Developers’ side projects
joelonsoftware.com
joelonsoftware.com
No, it's not that ambiguous at all. The courts rarely side with the company, and only in cases where it's quite obvious the work was directly related. If your side project isn't directly related to the work you are doing, then you don't need to worry.
Don't let Joel or any other tech CEO scare you into not working on side-projects. Don't even tell your employer about side projects. Leave them out of the loop entirely.
This depends heavily on the employer.
Google, for instance, is extremely friendly towards both side projects (done entirely on your own time and with your own equipment) and open source contributions done either on or off company time.
I wish more employers had the same level of transparency.
Eg they might let you work on some open source project, but if you wanted to commercialize some side project, it's an entirely different can of worms. (And different clauses I'm your employment contract.)
Also, this formalizes standing on both sides; both parties will know more clearly where each stands.
Of course you may proceed without sharing, but might also end up losing more later. Calculated risk.
The article alludes to that, albeit from the company's point of view. The same principle applies to you.
If you ever want to sell your side project in the future, the buyer will put you through the wringer called "due diligence." If you were employed at XYZ Co. at the time you developed the IP being sold, part of the due-diligence process may require you to prove that XYZ Co. doesn't own the rights to it. If you kept it secret from XYZ, you won't have a signed waiver from them, so you won't be able to do that. Instead, you'll have to go back to XYZ Co., hat in hand, and ask them for a waiver now.
That will be an awkward conversation.
I'm going to need more than your word to believe that. It's in pretty direct contradiction to the wording of the law, which states that it's your employer's work, not your work, that matters. Do you have any references to support your view? You say the courts rarely side with the company, I'd love to hear about some example cases where these issues were relevant.
I had exactly that thing. I was being bought-out and a small client decided (against the contract that they had signed) that the changes we had made to our mortgage broker commission system were their own IP, and that they would suffer damage if those changes were part of the overall IP we were selling to our prospective buyers. And it was absolute nonsense since their changes were just a collection of reports and small features which were part of the public domain since whenever. It took weeks to iron-out the agreement and obviously could have scuttled the buyout.
And when I left the company that bought me out to start another project, I made sure that I had a release to say that I'm indemnified against any future legal actions and I started the project the day after I got that release.
The old adage is correct: plan for the worst, hope for the best.
This is great advice
A company with resources could sue you for a number of bogus reasons if they wanted to be dicks.
At the very least, the law is subjective:
Your only defense, as a small player, is not to be noticed.
It's often said on HN that skilled software developers are more akin to 'craftsmen' than they are to 'employees'. There's a number of good reasons why craftsmen have, almost invariably throughout history, formed guilds, unions or 'professional associations'...
You either organise or you accept being exploited.
How do you force a company to do something like that? What's in it for them to agree, especially when you're leaving?
Also, you don't always have no leverage to negotiate contract terms. When I separated from my last job, my severance agreement as given to me included a 2 year gag clause keeping me from talking about it to anyone. I negotiated it down to six months, using the time-honored tactic of bitching until I got my way.
Bitching is a useful tool in the kind of low-stakes environment that most employee negotiations happen in. Legal action is the equivalent of nuclear warfare, if you're willing to bitch about something, the company, so long as you're not working for a bunch of dicks, is going to eventually open up about what they need to get out of a particular contract clause. This paves the way for a gentleman's agreement whereby you agree to not fuck their shit up, and they agree to not fuck yours up.
In my case, what they wanted was for me to not lead an employee charge for better perks / compensation, and I just wanted to be able to yak about it on Hacker News. So I agreed to keep my mouth shut to my fellow employees about the agreement, and they agreed to reduce the length of the gag clause.
But again, you can't be working for a bunch of dicks. You need to maintain good relationships with your bosses and company leadership and your work output and ethic should never be in question. You are, in other words, loyal to each other. It's great to be ambitious and to want more out of life, but you shouldn't stomp all over the people who are helping you to get there.
Every time I've ever seen one of these "former employer fucked with me after I moved on" stories, the employee in question was clearly working for a bunch of dicks. Your intuition is your most valuable asset as a little guy. Your chances of getting stepped on can range from 0% all the way up to 100% if you're working in the entertainment biz where stepping on little guys is just the culture. You don't have to bury your head in the sand and ignore the risk.
Plus, I've seen way too many nice people turn into 'dicks' when it came down to money. This is the primary reason why it's a bad idea to go into business with friends or relatives.
Anyone forming a company in England & Wales, also, might benefit from a chat with someone with long experience as a company director, or professional secretary, or even better a insolvency practitioner. If none are to hand, the staff at Companies House are unable to provide opinions, but I found they are ready to give well rounded observations which might make anyone think twice as to the value of relying on Companies Act, to protect their rights. At least the Act, alone. I've even enjoyed a very candid conversation at some length with the Registrar Of Companies, when the last major Act came into force, and she was incredibly helpful and illuminating, explaining the nuances of her statutory role and its offices. For guidance as to effect of Articles or Association, please do ask their Compliance office. Articles or Table A are the bylaws of a company, and many sharp operators will try to get Companies House to accept heavily modified articles, which contradict or attempt to restrict, statutory rights, roles or obligations. There was once a inactive registered company, names Silverstone blah blah management, about the time of a rumoured bid for control of the motor racing circuit. I pulled the Table A, and none to my surprise, almost every page of it was marked in the margin, alongside almost every paragraph, with a dot or a code, indicating Compliance was highly suspect of this document, as to its legality. But, as Compa ies House began to intone by reflex, I remember the information becoming a mantra when inquiring about almost anything, they are only a records office, not enforcers. The Registrar told me in addition, that that year sh had budget and allowance (I got the sense as if she felt it was a deliberately token allowance, arbitrarily set somehow and not under her budgetary power, to prosecute four directors each month, for technical breaches of the law. I had presented her office with a single director, for whom records tallied literally hundreds of summary offences.
Larger but less scrupulous or less publicly reported companies, flout the law routinely, a trivial cost of doing business. Small fly by nights and sham "business partners" you may encounter, may roll right over you, in a instant. You might be a director and have majority equity in common shares, but another director may (quite unlawfully, but see further) de-register you as a director, call a company meeting, if one is even required, dilute you to nothing, seek shareholder approval for consolidating fraudulent actions, like divesting working capital via special dividend, and banks will almost in every single case, do as they are told if the right forms are provided. You will sure have recourse under the Act, and many summary (not tried but assessed on the facts by a judge) offenses are criminal and even punishable by imprisonment, but you would be lost without a proper management contract and ideally a law firm of repute contracted as Company Secretary and that contract specifying detailed additional procedures, even clerical checks and notifications help here, and ultimately if thus sort of thing happens, you are in real trouble with little real recourse and no immediate remedy.
That's a mere taste of the fun which can be English Limited Companies!
From memory, and it's long since I undertook any comparative study, only Sweden has laws which truly make a manager / managing director, responsible for their behaviour, under real penalty. Obviously, don't take my word for it, but I was seeking answer to just this: "So where can I risk turning my back one second, on a limited company I invest in?", and Sweden was the only jurisdiction which I felt satisfied me.
digital signatures and other online filing is of course potential safeguard to much abuse,
but how many accountants are given those keys, to file reports, and how many accountants will typically be contracted to accept instruction solely from two simultaneous directors authorizing together?
I has one bank account, where it's never been possible to get the bank to enforce the |two signatures required| rule that was supposed to be created on ticking the obvious, simple, standard feature, option box on their form!
I personally think the way to go with UK entities, is to ensure all company compliance is handled by a larger or larger accountancy, and to begin the contract with a obligation to report "any notable alteration or variation from last known fully authorized intent as mandated by a order approved by the full board", with requirement to cease work until they have a appropriate (by scale, with "if in doubt, require every approval as if the contract is void" e.g, written responses from directors, not mere "informed by email at 03.42hrs Saturday".
But that is expensive, of course.
I can no longer neatly summarise, and I would be woefully out of date anyhow, how the principles of England & Wales company law, tend to uphold directors powers, almost to omnipotence.
But the actual Companies Court, a branch of the High Courts, has teeth, if you apply to it.
I never looked up if this was affected by recent legislation, and I cannot even recall the case docket any longer, but a 1973 case caused a director to be disqualified fro life from being involved in any company, solely on the evidence he relied on a accountant for advice during a decision.
The principle the court upheld, was that a director gains his power under the act solely by competency to run a company, and solely under his or her own attestation and reconnaissance of such competence and in the event that a director explicitly sought even professional external advice, he was under a duty to the company to de minimus inform the board his positive reconnaissance of competency was I doubt; second that by failing to do so, he acted fraudulently in being without capacity to contract his obligations, which is a implied prerequisite of employment, which employment is a fact of appointment, thirdly that by relying on (even professional) advice, he caused the actual decision basis to become unknown to the board, as he could not be questioned at a later extraordinary meeting about the crisis the company faced, and therefore was liable to a criminal standard of deception.
Name me one company director (count of fingers, I mean, if you can name any) whom you know do not rely on accountants to make financial decisions?
As late as mid 2000s, I found no superseding case law to overrule this earlier precedent. But actual actions in Companies Court are rare. If you were in need of stopping a rogue director in their actions, or others in acting upon rogue instructions, you would wan to rush down to Applications Court, with as much evidence as you can grab, the pertinent law for reference, and a draft "without notice" application to obtain a order immediately, not waiting for anyone to reply, not wasting time politely writing cease & desist of other futile letters, and most likely unless you really are mistaken, you probably will get such a order to serve to stop rogue actions, with little or no delay. Such action is easily within the competence of most anyone here, to quickly prepare and present. You will find the Master Of Court, himself usually a senior judge, acting as a "doorman" or "bouncer" to prevent rubbish cases wasting the court's time. The Master is exactly who can be willing to get your application in good order, something I know no remotely affordable solicitor can do, within the time necessary, or at all. The experience in court is infinitely less troubling or intimidating, than the real worries you likely are facing, time of your visit. I found that court almost friendly, if friendly wasn't quite the effect they would ever go for... Judges are not unhelpful to law litigants in person, nor is anyone in the high courts, allowing you aren't silly or time wasting.
I used to rant and rave about how much complete and utter disrespect for company law costs the UK, the lassezx faire of it all, providing none of the benefits the legislation might be hoped to provide a smaller business, in terms of a level base of behaviour etc. But that was before Companies House began citing legislation guidance notes, stating the purpose of the act was to promote business, a nebulous and at worst deceptive "mission statement" that the registrars' offices were not hiding behind so much, as using as a clear warning sign to the attentive, whenever they could. It's really worth getting a chat with anyone there able to still give their time and not attached to a ACD headset, but in real office, I wholeheartedly recommend inquiring beyond casual call center contact, if the moment offers itself to do so.
FWIW, my most rewarding, productive, and of all my experiences the least every worried about money, collaboration in business, was with a family friend and henceforth, my friend, who sadly passed away unexpectedly and far too young, a decade ago. But my experience of "doing business with a friend" is almost unique, and we almost vied with one another competitively to be "by the book" and compliant with our duties to one another and company because of lousy earlier experiences. If anything, I think we raised that to the point of being a unnecessarily high cost, at least from our time. But it was absolutely a superb and indeed rare case of continuous trust building, which didn't supplant other necessary trust creating behaviour, nor detract or affect life negatively in any way. (e.g. bothering too much about being "above board" never caused one of us to think the other was "overdoing it much" for the wrong reasons. I can merely hope I'll have as good a experience again. But one huge positive legacy of all that exercise in transparency and proper discharge of our duties, really made me acutely aware of how I've just not met anyone since who I felt could meet my late partner's standards. I think we used our exchange of concerns as a means to inspect our business very usefully, but in the real world, you simply must have systems in place to fulfil this role, or you'll go crazy.
Pissing off employees or ex-employees for no reason is generally a really stupid and risky thing for a company to do.
How does this work?
I always hear the "sue you until you run out of money" type of bullying. Why do you need to pay lots of money for a lawyer if you are in the right?
* I worked on my project at night: here is my git log
* I worked on my personal laptop
* Your business is automated cars and my side project is a T shirt sale website
This was in Denmark, not the us. But if someone has it out for you, in any court system, they can make your life hell
And the Danish system is in many ways a lot saner than the us one anyway
As I usually say re the US "How is THIS not an issue in the election?"
If I was reasonably sure I had the law on my side I'd dare go to court against an entity of any size, relying on the convention that the loser pays, and the rulings are nearly always in favor of an employee.
I don't think it's any more fair than the current US system.
I'd most likely face a less than 1% risk of paying less than $100k, even if the other party is a global mega corp. Also, the tech workers union I'm in can step in to back legal fees.
Time spent preparing (four years, preparing for three different court cases in the three different circuits)
high paying job offers that fell through because of the uncertainty involved
Living under constant stress for four years straight
I wouldn't even dare to put a number on this
In addition, they can request to do things like: - Request a court order to stop you from doing any further side work until the case is settled - Depose all your friends and co-workers - Seize all your equipment for analysis - Change the venue to another state if corporate HQ isn't where you live, requiring travel for you (and your lawyers) for meetings
You can, of course, object to all this in front of a judge...but that requires a lawyer too.
This all adds up over time, and every phone call, letter, meeting, or appearance in court costs hundreds of dollars per hour (and usually billed in whole-hour increments) for your lawyer to represent you. Eventually, some people can no longer afford to defend themselves.
Note: IANAL - these are only things I have witnessed personally.
Don't work for companies that are dicks. If there's crap about them wanting to own you or your thoughts, don't sign it and get a different job elsewhere.
Remember when little kids would die in factories doing dangerous jobs? No? Me neither. Know why? Because at some point people had enough, went on strike, attitudes and laws changed. If you live in an area where your employer can make your life miserable for no apparent reason, or where your employer can own you outside of work, then you need to help put a stop to that madness.
That's Joel's whole point, almost every single company had these restrictions written into your contract. And it's not possible to know if they're "the nice ones" who won't sue you ahead of time.
I may have just drunk too much HN kool-aid, but software devs seem to be criminally under-valued and often exploited (see Crytek thread on front page, for example). Then there's guys like Bezos who, after underpaying and exploiting you, will replace you with a machine-learning algo the second it is technically feasible and a net positive to the company bottom line.
I've also noticed some interesting features of the software development labour market: quite a lot of the work is creative in nature, you produce non-rivalrous products (i.e. my consumption of 'software x' does not block someone else's consumption), and the workforce is supposedly peppered with unusually talented individuals who produce 50-100x the value that the average worker does.
There are two other industries that have similar features: traditional screen entertainment (TV & Movie), and professional sports leagues. In both of these industries, the content producing workers (baseball players, actors) are invariably a member of an industry guild or union, and operate more like independent contractors than employees...
Food for thought.
A tangent, but http://www.telegraph.co.uk/finance/newsbysector/retailandcon...
There's a Primark on every high street in the UK. Someone you've seen today is probably wearing an item of clothing made in those conditions.
Companies like Google, Amazon, and Microsoft have arms for hardware design, video game development, web development, close-to-the-metal graphical programming, embedded systems, retail...that's not just big enough to drive a truck through, it's big enough for that platform they truck space shuttles around on!
You can say that those companies are unlikely to realistically claim ownership of anything that YOU didn't work closely with, but I can say from experience that these companies have explicit company-wide policies regarding some of those areas, with stricter mandatory reporting guidelines, and even requirements to use that company's technology, separate from their ordinary side project/open source contribution/etc. policies.
So I wholeheartedly agree with your second point - what you do off the clock is none of your employer's business, full stop. Just don't use company equipment for it.
It was at that point I was was convinced that emailing legal to ask permission was a hack to get you to disclose early what you were working on so that when they sued you they already had some of the initial leg work done :-(.
I consulted with an attorney on this and they advised me that because I was working in California the burden of proof that it was related to Google's business was on Google. But that in his experience they were not above pushing the edge of the definition. The bigger point though was that people don't work at companies that are suing them and generally don't work at any company if they have a reputation (real or imagined) of doing work on their own time that is "against" their employers interest.
The summary of his advice was never, under any circumstances, work on any project you don't want to give Google ownership of while you are employed there. And when you have an idea that you want to develop, quit so that those parts of your employment agreement are nullified.
They can still come after you if they think you are using "proprietary or confidential" information in your new effort but that is less common and it makes them look like the bad guys not you.
TL;DR If you could not have built the product without being an employee of the company, it probably belongs to them.
eg. Maybe you use Microsoft's latest internal only HoloLens prototype to build a product. You couldn't have done that if you weren't a MS employee - so they can claim it. But if you used the dev kit and publicly available tech and features then they shouldn't be able to claim it.
If I use an internal prototype they have claim.
Sorry if I wasn't clear enough before.
Why would any company go through the legal and HR hassle to do this? And if they did, why would you want to work for them? Refuse to sign and let their true colours be revealed.
As I said elsewhere on the thread: the worst, most heartbreaking problems a startup can have are the kind that only become apparent after the company is successful. You screw up vesting or grants somehow. You mess up liability in a contract, or don't get any legal review at all. In almost every case, you're fine either way...
... except in that one, 1% case, where your omission almost entirely counterfeits your success, negating the work you put in only after you've navigated the rest of the whitewater rapids of getting traction for a new company.
If you're just doing side projects for the hell of it, with no intention of ever starting something commercial with it, I'm almost right there with you, and I think the side project concern is overblown.
But if there's even a chance that you're going to commercialize something, you need to be aware that the gravity of your legal fuckups will almost never be apparent until after you're worth caring about, and in most cases --- especially for your first company --- the work and stress you have to put in to reach the point of being "worth caring about" is grueling.
If it helps my case at all (it wouldn't for me, since I'm an inveterate bootstrapper): not taking this side-project stuff seriously is going to seriously complicate both fundraising and later M&A stuff, where the warrants and reps process is going to go through this IP stuff in agonizing detail.
Just fill out the stupid invention disclosure form thingy your company almost certainly has, and quit if they give you any shit about it. It's too good a job market to take this risk in.
No one will ever give you a yes or no answer. Never. It's like raising VC, or invading Russia. They will just put everything off until tomorrow. Forever.
I worked at That Place In The Valley that is not in Cupertino or Menlo Park. I tried to get "I own the IP" authorization for some side project that didn't matter to the business. I had a meeting every two weeks or so for a year and a half and nothing ever happened.
But now they know about it, and could make a claim if it blew up. So that's over.
I didn't plow ahead, I stopped once I thought it might have potential. I really only tried for the few months, after that they kept asking me permission to close the request and I kept telling them no. (I was pretty pissed).
That hasn't been my experience (albeit with much smaller companies). For one thing, if you have correspondence showing that you've made a good faith effort to get an answer, it is going to tilt the playing field in your favor in a dispute.
But as going to court isn't what you want, this does lead in to something of a ProTip (though IANAP, TINPA): In general, when hashing out a contract, it can pay off to ask for various requirements imposed on you (in this case, it would be disclosure "within 30 days") to be mirrored by similar requirements on the employer.
I'm not quite sure this is good general advice. It may work for the top 0.01% of talent in Silicon Valley who can quit their job and find another one right away, but that's not the case for the vast majority of tech folks. My company has an extremely hostile stance towards side projects, which is pretty crappy and demoralizing, but there's no way in hell I'm going to quit over it, particularly if I have nothing else lined up. Best to just put side projects on "pause" if you're working in a place you think would try to grab it.
The courts in California rarely side with the company, (so if you work on billing for Google and decide to do some machine learning on the side, even though Google does a lot of ML work no court would find in their favor -- though I doubt google would go after you anyway). But at the opposite end of the spectrum, a court in Texas have ruled that simply the thoughts in the head of an employee are a company's (DSC) proprietary information -- the ultimate non-compete (non-competes are illegal in CA).
https://en.m.wikipedia.org/wiki/Duty_of_loyalty
https://www.lexisnexis.com/uk/lexispsl/employment/document/3...
Long story short: employees have no implicit "duty of loyalty" except for directors and fiduciaries who are responsible for reporting accurate facts (without which limited liability entities could not function). Companies can make a variety of responsibilities explicit in the employment contract but the core principal is that the employee must agree to those responsibilities when they sign up. This is why we have noncompetes/circumvents and moonlighting clauses: if it aint on paper, it aint going to hold up in court.
The big exception is the criminal code. There are a variety of things an employee can do that arent against their employment contract but could be prosecuted as fraud, creating a virtual duty of loyalty.
Do you live in California? If not, I have no idea what law applies to you and your work.
But if you live in California you are in luck: Section 2872 of the labor code is explicit in this matter. In fact every employee assignment agreement I have handed out to someone I've hired (going back to 1989) has included the text of that section, for example:
in accordance with Section 2872 of the California Labor
Code that the foregoing Agreement between you and Company does
not require you to assign or offer to assign to Company any Invention
that you develop entirely on your own time without using Company’s
equipment, supplies, facilities or trade secret information, except
for those Inventions that either:
a. Relate at the time of conception or reduction to
practice to Company’s business, or actual or demonstrably
anticipated research or development; or
b.Result from any work performed by you for Company. To the
extent a provision in the foregoing Agreement purports
to require you to assign an Invention otherwise excluded
from the preceding paragraph, the provision is against
the public policy of this state and is unenforceable.
This limited exclusion does not apply to any patent or Invention
covered by a contract between Company and the United States
or any of its agencies requiring full title to such patent
or Invention to be in the United States.
This law is widely cited as one of Silicon Valley's advantages over other places.
California went through a period of rational law making, e.g. laws like this, a presumption that drivers know what they are doing regardless of the posted speed limit, etc. Then they went insane (three strikes etc) and the rest is, sadly, history. Still not as crazy as the rest of the USA though.
> a. Relate at the time of conception or reduction to practice to Company’s business, or actual or demonstrably anticipated research or development.
On the other hand stories like google's self driving car team departing to start their own self driving car company, or the tons of people who have left Cisco to start routing companies are legion.
On this, my last company had a similar clause, but you could just run a project by the HR team and they would clear any ownership of it. I worked at a media company and I was working on a media-related side project (so definitely "related to your employer’s line of work") and they 'released' any rights to it.
Early in my career I did this. Now I go the exact opposite tack. Tell your employer. Get it cleared in writing. If you work at a company where that is a problem, then consider your side projects non-commercial for perpetuity, or get a new job.
What prompted the change?
First of all, restricting contracts to only work related to the company's business is not unheard of (even outside of California). Every company I've worked at has agreed to that.
Secondly, it ignores the abundant evidence that people successfully turn side projects into businesses all the time without being sued by their ex-employers. In fact, I'd even posit that the median startup is begun while the founder is still working for someone else.
Don't sign draconian contracts and don't be afraid to work on side projects. Be mindful of Joel's bias (he's a CEO, not a developer).
> Be mindful of Joel's bias (he's a CEO, not a developer).
And, while everyone has bias, I seriously doubt Joel and StackOverflow worry, or have any need to worry, about employee side-projects. They seem much more interested in employee retention.
I don't necessarily think this is even a conscious act on his part. It's just that if you spend decades on one side of the table, you inevitable adapt that side's biases. Every employer wants their employees focused solely on their projects.
Also, thank you for giving me the opportunity to post something positive about someone in tech! I'm generally the one being cynical and negative, so it's a nice change :)
> I'm not in the habit of accepting anything anyone says at face value.
Of course there are different kinds of side projects. Everyone is worried about projects that could potentially grow into big businesses or popular open-source libraries. I don't think anyone will sue you over some inconsequential code written while being happily employed by Acme.
> Not related to your employer’s line of work.
there's something like "Not a project started at the job"?
> Being an employee of a high tech company whose product is intellectual means that you have decided that you want to sell your intellectual output, and maybe that’s OK, and maybe it’s not, but it’s a free choice.
Let's clarify that phrase, "sell your intellectual output". Keep in mind that earlier in the article we discovered that "during work hours" or "related to your work" are not limits on its scope. What are the limits? The evident conclusion is that there are none. You are selling all of your intellectual output.
A situation where every idea you come up with, everything you think, every last shred of creativity is owned by someone else is one of the most profoundly dystopian things I can imagine. But this isn't a sci-fi story, this is standard business practice.
Selling all your intellectual output is selling yourself, and I think it's unconscionable. If you don't even own your own thoughts, what do you have left?
That's rather overdramatic. Several centuries ago, every idea you come up with, everything you think, you could probably keep as your own because no one was interested and there was no way you could sell them and make living, even if you really wanted to, which you probably did not, because such a lifestyle was out of most people's reach.
"What are you saying you've been up to all this morning, thinking? Cut out the laziness and go feed the cows, or there will be no lunch for you!"
Should one accept terrible medical care, as such care would be considered revolutionary a few centuries ago?
Additionally, there were people back then whose intellectual output was their own and were able to do things with that output.
Please upvote it. Don't be like a child who wants to have cookie and eat cookie, it is You loose some money in return you get freedom. Those who want money can get all they want, but you loose something more valuable. You can't have all the money and all the freedom...
Where now in first world you can quit your job and try to sell your inventions or every last shred of creativity to one that offers more. It is also that if you do not like someone you do not have to sell your ideas to him, you can sell those ideas to someone you like cheaper.
Joel also wrote (I hope parent poster read the article) that as a contractor you own all the copyright by default, and it is your free will to sell it.
The conclusion is that we either reject this kind of slavery, or at least start charging the extra hours.
- Have the employee agree to grant a royalty-free license to all relevant inventions made in the appropriate time period
- Have the employee forfeit all inventions in the event they initiate litigation
- Or better, sign a mutual patent disarmament clause (probably my favorite option)
Going back to the core of the issue though, I would not trust investors who insist on appropriating the rights to any and all inventions they can. The article tries to frame this as a legal protection strategy, but they don't need ownership to do this. The only reason they insist on it is to try and pressure the founders into squeezing maximum value from employees while giving back as little as they can in return. Unfortunately this behavior is quite widespread.
If there's precedent that would be great!
> the only way to gain independence is to be independent. Being an employee of a high tech company whose product is intellectual means that you have decided that you want to sell your intellectual output, and maybe that’s OK, and maybe it’s not, but it’s a free choice.
I was hoping for a closing argument about how thoughtful employers could accommodate their legal requirements while also respecting independent employee creations.
Instead he seems to just be saying that employees that want to keep their side projects should just quit.
Reading that might give me pause about taking a position at Fog Creek.
Get written agreement from your employer that your side project is your own. Some employers even have a standard process for doing this.
They might say no, but then you know not to put any more work into it.
As Joel says, a judge/jury will probably be inclined to find for you, but you still have go through the pain and cost of litigation. Also, while it's not usually in a company's best interest to pick legal fights with their employees, the catch-22 is this: the only time it's worth it for them to be dicks is when/if your business takes off. I'm sure your employer doesn't care about your little news aggregator until you're shopping around for $100 million in VC funding.
Ultimately he's right. If you seriously want to start a side business, quit your day job.
Go figure... What are the practical ways to benefit from side projects? It's hard enough to work on two works at the same time, would be sad if the results would be lost.
The beauty of side projects is not having to make them pay the bills. As soon as you have to make them pay the rent, they stop being side projects.
But having an ex-employer sue you for lots of money because your side project is booming is a great problem to have ;)
Your comment is inspiring. The question then becomes, how much of your project's worth, as a percentage, are they going to come after you for?
Put it like this:
not having a side project because you're afraid your employer will sue will get you exactly and definitely $0.
Having a successful side project will teach you a ton of useful stuff and probably earn you more than $0 even after the lawyers have finished arguing (depending on your definition of successful).
Obviously that wouldn't stop you from signing your work away in a contract, but at least removes the whole "it's a different kind of transaction" legal mentality from it.
I think his message distilled would be that by default you may not own your side project - so talk with your employer, and maybe get an agreement in writing, if you want to change that.
A job isn't a product that is bought by employees.
I thought he was suggesting that employees take it as an opportunity to negotiate for higher salary, since the company will be buying all of their inventive output. Then they should just work 9-5 and enjoy their free time by relaxing instead of working on side projects. That seems like pretty reasonable advice, unless you're in California, in which case an employee doesn't have that bargaining leverage.
I assume Stack Overflow is just like most big software shops, in that if you have a side project you want to work on and be severable from your employer, you just fill out a little form and get it signed by your manager.
You'd be pushing things to take it further than that, but I'll add anyways: if they're like most firms (and I have every reason to think they would be, since they're famously dev-friendly), even if you didn't follow this process, they're not going to fuck with you. It would be terrible for their own business.
But if you're going to take a side project and turn it into a business, it behooves you to do things by the book, because the worst possible problems for a startup to have are the kind that don't become apparent until after your project is successful.
(Also: Spolsky is the CEO of Stack Overflow; Anil Dash is the CEO of Fog Creek.)
> ...
> So before you hire this developer, you agree, “hey listen, I know that inventing happens all the time, and it’s impossible to prove whether you invented something while you were sitting in the chair I supplied in the cubicle I supplied or not. I don’t just want to buy your 9:00-5:00 inventions. I want them all, and I’m going to pay you a nice salary to get them all,” and she agrees to that, so now you want to sign something that says that all her inventions belong to the company for as long as she is employed by the company.
Wait, what? Wouldn't the fix for this just to say, "You transfer the rights to any games you give us" (or whatever the legal wording for that is)?
It seems incredibly odd to go from "you gave us a game but kept the IP" to "we own all IP of games you make".
Lets say, without notifying my boss, I went on vacation and refactored some company code I maintain, then checked it in when I got back. I can't imagine claiming that as my own unless there were other shady things going on.
That's not what I'm afraid of. I'm afraid that after developing 7 games that belong to my employer, my personal website project that computes tax returns in ethiopia would somehow belong to my employer because
I'm perfectly fine with my employer owning everything related to what I'm employed there to do unless explicitly agreed otherwose
I'm not fine with my employer owning every single piece of "IP" (god I hate that term) that I have created during my employment but outside of work, if it's unrelated to their business. I don't even agree to that even if I have a "standard contract" in which I have stated that they own everything I do. I'm not going to argue over that contract, no one does, and I'm still not ready to give up the ownership of my personal projects.
I went through a tough time when I wasn't sure if I wanted to be software engineer anymore. Working on my side projects not only made me go through that time, it made me truly happy. Reminded me why I am in this in the first place.
If you, the employee, are working for an employer you respect, and vice versa, YOU CAN HAVE A CONVERSATION!
If your day job is, say, maintaining high-capacity forum software in dotnet, and you have this hankering to develop, say, a WordPress plugin to show the time of sunrise, you can talk about it.
If you respect your boss and she respects you, the conversation will be fruitful. She may say, "please don't do that," and you'll understand why not. She may say "go ahead."
If you DON'T respect your boss, there's lots of advice here about how to proceed. But why not start out assuming mutual respect?
This. I know Amazon is good at this.
Hey boss, I'm going to write this wordpress plugin as a side project. I'll be doing on my own time and with my own equipment. I'd like the company to disclaim any right to the code.
9 times out of 10 they will do so. If they don't then you know it's time to polish the resume. As tptacek says elsewhere here. It's too good a job market to risk the legal hassle of working someplace like that.
And, people hear what they want to hear. The employee hears, "good luck with that project, great idea!" and thinks that means the employer doesn't want a stake in it. The employer might simply be intending to encourage the employee, thinking the project is obviously company owned.
"Having the conversation" only muddies the waters.
However, in that case, a legal fight may be somewhat tenable (though it always sucks for everyone (except lawyers)). If you got them to sign a document releasing the project, you'll be able to win that much more easily.
If you can get the signature without too much hassle, it's worth it. If you can't, it's not worth ever mentioning it, IMO.
My current client and I have talked about going "full-time" and I've even discussed it with their legal department. The problem is they have a culture of standard employment contracts and are extremely uncomfortable with the idea of someone having a non-standard employment contract. They said it was "possible", but I'd have to list the projects to be excluded from their interests.
That precludes any opportunity to pursue any new ideas I would come up with.
That's just a flat out non-starter for me. I come up with new ideas all the time and I pursue or network those ideas all the time.
This is definitely a problem with my client and other large corporations. They understand that entrepreneurship is a growing interest of my many technical people and it has become a barrier to attracting those types of people. Something every corporation needs...people who think outside the box.
Of course the primary issue is leverage. If you need the company/paycheck and don't have enough of a background to command a change in the standard employment contract, then you have to sign away all rights. Or you can just decide to be a contractor and explicitly state (where it's necessary), that the work you're assigning rights to is in some amendment and is listed in detail. All other creations/works are yours.
Or you have a strong background with proven results and the corporation is interested in your services enough so that they will work with you on a non-standard employment contract.
> If you need the company/paycheck and don't have enough of a background to command a change in the standard employment contract, then you have to sign away all rights.
You're not signing away your rights, your signing away everyone's rights. What about the person who doesn't like to sign his rights away, but is now expected to, because some other poor person lead the way? Accepting this kind of bondage from employers means either setting a very bad precedent, or following a very bad precedent. Either way it hurts the workforce.
It seems the law should be improved here. It would directly promote innovation and new businesses. I don't see much downside either. Businesses would be less entrenched, which on first glance sounds good.
No, it just means that the list of excluded projects needs to be amended every so often.
Frankly, that's BS. Employment agreements get amended all the time. You can bet that if it was a change the company decided needed to be made that getting it done wouldn't require them firing everyone and then re-hiring them.
I get the impression you're being blocked by someone who just doesn't want to be bothered, and making a weak excuse is just their easy way out.
You can try an end-run (with the attendant risks). If the agreement itself doesn't contain reusable language providing for amendments, then just keep it simple: draw up a replacement appendix, and stick language at the top that says the list below is added to section X of Document Y attached as appendix B to the employment agreement between $COMPANY and $EMPLOYEE signed on $DATE, copy the format of the signature block at the end of your agreement and send it to the same person who signed your employment contract in the first place for them to sign and return.
IANAL, TINLA, etc., so feel free to get a local labor and employment lawyer to review your agreement and the amendment you've drawn up. Figure on 1-2 billable hours if you have it mostly right.
I mentioned I was helping a friend on a short film. I was just showing up on set and possibly doing technical stuff on editing and mixing. I asked, "It's not my project, I'm just helping out. What would you like to see from the project?" "Everything" "Really? We haven't started shooting. Does that mean the script? Raw footage? The final edit?" "Everything" I don't think they actually knew anything at all about what I was talking about (even though it was multi-gigabytes of information) and they handed it all over to a co-worker.
I think the lesson is to think about where they're coming from. The lawyer is paid to cover the company's ass and they may not even have the expertise to make the right call, so they'll error on the side of being safe.
This whole situation sounds ludicrous and should never have been required to happen by management in a company whose focus is creating software.
I told them because there was a box in my contract (I was new to the industry) and the last thing I wanted was to have my friend's short film litigated against.
It's weird because I'm not sure what I'd do different. In that case I probably wouldn't tell them, but I often have side projects that might be profitable. Often I'd see artists working on short-films or publishing their own art books and they would sometimes be internal events promoting those things. I'm not sure if there was just some "understanding" I didn't quite get or if tech and art were treated separately.
Surprised nobody has mentioned the most essential thing to know about regarding this stuff in California. The site is down at the moment, but the link is: http://www.leginfo.ca.gov/cgi-bin/displaycode?section=lab&gr...
CA 2870 is attached to any such agreement you sign in California, and protects independent invention. You should read it. This law forms the legal basis for innovation in Silicon Valley.
When you're successful you have to expect that some people you knew before you found success will get salty and think that you owe it all to them. A few of these people may be inclined to file a lawsuit, including your former employers. They see a pie and want to claim a piece of it.
Your standard contracts may be better, but California certainly has its share of drawbacks.
And did you know there's a Fry's and an In-N-Out burger within ten miles of my house?
Seriously though, the state of contract law regarding this stuff in most states is purely predatory for large companies and hurts innovation.
http://leginfo.legislature.ca.gov/faces/codes_displaySection...
This really does change my opinion of both Joel and FogCreek, and certainly for the worse. I wonder, did FogCreek actually prevent Ted Unangst from contributing to OpenBSD as a side project while he was with them? If so, that's horrible. And how much have FogCreek, StackOverflow, and other companies that seek to greedily arrogate the entire creative output of their employees benefited from open source software began and continued as the very side projects this blog post cautions against? Utterly hypocritical.
I second the call of another poster: we need a professional association (union) of the kind that lawyers, doctors, and dentists have. IEEE and ACM could easily function as such, and in fact, they already provide many of the same practice standardization and continuing education functions that other professional associations do. All that's missing is the rent-seeking behavior to ensure we earn what we're worth and keep employers like Joel honest.
A nit-pick: those professions have guilds, not unions.
Here is a previous discussion on HN: https://news.ycombinator.com/item?id=2208056
You have to expect people leaving you, because the reasons they join a bigger company is much different than a smaller one and it's quite shortsighted as a CEO of a company of the size of fog creek to think like that.
Luckily there are other companies doing great encouraging side projects too.
However, he is still CEO of Stack Overflow and has over 300 employees, if I were one of them I might be pretty concerned about his take on side projects as my employer. I think in all likelihood, Joel means the article as a warning to developers who think they have more freedom than they might actually, and he's probably quite permissive about side projects at SO, but I agree the article doesn't come across that way.
How does this factor into bring your own device (BYOD)? At what point is it your employers equipment, and at what point is it yours? I think BYOD is a terrible idea for several reasons (usually leveraged as a cost-saving measure, can't 100% verify that all company data is wiped at end of employment, etc), but this seems like it muddles the whole thing further. If you only own the devices that you use to work, does everything belong to your employer and how can you draw a line?
This can be hardware, software, know-how, office space, work hours, etc. If something was not provided by the employer as a part of your work environment, it's probably fine to use it. But a clear separation should additionally help.
My personal projects are all in my dropbox, which is synced to all my computers (both home and work). That means all the code for my side projects is always sitting on my work computer as well. I doubt that makes a difference.
I would say: don't do that. If you do, you should probably have a contract leasing your equipment to the company. Generally, if you need to use your own equipment for work, then you should probably have an agreement that falls under the "contracting" (or B2B or consulting) umbrella.
Employer contracts are concerned that you are attempting to take company proprietary information and repackage it on your own time for sale. This sort of behavior clearly falls into 'inventions'.
However, most of the contracts I've seen have a clause which states that the invention must be related to the business of the company. If you work in the games industry and make games on your own time for sale, your employer might take issue with that.
If you work at a games company and run a real estate business on the side, who cares? Similarly, if you work at a games company and write real estate software, they're still not likely to care.
The issue arises:
- where the customer you are getting money from is the same customer (potential customer) of your current employer.
- where the IP in your side project has potential business value to your current employer.
If in doubt, you simply tell your employer up front and get it in writing (email) that it's o.k. I've done this in the past, and the HR department usually will defer the decision to your Manager, who has to make a determination if the work you're doing has potential cross-cutting business concerns. The bigger issue (from an employer standpoint) is that you are not devoting 100% effort to your current employer.
So as long as:
- you make it clear that there are no customer overlaps
- there is no IP that the company would ever be interested in
- that this is done own your own time (and off-premises)
No one should care what you do in your own time.
The two times, I asked to change it. First time I asked to mention that I keep ownership of my opensource projects, since it was what I was doing mainly with my free time.
The second time was less obvious, because I was cofounder/CTO, and I didn't really have a distinction between my "work for company" time and "work outside" time. I also was working on a side project meant to become a business. I took it that they wanted me to transfer IP to the company, but didn't want to let the ownership of my other project go as well.
So what I asked was to change text to say that company had ownership for all my non opensource code that was effectively used by the company. This gave them ownership of everything I was writing for them while at home, while still securing my ownership on my totally unrelated project (without any ambiguity possible).
Maybe the New York Times tells it best:
http://www.nytimes.com/1997/09/08/business/an-idea-not-yet-b...
Some details from 2000... https://groups.google.com/forum/#!topic/comp.dcom.telecom/Sq...
And a few more from 2004... http://www.law360.com/articles/1899/appeals-court-affirms-ex...
Contracts can say almost anything. You can agree to grant the company a liberal license to anything you deliver to the company or incorporate into any product of the company. You can make a similarly protective agreement on the patent front.
There, now you own what you do on your own time and the company isn't at risk of a lawsuit from you.
The problem is that programming is so attractive because the barrier for entry is so low that anybody can get into it without problems.
I'd wager that it's easier to be a quack doctor or a lawyer than fake being a programmer. Most people cannot just grasp the needed details.
Not that it's a competition, though.
If we have a guild it needs to be by, and for, actual workers.
Chris Hawkes
It's not ideal from an employee's perspective, but it's at least less unpredictable.
I advise people not to work for Joel or his companies. This is developer-hostile advice from someone who should know better. You don't want to work for a guy like this or his companies.
My old employer was one I felt that I could trust to not abuse its power.
I think this is a pretty US-only type thing; at least it's not very common in Europe. Usually (in Europe) ownership of code depends entirely on when you did the coding -- if it's on your own time you own the code. If it's when you're at work then obviously it's the company's code. Of course there are the usual caveats about "is it too closely related to work code?", etc. but if it's a totally different area of business, then you should be fine. There may be differences between employers, but even if employers explicitly specify the "we own everything" clause you can usually get specific exemptions as long as you ask in advance.[1]
[1] I don't know if there's any legal theory (in Europe) to support the claim of ownership over everything you do, but Europe is pretty fragmented when it comes to law, so it's probably pointless to speculate on this point. I'm actually not sure if the "we own everything" clause would hold (or has held) up in court in any European country.
In Germany you usually have some paragraphs on this in the (work) contract (there are a couple popular variations - there isn't much leeway provided by German law here, which is good). "We own everything you do" is definitely illegal in Germany, and also not put into work contracts (such a clause would be void anyway).
The legal construction is basically that the employee grants an exclusive, irrevocable license[1] to any IP produced by the employee for the employer. There is of course a grey zone here, but it's quite narrow, and directly non-existent if the side project is unrelated to the current core business of the employer.
FOSS contributions aren't really touched by this; you work on behalf of the employer to contribute to a FOSS project and the exact same terms and conditions apply as always (you put your name on it, not your employers; since exclusivity of the license implicitly granted to your employer conflicts with the FOSS terms, but the employer explicitly commissioned you to do that, the latter "wins" over the former, ie. the license of your employer to the diffs you write becomes non-exclusive in these cases, because the exclusivity is implicitly revoked by the work assignment, essentially action implying intention) -- or so it was explained to me).
[1] This also means that you retain your copyright: it's not possible to transfer copyright in Germany. Very rarely things like "Copyright (c) 1871-1918 Softwareschmiede GmbH" pop up in open sourced stuff, but it's obviously something stamped on when open sourcing, and equally obviously incorrect. The copyright still belongs to the developers involved in the project, but because the company "Softwareschmiede GmbH" has an exclusive license they can re-license it on their own accord under any terms they want. They'd still have to, technically, state the correct copyright, though.
---
btw. seems that I was wrong about copyright attribution. Got a mail, apparently some contracts include a clause that the employer can in fact attribute any work to herself, so "Copyright (c) 1871 Foobar GmbH" can happen and can be correct.
Despite all the paranoia that would suggest otherwise, that's quite often the case in the US as well. Regardless of what your employment agreement says, it can't trump state law, and many (hell, maybe most) states have laws that clarify that work you do on your own time, on your own equipment, that isn't in the course of your employer's business, belongs to you. Of course IANAL, but I did a lot of research on this topic a while back, since I have been in the position of working on a side project while maintaining full-time employment elsewhere.
You can ever be sure what a given court will decide on a given day, if it comes to it, but I think a lot of people overstate the extent to which your employer "owns your brain".
That said, plenty of employers do at least try to "own your brain" and I think the reasonable response to that is to demand they pay you commensurately - including opportunity cost. If someone wants to "own your brain" they need to be paying on the order of millions of dollars per year, IMO.
Which is why the FSF requires documents from contributors' employers: https://www.gnu.org/prep/maintain/html_node/Copyright-Papers...
IANAL but... i believe (in the UK so presumably other common law jurisdiction like the US) the idea of agency solves this. If you sign that contract on behalf of your employer, the other party has the right to assume that you are authorised to sign and the contract is sound. The fact you just gave away something that belongs to your employer is now an issue between you and your employer. I would struggle to see how this could get beyond an employee disciplinary process unless it could be shown that the employee was showing some kind of intent in deliberately leaking secrets they knew they should not leak.
In some countries, it's quite different. In Russia, you own anything you made as long as
* you don't touch it while you're on duty
* you don't use the employer's equipment
Obviously, you still can't use any information classified as 'trade secrets' at your current job because it's covered under another law.
You can even work in a directly competing company (or start one) WHILE being employed because job contract can't legally regulate your off-duty time and you can have unlimited number of side-jobs, as long as it's under 20-hours-a-week, in addition to your current full-time job. You don't even have to notify your full-time employer about it. The 'non compete clause' doesn't work. And your full-time employer can't even fire you (legally) just because you work in/own a competing company, as long as you follow all the regulations.
Even the 'I don’t just want to buy your 9:00-5:00 inventions. I want them all' in the job contract can't work if I understand the Russian laws correctly.
However, the important issue here is the opportunity companies are missing by not offering any significant profit sharing from disclosed inventions. If I submit IP to my company and it gets patented, I get a $500 check. That's idiitic because it dissincentivises significant innovation, but it's unfortunately commonplace.
To solve the dilema, companies simply need to get their greedy heads out of their rears and offer inventors a profit share percentage such as 10%. If they don't accept, the inventor should be able to do with the invention as they please, which includes selling or licensing.
Hmm. Good idea, but don't focus exclusively on profits. Many innovations aren't profitable sources of new revenue per-se, but cost reducers (which can then make other previously-ignored sources of revenue viable).
I agree and I like your idea of also covering cost reduction efforts in profit sharing models. It is undoubtedly easier for companies to swallow a significant cash payout to an employee when they are receiving a large corresponding cash infusion resulting from sales of a developed idea. Following implementation of an efficiency improvement, understandably, as time passes companies tend to only see the current bottom line as the norm vice seeing "what could have been". You can project a companie's profitability over time and use this as a basis for a cost savings award. However, increased uncertainty with time makes it difficult to validate the truth behind estimated savings calcs (i.e. what is vs. what could have been).
For example, if I intoduce a cost savings initiative instructing my customer to switch from diesel to LNG fuel based on the price of the fuels today, then next year diesel prices unexpectedly plummit, at the one year mark the initiative actually became a cost increaser. Thus, any award based on annual projected savings will also need to factor in the diminished value as a result of uncertainty. Cost savings projections are non-deterministic.
I guess my point is that I think cost savings sharing is much more complex than a profit sharing, in which you simply take a cut of any profits (albeit a significantly smaller portion since the company is assuming the development/commercialization risk) that roll through the door.
That said, I could see cost savings awards as a one-time award based on the agreed upon value at a given time, rather than an ongoing profit sharing program that pays out until the product is no longer profitable.
I remember that in Canada, the full time employee contract mentions something like, 40 hours per week, and also explicitly mention if you use company's property or equipments to produce some, or you produce some at company venue, then all copyright belongs to the company.
This is what origin say in the article, it sounds to me really not like a full time employee.
She'll point out any clauses (not just IP clauses) designed or phrased in such a way as to be unfair in the employer's favor, and will suggest alternative language that protects both them and me.
I have yet to encounter an employer who wouldn't accept a few small changes to an overly broad IP clause, and print and sign a fresh copy of the contract with the changes incorporated.
My current employer took very little convincing to accept the idea that they only wanted the IP created for them, not all IP created during the period of my employment.
After all, as I pointed out, they have no more interest in owning the code or design of my block association's website than I have in giving it to them. And it's unreasonable to expect me to cease to be its maintainer just because of a job switch from a fashion startup to an entertainment industry startup. As long as I don't work on it during work hours or using a work computer/internet/etc, why should they care what I do with my evenings and weekends?
So they accepted a modification. Of course, we might have trouble if I tried to compete with them in some way. But even if in my spare time I create a tool or library that eventually ends up being useful in building their own software, I retain the IP to that library. I might not get away with licensing something like that to them for a fee (good faith cuts both ways), but if it's already BSD licensed anyway, they can add it as a dependency and everyone's happy.
And if I want to be paid for contract work for an unrelated startup on weekends, well, that wasn't the use case I used to convince them. But the contract modifications give me the right to do so without turning the IP over to them. And again, if it's not competing, why should they care?
TLDR: Read and understand contracts before you sign them. Get help understanding if you need it. Don't sign something you don't want to be held to the letter of. Sometimes employers are flexible.
Also, it would be cool if there was some widely available standard 'developer friendly' contract (or even addendum to a contract) that software engineers could table when negotiating a new job. It should be fair to the employer too of course, but it would give less experienced developers or those in a weaker negotiating position for whatever reason something well thought out to use.
I was working on a personal project once and it seemed to make sense to join it with another product from another company. We collaborated on the combination design, but never moved forward with it. I never joined the company and I was never compensated in any way. No joint product or code or anything was ever produced.
However, the CEO of that company threatened me with legal action when I joined a different company to implement what I was working on. He sent a cease and desist to me and the company. I had to retain a lawyer to fend that off. Luckily, the accusations were so ridiculous it wasn't hard.
That is NOT protection.
Odds are your boss isn't authorized to say that. And further, it's not in writing so it's your word against theirs.
This situation has taught me 2 things: 1 - most developers don't care, those that do know about it, don't think it's a big deal. 2 - because it has basically become industry standard developers assume it's OK and that no one would sue them.
This means that just about all side projects are permitted, but must be identified in writing in advance, and gives the employer the chance to decline to approve, and in that circumstance then the employee can leave if they want.
Companies taking advantage of ambiguities in the law or making employees live in fear of innovating on their own terms is wage slavery in its illest form.
Not necessarily. Depending on what state you live in, there's a good chance that agreement would violate state law and would be unenforceable.
I definitely recommend that people consult an attorney if they are concerned about the specifics of their own contract. The details of each situation can be quite different.
I mean, imagine for instance that you simply had a band and tried to sell a few songs. And that you were an engineer. At some point in history, it would have made perfect sense to do this at Apple, with no overlap at all. Heck, I remember the ongoing lawsuits over the years from Apple Music just because of the name of Apple Computer at the time, and I think at one point they reached an agreement simply because Apple Computer was not going to be in the music business. And at the time, this seemed like a no-brainer, crazy to imagine Apple doing anything in music. And then, oops. So no, on a company-wide basis, no side project is really “safe”; companies can and do enter new lines of business, even things that seemed implausible at some point in the past.
The ball shouldn't just be in the employers court for all intellectual property created while employed. Joel is just another uber rich techie doing what he can to make sure nobody under his staff is able to build the next big thing.
I'm boycotting StackOverflow & all of StackExchange as well.
Maybe the possibility of being publicly shamed is a deterrent from pursing ownership.
So it does actually happen.
That being said I always read my employment contracts now.
Major caveats: I haven't ever tested this method in an actual legal dispute. Also, the negotiation involved a shouting match in a crowded bar. YMMV.
In one case, I had a clause that said "anything that increases my recognition in [area of tech] is now owned by the company." It was almost too broad but I managed to stay well within the bounds and never have a "questionable" project.
I have seen this method tested, and it works (modulo bad phrasing in the actual amendment).
If you approach it right (sometimes I show them how this limits our ability to work with OpenSource software) you can often swing it. Admittedly, the larger companies are less likely to entertain the request of some new hire.
I think more people should bring this up in the hiring process (you don't have to push it), but lets teach companies that it's not just vacation that maters to us.
Do your friends get to remove their contributions while you turn over a gutted and completely broken project?
Technically it's a property of the previous company. However if you later enhanced and expanded it further, you ought to have a share. And in practice, don't we have some good examples of startups which were built on ideas initially rejected?
(Companies, not employees, to get credit for inventions if merit system in place)
http://www.japantimes.co.jp/news/2014/10/10/national/compani...
As an employer, when you decide to hire someone to produce software for you, you assign them a private key tied to a certificate issued by the employer's certificate authority. The employer then has tooling which requires all commits to the employer's repositories to be signed with a certificate issued by the employer's certificate authority.
Then it's very simple: any code which has been signed by those certificates unambiguously belongs to the employer. Any code which has not been signed by those certificates does not belong to the employer.
Employers can demand that employees sign their work with these certificates in order to consider the work done, so employees who refuse to sign the work with those certificates risk giving up their salary for breach of contract. Employees are then free to sign whichever code they want on their free time, and assert ownership by virtue of it not being signed with their employer's certificate.
The whole point is how to distinguish work that the employee is not signing over to the employer at all - because it's originally a personal project. Then the employer will have no record of the code being signed over to the employer, and the proof clearly shows the code belonging to the employee.
I ran into this myself, but decided not to get in a tussle with this client who turned out to be ripping off customers, not paying me, etc. etc. Things had been progressing along under the assumption the company owned the copyright, or I was implicitly transferring copyright, and to go and try claw back everything I'd written would have been perhaps futile (the courts would not have thought much of my change of mind) and a very big time and money black hole.
I thoroughly pay attention to contract matters now. I never had a bad client before and none of the stuff I'd developed before either seemed valuable enough. But writing _all_ the code for a startup that ... oh, I don't want to take about it :)
NOT ME.
I dread the time when in order to pay my bills I had to sign a contract...
Released all my ideas to the public domain: https://github.com/genesisdotre/wiki/wiki/Ideas-released-to-...
"original matter, work or creation" - on my occasions I wanted to ask how about: 1) cake recipes 2) gardening 3) drawing with my kids 4) urine and excrements 5) photography
(if I was to create YouTube channel talking about philosophy that would inevitably belong to them as well)
Can we please introduce employment contracts that are fair to both sides?
After that YC what is the score?
It shouldn't matter if she comes up with those ideas during 9-5 or any other time. It shouldn't matter if she comes up with another 4 ideas of her own on the side, or even works part-time for someone else too. You're paying for an outcome, 6 games including all associated IP because that's what you're going to sell on to the public.
The one concession I got was that I can negotiate the ownership of code I do outside work case by case.
This is why contributor agreements exist. They aren't per-contribution, but per-project (which scales much better).
You're saying it's "an assumption" that only the copyright holder can dictate the license? That's not an assumption. That's the whole point of copyright. The owner of the copyright determines the terms under which others can use the copyright.
Consider this: every open source project that has wanted to relicense but did not explicitly require a copyright assignment, had to talk to every single contributor to get their permission to relicense.
> Following that assumption, you would need to ask your employer if he agrees with any tiny contribution you do to any open source project out there. Which doesn't scale.
This gets into not what is legal but what is reasonable and sensible.
If you write 20 lines of code using your work computer on work time and don't have prior authorization to give that code to an open source project, you technically have to get your employer's permission. Realistically, few employers would frown upon that.
There are still companies out there that are not open source friendly. If you work for one of those, you'll find that you actually do need to get permission before contributing code.
I should note that I am taking the US perspective on this. Different countries have different views of copyright, and as noted in the original post different US states have different views on employment contracts.
IANAL, but I have managed and worked closely with some reasonably large open source projects and spent more than my fair share looking into licensing terms.
Let's say my contract says "employee agrees to transfer copyright to all work". Does that happen immediately the moment the work comes into existence? If yes - you can't actually license it how you want, since you're never the copyright owner of the work.
What if I just don't assign the copyright? It is clear breach of contract, but at least for some amount of time, the company isn't the copyright owner, so you CAN assign a license. Can the court grant a retrospective copyright ownership, so that the original license is null? What if it was GPL3 and you gave the code to someone else, who made their own modifications and started distributing their version? If they're making money from it, could they sue the original company for loss of profit in the event that the court decrees that they don't actually have a license following the resolution of the lawsuit between the company and employee?
"Contractor may provide services to third parties so long as Contractor does not provide any software development services to other entities. "
"Other entities" is an interesting term. Since the contractor is explicitly mentioned in the text separate from these third parties or other entities, it would seem the contract does not prohibit the contractor doing work for himself.
And THAT'S the place to leave truck-sized holes to drive through, especially if you have a good idea of what your side project interests are at that point.
i'm just curious if there are precedents where someone's side project, completely unrelated to their company's product/market/customer base, but it ended up being lucrative and the company negotiated some shares/ownership of the side project become startup.
Reading this was quite devastating, not even started, and I feel like I already lost, even though my side project has next to nothing to do with my current industry.
Speaking of, I'd like some collaborators to help with my side project "Terra Plant": https://baqqer.com/collaborate
EDIT: May be a bit less narrow than I thought. This [1] journal article cites some relevant case law.
[1] https://digital.law.washington.edu/dspace-law/bitstream/hand...
If that's Google, Apple, or Microsoft... related is a LOT of topics.
Also say you're a games programmer - better not code up a hobby game in your spare time and sell it.
... and so on.
In Sweden, you cannot force a worker to only have one job for example because that is illegal.
"...this particular clause is built into the standard Nolo contract and most..."
Doesn't this mean I can host my side project on company infrastructure? Commit it to company repositories? Submit it for code review which will probably be done on company time?
With that said, which employer wants their employee watching TV and not breathing software 24/7? I really struggle to imagine the risk here is greater than the reward.
The offer of a contract might bolster one's bargaining position a tiny amount, but usually it is still dwarfed by the huge power the company still wields. Especially if one is in the position where they really need the job. If you're unemployed, then you have no bargaining power, regardless of whether they're offering you a contract or not.
I see what the problem is. I can read it in your tone. You only have no bargaining power if you think you have no bargaining power. I successfully negotiated up $15000 (to $60000) with paid relocation on my very first dev job. I was unemployed for nine months (in which time I masted a rather obscure framework) and coming from a background in sales. It seems being quite good in sales has helped me where other developers fail: bargaining.
The short answer is: in your situation, you'd need a lawyer.
(I think --- not sure, not an authority --- that the "incorporation in Delaware" part of this has minimal impact; your residence in North Carolina, and the firm's operations in California, are probably the big two salient facts).
I work remote for a large SF Bay Area firm from NC.
Of course even if pre-existing IP is owned you don't want to be in a position where contributions to the same project after date of new employment are owned by the company, creating a divide in ownership.
If there is a true "five nines" in our lives, it's the reliability of the law. We each interact with and under the law dozens, hundreds, even thousands of times every day without ever needing recourse to lawyers.
But when you need a lawyer, you need a lawyer. One might as well sigh heavily about needing plumbers when the pipe bursts. Specialisation is normal and -- this is what I like most -- lawyers are more than a paid service. They have a fiduciary duty, they are ethically required to be dutiful advocates.
Personally, while I wish the world was simple and lawyers were cheap, I have never regretted spending the money to consult with them.
Also hearing that I should take the same remedy whether I have a question or I need to be defended against criminal prosecution seems strange and intimidating, like being told I should hire a brain surgeon for a migraine headache.
It's irreducibly complex because it involves humans.
First, there is a very high bar for what is regarded the property of the company vs your own work. Even if you created your own open source project website and pushed code on your own github account using their laptop, as long as it doesn't directly compete or use portions of proprietary code, there is zero chance it will stand in court. Non compete clauses are next to impossible to uphold unless they literally sold trade secrets or company's code directly for profit. Even if they made a near identical version, it would be a tough uphill climb if you didn't copy & paste their code directly in your own source code.
Of course, the Goldman Sachs vs open source dev was a very interesting and a rare case. I don't have more insight into that case but if somebody could that 'd be great.
But for the most part, Joel's piece is spreading FUD into innocent developer's dreams and projects, and you don't need to heed attention.
For the truly paranoid and follower of Joel's flawed legal analysis which looks at syntax than the semantics or spirit behind the written law which almost always the overwhelming use:
1) Incorporate your own company
2) Purchase laptop under your new corp
3) Do your work on there.
Disclaimer: This is not a legal advice. I'm not a lawyer. I could be wrong. Check with a real lawyer and do your own due diligence.
Huh. You've missed a lot in the intervening years. eg. https://www.amazon.com/Joel-Spolsky/e/B001K8FTIE/