4 ms·
> an NDA agreement with his company that pretty much said everything he developed, verbalized, or put to paper -- during work or after -- was IP of that company
by libertymcateer 10y ago
> an NDA agreement with his company that pretty much said everything he developed, verbalized, or put to paper -- during work or after -- was IP of that company
That is not an NDA. It simply isn't. NDA covers non-disclosure of confidential information. It may say NDA at the top, but it is no more an NDA than if I put a Honda hood ornament on an M1A1 Abrams.
What you are describing is a 360 work-for-hire agreement. Which is a totally, totally different beast.
> Even as an employer, I find this an absolute outrage.
Well, it can be overkill. But depending on how much the guy is getting paid, depending on the industry and the larger context, it can be appropriate. This contract is basically saying that no moonlighting is allowable - there are many business arrangements where this is perfectly reasonable (i.e., critical or unique employees, fiduciaries, key executives, etc.). If, however, he is truly just a low level employee, then maybe it is not appropriate. The point is that it is not clear cut.
Some questions arise:
* Is this the only guy who can perform this particular work for you? If so, then you are giving credence to the argument he is a super valuable asset and there is reasonable motivation for his employers to have him in a total lockup agreement. The hope is that he would be properly compensated for this trade-off, however. If he isn't, he should seek legal representation for negotiation of his next job arrangement.
* If he is not the only guy who can perform this particular work, does he not have friends? Are there no other alternatives?
There are really only two choices: 1) he and his skills are unique, in which case his employer has every motivation to have him be subject to these very strong anti-moonlighting provisions (and hopefully he is getting commensurate pay - if he isn't, that is another whole ball of wax) or 2) there are other people that can do this job, in which case, hire one of them. Or are there no reasonable alternatives?
- 6stringmerc 10y agoYeah 360 deals are really prevalent in big-time music so to see them showing up in, uh, Skilled Labor (?) is really kind of a shock to me. I hate 360 deals. Hate hate hate. So very anti-capitalistic.
- libertymcateer 10y ago> So very anti-capitalistic. Depends. Is this an entry level programmer? If so, is that entry level programmer fresh out of college and making $150k? Or is an executive making $500k? Is there an equity package? Or is this some guy making 55k and working 60 hour weeks? There is a continuum. Also, 360 deals in music industry typically relate to the fact that all royalty and endorsement deals must go through the label - it used to be that artists could directly license their names for things like cereal endorsements or clothing lines. A 360 deal means that the artist must do that licensing through the label. Whether or not this is a good deal depends on the artist, the label, and the specific percentages involved. That is not quite the same thing as a work for hire agreement that states that all of an employees inventions, whether or not developed on or off the clock and whether or not developed with company hardware - are company property. Similar, to be sure, but if you talk about a 360 work for hire agreement, people may get what you are talking about, but some may not. I don't think it is 'term of art' in the same way - even though I may use it as one.
- pjc50 10y agoNo, it's very capitalistic: IP is capital on which rent can be charged, so naturally the system coerces transfer of ownership to the rentier class and away from the labour class. :(
- 6stringmerc 10y agoInteresting counter point! I happen to think though that Deals-That-Never-End on the 360 path are more Feudalistic exploitation than a supply-demand-free market kind of thing. I do see where you're coming from and I understand the wrinkle.
- pjc50 10y agoWell, this is where people end up having no-true-Scotsman debates about what is really meant by capitalism, which is tremendously dull but sometimes necessary :) Note that most of the free market analysis work has assumptions built into it about market power and the prior distribution of resources. IP is a little weird because it's so non-substitutable; if you don't like the price of fish you can go buy some other fish, but if you don't like the price of a Phish album you may not find a substitute. One of the main improvements of capitalism over feudalism is that contract terms usually last for at most a lifetime, and where they don't they're at least limited to a piece of real estate.
- Exofunctor 10y agoMany would argue that IP itself is inherently anti-capitalistic, because it imposes artificial scarcity where it would not otherwise exist and, relatedly, because IP "theft" doesn't actually deprive the "victim" of a scarce resource they created or purchased. Ideas have (effectively) zero marginal reproduction cost. That's not to say there aren't some good arguments for IP, but they sort of inherently have a planned-economy bent.
- AimHere 10y agoOne argument you missed is that IP laws generally create state-granted monopolies, which is something capitalists usually claim to be against.