5 ms·

The boundaries between what's yours and what's the companies is usually outlined by: a) Did you do it on the company's time? b) Did you use company equipment

by lrm242 16y ago

The boundaries between what's yours and what's the companies is usually outlined by: a) Did you do it on the company's time? b) Did you use company equipment or resources to do it? c) Does it pertain to the company's current or future business? Item (c) is where the legal gray area shows up. It gives you enough leeway to innovate on your own time with your own stuff but it also gives the company the legal right to assert themselves if they feel you've strayed to close to "company matters". (c) is important because your employer can not control what's in your head. If you work for a company that builds cars, they don't want you thinking of a new, innovative way to build a car on your own time, leaving, patenting it, and then competing with them. This is entirely reasonable for both parties, IMO. In this particular case it looks like the author has build a web server. This clearly falls within the realm of what Google might consider their current or future business and therefore can reasonably believe that the author is using Google knowledge (even if not equipment, resourecs, or time) to build it. EDIT: Clearly every IP agreement is different; however, every one I've ever read or signed has essentially been the above. Further, there is always a schedule allowing you to outline the IP you currently own that might violate (c).

bphogan 16y ago
The problem with this line of thinking is that he's not doing it on company time and thus not being compensated for it. This guy built a web server on his own time, and now Google gets to add it to their portfolio and is not compensating him for his work. So the message is basically "We own your mind, and everything you make, and you have no choice. And we don't need to pay you because, hey, you're lucky you've got a job with us."
- enjo 16y ago
  The argument from the companies perspective: They hire you not as a implementor but as an inventor. In exchange for a salary they have hired you to provide the full value of your experience and imagination to the company. This extends beyond 'working hours' (after all, you're on salary). It is simply a way of ensuring that the companies gets it maximum value for what you invent while being compensated by them.
  - bphogan 16y ago
    Understood. Until they don't need you anymore. Then they boot you out, leaving you with no ideas. And that's why these things bother me - you don't have a backup plan under contracts like this, and in this day and age you certainly need one (or two.)
  - cookiecaper 16y ago
    Salary should not be a way for companies to exploit their employees, though it often is because employees are spineless. The theory behind salary is that the value you provide the company is not directly correlated to the amount of time you spend at your desk, and therefore you negotiate a compensation package commensurate with a "fair cut" for the value you generate. Again, salary is not given so that the company has free-reign ownership over your body and mind and it should not be a mechanism whereby the company gets an hourly employee on the cheap (some bosses seem to think that salary translates to infinite and unlimited uncompensated overtime -- of course, the 40-hour-week limit isn't necessarily applicable, but things have to stay within reasonability). What you do on your own time without company resources is your property, plain and simple. Companies are not buying your whole imagination and salary does not EVER mean that they own everything you thought up while on payroll. If Google feels threatened by this web server, they can probably obtain an injunction based upon non-compete agreements that stops the publication or use of the thing for a year or whatever, but they have no right to totally misappropriate it and steal it from the original author, and saying "well, he's on salary, so we own the entire output of his energy and imagination" is such a horrible and disgusting cop-out. I've worked for some people who've thought that salary meant person-ownership and got out as quickly as possible. I was astonished to see most co-workers minimize it with things like "Well, you know, the economy is tough, we're lucky to even have work, they'll reward us with bonuses and more down the road". I just don't understand how people can tolerate that kind of thing. People who do that to their employees are so obviously amoral I don't see how one can expect a fair recompense later on.
  - paganel 16y ago
    > This extends beyond 'working hours' (after all, you're on salary). It is simply a way of ensuring that the companies gets it maximum value for what you invent while being compensated by them. I'm sorry to say it, but unfortunately for us all Marx is beginning to become more and more relevant, again (I, for one, had hoped/thought that we had left him and the problems he described in "Das Kapital" behind us). What you're basically saying (and Marx was trying to explain) is that a company like Google isn't happy with what it gets (in terms of profit) when it employs an engineer for only 8 hours/day, they want him to be on the company payrolls 24 h/day, a thing that even Marx himself wouldn't have thought possible. I mean, it may happen that the above-mentioned engineer has a brilliant idea in his sleep (we've all had our "dreaming in code" moments, no?), but, according to what you're saying, Google is entitled to appropriate that dream's contents as being their own.
enjo 16y ago
This test is only somewhat valid in California, as I understand it. In most states the Company can freely assert copyright over pretty much anything you produce with a simple employee agreement. I would estimate that a majority of developers are under pretty onerous agreements that assert control over all inventions that they create while under the employ of the company. Before my startup days I was faced with such an agreement. The lawyer I consulted with (in Texas) certified that these agreements are in fact legal and have been upheld in court. Apparently California is more employee friendly in its labor code.
- mindcrime 16y ago
  > I would estimate that a majority of developers are under pretty onerous agreements that assert control over all inventions that they create while under the employ of the company. Could be. I'm fortunate enough that the company I work for at my day-job has a very explicit clause in their "IP Assignment Agreement" that spells out - very clearly - that if you invent something on your own time, on your own equipment, that doesn't involve company IP / knowledge / etc., then they make no claim to it. Now, granted, the way the legal system works in the US, they could - if they turned evil - turn around and try to claim ownership of some of my open-source stuff, and the outcome would (as always) come down to "what a particular combination of judge, jury, & lawyers, in a particular situation, on a particular day, decide." But given how clear they are on this point, their chances of successfully claiming such ownership seem pretty low. From what I've seen/heard, it's not uncommon for such clauses to exist... some companies also invite you to submit a list of "things that you were already working on before gaining employment here" that are excluded from any IP claim by $COMPANY. Lulu, for example, did this when I was there (and presumably still do). When I joined them, I just gave them a list of every open-source project I'd ever touched, looked at, thought about, or considered, and the vaguest most abstract list of things I was working on that I could dream up. They weren't exactly crazy about the list I gave them, but it wasn't a deal-breaker. <shrug /> It sucks that we have to deal with this crap at all, but I honestly don't think most employers are actually evil in this regard. A lot of this is just bureaucracy for bureaucracy's sake, IMO.
auxbuss 16y ago
This is a good post, and I agree with you up until your refinements of point (c). If I dream up a improvements to my employer's business, but the incentives are not there to pursue them within that business, then you bet your arse that I can take them elsewhere. And yes, if I can be successful enough, compete with that business. If the original business isn't smart enough to recognize the potential in its business, then it has no right to make a claim to it at a later date. None whatsoever.
- enjo 16y ago
  The law would generally disagree.
  - cookiecaper 16y ago
    Really? I always hear that non-competes are generally not upheld.
    - kelnos 16y ago
      You hear wrong (e.g. http://en.wikipedia.org/wiki/Non-compete_clause http://en.wikipedia.org/wiki/Non-compete_clause): "Most jurisdictions in which such contracts have been examined by the courts have deemed CNCs to be legally binding so long as the clause contains reasonable limitations as to the geographical area and time period in which an employee of a company may not compete. " California tends to be the most employee-friendly wrt non-competes, but even here you can construct one that is valid, for certain classes of employees and with many restrictions.
  - auxbuss 16y ago
    Please cite. Folk are up-voting you, so the consensus is in your favour, but let's please out the facts, not hearsay.
btilly 16y ago
You are clearly not a lawyer, and I strongly advise people to not follow your advice. I say this as a non-lawyer who has direct experience with this exact situation. What you have said is the case in California only. In most other states the test is very, very different. That said, there is a fairly simple process within Google which this guy can use to get permission. While Google wants to assert its intellectual property rights, Google also understands that it is usually good for everyone when Google employees have the freedom to work on open source projects.
- apenwarr 16y ago
  Note that these California-style policies are also common, almost word for word, everywhere I've worked in Canada. (BC, Ontario, Quebec)
  - alextingle 16y ago
    I have only seen such a contract once. And I just laughed at them. What am I going to work for, if not to fund the stuff I really want to be doing in my own time?
- jrockway 16y ago
  direct experience with this exact situation Relevant link: http://www.perlmonks.org/index.pl?node_id=153046 http://www.perlmonks.org/index.pl?node_id=153046 I think your case was tougher on you that these cases normally are. It seems in your case, your options were, "get fired and lose code", "get yelled at and lose code". In most cases where psychopaths are not involved, it's "can you edit the copyright statement and run this by me again"? I think that is why you are a lot more bitter than the person involved in the linked article :)
  - btilly 16y ago
    Yeah, but it all worked out in the end. I even got a weird kind of option grant from that company, which paid out to the tune of 90K or so when the company was sold.
wallflower 16y ago
When I was more naive than I am now, I signed the yeah-all-your-IP-belongs-to-us employment agreement as a condition of employment. This was many years ago and I am still at the same company (it is not in California) To counteract this, for now, I only do contract work and/or work on fairly large team collaborations. My thinking is if I don't own it but the client does (since they are paying me to work on it after hours) - the day job company won't have much to go on because I didn't own the code in the first place. For the second - since I don't have full ownership/sole contributor - maybe that will make them less likely to go after me than a clean cut single owner situation. All of these projects are done on non-company time, network, and hardware. I don't usually bring my MacBook in but when I have a client deadline, I will work on my train commute and not even charge the MacBook using (company) power - will just lock it to the desk by locking it to a cable while still in my bad - I tote around a second battery. Am I doing something naive still? My thinking is they really won't come after me. I am nervous to talk about my side projects (get actual HR/VP approval) as I fear it will get me red-flagged in some manner. Maybe I have to.

by lrm242 16y ago

bphogan 16y ago

The problem with this line of thinking is that he's not doing it on company time and thus not being compensated for it. This guy built a web server on his own time, and now Google gets to add it to their portfolio and is not compensating him for his work. So the message is basically "We own your mind, and everything you make, and you have no choice. And we don't need to pay you because, hey, you're lucky you've got a job with us."

enjo 16y ago
The argument from the companies perspective: They hire you not as a implementor but as an inventor. In exchange for a salary they have hired you to provide the full value of your experience and imagination to the company. This extends beyond 'working hours' (after all, you're on salary). It is simply a way of ensuring that the companies gets it maximum value for what you invent while being compensated by them.
- bphogan 16y ago
  Understood. Until they don't need you anymore. Then they boot you out, leaving you with no ideas. And that's why these things bother me - you don't have a backup plan under contracts like this, and in this day and age you certainly need one (or two.)
- cookiecaper 16y ago
  Salary should not be a way for companies to exploit their employees, though it often is because employees are spineless. The theory behind salary is that the value you provide the company is not directly correlated to the amount of time you spend at your desk, and therefore you negotiate a compensation package commensurate with a "fair cut" for the value you generate. Again, salary is not given so that the company has free-reign ownership over your body and mind and it should not be a mechanism whereby the company gets an hourly employee on the cheap (some bosses seem to think that salary translates to infinite and unlimited uncompensated overtime -- of course, the 40-hour-week limit isn't necessarily applicable, but things have to stay within reasonability). What you do on your own time without company resources is your property, plain and simple. Companies are not buying your whole imagination and salary does not EVER mean that they own everything you thought up while on payroll. If Google feels threatened by this web server, they can probably obtain an injunction based upon non-compete agreements that stops the publication or use of the thing for a year or whatever, but they have no right to totally misappropriate it and steal it from the original author, and saying "well, he's on salary, so we own the entire output of his energy and imagination" is such a horrible and disgusting cop-out. I've worked for some people who've thought that salary meant person-ownership and got out as quickly as possible. I was astonished to see most co-workers minimize it with things like "Well, you know, the economy is tough, we're lucky to even have work, they'll reward us with bonuses and more down the road". I just don't understand how people can tolerate that kind of thing. People who do that to their employees are so obviously amoral I don't see how one can expect a fair recompense later on.
- paganel 16y ago
  > This extends beyond 'working hours' (after all, you're on salary). It is simply a way of ensuring that the companies gets it maximum value for what you invent while being compensated by them. I'm sorry to say it, but unfortunately for us all Marx is beginning to become more and more relevant, again (I, for one, had hoped/thought that we had left him and the problems he described in "Das Kapital" behind us). What you're basically saying (and Marx was trying to explain) is that a company like Google isn't happy with what it gets (in terms of profit) when it employs an engineer for only 8 hours/day, they want him to be on the company payrolls 24 h/day, a thing that even Marx himself wouldn't have thought possible. I mean, it may happen that the above-mentioned engineer has a brilliant idea in his sleep (we've all had our "dreaming in code" moments, no?), but, according to what you're saying, Google is entitled to appropriate that dream's contents as being their own.

enjo 16y ago

This test is only somewhat valid in California, as I understand it. In most states the Company can freely assert copyright over pretty much anything you produce with a simple employee agreement. I would estimate that a majority of developers are under pretty onerous agreements that assert control over all inventions that they create while under the employ of the company. Before my startup days I was faced with such an agreement. The lawyer I consulted with (in Texas) certified that these agreements are in fact legal and have been upheld in court. Apparently California is more employee friendly in its labor code.

mindcrime 16y ago
> I would estimate that a majority of developers are under pretty onerous agreements that assert control over all inventions that they create while under the employ of the company. Could be. I'm fortunate enough that the company I work for at my day-job has a very explicit clause in their "IP Assignment Agreement" that spells out - very clearly - that if you invent something on your own time, on your own equipment, that doesn't involve company IP / knowledge / etc., then they make no claim to it. Now, granted, the way the legal system works in the US, they could - if they turned evil - turn around and try to claim ownership of some of my open-source stuff, and the outcome would (as always) come down to "what a particular combination of judge, jury, & lawyers, in a particular situation, on a particular day, decide." But given how clear they are on this point, their chances of successfully claiming such ownership seem pretty low. From what I've seen/heard, it's not uncommon for such clauses to exist... some companies also invite you to submit a list of "things that you were already working on before gaining employment here" that are excluded from any IP claim by $COMPANY. Lulu, for example, did this when I was there (and presumably still do). When I joined them, I just gave them a list of every open-source project I'd ever touched, looked at, thought about, or considered, and the vaguest most abstract list of things I was working on that I could dream up. They weren't exactly crazy about the list I gave them, but it wasn't a deal-breaker. <shrug /> It sucks that we have to deal with this crap at all, but I honestly don't think most employers are actually evil in this regard. A lot of this is just bureaucracy for bureaucracy's sake, IMO.

auxbuss 16y ago

This is a good post, and I agree with you up until your refinements of point (c). If I dream up a improvements to my employer's business, but the incentives are not there to pursue them within that business, then you bet your arse that I can take them elsewhere. And yes, if I can be successful enough, compete with that business. If the original business isn't smart enough to recognize the potential in its business, then it has no right to make a claim to it at a later date. None whatsoever.

enjo 16y ago
The law would generally disagree.
- cookiecaper 16y ago
  Really? I always hear that non-competes are generally not upheld.
  - kelnos 16y ago
    You hear wrong (e.g. http://en.wikipedia.org/wiki/Non-compete_clause http://en.wikipedia.org/wiki/Non-compete_clause): "Most jurisdictions in which such contracts have been examined by the courts have deemed CNCs to be legally binding so long as the clause contains reasonable limitations as to the geographical area and time period in which an employee of a company may not compete. " California tends to be the most employee-friendly wrt non-competes, but even here you can construct one that is valid, for certain classes of employees and with many restrictions.
- auxbuss 16y ago
  Please cite. Folk are up-voting you, so the consensus is in your favour, but let's please out the facts, not hearsay.

btilly 16y ago

You are clearly not a lawyer, and I strongly advise people to not follow your advice. I say this as a non-lawyer who has direct experience with this exact situation. What you have said is the case in California only. In most other states the test is very, very different. That said, there is a fairly simple process within Google which this guy can use to get permission. While Google wants to assert its intellectual property rights, Google also understands that it is usually good for everyone when Google employees have the freedom to work on open source projects.

apenwarr 16y ago
Note that these California-style policies are also common, almost word for word, everywhere I've worked in Canada. (BC, Ontario, Quebec)
- alextingle 16y ago
  I have only seen such a contract once. And I just laughed at them. What am I going to work for, if not to fund the stuff I really want to be doing in my own time?
jrockway 16y ago
direct experience with this exact situation Relevant link: http://www.perlmonks.org/index.pl?node_id=153046 http://www.perlmonks.org/index.pl?node_id=153046 I think your case was tougher on you that these cases normally are. It seems in your case, your options were, "get fired and lose code", "get yelled at and lose code". In most cases where psychopaths are not involved, it's "can you edit the copyright statement and run this by me again"? I think that is why you are a lot more bitter than the person involved in the linked article :)
- btilly 16y ago
  Yeah, but it all worked out in the end. I even got a weird kind of option grant from that company, which paid out to the tune of 90K or so when the company was sold.

wallflower 16y ago

When I was more naive than I am now, I signed the yeah-all-your-IP-belongs-to-us employment agreement as a condition of employment. This was many years ago and I am still at the same company (it is not in California) To counteract this, for now, I only do contract work and/or work on fairly large team collaborations. My thinking is if I don't own it but the client does (since they are paying me to work on it after hours) - the day job company won't have much to go on because I didn't own the code in the first place. For the second - since I don't have full ownership/sole contributor - maybe that will make them less likely to go after me than a clean cut single owner situation. All of these projects are done on non-company time, network, and hardware. I don't usually bring my MacBook in but when I have a client deadline, I will work on my train commute and not even charge the MacBook using (company) power - will just lock it to the desk by locking it to a cable while still in my bad - I tote around a second battery. Am I doing something naive still? My thinking is they really won't come after me. I am nervous to talk about my side projects (get actual HR/VP approval) as I fear it will get me red-flagged in some manner. Maybe I have to.