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I work at a large law firm that represents a lot of software companies. Our standard employee agreement forms have the usual default (company owns everything yo

I work at a large law firm that represents a lot of software companies. Our standard employee agreement forms have the usual default (company owns everything you create with its resources or that relates to the scope of your employment). This default has always amused me because lawyers never sign these kinds of agreements with their own law firms. We spend most of our time writing contracts, memos, and other bits of work product that, in theory[1], are protected by copyright. Ethics rules and professional norms also give the clients rights in the work product they pay us to produce. A firm's partnership agreement might address this too. But most firms don't even try to address who owns the underlying IP rights. Moreover, it is extremely common for partners moving between firms to take all of their forms with them. The result is that people treat contract forms as-a sort of IP-free zone. It would not even be possible to ascertain the original authorship of most form contracts that cross my desk. Historically, this hasn't mattered because law firms charged for hours worked. It will matter a great deal if firms shift toward offering more automated products that can be sold outside the billable hour. [1] As with source code, there's also uncertainty about which aspects of a contract are expressive and which are purely functional. Only the expressive parts are protected by copyright. Update: one project I've had in the back of my mind is to illustrate this point by crawling the SEC's EDGAR website and tracing the "genealogy" of bits of contract language in public companies' filings. (Companies need to file certain "material agreements"). If anyone has some suggestions for good text processing libraries that can help with this tracing, I would love to hear about them.

deleted 10y ago
[deleted]
zekevermillion 10y ago
Contracts theoretically could be protected by copyright. However, we reuse so much of the functional language that it would be difficult to prove that a given contract is sufficiently transformative to merit protection. One exception is that heavily-annotated firm templates and file memos. I would be more cautious about sharing a detailed, annotated template from a previous employer. Some large firms in fact do require associates to sign covenants. In particular English firms seem to do this a lot. I consider it to be unethical, as it is anti-competitive and runs contrary to the interests of clients, who should remain free to select the lawyer of their choice (even a disloyal employee of their previous law firm).
- btilly 10y ago
  In theory, functionally important language should be uncopyrightable. This is the same world of theory in which software is not subject to copyright...
  - thaumasiotes 10y ago
    To be fair, making that distinction would imply that e.g. minified code is uncopyrightable while pretty-printed code with descriptive variable names is subject to copyright.
tajen 10y ago
You are answering a big question of mine: "If I launch a PAAS product, am I allowed to copy Heroku's terms of use?". Seems like it's covered by copyright but it's IP-free zone, although "IANAL"... On the other hand, it would be a headache if contracts were covered by copyright: If your competitor adds a clause to their contract, can you add the same clause if it's covered by copyright, or are you forever banned from adding this clause? Would someone file a patent on "Using contracts to limit the liability against customers", for example?
- yellowapple 10y ago
  I've had a similar question about the validity of free software licenses that only permit verbatim redistribution, and whether it's possible to use ideas from such a license in another license. The idea of a license being under a license just seems alien to me.
- matthewmcg 10y ago
  Two points: First, even if you are able to borrow functional language from a contract without infringing someone's copyright, that doesn't make it a good idea. Heroku's terms were written for them and their specific business risks, governing law, etc. Your own PaaS business may have different requirements. And copying wholesale probably is infringement. Second, by "IP free zone," I'm talking about people's attitudes and behavior towards the materials they borrow from--that certainly doesn't express a legal conclusion about it or mean what they are doing is not infringement.
- greglindahl 10y ago
  If you look at website Terms of Service etc., you'll see that there's huge amounts of copying between firms which compete with each other.
6stringmerc 10y ago
Wow, that's...really something. I do have a bit of a quibble with one of your assertions though: >It would not even be possible to ascertain the original authorship of most form contracts that cross my desk. I highly doubt this statement is true if given Documents X, Y, Z et al are given stringent, professional forensic examination for remnants of markings. Maybe not every single one, sure, but enough in a Universe A of legal examination would, I firmly believe, uncover quite a bit more than meets the eye. My point is that what you've noted is not an "IP-free zone" it's simply an un-tapped market for "fiscal compensation by way of derivative IP torts" - once the financial motivation is strong enough and there's evidence that can be garnered to show willful infringement...IP rights don't just go away because nobody is pursuing them. If the Prenda Law fiasco can serve as a Gutter Dweller example of IP enforcement, this is a much more clear cut, deep pocketed scenario that should give every single law firm pause. As much as I'm entertained by cannibalistic feeding frenzy behavior, Law Firm Representing Law Firm(s) vs. Law Firm(s), would, no doubt, be a basic drain on an already over-burdened legal system. TL, DR: Never underestimate the temptation for tort cases when there's a large pile of money at stake
- andrewfong 10y ago
  > stringent, professional forensic examination for remnants of markings Don't doubt it's possible, but might be a little trickier than you suspect. My old firm, as a matter of course, installed software on our laptops that stripped all sorts of metadata from outgoing documents. It was actually really annoying since "tracked changes" in MS Word got removed too.
  - spinlock 10y ago
    sounds like evidence of a cover up to me :)
  - pdshrader 10y ago
    @spinklock - it's the industry standard. My firm does the same (although now it's done through our file management systems instead of through software installed on our laptops).
shawnee_ 10y ago
The result is that contract forms have become a sort of IP-free zone. Exactly. One of the sleaziest tricks used by Realtors (most Realtors are not lawyers) is getting clients to sign their forms: their terms usually have the word "percent" hard-coded into the contract. Rather than opening the door to hourly or fixed dollar amounts, they insist that their forms are the "standard". I heard one recently say in a public forum that banks "require" these specific forms that only Realtors have... this is a total lie, and anybody that tells you that you can't negotiate to create your own contract for a deal should be prosecuted for coercion. I've been trying for a long time to alter the common perception that Realtors add value; they don't. They take value out of transactions -- equity that's taken literal years to build up -- gone in one (fell) swoop. People need to be way more aggressive in their negotiations with real estate salespeople, and it all starts with the contract. This is still a small, WIP, side project (free, open-source contract templates); however, you can get the idea: http://ecosteader.com/docs http://ecosteader.com/docs
- paulcole 10y ago
  >I've been trying for a long time to alter the common perception that Realtors add value; they don't. I don't know anything about the law so I hire a lawyer I trust. I don't know anything about buying a house so I hire a realtor I trust.
  - reneherse 10y ago
    The type and amount of training required for those two fields isn't even remotely similar.
    - randomdata 10y ago
      Does that matter? You're not hiring them because there is a high bar of training. Heck, programming is literally done by schoolchildren for entertainment, myself included, yet people are quite happy to hire us because they understand the value of delegation.
    - cowsandmilk 10y ago
mmalone 10y ago
It's also interesting how infrequently this is actually enforced by employers. Outside of extreme cases (like the current waymo/uber litigation) I've never heard of it being enforced -- even when it's pretty obvious that IP was transferred (e.g., foursquare / dodgeball). I feel like it's in there because it always has been. I thought about removing it for my new business, but I'm worried about diligence issues if I end up raising more money or selling. At GitHub's scale that's less of a concern.
- dangero 10y ago
  It's not just enforcement that matters though. The threat of enforcement is far more common and has come up at every company I've worked for. That ends up creating a tense environment for employees in a similar way to how a criminal feels when they've committed a crime, but have not been caught. The threat of life-altering damage is a huge stress to carry.
- greglindahl 10y ago
  When IBM Watson bought Blekko we had to produce an IP assignment for 100% of the people who had ever worked on our IP. Elsewise, how would IBM know that they were actually buying something?
zdragnar 10y ago
How much of your work can be rightly patented? I imagine these sorts of agreements prevent employees from developing something in the due course of their work, patenting it, then charging the company for the use of the work they were already paid for via salary. I.e., it's a simple protection against extortion.
nemild 10y ago
Want to drop me a note (see my HN profile). I've done these ancestor maps in the past in other cases, and have some ideas.
ABCLAW 10y ago
As an FYI, I've been interested in a similar approach. So far bioinformatics techniques seem to be the best fit. You may want to take a look at libraries that provide BLAST or Clustal/MSA Analysis capabilities, then tinker a bit. From my experience, wiring those tools to a separate visualization suite provides the best results.
rpedela 10y ago
I am the founder of Datalanche, a search engine for SEC filings [1]. We have spent a lot of time text processing filings and I would be happy to discuss all the tools and gotchas. Unfortunately it is a longer conversation than what makes sense in an HN comment. If you would like to discuss, please contact me at rpedela@datalanche.com. 1. https://www.datalanche.com https://www.datalanche.com
iamacynic 10y ago
that's good to know, because when we started up, we completely pilfered all of our licensing, partnership, service level, and disclosure agreements from competitors.
pdshrader 10y ago
If you have access to Intelligize through your firm, their product is excellent at parsing and tracing contract provisions in public filings. Source: Not a representative of Intelligize, but I've used their product quite often at my firm.
sintaxi 10y ago
> The result is that people treat contract forms as-a sort of IP-free zone I thought contract forms are automatically exempt from copyright.

deleted 10y ago

[deleted]

zekevermillion 10y ago

Contracts theoretically could be protected by copyright. However, we reuse so much of the functional language that it would be difficult to prove that a given contract is sufficiently transformative to merit protection. One exception is that heavily-annotated firm templates and file memos. I would be more cautious about sharing a detailed, annotated template from a previous employer. Some large firms in fact do require associates to sign covenants. In particular English firms seem to do this a lot. I consider it to be unethical, as it is anti-competitive and runs contrary to the interests of clients, who should remain free to select the lawyer of their choice (even a disloyal employee of their previous law firm).

btilly 10y ago
In theory, functionally important language should be uncopyrightable. This is the same world of theory in which software is not subject to copyright...
- thaumasiotes 10y ago
  To be fair, making that distinction would imply that e.g. minified code is uncopyrightable while pretty-printed code with descriptive variable names is subject to copyright.

tajen 10y ago

You are answering a big question of mine: "If I launch a PAAS product, am I allowed to copy Heroku's terms of use?". Seems like it's covered by copyright but it's IP-free zone, although "IANAL"... On the other hand, it would be a headache if contracts were covered by copyright: If your competitor adds a clause to their contract, can you add the same clause if it's covered by copyright, or are you forever banned from adding this clause? Would someone file a patent on "Using contracts to limit the liability against customers", for example?

yellowapple 10y ago
I've had a similar question about the validity of free software licenses that only permit verbatim redistribution, and whether it's possible to use ideas from such a license in another license. The idea of a license being under a license just seems alien to me.
matthewmcg 10y ago
Two points: First, even if you are able to borrow functional language from a contract without infringing someone's copyright, that doesn't make it a good idea. Heroku's terms were written for them and their specific business risks, governing law, etc. Your own PaaS business may have different requirements. And copying wholesale probably is infringement. Second, by "IP free zone," I'm talking about people's attitudes and behavior towards the materials they borrow from--that certainly doesn't express a legal conclusion about it or mean what they are doing is not infringement.
greglindahl 10y ago
If you look at website Terms of Service etc., you'll see that there's huge amounts of copying between firms which compete with each other.

6stringmerc 10y ago

Wow, that's...really something. I do have a bit of a quibble with one of your assertions though: >It would not even be possible to ascertain the original authorship of most form contracts that cross my desk. I highly doubt this statement is true if given Documents X, Y, Z et al are given stringent, professional forensic examination for remnants of markings. Maybe not every single one, sure, but enough in a Universe A of legal examination would, I firmly believe, uncover quite a bit more than meets the eye. My point is that what you've noted is not an "IP-free zone" it's simply an un-tapped market for "fiscal compensation by way of derivative IP torts" - once the financial motivation is strong enough and there's evidence that can be garnered to show willful infringement...IP rights don't just go away because nobody is pursuing them. If the Prenda Law fiasco can serve as a Gutter Dweller example of IP enforcement, this is a much more clear cut, deep pocketed scenario that should give every single law firm pause. As much as I'm entertained by cannibalistic feeding frenzy behavior, Law Firm Representing Law Firm(s) vs. Law Firm(s), would, no doubt, be a basic drain on an already over-burdened legal system. TL, DR: Never underestimate the temptation for tort cases when there's a large pile of money at stake

andrewfong 10y ago
> stringent, professional forensic examination for remnants of markings Don't doubt it's possible, but might be a little trickier than you suspect. My old firm, as a matter of course, installed software on our laptops that stripped all sorts of metadata from outgoing documents. It was actually really annoying since "tracked changes" in MS Word got removed too.
- spinlock 10y ago
  sounds like evidence of a cover up to me :)
- pdshrader 10y ago
  @spinklock - it's the industry standard. My firm does the same (although now it's done through our file management systems instead of through software installed on our laptops).

shawnee_ 10y ago

The result is that contract forms have become a sort of IP-free zone. Exactly. One of the sleaziest tricks used by Realtors (most Realtors are not lawyers) is getting clients to sign their forms: their terms usually have the word "percent" hard-coded into the contract. Rather than opening the door to hourly or fixed dollar amounts, they insist that their forms are the "standard". I heard one recently say in a public forum that banks "require" these specific forms that only Realtors have... this is a total lie, and anybody that tells you that you can't negotiate to create your own contract for a deal should be prosecuted for coercion. I've been trying for a long time to alter the common perception that Realtors add value; they don't. They take value out of transactions -- equity that's taken literal years to build up -- gone in one (fell) swoop. People need to be way more aggressive in their negotiations with real estate salespeople, and it all starts with the contract. This is still a small, WIP, side project (free, open-source contract templates); however, you can get the idea: http://ecosteader.com/docs http://ecosteader.com/docs

paulcole 10y ago
>I've been trying for a long time to alter the common perception that Realtors add value; they don't. I don't know anything about the law so I hire a lawyer I trust. I don't know anything about buying a house so I hire a realtor I trust.
- reneherse 10y ago
  The type and amount of training required for those two fields isn't even remotely similar.
  - randomdata 10y ago
    Does that matter? You're not hiring them because there is a high bar of training. Heck, programming is literally done by schoolchildren for entertainment, myself included, yet people are quite happy to hire us because they understand the value of delegation.
  - cowsandmilk 10y ago

mmalone 10y ago

It's also interesting how infrequently this is actually enforced by employers. Outside of extreme cases (like the current waymo/uber litigation) I've never heard of it being enforced -- even when it's pretty obvious that IP was transferred (e.g., foursquare / dodgeball). I feel like it's in there because it always has been. I thought about removing it for my new business, but I'm worried about diligence issues if I end up raising more money or selling. At GitHub's scale that's less of a concern.

dangero 10y ago
It's not just enforcement that matters though. The threat of enforcement is far more common and has come up at every company I've worked for. That ends up creating a tense environment for employees in a similar way to how a criminal feels when they've committed a crime, but have not been caught. The threat of life-altering damage is a huge stress to carry.
greglindahl 10y ago
When IBM Watson bought Blekko we had to produce an IP assignment for 100% of the people who had ever worked on our IP. Elsewise, how would IBM know that they were actually buying something?

zdragnar 10y ago

How much of your work can be rightly patented? I imagine these sorts of agreements prevent employees from developing something in the due course of their work, patenting it, then charging the company for the use of the work they were already paid for via salary. I.e., it's a simple protection against extortion.

nemild 10y ago

Want to drop me a note (see my HN profile). I've done these ancestor maps in the past in other cases, and have some ideas.

ABCLAW 10y ago

As an FYI, I've been interested in a similar approach. So far bioinformatics techniques seem to be the best fit. You may want to take a look at libraries that provide BLAST or Clustal/MSA Analysis capabilities, then tinker a bit. From my experience, wiring those tools to a separate visualization suite provides the best results.

rpedela 10y ago

I am the founder of Datalanche, a search engine for SEC filings [1]. We have spent a lot of time text processing filings and I would be happy to discuss all the tools and gotchas. Unfortunately it is a longer conversation than what makes sense in an HN comment. If you would like to discuss, please contact me at rpedela@datalanche.com. 1. https://www.datalanche.com https://www.datalanche.com

iamacynic 10y ago

that's good to know, because when we started up, we completely pilfered all of our licensing, partnership, service level, and disclosure agreements from competitors.

pdshrader 10y ago

If you have access to Intelligize through your firm, their product is excellent at parsing and tracing contract provisions in public filings. Source: Not a representative of Intelligize, but I've used their product quite often at my firm.

sintaxi 10y ago

> The result is that people treat contract forms as-a sort of IP-free zone I thought contract forms are automatically exempt from copyright.