We couldn't hire a P/T contractor because the engineer signed an NDA agreement with his company that pretty much said everything he developed, verbalized, or put to paper -- during work or after -- was IP of that company, irrespective of whether it had anything to do with its products. Even as an employer, I find this an absolute outrage.
That is not an NDA. It simply isn't. NDA covers non-disclosure of confidential information. It may say NDA at the top, but it is no more an NDA than if I put a Honda hood ornament on an M1A1 Abrams.
What you are describing is a 360 work-for-hire agreement. Which is a totally, totally different beast.
> Even as an employer, I find this an absolute outrage.
Well, it can be overkill. But depending on how much the guy is getting paid, depending on the industry and the larger context, it can be appropriate. This contract is basically saying that no moonlighting is allowable - there are many business arrangements where this is perfectly reasonable (i.e., critical or unique employees, fiduciaries, key executives, etc.). If, however, he is truly just a low level employee, then maybe it is not appropriate. The point is that it is not clear cut.
Some questions arise:
* Is this the only guy who can perform this particular work for you? If so, then you are giving credence to the argument he is a super valuable asset and there is reasonable motivation for his employers to have him in a total lockup agreement. The hope is that he would be properly compensated for this trade-off, however. If he isn't, he should seek legal representation for negotiation of his next job arrangement.
* If he is not the only guy who can perform this particular work, does he not have friends? Are there no other alternatives?
There are really only two choices: 1) he and his skills are unique, in which case his employer has every motivation to have him be subject to these very strong anti-moonlighting provisions (and hopefully he is getting commensurate pay - if he isn't, that is another whole ball of wax) or 2) there are other people that can do this job, in which case, hire one of them. Or are there no reasonable alternatives?
Depends. Is this an entry level programmer? If so, is that entry level programmer fresh out of college and making $150k? Or is an executive making $500k? Is there an equity package? Or is this some guy making 55k and working 60 hour weeks? There is a continuum.
Also, 360 deals in music industry typically relate to the fact that all royalty and endorsement deals must go through the label - it used to be that artists could directly license their names for things like cereal endorsements or clothing lines. A 360 deal means that the artist must do that licensing through the label. Whether or not this is a good deal depends on the artist, the label, and the specific percentages involved.
That is not quite the same thing as a work for hire agreement that states that all of an employees inventions, whether or not developed on or off the clock and whether or not developed with company hardware - are company property. Similar, to be sure, but if you talk about a 360 work for hire agreement, people may get what you are talking about, but some may not. I don't think it is 'term of art' in the same way - even though I may use it as one.
One of the main improvements of capitalism over feudalism is that contract terms usually last for at most a lifetime, and where they don't they're at least limited to a piece of real estate.
That's not to say there aren't some good arguments for IP, but they sort of inherently have a planned-economy bent.
That's quite wrong. the very basis of IP is a state-imposed monopoly, which is the complete opposite of what capitalism is, what its basic principles are, and how it works.
I hear you about reatrictive covenants and NDAs, though.
edit: I get Zenimax said it was about him going to Oculus, but it is really just Zenimax being dicks. They will most likely have to pay.
I presume that's what led to this debacle.
With all respect to "id" software, the majority of their value was JC and the tech leads.
Whilst id is still remembered fondly it's not like they were a major brand and had a large portfolio of technical and franchised intellectual property that was worth anything close to what ZeniMax paid for it.
ZeniMax bought the brains not the doom franchise.
In terms of human capital, Carmack is one of the most respected technologists in gaming, but I'm sure ZeniMax didn't expect him to stay with them for a very long period. At the time id was bought by ZeniMax it seemed like Carmack was spending a lot of time on Armadillo Aerospace too.
In terms of tech it seems id wasn't the leader it used to be anymore (their early engines were used by Half-Life and CoD), taking into consideration Unreal Engine 3, Crytek Engine (being used for Bethesda's own Prey, the previous installment running on idTech) and Unity.
On the other side, Activision bought Infinity Ward (developer of Call of Duty) for just 5 million [1]...
http://venturebeat.com/2010/03/04/lawsuit-details-activision...
* One company wouldn't budge. Later, I got a better deal, but it was risky the way I went about it. * At another company, I just didn't sign it. They didn't stop me from starting work but when the omission was noticed they had an HR person pester me about it a few times. They eventually gave up. * At yet another place, I crossed out the parts I didn't like. They just kind of shrugged and said okay.
At no time did I ever want anything unreasonable. I just didn't want all the things that I or my descendants designed/built/invented/helped-whatever to be assigned to ['company'] in perpetuity, etc. And I didn't want a contractual responsibility to come and defend patents in courts, or give depositions at my expense.
The smart ones absolutely will not. Smart people absolutely will not do this, regardless of their profession.
And hopefully have the self-awareness not to have strongly held opinions in these areas (at least without sufficient evidence). However, I find that all too often, this is not the case.
> HR/hiring people will look at you like you're some kind of weirdo if you balk at any of it. Here are the reactions to my reluctance as I recall them.
Right. Go over them. Your lawyer will talk to their lawyers, above the level of the HR people you would be talking to.
> I didn't want a contractual responsibility to come and defend patents in courts,
Which is a pretty reasonable requirement...
> or give depositions at my expense.
But that is not (or, rather, it can be in certain circumstances).
A good lawyer will negotiate these things for you. You should try to find one who actually understands software a bit. They do exist.
Disclaimer: I am not your lawyer. If you need a lawyer, you should get one.
If they're 3/3 with dodging it, what makes it unreasonable? Have they just been lucky so far?
>Which is a pretty reasonable requirement...
You omitted the last part. I think it's pretty unreasonable to want that kind of service gratis.
It's really no different than negotiating on salary or anything else - you just have to know your own value and the current job market climate. And obviously not being afraid of having a frank discussion about it - perhaps a lot of devs are non-confrontational in that way.
It is rarely enforced but it's always there, looming.
Anyway, even before the consideration of intellectual properties, it stand to reason that a worker can produce only so much work per day before stressing out, and if an employee hired for 8h does 4h more on the side as contractor the employing company gets 'cheated out' of productive time and this is especially true in a job that require fairly constant concentration, even if being tired at the job is shitty all around universally.
No, if I'm hired as an employee, it's either to perform specific duties during specific times (hourly pay), or it's to provide my expertise to accomplish tasks given me, with a possible expectation I be available or at a location during certain times (salaried pay). If I'm salary, and my employer expects it will take me 8 hours but it takes me 1, I can relax the rest of the time. Doing so may reflect poorly on me if I'm looking to advance, but that's why employment is a negotiation.
Nobody can provide 100% output 100% of the time they are working if they work 40 hours a week. People aren't built to be able to sustain that rate of work, they can try, but very quickly they are no longer putting out 100% output, even if they are there 100% of the time. So it's fairly obvious people do naturally limit the amount of effort they put into work based on the expected return, which is how it should be.
As an example, it's not unheard of for people to switch jobs for positions that pay less but also have far less responsibility. If you can work half as hard but get 75% the pay, some people will take that if that 75% is sufficient and they've determined that the prior amount of stress was too much.
Amazon isn't always thought of as the nicest of companies, but in terms of employees I.P. I'd say they are one of the fairest companies.
You being able to own the IP to things you create outside of work does not mean that you suddenly don't have to work during your actual work times.
Also, if an employer gave that as a reason for them keeping my IP created outside of work hours I would very seriously reconsider accepting a job with them (other reasons such as those outlined in Joel's article make a lot of sense).
Unless the comment I was responding to was worded badly, my statement is valid.
Even if there is truth to what you said, employers already have enough power as it is. Why should we let them own a workers time even outside of the hours they are being compensated? They have no right to that. At the end of the day, if a worker is not productive enough the company can choose to fire them - thats about all the say a company should have over your life. If they want to OWN ALL your productive output, it stands to reason they should pay much more than the 8 hours your salary covers.
I think it's more "let them have the power to fire a worker that comes on the job tired, warms the seat while recovers for the night shift and leaves the office without producing the value he is paid for."
more to the point: there's already a contract form that empowers the worker to work goals instead of hours, allowing employers that so desire to manage their time, so there's that as well. if one chooses the salaryman life, he get pros and cons.
No. Just no. Side projects are another way to up your skills. In addition to side projects I've done for pay, I've done them for a charitable organization on a volunteer basis, fundamental science research group (small fee, practically volunteer work). Even if my day-job suffered temporarily, they've still benefited because each of these projects involved learning/practicing something new.
So why are workers allowed to do their own laundry, cooking etc? If I do DIY on my house in my own time, does the company now own the increase in value of my house? That seems to be what you're arguing: that effort outside of the workplace directly zero-sum competes with effort in the workplace.
I mean, a really strict reading of the IP clauses would indicate that if I wrote a letter to my mother the IP would reside with the company.
That's why I choose not to work for one personally.
[0] https://leginfo.legislature.ca.gov/faces/codes_displaySectio....
See also: EULA's, and really every contract ever between two entities of significantly different clout.
My current employer has a very clearly and unambiguously worded one-page NDA with rules that make sense and don't overreach.
My previous job had a document many, many pages long, that asserted I was liable for up to $10 million if I had violated any of the rules in it, which included things like making a copy of source code or debug binaries onto a USB device (which often happened in practice). It also tried to enforce these rules retroactively for 5 years and until 5 years after my employment ended, and was forced upon me 18 months into the job.