4 ms·

Related: the abysmal state of IP clauses in developer contracts. This and the NDA bandwagon all stem from the same root sickness in society - the delusion that

Related: the abysmal state of IP clauses in developer contracts. This and the NDA bandwagon all stem from the same root sickness in society - the delusion that someone can own an arbitrary piece of information in the same way that they can own a physical object. http://www.exratione.com/2011/11/the-miserable-state-of-intellectual-property-clauses-in-developer-contracts.php http://www.exratione.com/2011/11/the-miserable-state-of-inte... The topic for today is the sorry state of affairs that the intellectual property behemoth has brought to contracts between developers (programmers, coders, pick your word of choice) and companies that hire developers. The standard legal boilerplate incorporated into every consulting, contract work, or full time hire paperwork I've seen in my years in the industry included one or more of the following declarations: a) All intellectual property I produce during the period of work belongs to the company, regardless of its nature, regardless of whether it has anything to do with the work I am performing for the company, and regardless of whether or not I produce it on my own time. b) All intellectual property I produce during a period of time (commonly some months) after the work ends belongs to the company. c) All intellectual property I have ever produced in my life belongs to the company, barring that which is listed in an appendix to the contract. d) I may not create intellectual property on my own time and be remunerated for it by anyone other than the company during the time I work for them. e) The onus is on me to prove that I own any of my own intellectual property. I sent back every single one of these contracts with edits to remove the obnoxious and grasping provisions, replacing them with some variant clause to say that "what I produce for you while working for you on your software is yours, and everything else is mine."

saryant 15y ago
FWIW, I just signed an employment agreement with a major development firm which included similar clauses. I was about to reject it and ask them to send one without such onerous restrictions when I got to the end of the section which included a large caveat "This section shall only apply to work performed on company time with company equipment," just in more legalese. As a graduating college student I've heard others getting similar wording to allow for the employee to work on personal projects outside of work and retain ownership. Maybe things are getting better?
- rscale 15y ago
  As a counterpoint, I recently wound up refusing to sign a contract that was an absolute mess. The prospective client wanted absurd things, like for me to indemnify them against any future IP litigation, whether I infringed on a patent knowingly or not. And they wanted ownership of every piece of code I typed, according to their contract I couldn't even hit backspace unless I committed the mistake first. We never reached any middle ground. This happened months ago, and they're still looking. I assume they'll continue to have this problem, because they're trying to hire a senior level person, but they want that person to make junior level mistakes wrt to the contracts they'll sign.
  - crdoconnor 15y ago
    I've come across that contract before. I think it was actually a $20 download-a-contract-from-the-internet and they had no idea what they were actually handing me. When I pointed out what it was that it said and asked for it to be changed, they were fairly happy to comply.
    - rmc 15y ago
      Hanlon's razor. "Never attribute to malice that which is adequately explained by stupidity."
  - X-Istence 15y ago
    I was asked to sign a contract like that and I had my current employer change it so that it didn't include those lines/words. I can't indemnify someone against patent lawsuits. I can't know whether the code I am writing that is coming out of my head is in a patent somewhere. Not only that, but the contract asked me to assign to the company any and all ideas/thoughts/previous work that may or may NOT be relevant to their line of business and that by signing I had agreed I had done so (not even to the best of my knowledge, so if I forgot to give them a text file that I wrote years ago with a great idea then I'd technically be in violation). Under no circumstances am I going to sign over any part of my work prior to the employment contract, nor am I going to sign over work that is completed on my own personal equipment outside of company time that isn't for the company. To me it just felt like they were overreaching, and the guy I was discussing this with told me that wasn't their intention and that I should just go ahead and sign it because they would never hold it against me, and I told him no, I told him to go fix it, then maybe I'd sign it.
joshfraser 15y ago
It's worth noting that many states, including CA have laws that say something to the effect of: Anything you do on your own time, with your own equipment, that is not related to your employer's line of work is yours, even if the contract you signed says otherwise.
- phamilton 15y ago
  Yes, But a contract forbidding outside consulting is still grounds for termination. You just know that they can't legally claim the work you did for themselves.
  - kbutler 15y ago
    Hasn't the whole US adopted "at will" employment? Basically, you can quit for any reason, and they can terminate you for any reason. No employment agreement violation required.
    - _delirium 15y ago
      Yes, though there are some differences between being fired for cause and merely having your employment relationship ended; for example, you can't collect unemployment benefits if you're fired for (a legitimate) cause. On the other hand, larger companies tend to make it a practice never to fire anyone for cause except in the most egregious circumstances, because they don't want to bother justifying it.
      - kelnos 15y ago
        To clarify, though, the list of legitimate clauses is pretty small, mostly "for cause" means they're firing you because you did something illegal in the course of doing your job. A firing isn't "for cause" because the employee (e.g.) showed up for work late too many times.

saryant 15y ago

FWIW, I just signed an employment agreement with a major development firm which included similar clauses. I was about to reject it and ask them to send one without such onerous restrictions when I got to the end of the section which included a large caveat "This section shall only apply to work performed on company time with company equipment," just in more legalese. As a graduating college student I've heard others getting similar wording to allow for the employee to work on personal projects outside of work and retain ownership. Maybe things are getting better?

rscale 15y ago
As a counterpoint, I recently wound up refusing to sign a contract that was an absolute mess. The prospective client wanted absurd things, like for me to indemnify them against any future IP litigation, whether I infringed on a patent knowingly or not. And they wanted ownership of every piece of code I typed, according to their contract I couldn't even hit backspace unless I committed the mistake first. We never reached any middle ground. This happened months ago, and they're still looking. I assume they'll continue to have this problem, because they're trying to hire a senior level person, but they want that person to make junior level mistakes wrt to the contracts they'll sign.
- crdoconnor 15y ago
  I've come across that contract before. I think it was actually a $20 download-a-contract-from-the-internet and they had no idea what they were actually handing me. When I pointed out what it was that it said and asked for it to be changed, they were fairly happy to comply.
  - rmc 15y ago
    Hanlon's razor. "Never attribute to malice that which is adequately explained by stupidity."
- X-Istence 15y ago
  I was asked to sign a contract like that and I had my current employer change it so that it didn't include those lines/words. I can't indemnify someone against patent lawsuits. I can't know whether the code I am writing that is coming out of my head is in a patent somewhere. Not only that, but the contract asked me to assign to the company any and all ideas/thoughts/previous work that may or may NOT be relevant to their line of business and that by signing I had agreed I had done so (not even to the best of my knowledge, so if I forgot to give them a text file that I wrote years ago with a great idea then I'd technically be in violation). Under no circumstances am I going to sign over any part of my work prior to the employment contract, nor am I going to sign over work that is completed on my own personal equipment outside of company time that isn't for the company. To me it just felt like they were overreaching, and the guy I was discussing this with told me that wasn't their intention and that I should just go ahead and sign it because they would never hold it against me, and I told him no, I told him to go fix it, then maybe I'd sign it.

joshfraser 15y ago

It's worth noting that many states, including CA have laws that say something to the effect of: Anything you do on your own time, with your own equipment, that is not related to your employer's line of work is yours, even if the contract you signed says otherwise.

phamilton 15y ago
Yes, But a contract forbidding outside consulting is still grounds for termination. You just know that they can't legally claim the work you did for themselves.
- kbutler 15y ago
  Hasn't the whole US adopted "at will" employment? Basically, you can quit for any reason, and they can terminate you for any reason. No employment agreement violation required.
  - _delirium 15y ago
    Yes, though there are some differences between being fired for cause and merely having your employment relationship ended; for example, you can't collect unemployment benefits if you're fired for (a legitimate) cause. On the other hand, larger companies tend to make it a practice never to fire anyone for cause except in the most egregious circumstances, because they don't want to bother justifying it.
    - kelnos 15y ago
      To clarify, though, the list of legitimate clauses is pretty small, mostly "for cause" means they're firing you because you did something illegal in the course of doing your job. A firing isn't "for cause" because the employee (e.g.) showed up for work late too many times.