8 ms·

Does my company have IP rights to the stuff I do in my spare time?

167 points by SandB0x 16y ago

tptacek 16y ago
Very often, yes. The boilerplate IP contracts provided by most law firms usually claims one of: * All software development work you ever do while employed by the company. * All software development work you do using in any way any resource of the company, from computer to network connection. * All software development work you do related to the business of the company that employs you. * All software development work you do that isn't explicitly listed in an exhibit of exceptions you, the employee, fill out. Before you start asking how enforceable this stuff is, note that unlike with noncompetes (which usually aren't practically enforceable), the way this issue is going to come up is, you're going to try to start a company, and your first official act of business is going to be to start defending yourself against legal actions from your employer that will torpedo any chance you have of getting funding for the year or so it takes for those actions to resolve themselves. So, 'grellas may chime in and say "don't worry about this", in which case ignore me, but I wouldn't dick around with this issue. If my IP contract precluded me from working on my next company project, I'd get a clarified official path to working on it from my employer, and leave if one wasn't provided.
- rst 16y ago
  This also varies somewhat by state; there's a law in California (Labor Code section 2870[1]) that bars employers from claiming work that an employee does "on his or her own time without using the employer's equipment, supplies, facilities or trade secret information" unless the invention relates directly to the employer's business. I'd still check with a lawyer, though, even if in California --- and if elsewhere, most states are a lot less generous. [1] http://www.leginfo.ca.gov/cgi-bin/displaycode?section=lab&group=02001-03000&file=2870-2872 http://www.leginfo.ca.gov/cgi-bin/displaycode?section=lab&#3...
  - elai 16y ago
    There was also a similar clause in my washington employment contract. The law even states that the clause must be put in all contracts and still applies if it doesn't.
  - tptacek 16y ago
    It may be harder than you expect to establish that you're not in a business related to your former employer, at least to the extent that you can quickly end a legal action; all I'm saying is, that legal safeguard may not be as helpful as you'd hope.
    - rst 16y ago
      Particularly if the employer is someone like Microsoft or Google that does, well... a little of everything. As I said, it's definitely worth consulting a lawyer before taking anything for granted.
    - Natsu 16y ago
      You're absolutely right. There are really two questions here: * Does my employer own this? * Will they make me prove that in court? The damnable thing is that, even if you really do own your work, having to prove that you own it in court may kill your startup by making you run out of money.
      - aaronblohowiak 16y ago
        The other way of looking at your latter point: I try to work for people who would brag about successful former employees. Enlightened managers cultivate an "alumni network."
        Natsu 16y ago
        The world needs more managers like that.
    - kjhghjkjh 16y ago
      Remember that you aren't trying to convince a bunch of HN readers - you are trying to convince a judge (who thinks computers are magic boxes) If your day job is Oracle DBA and your startup is iPhone apps or web design that still equals the same "computer stuff" to a judge.
- kleinsch 16y ago
  Even if your company doesn't sue you immediately, the fact that the intellectual property might be of questionable ownership can also mess up fundings or acquisitions down the road. If a company is looking to buy you and realizes that there's a chance of BigCorp claiming ownership of some piece of your IP because you signed a bad employment contract, it's going to be one more reason for them to say no to the deal.
  - random42 16y ago
    ... or, at-least to reduce the acquisition price and/or put money in the escrow.
- sabat 16y ago
  Not in California; we have a state law that specifically addresses (and forbids) this kind of behavior by companies. I'll let a poster over at the OP speak for me: California is one state where their policy is NOT enforceable as far as their ownership. They may fire you over it but they won't own your work.
  - alok-g 16y ago
    Read this again, maybe twice. http://www.leginfo.ca.gov/cgi-bin/displaycode?section=lab&group=02001-03000&file=2870-2872 http://www.leginfo.ca.gov/cgi-bin/displaycode?section=lab&#3... Then read your employment contract that you may have signed. It often contains legal terms like "work for hire", etc. that have explicit definitions. Make sure you read your contract after understanding these definitions. The portions that are not easily enforceable include the following: You contract may state that the agreement will continue to apply up to six months or one year after you terminate your employment. This provision is generally included by employers so as to prevent employees from coming up with patentable ideas or creating copyrightable works (like software) and "then" terminating their employment pretending none of that happened. Under that scenario, the IP you generate does indeed belong to the company. On the other hand, if you start your work and develop IP strictly after terminating your employment, court will not honor "non-compete" clauses. This are designed to protect employees who are most likely to continue working in areas of their expertise, which is likely the same as what they were working on while they were employed. Reason for edit: Fixed some typos.
    - sabat 16y ago
      The law specifically says that a company cannot claim to own your private work except under very specific conditions. If you, for instance, work for Zynga and develop a game that is very much modelled after a Zynga game, then Zynga has a case. If you develop a CRM for Patent Attorneys, Zynga has no case -- unless you developed the CRM while at work at Zynga. Under that scenario, the IP you generate does indeed belong to the company. Only if the "IP" falls under very specific guidelines. Writing an MMORPG at home while working at Zynga? No, Zynga can't claim squat. You don't need to wait to terminate employment in order to work on projects at home.
gte910h 16y ago
Depends on where you live. Heavily state dependent.
- boucher 16y ago
  Absolutely. Along with the standard, "talk to a lawyer" advice, it's worth noting a few things: 1) Virtually every major technology company includes intellectual property assignment agreements in the paperwork they require new hires to sign. Most startups probably have the same policy, many perhaps without even knowing it, since its part of plenty of standard paperwork. Y Combinator's standard paperwork includes such a clause. 2) For all of the ones I've seen (and I imagine most respectable companies, and probably every company in California, for reasons to be mentioned), the paperwork claims ownership over anything developed a) during work hours, or b) using company owned equipment, resources, or IP, or c) anything that doesn't fall into the first two categories but that involves an area of business the company is active in, or has plans to be active in. 3) The reason California companies all have roughly the same language, is because those restrictions are what are specified in California state law. Given the nature of California in the tech industry, I would guess that influences what a lot of tech companies use as a general policy. The language is somewhat complicated by the third part of the equation, but generally I believe the company has to be able to show damages in such an instance. 4) There are no such general protections on the federal level, and I believe a majority of states do not offer those protections, meaning that in many states all work, and even in some cases all ideas, that you generate during your employment belong to your employer (if you signed a contract to that effect with the employer).
PHPAdam 16y ago
Interesting read, its doubtful they can. If it ever came to a dispute, id follow the guidance of mark zuckerberg and fight it out for the rights to my work.
- boucher 16y ago
  This seems like a fairly uninformed view of the Zuckerberg story. In the end, Facebook settled those claims for huge amounts of money (and only were able to because they in fact had huge amounts of money).
SandB0x 16y ago
Interested to hear perspectives from Europe/UK as well as the US, so if you mention specifics please say where this is relevant.
ChuckMcM 16y ago
Very much state dependent, and very much modified by the employment agreement (if you had one) when you joined a company. You can, and should, strike any objectionable material from the employment agreement, have the HR person who is helping you with your first day paperwork sign off on the changes, make a copy of the document, have the HR person sign the copy acknowledging it is a true copy of what was signed, and put that somewhere safe. If the company won't accept your changes, then that is your signal that not only do they intend to own IP rights to perhaps everything you have done or will do, they also intend to litigate for those rights which you will have signed over to them with the agreement. That is a good time to decide if you want to work there or not. For folks who are thinking about changing companys but have yet to make the jump, ask your future employer to give you a copy of the employment agreement before you accept their offer. Have it reviewed by a lawyer. That way you can find out before you give notice that you weren't going to work there anyway. At least for tech employees there is enough demand on the hiring side to give you an advantage.
gaustin 16y ago
Link broken? All I get is "Portal Not Found"
RiderOfGiraffes 16y ago
IANAL, but in the UK, unless you have a contract that specifically says otherwise, yes. On the other hand, if the outside work provably used no employer resources, and provably is unrelated, then you can probably defend yourself against an action. But you really, really don't want to depend on that. Get it sorted up front. Get an explicit agreement with your employer that non-competing work done without their resources and without impacting your work, belongs to you. Otherwise it's murky and dangerous.
- rlpb 16y ago
  > and provably is unrelated I've been told by a professional that "unrelated" generally means work that might be in a different profession - and that to a court, "computers" could be considered a single profession in this sort of case. Work done in the field of "computers" outside of work, and you work for a "computer" firm? Related. Ergo your employer owns the IP. So yeah, don't depend on it. At all. This is the advice I was given when verifying that I had the IP relating to my startup. To avoid any doubt, I got the IP signed over with a contract I paid a solicitor for. This cost money, but more importantly it helped that my former employer was willing to do this. Thinking about it, this default is the sort of thing that stifles innovation. If the Government wants to promote innovation, perhaps they should change the rules. Edited to add: I'm in the UK.
- ig1 16y ago
  UK legislation will only give an employer copyright if the work was created "in the course of his employment" (Chapter I section 11(2) of the act). So essentially if it's part of the job. But I agree it's better to just get it agreed upfront.
- moonwalker 16y ago
  IANAL, this is also for UK. I as well was employed in the UK last year and had my contract checked by a lawyer. The contract contained few vague clauses regarding IP discovered during the term of the employment and some non competes with any business of the company or of the group companies. The lawyer confirmed the only safe route would be to have an explicit agreement providing me IP ownership and entrepreneurial freedom signed by the company. Then it depends what your relation is to the company. Do you want to tell them you have more ambitions than being a loyal employee ? If your bosses are a 'general' management and not a founder etc., I very much doubt you will achieve anything positive yourself. I believe these contracts are a norm here from what I heard as well. (I quit in the end before starting my venture).
trotsky 16y ago
It's a seller's market, don't take a job at a company with policies you don't agree with, regardless of how common they are or how enforceable they might be[1]. It's quite easy to find employers in the bay area that don't demand such things or will waive the clause. Make sure to tell them why you didn't take the job. [1] I suppose if it's clearly and completely unenforceable little harm is done
- tptacek 16y ago
  In some cases --- maybe a lot of them --- the board of directors requires the management team to operate from an approved boilerplate contract. I'm sure you can get anything overridden, but I wouldn't fly off the handle just because I saw an agreement like this.
- zem 16y ago
  in what way is it a seller's market? as far as i can see, high-tech employment is still not all the way back up to pre-recession levels.
  - jswinghammer 16y ago
    If you tried to hire in the past few years in an area like Boston this wouldn't require further explanation.
    - zem 16y ago
      are you speaking from experience? if so, i'm curious - is it that you confined your search to boston, or that people elsewhere were unwilling to relocate?
modoc 16y ago
In general you should avoid signing the standard contracts at any job. I've always made changes to protect my after-hours work, and they've been okayed every single time.
- alok-g 16y ago
  That's good advice. I wish it came to me earlier!!
- mkramlich 16y ago
  I'm getting to the point where i don't want to sign any contracts with any future employer or client. At least, nothing but the bare minimum needed. NDA's, for example, increasingly look to me as a joke and more trouble than they're worth.
- updog 16y ago
  Have you worked at any large companies and had success with that? I'm used to dealing with people who don't know who wrote the agreement, have given it to thousands of others "without a problem", and treat me like I am a bit odd for actually reading it, let alone trying to change something.
  - modoc 16y ago
    Yes actually I've pushed changes back at companies like Cingular and AT&T, and semi-large consulting firms like NCS Tech, and others. The HR rep will usually think I'm odd, but it's saved my butt at least once, so it's worth a couple odd looks:)
Philbrick 16y ago
Google, my employer, recently refused a request that I made to release as open source some software that I had been working on in my spare time and without using any of their resources, on they claim that my software would compete with one of their projects. :-(
- alain94040 16y ago
  There's a story in there. Did Google actually have any claims to the software you wrote? If not, then you wouldn't need their persmission (except that now that you asked, they could fire you for disregarding their "advice"). I'd love to hear cdibona's views on that.
  - cdibona 16y ago
    I wrote them up last time this came up, you can find it here: http://news.ycombinator.com/item?id=1970191 http://news.ycombinator.com/item?id=1970191
- alok-g 16y ago
  Sounds like a good story to blog about and post on HN.
  - Philbrick 16y ago
    Thanks. I'd like to write about it but, sadly, there are some relatively confidential details there (e.g. information about the Google project that my software would be theoretically competing with) that I can't reveal publicly. I'm not ready to give up my employment over this (though it does significantly lower the bar for what another organization would need to offer me in order for me to consider switching jobs :-().
- kjhghjkjh 16y ago
  Google even prevented one prominent C# expert from renewing his microsoft MVP once he went to work for them - and this was in europe where workers generally have some protection
bcrawford 16y ago
http://www.leginfo.ca.gov/cgi-bin/displaycode?section=lab&group=02001-03000&file=2870-2872 http://www.leginfo.ca.gov/cgi-bin/displaycode?section=lab&#3... Unless I'm reading this wrong: if you work on it solely on your time, with your equipment, it's yours (in California, anyway). UPDATE: Oh, also it can't compete with their business.
- alok-g 16y ago
  People, this link talks about "inventions". Nothing else is included in this. Please do not generalize this to "work". If you invent something while adhering to the statutes stated here, and write software implementing that invention, then the invention would belong to you. But the software doesn't! Software is subject to copyrights, not inventions.
  - sabat 16y ago
    Regardless of the word used, this law does apply to copyrighted works in practice. "Invention" is used in the sense of "creations".
    - alok-g 16y ago
      That would be excellent. How can I confirm this?
      - sabat 16y ago
        IANAL, but I know there are existing cases. I confirmed it through a friend who's been doing HR here for years. So: either lawyers or HR people or both, I suppose.
nihar 16y ago
It depends on what your contract says... I work for a firm that clearly states that whatever you do, if it involves their equipment, resources, or time, or knowledge gained while working with them, they have IP rights at that point. That being said, some companies allow you to do stuff on your own, e.g. work for a different client / project outside your billable hours, and they don't have rights to those products (as long as you're clearly showing that you're not using shared resources).
Deestan 16y ago
In Norway, no. Some companies try to put it in the contract, but it has no base in law and holds no legal obligations. I.e. you can ignore the clause safely.
motters 16y ago
I recently came up against this sort of nonsense in a job interview. I do a lot of technological stuff in my spare time, so as soon as they mentioned that I would have to agree to stop engaging in such extra-curricular activities I ended the negotiations.
mkramlich 16y ago
I wouldn't mind allowing a company to have rights over what I do on my own time as long as I get ownership rights over everything else the company is doing, regardless of whether I'm involved or not. Fair's fair.
- alok-g 16y ago
  It does not depend unfortunately whether you mind or not.
  - mkramlich 16y ago
    where there's a will there's a way :P
    - alok-g 16y ago
      :-) Let me know if you figure something out!
    - CapitalistCartr 16y ago
      Where there's a will, there's billable hours.
      - mkramlich 16y ago
        i like that. "if you can't beat 'em, bill em!" :)
daimyoyo 16y ago
I'm in sales and in my spare time I am creating a program for online data management(which will also create leads although they're B2B and my company does B2C). Can I use the "not work related" exemption or should I renegotiate my employment agreement? I work in Nevada. Thank you for any help you can give me.
- alok-g 16y ago
  PS: I am not a lawyer, although have done extensive online research on these issues. 1. "Not work related" gives you an incomplete picture (not related to who's work?). That it is not related to your work is not enough. It must not be related to the employer's line of work, or anticipated line of work. Even if one person in the company is working on a related item, the your work may belong to the company. Even if one person in the company is anticipating the same, you have a potential issue. (See item 3 below for a related issue.) 2. The normal meaning of "related" also should not be taken at face value. If you are making burgers for MacDonald's while making a software side project, you are likely to be OK (and I am guessing that McDonald's would make you sign an employment agreement for these issues also). If you are in sales for a technical company and are making a software, they can easily be considered to be "related" by your company or the court. 3. Keep in mind that in any case the onus of proving is on you, so you the legal costs of proving you are clean would fall on you. That also means that in case of trouble, the court may initially side the employer and wait for you to prove you are clean to turn to your side.
  - alok-g 16y ago
    Correction: "and I am guessing that McDonald's would NOT make you sign an employment agreement for these issues"
mtarnovan 16y ago
Pertaining the case cited by the answer, this might be an interesting read: http://bit.ly/gt5BGE http://bit.ly/gt5BGE (Google Books)
btilly 16y ago
The advice in that forum is an illustration of why you should not believe legal advice that is given to you by non-lawyers. Much of it is wrong, dangerously so. For example one person claims that by default what you do on your own time is owned by you. Sorry, that varies by jurisdiction and local laws. It is true in CA, but false in NY. Several people claim that CA offers strong protections. That is true, but the protections are not nearly as strong as they are claiming. And so on. If you, personally, care about this topic, talk to a good IP lawyer who knows the local laws for your state.
- bugsy 16y ago
  Do you have a citation for your statement that "what you do in your spare time" is not owned by you in New York?
  - btilly 16y ago
    My reference was what I was informed was the law by multiple lawyers when I lived in New York. It is possible that I misunderstood or the rules have changed in the last decade, but I am pretty sure neither is the case. Still you should confirm this with a qualified attorney before accepting what I say as being absolutely true. More precisely I was told that New York recognizes 3 types of employee relationships. They are hourly, contractor, and professional employee. The first two are obvious. You are aware if you have to punch in on a clock, or are a contractor. The default for software development is therefore the third. As a professional employee there are no set place or hours for your employment. (That is why you don't get overtime.) Therefore anything that you do that could possibly relate to your employment is by default assumed to be a work for hire that took place during the course of your employment. There are admittedly some complications there. If a programmer writes a novel, that's going to not be a work for hire. If a programmer writes a program, that's likely going to be a work for hire. But there are gray areas. For instance a VB programmer by day who works a C device driver for Linux by night might have a case that their side project doesn't relate to their employment. But just in case, virtually every New York company makes sure that employees sign contracts that clarifies any possible ambiguity..in favor of the employer. So the reality is that if you live in New York, you can't assume that you own your side project. Incidentally this is the reason that the FSF (which is very careful on intellectual property) requires that they get copyright assignment both from contributers and from the contributers' employers. Because they don't want to get into a situation where they think they have copyright, but someone else has a legal claim to copyright that code.
run4yourlives 16y ago
Not in Canada they don't. The courts will look at every case individually but unless there is obvious malfeasance on behalf of the employee, any "we own you" contracts are unenforceable. (Point being that it depends on where you live.)
- ckcheng 16y ago
  Do you have any links, references on this?? Specific to Canada - and Alberta - would be nice. :) I'm trying to find more info on this, and can't find any relevant info on Google...
  - run4yourlives 16y ago
    You should check out the Alberta employment standards office. It's goes the same for non-compete agreements, which are also hard to enforce north of the 49th.
AndyJPartridge 16y ago
UK Opinion: I started writing an application 10 years before the formation of a UK Ltd company, and when I joined them I let them use it. I ended up having to negotiate and buy said software from the liquidator when it failed because it was cheaper than fighting the claim in court to prove ownership. As many have said, get everything in writing.
zach 16y ago
Maybe, but if you don't actually create IP yourself -- you hire a contractor to do what you do at your day job -- you will stay in the clear and gain valuable experience. Managing a contracted worker in your field of expertise, within the creative restriction that you cannot perform their work for them, is itself a highly educational exercise for someone with entrepreneurial interests. Be sure to document well, though.
- cryptoz 16y ago
  That's all fine and good for legal reasons, but frankly the whole point of doing stuff in my free time is that I want to be the one doing it. Otherwise I wouldn't be doing it in my free time. I get what you're saying from a financial and legal perspective, but it definitely does not solve the greater problem.
  - zach 16y ago
    Yeah, I understand. You would think that employers would prize the kind of employee who wants to do the same thing in their spare time as they do at the office, wouldn't you? And yet everywhere they are treated with suspicion.
drivebyacct2 16y ago
"Does this seem off-topic to anyone else? – Russell Steen Jan 26 at 14:49" Is the reason I just get sick of S.O. sometimse.
- m_myers 16y ago
  Where "S.O" is shorthand for "answers.onstartups.com"?
alok-g 16y ago
I had asked pretty much the same question here: http://news.ycombinator.com/item?id=1839301 http://news.ycombinator.com/item?id=1839301
deleted 16y ago
[deleted]
alok-g 16y ago
I found this to be an excellent resource for this topic. http://www.amazon.com/Intellectual-Property-Open-Source-Protecting/dp/0596517963/ http://www.amazon.com/Intellectual-Property-Open-Source-Prot... While this has "open source" in the title, it's still an excellent book related to this topic. Another good thing about this book is that it draws analogies between software source code and law statutes, making it very easy for software folks to understand these legal issues.
aspiringsensei 16y ago
My employer is hyper-strict about stuff that is directly competitive with their offerings, but has tightly "ringfenced" those offerings and allows us to do what we like outside them.
pyre 16y ago
I think that the most ridiculous contracts are the ones that attempt to assert ownership of things you have produced before you even worked at the company. (i.e. anything that you have created, are creating, and will create in the future) Companies/lawyers will do this claiming that it's only a defensive measure, but once they have that power over you, they will not hesitate to go on the offensive if they think they have something to gain by doing so.
grellas 16y ago
A few thoughts on this: 1. I have done transactional work and litigation in and about these areas for nearly 30 years in Silicon Valley. Based on that experience, in practical terms, the risk you deal with in doing side work boils down to this: it is rare that an employer will make a claim to IP you develop on your own time and using your own resources but, when it does happen, its effect is pretty horrific. 2. California gives you more scope only because it has a law on the books that generally prohibits employers, on public policy grounds, from making claims to IP generated by employees working on their own time and using their own resources. 3. Even in California, however, an employee owes duties to his employer and one of those is that you don't misappropriate your employer's IP for your own use. This is why the California law says that you don't keep your side-project IP for yourself if it is in your employer's line of business or anticipated line of business. You can imagine the chaos that would result if any employee could state that, "no, that valuable IP that I came up with might have directly concerned what my employer was paying me to develop, but, in fact, I developed that particular key piece on my own time, etc." 4. In this sense, there is a common sense element to this area of law as applied in California. You typically will sense, without being told, whether the work you are doing on the side is capitalizing on the things your employer is doing or if it is truly unrelated. 5. That said, don't mess around with this sort of thing. It is both contract-specific and local-law-specific. That means general statements you hear from time to time (including those I just made) may or may not apply to you. If what you are planning to do has commercial value, then make sure to get it checked by a good local lawyer who can guide you through the pitfalls and explain alternatives. This is particularly so if you are not in California.
- martincmartin 16y ago
  > You can imagine the chaos that would result if any employee could state that, "no, that valuable IP that I came up with might have directly concerned what my employer was paying me to develop, but, in fact, I developed that particular key piece on my own time, etc." The company has an even bigger fear: the employee will see where the market is heading, or where the company is heading, get there first in their spare time, and spin out a competitor. Or get a patent. Owning spare-time IP that's related to the business seems reasonable to me. Of course, that assumes a good defintion of "related"...
kmfrk 16y ago
After the whole Bratz debacle[1], I make sure never to kid around with the danger of this. [1]: https://secure.wikimedia.org/wikipedia/en/wiki/Bratz#Legal_actions https://secure.wikimedia.org/wikipedia/en/wiki/Bratz#Legal_a...
dctoedt 16y ago
Links to specific statutory provisions of various states: http://news.ycombinator.com/item?id=1970276 http://news.ycombinator.com/item?id=1970276 Flow chart for analyzing employer rights: http://www.ontechnologylaw.com/2010/12/diagramming-a-legal-i... http://www.ontechnologylaw.com/2010/12/diagramming-a-legal-i....
bugsy 16y ago
I worked for a company that not only had this clause, but it extended to any and all inventions pertaining to the employers line of business for 12 months after employment terminated. When employment terminated and I intended to go work for a competitor, I was given a letter explaining that the business of my employer was "software and hardware" and was told verbally they would aggressively pursue that claim. The also notified the company I was going to work for who then withdrew the employment offer. Probably wouldn't have stood up in court if I had a few million to pay attorneys. As it was it cost me around $30,000 in legal fees to deal with and I was unemployable for a full year during a time when my expertise, which I had gained on my own time before working for these people, was very hot. In the end it doesn't matter one whit what the law says because to maintain your rights you will have to fund lawyers longer than their staff attorneys are willing to harass you. In practice, you run out of money pretty fast. You must not sign these sorts of contracts or work for these people in any way shape or form if you want to avoid big trouble. When they inform you of these clauses, regardless of what the state law says, they are warning you they intend to create legal problems for you if you ever try to work for anyone else. Remember this one thing. If you do not have unlimited pockets you have no legal rights in a contest against a better funded party.
- Silhouette 16y ago
  > When they inform you of these clauses, regardless of what the state law says, they are warning you they intend to create legal problems for you if you ever try to work for anyone else. That sort of thing used to be called barratry, and it was illegal in a lot of jurisdictions (indeed, a felony in at least one state in the US). It's also worth pointing out that this kind of abuse is less of a threat in jurisdictions that don't default to everyone paying their own fees. The behaviour seems particularly common to the US, where to an outsider the legal system can seem obviously flawed in this respect. In any case, the advice to just not work for organisations that try to pull this kind of crap is sound. Even if this particular case doesn't apply, it's a good bet that they will try to screw you in other ways if this "we own your life" mindset is dominant in management/HR/legal at corporate level. I once worked for a company here in the UK that got taken over by a US company, and one of the first things they tried to do was rewrite the contract so this sort of silly stuff was in it. To cut a long story short, I don't know what happened to the HR people who were originally responsible for the handover, because we never saw them again, but most of the original staff from the acquired company did stay and everyone had exactly the original IP clauses back in the contracts by the time we'd finished collectively re-educating the new owners about how much of our lives they were going to own.
wallflower 16y ago
As a condition of employment, back when I didn't know any better, I signed the All-your-IP-belong-to-us contract. I tried digging through my archives at my parent's house last year to try to find it but couldn't. I'm not sure I want to bring it up with my boss and Legal (red flagged). Then again, maybe I want to be the nail that sticks out and doesn't get hammered down. Now that I am doing substantial freelance and collaborative projects - my strategy is to work on either a) side projects with diffuse ownership b) pro-bono projects or c) projects where we don't own the product - the client does - while I plot my eventual jumping ship. I hope they won't go after me. Going to another company is kind of ridiculous because they tell you in the interview that 'as long as you don't use any of the code that you work on during the day'. Any good coder knows that reusing code is part of the job - and it would be difficult if not insane to pretend that you can keep code out of side projects. My strategy, if I were to take such a job, would be to open source the code I do on my own time that I might use at the company - and get permission to use my own open source library. However, I've done enough freelance hours to know freelancing isn't a bed of roses - a bed of roses with thorns. There is no concept of weekends or holidays with client deadlines... Ah, health care...
- alok-g 16y ago
  I requested a copy of my contract from HR (without even going to my boss) and they provided me information on how to access a copy of it on our internal website. I was worrying about being red-flagged just like you. But a lawyer told me that I should not be worried about this at all, and should just politely tell them something like, "I am missing copy of so-and-so contract from my file, can I get a copy." It proved to be even easier in my case.
absconditus 16y ago
A recent relevant discussion on reddit: http://www.reddit.com/r/WTF/comments/fftaa/my_25_hour_foray_in_corporate_america/ http://www.reddit.com/r/WTF/comments/fftaa/my_25_hour_foray_...
ylem 16y ago
The following article may be of some interest: http://www.businessweek.com/managing/content/nov2010/ca2010112_650227.htm http://www.businessweek.com/managing/content/nov2010/ca20101...
xsmasher 16y ago
When handed one of these, put it in your desk. Same with second and third copy. If they ask for it before hire, say you need time to read it. If that fails, write an addendum that neuters the document. "Nothing in this agreement precludes posting online, writing, blogging, coding, or contributions to open source software provided that no code or technology specific to company XYZ is disclosed." Most employers won't pay their lawyer to review your addendum and bang, you have your rights back.
Kilimanjaro 16y ago
Sometimes the law and common sense have nothing in common. I have different hobbies besides coding, so if I create a painting masterpiece my employer owns it? How about my latest culinary invention? The new can opener I just invented? Or my one month old daughter conceived in my spare time? I call retardedness, but that's the law and we must obey it or fight to change it.
- Kilimanjaro 16y ago
  It all boils down to this, the law is supposed to protect the individual, but the corporations have the money, and the law-makers follow the money, therefore the individual gets screwed. Corporatocracy is ruling the world right now but we are getting fed of it and even if it takes a hundred years we will make them serve the individuals that work for them and not only their C?Os.
- kjhgtfbn 16y ago
  That's what I asked HR at the last place that tried one of these policies. Suppose I make porn videos featuring animals and very old people - the company owns them, so I should put "A XYZ corporation" production on the title card?
davidchua 16y ago
This topic has made me relook at my employment contract and I'm a little concerned. Does this sound like I'm exempt having to hand over my IP for non-work related coding? "All Intellectual Property developed, created or used by you or with your assistance during your employment with the Company in the context of the business of <Company Group> or any related activities shall be and at all times remain the property of the Company." It feels like anything that is done outside of work that is not related to the company is exempt, but I'm not sure.
- motters 16y ago
  It sounds sufficiently vague that the company could claim that your extra-curricular IP belongs to them if they want to take it.
snorkel 16y ago
Generally if your employer wants to take whatever you created, they probably can. So best not to draw their attention to your side project.

167 points by SandB0x 16y ago

Very often, yes. The boilerplate IP contracts provided by most law firms usually claims one of: * All software development work you ever do while employed by the company. * All software development work you do using in any way any resource of the company, from computer to network connection. * All software development work you do related to the business of the company that employs you. * All software development work you do that isn't explicitly listed in an exhibit of exceptions you, the employee, fill out. Before you start asking how enforceable this stuff is, note that unlike with noncompetes (which usually aren't practically enforceable), the way this issue is going to come up is, you're going to try to start a company, and your first official act of business is going to be to start defending yourself against legal actions from your employer that will torpedo any chance you have of getting funding for the year or so it takes for those actions to resolve themselves. So, 'grellas may chime in and say "don't worry about this", in which case ignore me, but I wouldn't dick around with this issue. If my IP contract precluded me from working on my next company project, I'd get a clarified official path to working on it from my employer, and leave if one wasn't provided.

rst 16y ago
This also varies somewhat by state; there's a law in California (Labor Code section 2870[1]) that bars employers from claiming work that an employee does "on his or her own time without using the employer's equipment, supplies, facilities or trade secret information" unless the invention relates directly to the employer's business. I'd still check with a lawyer, though, even if in California --- and if elsewhere, most states are a lot less generous. [1] http://www.leginfo.ca.gov/cgi-bin/displaycode?section=lab&group=02001-03000&file=2870-2872 http://www.leginfo.ca.gov/cgi-bin/displaycode?section=lab&#3...
- elai 16y ago
  There was also a similar clause in my washington employment contract. The law even states that the clause must be put in all contracts and still applies if it doesn't.
- tptacek 16y ago
  It may be harder than you expect to establish that you're not in a business related to your former employer, at least to the extent that you can quickly end a legal action; all I'm saying is, that legal safeguard may not be as helpful as you'd hope.
  - rst 16y ago
    Particularly if the employer is someone like Microsoft or Google that does, well... a little of everything. As I said, it's definitely worth consulting a lawyer before taking anything for granted.
  - Natsu 16y ago
    You're absolutely right. There are really two questions here: * Does my employer own this? * Will they make me prove that in court? The damnable thing is that, even if you really do own your work, having to prove that you own it in court may kill your startup by making you run out of money.
    - aaronblohowiak 16y ago
      The other way of looking at your latter point: I try to work for people who would brag about successful former employees. Enlightened managers cultivate an "alumni network."
      - Natsu 16y ago
        The world needs more managers like that.
  - kjhghjkjh 16y ago
    Remember that you aren't trying to convince a bunch of HN readers - you are trying to convince a judge (who thinks computers are magic boxes) If your day job is Oracle DBA and your startup is iPhone apps or web design that still equals the same "computer stuff" to a judge.
kleinsch 16y ago
Even if your company doesn't sue you immediately, the fact that the intellectual property might be of questionable ownership can also mess up fundings or acquisitions down the road. If a company is looking to buy you and realizes that there's a chance of BigCorp claiming ownership of some piece of your IP because you signed a bad employment contract, it's going to be one more reason for them to say no to the deal.
- random42 16y ago
  ... or, at-least to reduce the acquisition price and/or put money in the escrow.
sabat 16y ago
Not in California; we have a state law that specifically addresses (and forbids) this kind of behavior by companies. I'll let a poster over at the OP speak for me: California is one state where their policy is NOT enforceable as far as their ownership. They may fire you over it but they won't own your work.
- alok-g 16y ago
  Read this again, maybe twice. http://www.leginfo.ca.gov/cgi-bin/displaycode?section=lab&group=02001-03000&file=2870-2872 http://www.leginfo.ca.gov/cgi-bin/displaycode?section=lab&#3... Then read your employment contract that you may have signed. It often contains legal terms like "work for hire", etc. that have explicit definitions. Make sure you read your contract after understanding these definitions. The portions that are not easily enforceable include the following: You contract may state that the agreement will continue to apply up to six months or one year after you terminate your employment. This provision is generally included by employers so as to prevent employees from coming up with patentable ideas or creating copyrightable works (like software) and "then" terminating their employment pretending none of that happened. Under that scenario, the IP you generate does indeed belong to the company. On the other hand, if you start your work and develop IP strictly after terminating your employment, court will not honor "non-compete" clauses. This are designed to protect employees who are most likely to continue working in areas of their expertise, which is likely the same as what they were working on while they were employed. Reason for edit: Fixed some typos.
  - sabat 16y ago
    The law specifically says that a company cannot claim to own your private work except under very specific conditions. If you, for instance, work for Zynga and develop a game that is very much modelled after a Zynga game, then Zynga has a case. If you develop a CRM for Patent Attorneys, Zynga has no case -- unless you developed the CRM while at work at Zynga. Under that scenario, the IP you generate does indeed belong to the company. Only if the "IP" falls under very specific guidelines. Writing an MMORPG at home while working at Zynga? No, Zynga can't claim squat. You don't need to wait to terminate employment in order to work on projects at home.

gte910h 16y ago

Depends on where you live. Heavily state dependent.

boucher 16y ago
Absolutely. Along with the standard, "talk to a lawyer" advice, it's worth noting a few things: 1) Virtually every major technology company includes intellectual property assignment agreements in the paperwork they require new hires to sign. Most startups probably have the same policy, many perhaps without even knowing it, since its part of plenty of standard paperwork. Y Combinator's standard paperwork includes such a clause. 2) For all of the ones I've seen (and I imagine most respectable companies, and probably every company in California, for reasons to be mentioned), the paperwork claims ownership over anything developed a) during work hours, or b) using company owned equipment, resources, or IP, or c) anything that doesn't fall into the first two categories but that involves an area of business the company is active in, or has plans to be active in. 3) The reason California companies all have roughly the same language, is because those restrictions are what are specified in California state law. Given the nature of California in the tech industry, I would guess that influences what a lot of tech companies use as a general policy. The language is somewhat complicated by the third part of the equation, but generally I believe the company has to be able to show damages in such an instance. 4) There are no such general protections on the federal level, and I believe a majority of states do not offer those protections, meaning that in many states all work, and even in some cases all ideas, that you generate during your employment belong to your employer (if you signed a contract to that effect with the employer).

PHPAdam 16y ago

Interesting read, its doubtful they can. If it ever came to a dispute, id follow the guidance of mark zuckerberg and fight it out for the rights to my work.

boucher 16y ago
This seems like a fairly uninformed view of the Zuckerberg story. In the end, Facebook settled those claims for huge amounts of money (and only were able to because they in fact had huge amounts of money).

SandB0x 16y ago

Interested to hear perspectives from Europe/UK as well as the US, so if you mention specifics please say where this is relevant.

ChuckMcM 16y ago

Very much state dependent, and very much modified by the employment agreement (if you had one) when you joined a company. You can, and should, strike any objectionable material from the employment agreement, have the HR person who is helping you with your first day paperwork sign off on the changes, make a copy of the document, have the HR person sign the copy acknowledging it is a true copy of what was signed, and put that somewhere safe. If the company won't accept your changes, then that is your signal that not only do they intend to own IP rights to perhaps everything you have done or will do, they also intend to litigate for those rights which you will have signed over to them with the agreement. That is a good time to decide if you want to work there or not. For folks who are thinking about changing companys but have yet to make the jump, ask your future employer to give you a copy of the employment agreement before you accept their offer. Have it reviewed by a lawyer. That way you can find out before you give notice that you weren't going to work there anyway. At least for tech employees there is enough demand on the hiring side to give you an advantage.

gaustin 16y ago

Link broken? All I get is "Portal Not Found"

RiderOfGiraffes 16y ago

IANAL, but in the UK, unless you have a contract that specifically says otherwise, yes. On the other hand, if the outside work provably used no employer resources, and provably is unrelated, then you can probably defend yourself against an action. But you really, really don't want to depend on that. Get it sorted up front. Get an explicit agreement with your employer that non-competing work done without their resources and without impacting your work, belongs to you. Otherwise it's murky and dangerous.

rlpb 16y ago
> and provably is unrelated I've been told by a professional that "unrelated" generally means work that might be in a different profession - and that to a court, "computers" could be considered a single profession in this sort of case. Work done in the field of "computers" outside of work, and you work for a "computer" firm? Related. Ergo your employer owns the IP. So yeah, don't depend on it. At all. This is the advice I was given when verifying that I had the IP relating to my startup. To avoid any doubt, I got the IP signed over with a contract I paid a solicitor for. This cost money, but more importantly it helped that my former employer was willing to do this. Thinking about it, this default is the sort of thing that stifles innovation. If the Government wants to promote innovation, perhaps they should change the rules. Edited to add: I'm in the UK.
ig1 16y ago
UK legislation will only give an employer copyright if the work was created "in the course of his employment" (Chapter I section 11(2) of the act). So essentially if it's part of the job. But I agree it's better to just get it agreed upfront.
moonwalker 16y ago
IANAL, this is also for UK. I as well was employed in the UK last year and had my contract checked by a lawyer. The contract contained few vague clauses regarding IP discovered during the term of the employment and some non competes with any business of the company or of the group companies. The lawyer confirmed the only safe route would be to have an explicit agreement providing me IP ownership and entrepreneurial freedom signed by the company. Then it depends what your relation is to the company. Do you want to tell them you have more ambitions than being a loyal employee ? If your bosses are a 'general' management and not a founder etc., I very much doubt you will achieve anything positive yourself. I believe these contracts are a norm here from what I heard as well. (I quit in the end before starting my venture).

trotsky 16y ago

It's a seller's market, don't take a job at a company with policies you don't agree with, regardless of how common they are or how enforceable they might be[1]. It's quite easy to find employers in the bay area that don't demand such things or will waive the clause. Make sure to tell them why you didn't take the job. [1] I suppose if it's clearly and completely unenforceable little harm is done

tptacek 16y ago
In some cases --- maybe a lot of them --- the board of directors requires the management team to operate from an approved boilerplate contract. I'm sure you can get anything overridden, but I wouldn't fly off the handle just because I saw an agreement like this.
zem 16y ago
in what way is it a seller's market? as far as i can see, high-tech employment is still not all the way back up to pre-recession levels.
- jswinghammer 16y ago
  If you tried to hire in the past few years in an area like Boston this wouldn't require further explanation.
  - zem 16y ago
    are you speaking from experience? if so, i'm curious - is it that you confined your search to boston, or that people elsewhere were unwilling to relocate?

modoc 16y ago

In general you should avoid signing the standard contracts at any job. I've always made changes to protect my after-hours work, and they've been okayed every single time.

alok-g 16y ago
That's good advice. I wish it came to me earlier!!
mkramlich 16y ago
I'm getting to the point where i don't want to sign any contracts with any future employer or client. At least, nothing but the bare minimum needed. NDA's, for example, increasingly look to me as a joke and more trouble than they're worth.
updog 16y ago
Have you worked at any large companies and had success with that? I'm used to dealing with people who don't know who wrote the agreement, have given it to thousands of others "without a problem", and treat me like I am a bit odd for actually reading it, let alone trying to change something.
- modoc 16y ago
  Yes actually I've pushed changes back at companies like Cingular and AT&T, and semi-large consulting firms like NCS Tech, and others. The HR rep will usually think I'm odd, but it's saved my butt at least once, so it's worth a couple odd looks:)

Philbrick 16y ago

Google, my employer, recently refused a request that I made to release as open source some software that I had been working on in my spare time and without using any of their resources, on they claim that my software would compete with one of their projects. :-(

alain94040 16y ago
There's a story in there. Did Google actually have any claims to the software you wrote? If not, then you wouldn't need their persmission (except that now that you asked, they could fire you for disregarding their "advice"). I'd love to hear cdibona's views on that.
- cdibona 16y ago
  I wrote them up last time this came up, you can find it here: http://news.ycombinator.com/item?id=1970191 http://news.ycombinator.com/item?id=1970191
alok-g 16y ago
Sounds like a good story to blog about and post on HN.
- Philbrick 16y ago
  Thanks. I'd like to write about it but, sadly, there are some relatively confidential details there (e.g. information about the Google project that my software would be theoretically competing with) that I can't reveal publicly. I'm not ready to give up my employment over this (though it does significantly lower the bar for what another organization would need to offer me in order for me to consider switching jobs :-().
kjhghjkjh 16y ago
Google even prevented one prominent C# expert from renewing his microsoft MVP once he went to work for them - and this was in europe where workers generally have some protection

bcrawford 16y ago

http://www.leginfo.ca.gov/cgi-bin/displaycode?section=lab&group=02001-03000&file=2870-2872 http://www.leginfo.ca.gov/cgi-bin/displaycode?section=lab&#3... Unless I'm reading this wrong: if you work on it solely on your time, with your equipment, it's yours (in California, anyway). UPDATE: Oh, also it can't compete with their business.

alok-g 16y ago
People, this link talks about "inventions". Nothing else is included in this. Please do not generalize this to "work". If you invent something while adhering to the statutes stated here, and write software implementing that invention, then the invention would belong to you. But the software doesn't! Software is subject to copyrights, not inventions.
- sabat 16y ago
  Regardless of the word used, this law does apply to copyrighted works in practice. "Invention" is used in the sense of "creations".
  - alok-g 16y ago
    That would be excellent. How can I confirm this?
    - sabat 16y ago
      IANAL, but I know there are existing cases. I confirmed it through a friend who's been doing HR here for years. So: either lawyers or HR people or both, I suppose.

nihar 16y ago

It depends on what your contract says... I work for a firm that clearly states that whatever you do, if it involves their equipment, resources, or time, or knowledge gained while working with them, they have IP rights at that point. That being said, some companies allow you to do stuff on your own, e.g. work for a different client / project outside your billable hours, and they don't have rights to those products (as long as you're clearly showing that you're not using shared resources).

Deestan 16y ago

In Norway, no. Some companies try to put it in the contract, but it has no base in law and holds no legal obligations. I.e. you can ignore the clause safely.

motters 16y ago

I recently came up against this sort of nonsense in a job interview. I do a lot of technological stuff in my spare time, so as soon as they mentioned that I would have to agree to stop engaging in such extra-curricular activities I ended the negotiations.

mkramlich 16y ago

I wouldn't mind allowing a company to have rights over what I do on my own time as long as I get ownership rights over everything else the company is doing, regardless of whether I'm involved or not. Fair's fair.

alok-g 16y ago
It does not depend unfortunately whether you mind or not.
- mkramlich 16y ago
  where there's a will there's a way :P
  - alok-g 16y ago
    :-) Let me know if you figure something out!
  - CapitalistCartr 16y ago
    Where there's a will, there's billable hours.
    - mkramlich 16y ago
      i like that. "if you can't beat 'em, bill em!" :)

daimyoyo 16y ago

I'm in sales and in my spare time I am creating a program for online data management(which will also create leads although they're B2B and my company does B2C). Can I use the "not work related" exemption or should I renegotiate my employment agreement? I work in Nevada. Thank you for any help you can give me.

alok-g 16y ago
PS: I am not a lawyer, although have done extensive online research on these issues. 1. "Not work related" gives you an incomplete picture (not related to who's work?). That it is not related to your work is not enough. It must not be related to the employer's line of work, or anticipated line of work. Even if one person in the company is working on a related item, the your work may belong to the company. Even if one person in the company is anticipating the same, you have a potential issue. (See item 3 below for a related issue.) 2. The normal meaning of "related" also should not be taken at face value. If you are making burgers for MacDonald's while making a software side project, you are likely to be OK (and I am guessing that McDonald's would make you sign an employment agreement for these issues also). If you are in sales for a technical company and are making a software, they can easily be considered to be "related" by your company or the court. 3. Keep in mind that in any case the onus of proving is on you, so you the legal costs of proving you are clean would fall on you. That also means that in case of trouble, the court may initially side the employer and wait for you to prove you are clean to turn to your side.
- alok-g 16y ago
  Correction: "and I am guessing that McDonald's would NOT make you sign an employment agreement for these issues"

mtarnovan 16y ago

Pertaining the case cited by the answer, this might be an interesting read: http://bit.ly/gt5BGE http://bit.ly/gt5BGE (Google Books)

btilly 16y ago

The advice in that forum is an illustration of why you should not believe legal advice that is given to you by non-lawyers. Much of it is wrong, dangerously so. For example one person claims that by default what you do on your own time is owned by you. Sorry, that varies by jurisdiction and local laws. It is true in CA, but false in NY. Several people claim that CA offers strong protections. That is true, but the protections are not nearly as strong as they are claiming. And so on. If you, personally, care about this topic, talk to a good IP lawyer who knows the local laws for your state.

bugsy 16y ago
Do you have a citation for your statement that "what you do in your spare time" is not owned by you in New York?
- btilly 16y ago
  My reference was what I was informed was the law by multiple lawyers when I lived in New York. It is possible that I misunderstood or the rules have changed in the last decade, but I am pretty sure neither is the case. Still you should confirm this with a qualified attorney before accepting what I say as being absolutely true. More precisely I was told that New York recognizes 3 types of employee relationships. They are hourly, contractor, and professional employee. The first two are obvious. You are aware if you have to punch in on a clock, or are a contractor. The default for software development is therefore the third. As a professional employee there are no set place or hours for your employment. (That is why you don't get overtime.) Therefore anything that you do that could possibly relate to your employment is by default assumed to be a work for hire that took place during the course of your employment. There are admittedly some complications there. If a programmer writes a novel, that's going to not be a work for hire. If a programmer writes a program, that's likely going to be a work for hire. But there are gray areas. For instance a VB programmer by day who works a C device driver for Linux by night might have a case that their side project doesn't relate to their employment. But just in case, virtually every New York company makes sure that employees sign contracts that clarifies any possible ambiguity..in favor of the employer. So the reality is that if you live in New York, you can't assume that you own your side project. Incidentally this is the reason that the FSF (which is very careful on intellectual property) requires that they get copyright assignment both from contributers and from the contributers' employers. Because they don't want to get into a situation where they think they have copyright, but someone else has a legal claim to copyright that code.

run4yourlives 16y ago

Not in Canada they don't. The courts will look at every case individually but unless there is obvious malfeasance on behalf of the employee, any "we own you" contracts are unenforceable. (Point being that it depends on where you live.)

ckcheng 16y ago
Do you have any links, references on this?? Specific to Canada - and Alberta - would be nice. :) I'm trying to find more info on this, and can't find any relevant info on Google...
- run4yourlives 16y ago
  You should check out the Alberta employment standards office. It's goes the same for non-compete agreements, which are also hard to enforce north of the 49th.

AndyJPartridge 16y ago

UK Opinion: I started writing an application 10 years before the formation of a UK Ltd company, and when I joined them I let them use it. I ended up having to negotiate and buy said software from the liquidator when it failed because it was cheaper than fighting the claim in court to prove ownership. As many have said, get everything in writing.

zach 16y ago

Maybe, but if you don't actually create IP yourself -- you hire a contractor to do what you do at your day job -- you will stay in the clear and gain valuable experience. Managing a contracted worker in your field of expertise, within the creative restriction that you cannot perform their work for them, is itself a highly educational exercise for someone with entrepreneurial interests. Be sure to document well, though.

cryptoz 16y ago
That's all fine and good for legal reasons, but frankly the whole point of doing stuff in my free time is that I want to be the one doing it. Otherwise I wouldn't be doing it in my free time. I get what you're saying from a financial and legal perspective, but it definitely does not solve the greater problem.
- zach 16y ago
  Yeah, I understand. You would think that employers would prize the kind of employee who wants to do the same thing in their spare time as they do at the office, wouldn't you? And yet everywhere they are treated with suspicion.

drivebyacct2 16y ago

"Does this seem off-topic to anyone else? – Russell Steen Jan 26 at 14:49" Is the reason I just get sick of S.O. sometimse.

m_myers 16y ago
Where "S.O" is shorthand for "answers.onstartups.com"?

alok-g 16y ago

I had asked pretty much the same question here: http://news.ycombinator.com/item?id=1839301 http://news.ycombinator.com/item?id=1839301

deleted 16y ago

[deleted]

alok-g 16y ago

I found this to be an excellent resource for this topic. http://www.amazon.com/Intellectual-Property-Open-Source-Protecting/dp/0596517963/ http://www.amazon.com/Intellectual-Property-Open-Source-Prot... While this has "open source" in the title, it's still an excellent book related to this topic. Another good thing about this book is that it draws analogies between software source code and law statutes, making it very easy for software folks to understand these legal issues.

aspiringsensei 16y ago

My employer is hyper-strict about stuff that is directly competitive with their offerings, but has tightly "ringfenced" those offerings and allows us to do what we like outside them.

pyre 16y ago

I think that the most ridiculous contracts are the ones that attempt to assert ownership of things you have produced before you even worked at the company. (i.e. anything that you have created, are creating, and will create in the future) Companies/lawyers will do this claiming that it's only a defensive measure, but once they have that power over you, they will not hesitate to go on the offensive if they think they have something to gain by doing so.

grellas 16y ago

A few thoughts on this: 1. I have done transactional work and litigation in and about these areas for nearly 30 years in Silicon Valley. Based on that experience, in practical terms, the risk you deal with in doing side work boils down to this: it is rare that an employer will make a claim to IP you develop on your own time and using your own resources but, when it does happen, its effect is pretty horrific. 2. California gives you more scope only because it has a law on the books that generally prohibits employers, on public policy grounds, from making claims to IP generated by employees working on their own time and using their own resources. 3. Even in California, however, an employee owes duties to his employer and one of those is that you don't misappropriate your employer's IP for your own use. This is why the California law says that you don't keep your side-project IP for yourself if it is in your employer's line of business or anticipated line of business. You can imagine the chaos that would result if any employee could state that, "no, that valuable IP that I came up with might have directly concerned what my employer was paying me to develop, but, in fact, I developed that particular key piece on my own time, etc." 4. In this sense, there is a common sense element to this area of law as applied in California. You typically will sense, without being told, whether the work you are doing on the side is capitalizing on the things your employer is doing or if it is truly unrelated. 5. That said, don't mess around with this sort of thing. It is both contract-specific and local-law-specific. That means general statements you hear from time to time (including those I just made) may or may not apply to you. If what you are planning to do has commercial value, then make sure to get it checked by a good local lawyer who can guide you through the pitfalls and explain alternatives. This is particularly so if you are not in California.

martincmartin 16y ago
> You can imagine the chaos that would result if any employee could state that, "no, that valuable IP that I came up with might have directly concerned what my employer was paying me to develop, but, in fact, I developed that particular key piece on my own time, etc." The company has an even bigger fear: the employee will see where the market is heading, or where the company is heading, get there first in their spare time, and spin out a competitor. Or get a patent. Owning spare-time IP that's related to the business seems reasonable to me. Of course, that assumes a good defintion of "related"...

kmfrk 16y ago

After the whole Bratz debacle[1], I make sure never to kid around with the danger of this. [1]: https://secure.wikimedia.org/wikipedia/en/wiki/Bratz#Legal_actions https://secure.wikimedia.org/wikipedia/en/wiki/Bratz#Legal_a...

dctoedt 16y ago

Links to specific statutory provisions of various states: http://news.ycombinator.com/item?id=1970276 http://news.ycombinator.com/item?id=1970276 Flow chart for analyzing employer rights: http://www.ontechnologylaw.com/2010/12/diagramming-a-legal-i... http://www.ontechnologylaw.com/2010/12/diagramming-a-legal-i....

bugsy 16y ago

I worked for a company that not only had this clause, but it extended to any and all inventions pertaining to the employers line of business for 12 months after employment terminated. When employment terminated and I intended to go work for a competitor, I was given a letter explaining that the business of my employer was "software and hardware" and was told verbally they would aggressively pursue that claim. The also notified the company I was going to work for who then withdrew the employment offer. Probably wouldn't have stood up in court if I had a few million to pay attorneys. As it was it cost me around $30,000 in legal fees to deal with and I was unemployable for a full year during a time when my expertise, which I had gained on my own time before working for these people, was very hot. In the end it doesn't matter one whit what the law says because to maintain your rights you will have to fund lawyers longer than their staff attorneys are willing to harass you. In practice, you run out of money pretty fast. You must not sign these sorts of contracts or work for these people in any way shape or form if you want to avoid big trouble. When they inform you of these clauses, regardless of what the state law says, they are warning you they intend to create legal problems for you if you ever try to work for anyone else. Remember this one thing. If you do not have unlimited pockets you have no legal rights in a contest against a better funded party.

Silhouette 16y ago
> When they inform you of these clauses, regardless of what the state law says, they are warning you they intend to create legal problems for you if you ever try to work for anyone else. That sort of thing used to be called barratry, and it was illegal in a lot of jurisdictions (indeed, a felony in at least one state in the US). It's also worth pointing out that this kind of abuse is less of a threat in jurisdictions that don't default to everyone paying their own fees. The behaviour seems particularly common to the US, where to an outsider the legal system can seem obviously flawed in this respect. In any case, the advice to just not work for organisations that try to pull this kind of crap is sound. Even if this particular case doesn't apply, it's a good bet that they will try to screw you in other ways if this "we own your life" mindset is dominant in management/HR/legal at corporate level. I once worked for a company here in the UK that got taken over by a US company, and one of the first things they tried to do was rewrite the contract so this sort of silly stuff was in it. To cut a long story short, I don't know what happened to the HR people who were originally responsible for the handover, because we never saw them again, but most of the original staff from the acquired company did stay and everyone had exactly the original IP clauses back in the contracts by the time we'd finished collectively re-educating the new owners about how much of our lives they were going to own.

wallflower 16y ago

As a condition of employment, back when I didn't know any better, I signed the All-your-IP-belong-to-us contract. I tried digging through my archives at my parent's house last year to try to find it but couldn't. I'm not sure I want to bring it up with my boss and Legal (red flagged). Then again, maybe I want to be the nail that sticks out and doesn't get hammered down. Now that I am doing substantial freelance and collaborative projects - my strategy is to work on either a) side projects with diffuse ownership b) pro-bono projects or c) projects where we don't own the product - the client does - while I plot my eventual jumping ship. I hope they won't go after me. Going to another company is kind of ridiculous because they tell you in the interview that 'as long as you don't use any of the code that you work on during the day'. Any good coder knows that reusing code is part of the job - and it would be difficult if not insane to pretend that you can keep code out of side projects. My strategy, if I were to take such a job, would be to open source the code I do on my own time that I might use at the company - and get permission to use my own open source library. However, I've done enough freelance hours to know freelancing isn't a bed of roses - a bed of roses with thorns. There is no concept of weekends or holidays with client deadlines... Ah, health care...

alok-g 16y ago
I requested a copy of my contract from HR (without even going to my boss) and they provided me information on how to access a copy of it on our internal website. I was worrying about being red-flagged just like you. But a lawyer told me that I should not be worried about this at all, and should just politely tell them something like, "I am missing copy of so-and-so contract from my file, can I get a copy." It proved to be even easier in my case.

absconditus 16y ago

A recent relevant discussion on reddit: http://www.reddit.com/r/WTF/comments/fftaa/my_25_hour_foray_in_corporate_america/ http://www.reddit.com/r/WTF/comments/fftaa/my_25_hour_foray_...

ylem 16y ago

The following article may be of some interest: http://www.businessweek.com/managing/content/nov2010/ca2010112_650227.htm http://www.businessweek.com/managing/content/nov2010/ca20101...

xsmasher 16y ago

When handed one of these, put it in your desk. Same with second and third copy. If they ask for it before hire, say you need time to read it. If that fails, write an addendum that neuters the document. "Nothing in this agreement precludes posting online, writing, blogging, coding, or contributions to open source software provided that no code or technology specific to company XYZ is disclosed." Most employers won't pay their lawyer to review your addendum and bang, you have your rights back.

Kilimanjaro 16y ago

Sometimes the law and common sense have nothing in common. I have different hobbies besides coding, so if I create a painting masterpiece my employer owns it? How about my latest culinary invention? The new can opener I just invented? Or my one month old daughter conceived in my spare time? I call retardedness, but that's the law and we must obey it or fight to change it.

Kilimanjaro 16y ago
It all boils down to this, the law is supposed to protect the individual, but the corporations have the money, and the law-makers follow the money, therefore the individual gets screwed. Corporatocracy is ruling the world right now but we are getting fed of it and even if it takes a hundred years we will make them serve the individuals that work for them and not only their C?Os.
kjhgtfbn 16y ago
That's what I asked HR at the last place that tried one of these policies. Suppose I make porn videos featuring animals and very old people - the company owns them, so I should put "A XYZ corporation" production on the title card?

davidchua 16y ago

This topic has made me relook at my employment contract and I'm a little concerned. Does this sound like I'm exempt having to hand over my IP for non-work related coding? "All Intellectual Property developed, created or used by you or with your assistance during your employment with the Company in the context of the business of <Company Group> or any related activities shall be and at all times remain the property of the Company." It feels like anything that is done outside of work that is not related to the company is exempt, but I'm not sure.

motters 16y ago
It sounds sufficiently vague that the company could claim that your extra-curricular IP belongs to them if they want to take it.

snorkel 16y ago

Generally if your employer wants to take whatever you created, they probably can. So best not to draw their attention to your side project.