any time period under which you may be covered by a non-compete -- not even beta customers, and more importantly don't continue working for your current employer, then I would think you would be ok.

    The big thing though is to break all ties with your current employer, and you may even want to avoid meeting with folks that still work there. All the lawyers need is one thread connecting you to your current employer to make a case that they can claim your efforts, and since an established company generally has lawyers on staff and you don't, they can out spend you in litigation to the point it won't matter who is right.

    I would suggest you and and your friends find an outside attorney to discuss the situation with, and be certain to have details of any statements you signed when you started working at your current employer.

  • by BlortHorc (305555) on Wednesday November 26, 2008 @09:16AM (#25898573)
    And it has to be said, though most sales guys are useless, the really good ones are gold. There is a guy where I work who has turned wrong numbers into sales. That is seriously hard work, and for all I might bemoan his lack of IT skills, gotta give the guy his props. Sales is a hard job, especially cold calling, and what will make an idea like the GP has work more than anything is who he has selling it.
  • by Anonymous Coward on Wednesday November 26, 2008 @09:16AM (#25898577)

    "Anyone in the USA can be sued for anything in this day and age."

    Fixed that for you

  • by aurispector (530273) on Wednesday November 26, 2008 @09:18AM (#25898591)

    The point of having a good lawyer is to ensure that you never need his services.

  • by omeomi (675045) on Wednesday November 26, 2008 @09:21AM (#25898599) Homepage
    How about any lawyer laughing you out of his office?

    Lawyers only laugh you out of their office when you're not their employer...and they're not a part of your legal team.
  • by dilute (74234) on Wednesday November 26, 2008 @10:30AM (#25899233)

    First of all, posting a question like this on a public forum such as Slashdot isn't going to get you any answers you can have confidence in. In fact, the posting itself, though made on a "no name" basis, does provide a few clues, is traceable to whoever posted it initially, and could come back to haunt you, as evidence of your timing and intent, if nothing else. Are you sure no one could ever link this up to you? Are you sending emails like this to each other as well? Pretty dumb, if you are. Find a lawyer and get some competent (and confidential) advice before you make indelible records of your deliberations and footprints.

  • by jcnnghm (538570) on Wednesday November 26, 2008 @10:42AM (#25899333)

    To re-iterate, management and sales are hard. If you don't have a marketing plan and strategy from day one, and you guys think you can just build a better product than your current employers in six months, expect to fail.

    How wealthy are you? Most businesses operate in the red for the first 2-5 years. What that means is that, even after all the revenue, you'll have to loan money to the company, or secure a loan for the company (much easier said than done, you can generally only get business loans for hard assets), to be able to pay the expenses, and those expenses include no money for you or your co-founders. Can you afford to work for -$x for 2 years. If you are under capitalized from the start, you will fail.

    How much time do you have? If you think you're signing up for a 9-5, show up, program, and leave, you're in for a rude awakening. Operating a businesses is significantly more time intensive than you think it is, and chances are you won't be able to afford all of the 'worthless' support staff that your current company has. All the jobs they do, you get to do too. Expect to work no less than double time for the first couple of years, and more realistically be prepared to spend all of your time on it. Underestimating, being unwilling, or being unable to commit the necessary time will lead to failure.

    How risk adverse are you? 80-90% of businesses fail within the first 5 years. Are you, having made no money after 20 months, going to cut your losses and walk away? What about your co-founders? You have to be prepared to accept the fact that you could potentially lose ever dollar you put into your company. If you're not, don't even consider this.

  • by Jesus_666 (702802) on Wednesday November 26, 2008 @10:51AM (#25899455)
    In that case the question is: "Why does a forum for geeks not allow anything outside what's covered by ISO Latin-1?"

    Is IPA somehow dangerous? Cyrillic? Mathematical symbols? Or the Euro sign? This is a forum for technical people who, due to their geek nature, prefer to use the appropriate notation to communicate things not easily communicated in ASCII. For example, it's extremely difficult to accurately and concisely communicate the pronounciation of something without using IPA. That's what IPA was designed for. That's why it's in Unicode.

    I get the feeling that the whitelist was put in place by someone who doesn't really know Unicode (and/or didn't want to spend time with it) and thus opted to just keep Latin-1 since that's what he knows. There are a lot of characters in Unicode that could safely be whitelisted; depending on how well-written the filter is this should be a matter of one afternoon with a Unicode character list. I mean, we don't demand Linear-B; the safe parts of the BMP (all non-combining non-control code points except those between D800 and F8FF (FFFF if you don't want to include Han)) would be everything 99.999% of all posters need.
  • BSD 4.4 lite (Score:4, Insightful)

    by tg123 (1409503) on Wednesday November 26, 2008 @11:09AM (#25899661)
    I am Ashamed of you people, this is slashdot and someone here has just given us a Dorothy Dixer. (Please note this is my interpretation I'm tiny whinny bit biased) Well you see there was this Operating system called Unix that was written in the 1960's.... AT&T which was a phone company couldn't sell, due to the laws at the time, software so they allowed Unix to used by University's for a small fee. [this is probably a bit loosely based on truth here] In the 1980's the laws changed and AT&T could sell software. Well AT&T said everything to do with Unix is ours and any software that has been added to Unix by the University's is also ours and pays us Mega amounts of cash to use it. Well some people at University of California Berkeley (UCB) got very annoyed with this and released a version of UNIX without any AT&T code. This version was called BSD 4.4-lite a court battle then ensued that ran until the mid 1990's. Novell then purchased Unix from AT&T and some sort deal was done and UCB no longer distributes BSD. heres a link to the story. http://oreilly.com/catalog/opensources/book/kirkmck.html [oreilly.com] so lessons learnt 1) You will get sued 2) If you hang in there you might just win 3) Be prepared to cut a deal 4) [maybe this should have been first] Get a good lawyer !!! 5) You ever here of a guy called Richard Stallman ? - sort of the same thing happened to him but he started something called the free software foundation. http://www.fsf.org/ [fsf.org]
  • by Sloppy (14984) on Wednesday November 26, 2008 @11:53AM (#25900099) Homepage Journal

    Is IPA somehow dangerous?

    Only if you drink too much of it.

  • by liquidsgi (793103) on Wednesday November 26, 2008 @11:56AM (#25900143) Homepage
    Hi, You also need to consider the fact that you are infringing on their intellectual property-- even if you aren't taking a single piece of code. Intellectual property can be defined as an indea-- which is essentially what you are taking with you when you leave. You are taking the idea of the company's product and building upon it for your product. I am not sure who would win the suit, but you have to consider that you could be in violation of stealing their "ideas" and expanding upon it-- even though their current product sucks.
  • by Thaelon (250687) on Wednesday November 26, 2008 @12:06PM (#25900261)

    out spend you in litigation to the point it won't matter who is right

    This might be the most fucked up fact in human society.

    Any legal system that has this problem should be considered utterly broken and dire need of disposal sooner rather than later.

  • by precogpunk (448371) on Wednesday November 26, 2008 @12:31PM (#25900539) Journal

    Make sure you have a lawyer look at your situation first, but should also have a solid business plan before embarking on venture like this. While I'm no fan of "over-hyped sales drones" you need to step back and objectively ask yourself who is going to secure the customer base for your product. While you may be good writing code, can you sell a product or do you know what to look for in hiring someone? Likewise, who is going to take on the role of project, and maybe staff, manager? Then you need to start thinking about payroll and healthcare. It takes more than writing good code for even a small software company to be successful--you'll probably find yourself gaining a lot of respect for the people you were previously complaining about.

  • by mrchaotica (681592) * on Wednesday November 26, 2008 @12:40PM (#25900643)

    The people may not lose in court on merit, but only because they ran out of money to pay for a lawyer to represent them in and out of court.

    Perhaps the solution in this case is to retain a lawyer on staff. This is a startup, right? Since they're anticipating fairly extensive legal issues from the get-go, they should hire a lawyer as a full-time employee, which would limit costs to be equal to his salary. They can pay him using venture capital money (just like how everybody else would be getting paid) until they have a sellable product.

  • by Falstius (963333) on Wednesday November 26, 2008 @01:07PM (#25900945)

    Seriously. Giving bad advice to do illegal actions is one thing, but then it gets modded "interesting"?

    I frequently mod stuff "Interesting" that I know is wrong. Then I mod the responses with good information "Informative". This is how one gets an interesting and informative discussion.

  • Re:Time is money (Score:3, Insightful)

    by Jesus_666 (702802) on Wednesday November 26, 2008 @02:01PM (#25901433)

    X-SAMPA is a workaround.

    Yes it is... However one should assume that in 2008 a tech website would be able to support the technology X-SAMPA crudely reimplements. Also, SAMPA doesn't have nearly the penetration of IPA - while one can expect virtually anyone who has learned a foreign language to have at least encountered IPA, SAMPA is useful only to those who do phonetic discussions in a long-outdated encoding.

    Yes. Remember the IDN homoglyph attack?

    Hm, that's funny. I always assumed they had some kind of format IDNs are supposed to be transmitted as. You know, some kind of puny code that can be algorithmically derived... Oh, wait! They have such a format! And I'd be willing to bet that it's entirely possible to automatically mangle URLs entered to the appropriate Punycode representation (not to mention that all major browser already do that in the status bar).

    &euro; produces €.

    But the appropriate Unicode glyph doesn't. And that's another thing wrong with Slashdot's weird filter: Some glyphs work when entered directly, some only work when entered as HTTP entities and yet others don't work either way. IPA glyphs get converted to HTML entities but those entities are then filtered. It's impossible to determine beforehand whether Slash accepts a glyph and in which form it does.

    Correct. It's easier to whitelist Latin-1 than to comb the entire Basic Multilingual Plane looking for anything that's not part of a bidirectional or complex script. If something won't increase SourgeForge, Inc.'s ad revenue, it's not worth spending time on.

    And that's probably why Digg is the superior platform, community and content aside. "We won't do anything more than the absolute minimum required to keep the site running unless it significantly increases our bottom line" is how corporations show that they run the platform not for the community but for the ad partners. Of course the weird filtering is not the only problem - the CSS has been broken for ages (especially in Idle, even though that doesn't hurt much) but apparently there's no business case for getting that right, either.

    I'm waiting for the day when Slashdot changes its "we won't delete posts unless legally forced to" policy to "we won't delete posts unless it's in SourceForge, Inc.'s financial interest".

Money doesn't talk, it swears. -- Bob Dylan

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