I never got to Carmack level of technical seniority but in recent past I got hired (this was my first experience in America) in a level-2 engineering permanent position (assuming level-1 is for fresh BS graduates) and the contract essentially stated that, unless I declare any prior obligations (I didn't), all my creative work while I'm employed (including that on evenings and weekends, related or unrelated to my job) is copyrighted (or owned, or something similar, I don't remember the exact words) by my employer. I was seriously taken aback but I didn't know what to do.
A few questions:
- Is this standard practice?
- How can you enjoy your weekend creative activities, and/or, use them for your potential future startups, copyrights, patents, whatever, if you work full-time under such a stringent condition? (can you even write a novel and sell it, while you work full-time as a software engineer? or should you always ask permission first?)
- Is it likely that Carmack had similar obligations while he was at Zenimax? In which case he very carelessly ignored them when he indulged in Oculus work. (but then he also has his rocket hobby going on so I don't know how that panned out in relationship to his employers, Zenimax, or FB).
- This raises an important concern. As a typical employed engineer, we don't pay much attention to the legal repurcussions of our employment. May be we (or I) should not carry out any undertaking without consulting a lawyer (specializing in these matters) first?
- Is this standard practice?
Yes, but...
- How can you enjoy your weekend creative activities, and/or, use them for your potential future startups, copyrights, patents, whatever, if you work full-time under such a stringent condition?
...it's just what the other company is bringing to the table. The last time I had to sign one of these, I just worked with HR and legal to pare it down to something we were both happy with.
- In some places, yes. It varies from state to state and company to company, but most companies outside of California try to do this to you. (In California, this clause is illegal.)
- Move to California or negotiate a different contract. (It depends on if your employer wants a cut, how far they are willing to litigate, and if they can show they missed out on economic growth that you made (depending on the contract clause); you should always ask permission, even before contributing to open-source projects.)
- Yes, it is. While it is unclear if Carmack actually stole code from Zenimax, the actual evidence is easy to construe in Zenimax's favor, e.g., Carmack backed up all of his emails, many of which included attachments of VR code, before he quit, and the Oculus founder had an NDA with Zenimax while working on VR with them before starting the Oculus kickstarter. (I'm not sure about the situation with the rocket hobby.)
- Obviously this is the answer: talk to both internal and external council, and remember that internal council will be the people suing you if they get unhappy.
I've worked in California. The standard employment contracts usually do include all the clauses, but then add something like "if any of these clauses is not considered legal in this jurisdiction, they are considered not to apply and the rest of this legal agreement stands".
Basically, the professional lawyers leave it up to you to figure out what parts of the contracts are real and which are fake. I hate it. I feel it's a bit like making a lawyer figure out what parts of this C program are "undefined behavior" and if they're wrong in my favor I don't correct them. "Yeah, this is all pretty standard code, these programs are usually a few tens of thousands of lines, don't worry about that part." But it's just them doing the best they can for their clients the easiest way they can ... just in case it helps, standard practice and all that ...
Hah, good analogy. Then you say "ooh and by the way, the code will be interpreted by one person with a pretty good understanding of C but with possible political motivations if the case matters a lot, and the ultimate decision will come down to people with not much understanding of how C works, but they'll have some other people give them a sheet of paper explaining the relevant parts."
> - Is this standard practice?
Pretty common.
> - How can you enjoy your weekend creative activities, and/or, use them for your potential future startups, copyrights, patents, whatever, if you work full-time under such a stringent condition? (can you even write a novel and sell it, while you work full-time as a software engineer? or should you always ask permission first?)
Remember that these documents are just the company's assertion of their opinion on the ownership of your work in your off hours. The law might have a different opinion, if it ever came down to it.
> - Is it likely that Carmack had similar obligations while he was at Zenimax? In which case he very carelessly ignored them when he indulged in Oculus work. (but then he also has his rocket hobby going on so I don't know how that panned out in relationship to his employers, Zenimax, or FB).
Very. And his situation isn't really defensible, because he was working on videogame-related stuff. This is why he (well, Oculus) lost the lawsuit.
> - This raises an important concern. As a typical employed engineer, we don't pay much attention to the legal repurcussions of our employment. May be we (or I) should not carry out any undertaking without consulting a lawyer (specializing in these matters) first?
Depends. The sum of my off hours work over the years has been a vt100 emulator, some programmer exercises, and some half-baked attempts at various game AI problems. Nothing worth a lawyer's time to tell me what I already know. Which is that you sign this agreement or you don't get the job, period.
> Remember that these documents are just the company's assertion of their opinion on the ownership of your work in your off hours.
Not if you sign it.
> Which is that you sign this agreement or you don't get the job, period.
That's a pretty crappy perspective. If you don't like the terms, negotiate. If you don't understand the terms, get your own lawyer to read it.
Or you can ask them to explain the terms to you by leading by example. If they cannot articulate the terms or the terminology ask them to strike out the clause because both parties don't understand the terminology.
Just because somebody presents you with a employment contract doesn't mean you have to sign it. Read it, ask them to explain parts you don't understand by leading by example how and where the clause of the contract would be put into practice.
I've had some baffling contract terms put into contracts. I've asked and managed to get employers pay for 3rd party legal advice >= $2,000 for employment contracts.
In summary if they cannot explain to you like a adult without saying `The lawyers told us to put this in we don't understand why`. Then it's not within your best interest to sign the contract.
My own person experience stay away from firms that have lengthy overtly complicated contracts.
I had to sign something similar when I joined a large corporation. It's standard practice that any IP you develop essentially belongs to them while you're employed.
I have this crazy theory that this is one of the reasons why Satoshi Nakamoto remains anonymous. If his real identity was ever discovered the corporation he worked for, during that time period, would have a claim to all of the IP he generated when he created Bitcoin.
I highly recommend you read Joel Spolsky recent post on why exactly US based companies do this.
https://www.joelonsoftware.com/2016/12/09/developers-side-projects/ https://www.joelonsoftware.com/2016/12/09/developers-side-pr...
It's highly informative.
I respect Joel immensely. That said, I found his post strange in what it leaves out. So much so that I wrote my own follow up.
https://medium.com/@wwalser/re-developers-side-projects-3ee3274f39fe#.vzp6lcp1r https://medium.com/@wwalser/re-developers-side-projects-3ee3...
Basically, yes, it's standard practice but in every company that I've worked for there have been escape hatches that were relatively easy to utilize. HR usually has paperwork that both parties sign saying something along the lines of "[developer] is going to build [thing] in their own time using their own hardware. We grant [developer] the legal right to maintain ownership of [thing]".
I pay a lot of attention to what I'm signing. My side projects are important to me. They're a part of my lifestyle. I think most devs could very comfortably sign without a second thought. On the whole, state and contract law in the US combine to create a fairly good safety net for avoiding truly abhorrent contracts.
A third perspective:
After living and working in California for 6 years, I was considering a job as third engineer at a startup in another state. I was a bit anxious about side projects, and asked about them after receiving the offer. The response was basically what you said, a pleasant surprise, not scary like Joel warned. But for piece of mind, if I took the job, I would still want to find a lawyer in the new state to review the paperwork, which is a drag.
In the end I chose to remain in CA, and it's nice. It's nice to completely not ever have to worry about this issue at all. So I get why Joel is resentful after working for years in states where unreasonable invention assignment clauses are enforceable.
It is informative, but slanted towards the view of the employer IMHO.
Is it standard practice? Yes... But, it is always negotiable.
I'm not even near Carmack (I'm actually a big slacker), but each time that I am given an offer, I always negotiate IP rights. I have tons of ideas and have owned several LLCs and C-Corps. Likely, most of my IP is worthless, but I like to protect my IP anyway.
In fact, there have only been two companies that have ever refused to negotiate these terms with me. And, interestingly enough, one of them sought me out so much that the CEO wined and dined me twice. But, even then, he still wouldn't budge. Oh, well - there are a lot of fish in the sea!
I worked for a company that tried to do the same:
1. It's not standard. I've yet to meet another developer that encounter this kind of clause and I've yet to be in that situation as well.
2. you can't. I had the same issue with my novel. They said "Well, we wouldn't care about that" as a response but "caring" and having the right to is completely different.
3. They'd probably try to say that he used work equipment or code
4. You can; however, most contracts are pretty simple and you can negotiate. I always negotiate and explicit clause that states that my employer owns solely that which is developed during work hours or on work equipment. It's as (mostly) simple as that.
Unrelated would probably be unenforceable even in the USA
>> all my creative work while I'm employed (including that on evenings and weekends, related or unrelated to my job) is copyrighted (or owned, or something similar, I don't remember the exact words) by my employer.
Wow. That sounds OTT excessive. What about any children you have during the time of employment, do you get to keep them?
It's a standard attempt. It's not completely widespread, fortunately. The company is a for-profit entity and as such will try to extract the maximum value possible out of every resource, including its employees, therefore the contract you're given has the most restrictive possible clauses in it. I've even seen contracts for freelancers that stipulated that the freelancer agrees to reimburse the company for any unrealised profits from the project; i.e. we expect we'll make X$ profit, but we make Y$ profit, therefore you agree to pay us X-Y$.
There is no body or union (yet) that looks out for your rights, that's your personal responsibility. You have to negotiate terms you can agree to, or if you can't, either sign the contract and look for another employment opportunity, or not sign the contract and do the same. I suggest taking a negotiation course and maybe a business course, so you know how the company thinks. It's unfortunate, but during contract negotiation, you and the company are essentially enemies, battling for opposite things.
It's also unfortunate that you'll never get the chance to practise contract negotiation as an employee. You only do that when you're doing the final negotiation of taking a job, while the person against you does it nearly every single day. I suggest taking a lawyer with you.
Or just sign the contract and pay no attention to that clause. Even if they sue you (and that's really rare), the damages you have to pay would probably be less than the effort and legal fees you would pay to negotiate a favourable contract. That part of the contract is basically jaywalking - nobody cares if you don't inconvenience traffic.
I work in telecom, and on the East Coast, but I have needed to cross out IP sections of corporate employment agreements for the past 20 years. I slash, initial, and sign the document.
Usually the change gets passed from HR to the board and gets a stamp of approval.
You can do this is there is a clear benefit (>$ 100M) to the other part, not just for the normal salary.
More information at https://en.wikipedia.org/wiki/Non-compete_clause https://en.wikipedia.org/wiki/Non-compete_clause