Dear tech giants, if you love someone set them free | Hacker News Reader

Dear tech giants, if you love someone set them free

vladalexandruionescu.com

85 pointspolmolea77 comments

Since it's inevitably brought up every time this topic arises:

This is one of the reasons why California is still such a popular place to do business because the law explicitly nullifies those provisions in contracts.

See California Labor Code Sec. 2870

http://www.leginfo.ca.gov/cgi-bin/displaycode?section=lab&gr...

Despite the fact that California has this law, it doesn't matter in a practical sense. A scenario I've seen play out multiple times:

1. Employee creates side project

2. Employee quits to pursue side project as a company

3. Former employer decides to sue employee because they don't like it for whatever reason (this need not have any legitimate chance of winning in court, it could be entirely frivolous)

4. Former employee then has to decide between spending hundreds of thousands of dollars in legal fees fighting a lawsuit from the former employer or simply giving up

We saw this just the other day on HN. I've seen it happen to friends and colleagues.

Best thing to do: no side projects. If you have those ambitions, work as a contractor. The legal agreements are much more rational. You get paid for the hours you bill and are allowed to do any work you want outside of your billable time.

I presume you're referring to Smule suing Shred, which I think has gotten so much attention (deservedly) because it's so rare. Off the top of my head I can't think of another such example, but I can think of scores of side projects turned into companies, including my own, without employer interference.

You should take precautions of course--read inventions agreements very carefully--but I wouldn't at all go so far as to only do contracting. Especially if you live in California, as others have noted. Half the companies in SV were started by people working at Google or Facebook.

You're right, there are plenty of examples where that didn't happen. However, I've seen enough examples where it has. Enough that I think it's a bad idea to do side projects while you have full time employment. Unless those projects are strictly volunteer efforts for which you have no intention of turning into a commercial business.

> A scenario I've seen play out multiple times:

The salient details your scenario omits:

1. A lot of employees create side projects related to their employer's business and/or R&D activities. These are not subject to 2870's protections.

2. A lot of employees make the mistake of working on the side project during work hours or using their employer's equipment. Most employees who get caught up in these types of disputes claim they didn't work on the side project during work hours or using the employer's equipment but far fewer can make it through discovery with such a claim intact. There really is no wiggle room on this and one slip up can spell doom.

> We saw this just the other day on HN.

Assuming you're referring to Shred, no, we didn't. The matter there does not relate to a side project, although you can be sure that Smule will use discovery to look for evidence that its former employees were working on their idea before they left its employ.

You can read the actual claims at http://webaccess.sftc.org/Scripts/Magic94/mgrqispi94.dll?APP....

> Best thing to do: no side projects.

This is the best advice as far as side projects with commercial ambition or potential are concerned.

The primary point of my post was that the law doesn't actually matter in practice. Regardless of if your points 1 and 2 are demonstrably false (thus the person is protected by 2870), someone trying to commercialize a side project (or a project started immediately after quitting a full time job like Shred) may very well see it die because of an aggressive previous employer.

Thus my closer: when you are a full time employee, don't do side projects that you have ambitions to commercialize.

The law absolutely matters in practice. Playing by the rules never guarantees that you won't be sued by a former employer, but contrary to what a lot of people here seem to believe, most employers don't make a habit of suing former employees for no reason when they have no evidence.

As I wrote, a lot of former employees who get caught up in these types of disputes make claims that they can't sustain through the discovery process because let's be honest: when you're working on a commercial side project that you're excited about, it's difficult to at some point not do some work (however minor) on it during working hours or using the resources of your employer.

Finally, if you take the time to read Smule's complaint against the Shred folks, you'll see that this isn't the case of an "aggressive" former employer. Smule presents a different version of events and appears to have some legitimate questions.

Same thing happened to psd.js. But then twitpic died, so psd.js was reborn.

The devil is in the details and it's worth reading the following text closely:

Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an invention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the employer's equipment, supplies, facilities, or trade secret information except for those inventions that either:

(1) Relate at the time of conception or reduction to practice of the invention to the employer's business, or actual or demonstrably anticipated research or development of the employer; or

(2) Result from any work performed by the employee for the employer.

2870 provides a lot of protection to employees who are very careful but a lot of employees are not careful enough to meet the criteria above.

#1 is the real killer. If you work for the Googles / Apples / Facebooks of the world, basically anything involving computers is going to fall under "actual or demonstrably anticipated research or development of the employer"

How does this work when companies have an "open" culture (aka: every employee has access to most of the codebase)? Wouldn't that meant a side project you are working on is, indirectly, a...

> Result from any work performed by the employee for the employer?

Even so you can only prove that by means of copyright, patents or trademarks, collectively known as "IP" laws and in spite of popular opinion, that's a hard thing to do.

How does open access to the code base imply that side projects are work performed for an employer?

I wait until I have an offer, then I ask to see the company's non-compete. Then, if the document says I can't contribute to other projects, I tell them I contribute to a number of open-source and other projects, and I need anything done on my own time to belong to me. I've done this two or three times, and have always gotten the agreement to be amended.

Wait until you have an offer in hand. That is your moment of greatest leverage, when they are most invested in having you on board.

> But for the duration of your employment, all your ideas belong to them.

Only in certain states, and I only if you sign such a contract. Did the author actually read his contract and say: "Please remove this part"?

I know California and Washington both have state laws limiting what companies can do in terms of taking ownership of your "outside" work.

Good luck getting a company or "remove this part" of a contract. I've always been told very clearly and angrily that that was not up for discussion.

My current employer technically forbids me from showing photographs of my dog to my mom. Naturally, no one would ever care if I did, but my contract explicitly considers any distribution of anything I produce that can be copyrighted (at work or not) an act corporate espionage.

Just by way of giving a different experience, I've had that clause stricken from 100% of employment contracts I've ever signed.

I've carried out that alteration/redlining in every tech work contract I've signed. It has never been a blocking issue, and it is usually the case that the people handling the details of hiring are unaware of the details of the clauses in the contract - they just take what the lawyers hand over as boilerplate.

https://www.exratione.com/2011/11/the-miserable-state-of-int...

I have had success redlining a contract with similar terms, it certainly isn't unheard of.

To be fair, I've mostly worked for very large companies.

In large corporations, an exception to a blanket IP contract would require approval by fairly high ranking people in both HR and Legal. When you have >10,000 employees, individual exceptions simply don't happen for anyone under any circumstances.

My experience is only reflective of very large companies. I doubt it's representative of smaller employers.

Are you being paid well enough by this bigcorp that it's worth losing the ability to comment on HN without violating the letter of your agreement (since comments are copyrighted by their authors by default)?

That sounds about right.

My last employer was a startup and I had this stricken... as well had privisions in place so I could do outside consulting as long as it wasn't in a competitive industry (this they may have given me as I came to them initially doing part-time consulting).

The place I worked at before, a 15k person corp, is a place I wouldn't have even thought of asking for things like that. It would have a couple weeks just to have gotten a turnaround through HR and legal.

That's true. And of course large companies will work through modifications to your contract too, but only for a handful of those 10,000+ employees.

A lot of us work oustside of those areas. In my case we got acquired. My choice was to keep steady employement or become unemployed for some unknown time. I took the risk and signed. Then things like this happen:http://www.goodwinprocter.com/News/Press-Releases/2011/Court...

Since that was written by the law firm representing IBM it's probably the most charitable interpretation you're going to get and I'm still disgusted by it.

Everyone involved in that story sounds like a terrible person. Some day very soon, I hope, the notion that an individual can own an idea and control its usage will be regarded as despicable. What an evil thought.

I've definitely had prospective employers say "no, we will not remove that part, because we've been burned by bad employees before".

How does one tell if an idea was 'discovered' during office hours or not? The system fails if only 'bad' ideas belong to your employer.

Most contracts I've come across don't define working hours versus not.

I get the angst, and share it, on the other side of the table is a company paying you for your "full time" employment, they want to believe they have paid for all your time.

So the angst arises when you aren't really giving them all your time, you are keeping some for yourself to do things that are of interest to you and not in your employer's interest[1].

That is why they want you make a choice, either commit or don't, all in, or not. If you want to parcel out your time, then contracting is a much better way to do that, neither side feels like they are being taken advantage of.

Of course there are IP issues, and one which I hope will someday be rationalized by a better IP policy and framework[2] but contracting helps there too. You take ownership of your own "overhead" (benefits, vacation plans, etc) and then you sell the time you have to work on things either to someone else for direct payment, or to yourself as an investment in a future revenue stream.

[1] They would argue that if you have time to work on that you could have used that time to work further on your project they assigned you. Vacation and leisure, keeps you balanced so is in the employers interest.

[2] And realize that currently 'time to exhausting all the hydrogen fuel in the Sun' is looking like it will happen first.

The time I am committing to a company is in the hours per week that I am paid to work. There's 168 hours in a week, if you're not paying me for all of them, I can do what I like in the remaining time.

Dedicating your whole waking life to a company is plain stupid.

There are different classes of employee.

Your attitude is appropriate if you clock in, clock out, and are paid different amounts in different weeks if you show up for different lengths of time.

However I'm guessing that you are paid a fixed salary and aren't clocked. And you aren't a contractor. In that case you're a professional employee. You legally have a working relationship with them 24x7. Which is why you're not paid overtime to take clients out to dinner, or answer a page in the middle of the night.

But if that relationship always exists, who owns the intellectual property that you create away from the office? This is up to a combination of the contract you signed, and local laws.

Sorry, I was unclear. I was expressing my view, and not trying to explain any kind of legal position. What I was saying was that I cannot see how a company can justify owning everything I do outside of my work hours. Whether or not that is in my contract is a different matter. I would urge any potential employee to negotiate any such bad contract if they can.

If my job involved taking clients out to dinner or answering pages in the middle of the night regularly, I would damn well want to be paid for it. Not per-call, but the additional workload would have to be reflected in my salary.

Put it this way: If you are a programmer who never has to do any out-of-hours support, and then suddenly your boss says that you need to be on call 24x7, you'd be a fool not to ask for more pay.

The point is that "outside your work hours" is undefined. If you're receiving a page, is that work hours? If you're thinking about work during your shower, is that work hours?

Most people do a lot of productive work outside regular work hours and outside of the work place. It would be a real problem if they could then tell their employer, "This thing you're depending on? It is actually mine! You have to negotiate for it!"

So laws are passed to guarantee that it is clear who owns the brilliant solution to a work problem that you dream up in the shower. The question is how much other stuff gets swept up in that net.

Exactly this. If you are a professional, and in the US, this also called an "exempt" employee, you are paid a fixed salary (nominally higher than an hourly employee makes) and you don't "clock in" and "clock out", you are always on the clock. That is the nature of the employment relationship you have with your employer.

Contrast that with say Lawyers or contractors, or checkout clerks at the market who sell an hour's worth of work for $x.

This is really important to understand and internalize as an engineer. It is important because it is the way employment law looks at the relationship and that is the law which you are compelled to obey if you want to continue working/living where you are.

I'm an exempt employee, but my time certainly does not all belong to my employer. I realize there are some who do, but I do not check email at midnight. My phone has a do-not-disturb setting that goes from 10 pm to 6 am. If I was asked to forego seeing my family for an extended period of time so I could, say, work on a report until 10 pm every night -- although I would try to help, any more than a small amount of this would be abusive, and I would decline to do it. If this was a real problem, I'd find another job.

Being exempt does not make me a slave. It does not mean all my creative power is used only for my employer. If I were to accept those conditions, I would have to be paid five or ten times more salary -- not even a linear increase, because the time is non-linearly more valuable to me.

I've been at a company that behaves like this. It was completely abusive of the meaning of exempt. I have nothing but contempt for companies like this.

Simple solution, at least for me: don't sign a contract that suggests that everything you think belongs to your employer; or at the very least, take your pound of flesh when you do sign something like that.

Incidentally, even the awful company above changed their contract for me when I refused to sign the over-the-top original document.

The distinctions between wage and salary employees are very often smeared around by employers for their own benefit.

I, for instance, am technically a salaried employee. But I also have to fill out weekly time cards and account daily for the time that I work. My pay is even calculated by the hour.

The way salary used to work is that the salaried employee would answer some weekly questions. Did you work this week (yes/no)? If no, are you using one of your remaining vacation weeks (yes/no)? If the answer to either question was yes, the employee was issued a check for 1/52nd of their annual salary. If not, there might be further questions about unpaid or partially paid leave categories, or sabbaticals.

But now we have this bizarre hybrid with salaried employees logging their time by the hour, and with PTO balances instead of sick leave or vacation. On top of that, many of us at "at will", and can be fired at any time, for any reason, or no reason at all.

In my situation, I don't even have a contract, and it is obvious to me that I am only "salaried exempt" as a flag of convenience that allows my employer to skirt around certain legal protections for wage employees, most notably overtime pay.

As such, I'll invent anything I like when I'm not on the clock at work. My obligation to my employer starts and ends with the daily ration of working hours. If they want to claim ownership of whatever it is I do on nights and weekends, they might just end up paying me time-and-a-half for it, plus fines for breaking labor laws.

I disagree entirely. Indeed I find the suggestion that your employer owns the fruits of all your free time to be absolutely asinine.

Employees aren't indentured servants. Full time, salaried employment in the United States is de facto 40 hours. If you work less than that (without prior agreement), you can expect repercussions. If you work more than that, you can expect... nothing. Ergo what is being purchased under a full-time agreement is clearly the customary amount of work. Anything beyond that is being done so at the beneficence of the employee (or more likely as part of a long-term strategic play). In any case, it is the very definition of "above and beyond the call of duty".

I don't think full time means 24hrs/day as that would be against labor laws!

Also if a developer is earning 100K it would amount to $11.5/hr.

My pay stub helpfully lists my 'pay rate', that number * 40 * 52 = my salary. If my employer expects me to work 168 hrs/week then I'd certainly be willing to have that conversation but I expect the appropriate change of multiplier :)

This is great advice. I sympathize with some of the concerns in the original post, which is a big part of why I haven't been a full-time employee in 16 years. From reading the comments of others, it sounds like going back to being an FTE would be quite a shock.

I plan to leave my job in a few months because I want to work on an open source project unrelated to my job but possibly subject to the "land grab" IP contract I signed as other divisions in the company work on software in that genre. I live in California, but even if the provision is unenforceable I don't have the resources to fight a megacorp and I want to make a clean break. (This also isn't the only reason I'm leaving.)

Looking for a new job is tricky. Being able to work on this and other open source projects is a non-negotiable requirement for me. Similarly, I want to work fewer hours and would be satisfied accepting proportionately lower compensation. How do I make those conditions clear and avoid wasting everyone's time?

I have a very strong open source resume and finding a ordinary job is no problem. You want me on your team.

I'm tempted to just quit outright then start the job search by putting out a full resume along with my conditions. Is that wise?

Just state your requirements in a reasonable way. You'll quickly filter out non-OSS friendly companies, which given your post here looks like you would not want to work for anyway.

The less work for less compensation is a harder nut to crack. From a companies standpoint it is hard enough to find people and if the people they do find are good, but only want to work 1/2 time then the company must find 2x as many.

The truth of this post strongly depends on both where you live, and who you work for.

If you live in New York, what this post says is absolutely true. Anything you do, on your own time, on your own equipment, belongs to your employer. And it sucks. I believe that this is a hidden drag on startups there. And it is one of the reasons why I do not want to live in New York any more.

If you live in California, this post is mostly wrong on IP ownership. The exception is that if you're doing something that relates to your employer's business, then you've got a problem. Even if you didn't know it related. Which is a problem if your employer has a lot of irons in a lot of fires like Google, Amazon, Yahoo, and so on do. However it isn't a problem if you work for a small company.

Well, this post was specifically complaining about working for large tech companies. I mean, it is right there in the headline of the post.

In that case the tech companies are hardly at fault for California law.

Push comes to shove they don't generally assert their theoretical rights too aggressively in my experience. However their lawyers don't want to abandon any rights that they have without examining them on a case by case basis. The ones that I have see balance that out pretty well and do have a release process where they approve personal projects.

If that balance doesn't appeal to you, then you can solve the problem by working for a smaller company where it is less of an issue.

Also, if a company does threaten and/or actually sue a former employee (or worse, make statements like "If we're wrong, we'll win" [1]), they're going to permanently be on a lot of potential employees' shit list.

[1] http://www.businessinsider.com/smule-ceo-shred-video-lawsuit...

If you sign a contract that makes all your ideas the property of the company you work for, that is a problem. But I suggest pushing back on that contract - ask them to take out those clauses. If they say no, you then get to decide if it is a deal-breaker for you or not. But I suspect most of the time, they will work with you.

>they will work with you

Not so sure about that... Tech giants have the advantage of being able to pick from the best applicants out there. In the same way you could say "having these clauses is a deal breaker for me", it's very easy for them to say "NOT having them is a deal breaker for US".

The difference is that if you refuse the offer, you still have to find a jobs elsewhere (and I suspect that most giants will have the same clauses by default). But if they refuse the offer, there is already someone being interviewed that will accept the clauses.

Maybe I'm being pessimistic, but I think that unless these clauses are deal breakers for most developers out there, then this practice will continue to be done.

> But if they refuse the offer, there is already someone being interviewed that will accept the clauses.

I bet most companies wish that was so. Probably it isn't, especially if you follow fashion and reject anyone who doesn't know how to invert a binary tree ;).

If you turn down a job because of a bad contract term the company is probably not going to have someone else waiting to jump on! This is one of those cases where market forces would probably indicate that it's worth negotiating but in practice companies will be reluctant for reasons of bureaucracy

Probably not one, but ten people being interviewed that will accept the clauses. These days people are lined up for blocks for work.

> These days people are lined up for blocks for work.

There are lines of developers waiting for work?

Please let me know where I can find such lines. I could earn some hefty referral fees from the dozens of hiring managers I know who are desperate to find good developers.

You're right, but all of those people can't be good developers. Good developers are still hard to find. You can have a line of people out the door coming in for an interview, but not a single one of them worth a shit behind a keyboard. If you are provably a good developer with a solid track record, your leverage for getting contracts modified to your liking is substantially higher.

Maybe, but in that case HN seems like the perfect community to take a stand and start telling developers not to sign those contracts.

True. And I applaud the effort. I just think that, in most cases, they won't work with you in this area. So when telling developers to take a stand, we should also prepare them for what is most likely going to happen when they do.

For many big companies it will prove very difficult to push back on any contract term. Contracts are normally standard across the whole organisation and and special casing, for example in an overly broad non-compete or a IP ownership term, will normally be a non-starter.

You might get a waiver for a specific pre-existing project but probably that is about it.

I live in the UK and in the past when I've asked experts about this stuff they say: "It's an Americanism - don't worry about it - if push comes to shove a judge will think it's too strict and throw the entire thing out". Apparently in the UK there is some kind of rule where if a contract is excessively one-sided or otherwise onerous it can be voided. YMMV!

When I signed Google's IP agreement there wasn't even a paper contract - it was all electronic, you e-signed it, there was a form to list previous discoveries, but there was no way to redline or make modifications to the contract itself. The software wouldn't support it.

Electronic contracts won't sustain much evidentiary support of...anything.

Maybe they filmed you while you read/interacted with the contract and required you to score high on a quiz about the contents of the contract?

E-signing and electronic contracts are all over now...heck, most of the patents I filed with the USPTO were e-signed. If they don't provide much evidentiary support of...anything...then our legal system is in serious trouble.

Yes, this is true.

Unless extraordinary measures were taken at the time of acceptance, there will be no real way to prove what the actual text was that you saw and allegedly agreed to. Presumably the text of the contract and the symbol of your acceptance are stored in some fairly standard database. Almost all computer data can be modified to look any way a party desires. How can we know that the contract Google presents as evidence was the exact contract you agreed to at that computer terminal however many years ago?

I think you'll find for large tech giants(like referenced here) they won't budge unless you're Carmack or someone high profile.

Maybe small companies will, but big companies will not "work with you" on it. I remember trying this tactic in the past and receiving a very clear "either sign the IP agreement without modification or good luck in your job search" from legal.

This model works perfectly fine in higher education, as does the idea that if you treat employees as people to be invested in and cut some slack when their life doesn't align perfectly with your plans, they reward you with creativity, energy, and loyalty. I like Elon Musk and the work that he does, but chewing out an employee for skipping out on work to witness their child's birth is more than enough reason to never work for a person like that.

FWIW he explicitly claims he never did this (while admitting to other extreme behavior towards his employees): https://twitter.com/elonmusk/status/598065854736044032

Frankly, I'm inclined to believe him given that he has five children of his own.

I thought that the way you solve this in the states is by setting up an LLC and copyrighting under your LLC all of the code you write during hours you are not working for the other company. Doesn't that provide adequate additional protection? The strict IP agreements I've signed usually exclude work done for other companies.

Some contracts have a clause where you work exclusively for this employer.

Yes, but if they enforce that, they might fire you but they won't be able to take your IP away. Not if they exclude the IP you produce for other companies as part of the IP agreement.

Often referred to as a 'moonlighting' clause and by lawyers as 'duty of loyalty'.

Love how loyalty only works one way.

When you sign up to work for the company, you agree to do X and they agree to pay you Y. You are disloyal to them if you don't do all or part of X (for instance, if X includes thinking up ideas for them, taking your really valuable ideas that you thought up while working for them and leaving and using them yourself), and they are disloyal if they don't pay you Y. Those are the terms, after all! So I don't see how loyalty only goes one way...

If I'm at home, on my own computer, on my own time, I am not "working for them".

If they don't have an impressive QER, I get axed. That's what I mean.

This kind of thing is what unions are for.

Exactly! And every day it surprises me more and more that one such union doesn't exist for developers. I understand 100% the implied anti-authoritarian nature "a lot" of the members of this demographic exhibit, but I also think "a lot" of this demographic is smart enough to see past that to the benefits of unionizing. It's just crazy to me there isn't a Guild Of Function Writers And Machine Tenders.

Hear hear!

I'm currently trying to fix this culture at my current startup, and frankly it's rolling a boulder uphill. I'm not going to be here much longer, I don't think.

Folks, don't don't don't sign these contracts if you actually care--they won't be easy to fix later.

When I had a startup, I put a "We own your brain" clause in the employment agreement. However, I also called it to the attention of everybody I hired, and encouraged them to carve out any exception they wanted. Every hire except a couple of pure secretary/office manager types had a carve-out.

That said, I suspect that that's not a common way of doing things. About 30 years ago, I came up with it for a friend who was joining McKinsey, but had published a book based on her PhD thesis. They claimed to have never gotten that request before. But they also didn't object to granting it.

Employers are, by default, going to look out for themselves.

I'd argue that the onus is on the developer to understand and fight for better contracts. If more developers were taking these matters seriously then companies would have to respond. However, I doubt they'll be making the first move.

In the meantime nothing stops you from finding jobs that better suit your needs. "No thanks" is an acceptable answer to an employment opportunity.

Ironically my company block that DNS.

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