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Comment by cygned | Hacker News Reader

> His employment agreement states that any and all intellectual property he generates while employed with us, even during weekends/free-time, is the property of the company.

If I had such a clause in a contract, I would turn down the opportunity. Maybe I am missing something obvious here, but I don't see the point of this.

Even worse, this:

> any and all intellectual property

sounds to me like one couldn't do anything creative in their spare time. Even a picture painted would belong to their employer.

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> Even a picture painted would belong to their employer.

Taken at face value, it's much worse than that. All the family photos he has taken, that novel on the back of his mind he wanted to write, that poem he wrote for his wife's birthday, the all belong to the company now. If he made a personal sex tape for his and his wife's enjoyment, the company can request it and sell it online or upload it to PornHub at their sole discretion.

There is no way in hell I would ever sign such a clause, unless there is literally life and death on the line.

> that novel on the back of his mind he wanted to write

No kidding! I used to work at Google and we had an orientation session on the IP policy. I asked if it would apply to a novel and was told that it would (but that they would probably assign the copyright if I asked).

How charitable of them to "probably" assign copyright.

This made me chuckle. I’ve made a few sexy videos with my wife and just thought of my manager saying, “Welp, that’s ours now.”

That sounds very prone to abuse...

And malicious compliance

All coding job offers in California that I’ve received have come with an appendix which invalidates such clauses. It’s a major reason to work in Cali, if I understand correctly. In practice, if I’m working for my salary then I don’t have energy to innovate on my own, beyond conference talk demos that take a few weekends max.

That’s because it’s against the law in California for a company to claim unrelated IP done on off hours with personal equipment. Don’t think they wouldn’t try it if they could.

This, along with non-competes being unenforceable, is why California will always have the most tech startups.

So the employer can literally claim the copyright for all of the employee’s speeches and DMCA them if so they choose? It seems that this can be argued as a violation to the first amendment.

That puts a different spin to phrase "I will give up my first born for...."

As many others have mentioned, there is an exception in California for things done using no company time and resources, and unrelated to your work or the company's area of business or "future anticipated research". This exception required by California law is often copied verbatim into employment agreements, even if you are working outside of california. However, the last clause of this term essentially de-fangs the term entirely if you work at any medium sized company.

I have worked at two FANG companies, and in both cases I crossed off this clause from the contract and initialed the line before I signed it. I told them that I couldn't sign that line and what I did, and in both cases, they said they would "get back to me" with what legal said. In both cases it never came up again, and I started working having signed only the modified contract.

I think that's a fair comprise of who owns what, and I would suggest anyone else to do the same thing I did.

Has an employment lawyer vetted this approach? I suspect that's not really effective...

What approach? Negotiating a contract before signing it. The only potential problem I see is that is that he didn't say that he had a representative from the company also initial the modification, and doesn't necessarily have a paper trail documenting that he informed them of the modification.

I do have an email trail in one case, but the other case was only over the phone.

One of my employers even had a process in place where you submit things you do off work or plan todo and you can officially get these approved before signing, like running a side business, etc. Its a contract, so its negotiable. HR likes to create the impression it's a static document, but it's not. Future employees have a lot of underleveraged negotiation powers, especially at large companies I think.

What, signing a modified contract? Both parties are free to negotiate.

It gets even worse as you read further:

IT has searched his OneDrive, laptop, etc., and we can't find a single shred of code/documentation on these ideas

I'd say the company got what it deserves.

Company has the right to do that pretty much anywhere assuming they own laptop, pay for onedrive etc.

They have the right, certainly. But as an employee of a tech firm, if I ever learned that my employer had exercised that right on me, I'd hand in my resignation the same day.

Trust runs both ways, and once you blow that trust with your employee, you can't regain it.

If you have a forced vacation period, your employer is auditing your emails/drives/devices. It's perfectly understandable that they search your work assets regularly (and randomly) as espionage happens. They probably mentioned they would do this at some point long ago.

Yadda yadda, “what if” argument. The context of the parent post is obviously not a “force majeure” situation but a more damning frisk, hoping to find enough to fire the man and sue him into bankruptcy... sleazy

How would you even know that the company searched your corporate OneDrive account?

In the USA they dont have to tell you when they do, so it might have happened already and you'd never know.

Difference between what a company has the rights to do, and deliberately annoying an employee.

That's very standard in USA, no laws preventing that and employees usually sign a contract allowing IT to do this without having to tell. I heard some companies even make emails disappear, e.g. if you wanna join Blind the sign up email might magically be deleted via some rule. GSuites supports and enables such policies to be implemented very easily.

> If I had such a clause in a contract, I would turn down the opportunity.

That may sound bizarrely unfair to you, but elsewhere (Germany) it's actually the law (but only for inventions/patents, not other IP).

The employee has to tell the employer about any patentable idea, even if not in the general field of his employment, and even if having occurred after hours.

The employer can then either claim the patent (but has to pay something), or he can release the invention (and the employee can patent it on his own).

This is only partially true.

You are talking about Arbeitnehmererfindungen and those only belong to the employer if they are created on company time or if they are related to the work (Diensterfindung) every other invention belongs to the inventor (freie Erfindung) see §18 arbnerfg (3) althought you have to submit the invention to your employer if it could be related to the work (1-2)

https://www.gesetze-im-internet.de/arbnerfg/BJNR007560957.ht...

You're right, I conflated "telling the employer" (required for both kinds of inventions) with the procedure of payment or release (only applicable for one kind). My bad!

> That may sound bizarrely unfair to you, but elsewhere (Germany) it's actually the law

Yes, plenty of countries have bizarrely unfair laws.

(edit: it appears that the law in Germany is not as bad as initially presented by the parent comment).

The Netherlands also has these types of laws. Judges are especially likely to rule in the employer’s favor the more senior your role is.

The solution is to just make it explicit to your employer / manager what you’re doing, and save the emails / documents.

> The employee has to tell the employer about any patentable idea, even if not in the general field of his employment, and even if having occurred after hours.

Just imagine the complete breakdown if a group of employees actually tried to go through with that: every wacky idea, from self-lacing shoes ("seem something similar in a movie") to bipedal gigawatt wind turbines that walk off to windier locations in a lull ("stomp, stomp, stomp! awesome!"). If they have to tell, some poor soul must be obliged to listen!

Also located in Germany; I was not aware of that regulation. I only had one employment contract before I started my own business, but on neither side of HR, I had situations dealing with this issue. Thanks for pointing out.

I’ve finally found a German law/regulation I take issue with.

Why? It seems pretty good to me.

I did a little googling and it seems, that if you patent something that benefits your company, they can license it from you, and if they patent something you invent, then they have to pay you a revenue share. If they try and fuck you after a disclosure, then you get to keep the patent.

I recind my above statement. That is surprisingly (as an American) reasonable. The comment I replied to made it sound much more onerous, but with those details it sounds very fair.

This comment quotes what the regulation actually states:

https://news.ycombinator.com/item?id=19477950

I need to look up sometime what happens when you have two jobs. That's uncommon here, but I'm sure the law spells it out.

(Edit: couldn't find it in the law, and will not be in the University library soon to check the legal commentaries — but I still find that question interesting)

They have a dubious law banning 'dual use' security tools too

This is very standard outside of California.

Friends have lost jobs at companies whose names you would recognize. eg M worked part-time as a sound tech in his own recording studio and his software job would mean they owned the rights to that work. M refused to sign the updated contract and ending up leaving the company over it.

I think you mean "in the USA outside of California". It's unthinkable for me in Poland, and I'd guess that in a greater part of Europe it's similar.

As another commenter pointed out the situation in Germany is not significantly better; I can vouch that France also has many areas of weirdness when it comes to those matters. Companies - specifically their legal teams - are incentivized and have every reason to be greedy about what comes out of their employees' brains.

I suspect it's not an insignificant factor in California being disproportionately represented when it comes to invention and innovation over the last half century or so.

Sorry yes, of course.

Microsoft is one of the best companies in this regard. They have a very clear moonlighting policy that the tl;dr is "anything after hours, made using 100% of your own resources, is yours".

That "100% your own resources" part is key, Microsoft provides a lot of free software. Employees working on their own projects have a "clean" setup that has never touched anything provided by Microsoft. Desktop/laptop, accessories, mobile phones, and so forth.

Heck Microsoft has on occasion promoted apps and tools made by its employees on their own time.

That other companies aren't like this confuses me.

There are rules against working on products that directly complete with existing Microsoft products, for obvious reasons, but aside from that, there aren't any real constraints.

(I've had plenty of friends at MS working on side projects that pulled in anywhere from hundreds to thousands a month, those projects tended to be written against MS technology stacks and made the MS Ecosystem better by their existence, why in the world wouldn't Microsoft want that to happen?)

Google sounds like it's the complete opposite. I've never seriously pursued a job with Google, and don't have first-hand knowledge of the actual policy, but everything I've seen suggests that it's a "Google owns everything you write unless you jump through some really big hoops" and it's been a big part of why I've never seriously thought about applying there.

This is sort of true. You can get copyright waivers for personal projects by filling out a form. They say most projects are approved but in my experience, it seems like they deny a lot of them. One of the two projects I submitted was denied. Other people I know have had a similar experience

It's actually basically the same policy, it just tends to get framed in a negative light instead of a positive light. "We own everything you produce unless you used no company resources" and "Everything you produce is yours unless you used company resources" are the same statement, but the former sounds way worse.

As far as I know there are two differences.

a) Google claims ownership of things you produced off-hours with no company resources if the work you were doing off-hours is your job. If you are for example a DL theorist, you are being paid in part for your general skill at coming up with DL theories, not just for the hours you put in at the office. If you come up with a new DL theory in the shower instead of at your desk, Google still owns it.

b) Google claims ownership of innovations made by employees off-hours with no company resources if the innovations in question were already being researched elsewhere at Google or the innovation was already known to Google. Like any sufficiently large technology company, Google has made patentable discoveries that it has elected not to patent so as to maintain them as internal trade secrets. This is to avoid the mess that would ensue if an employee independently came up with one of these discoveries and filed a patent for it and Google had to dispute the patent by demonstrating prior art and in the process revealing their trade secret.

So if you have a new innovation that was produced off-hours and without company resources, you first submit it to Google's legal office and they will let you know whether they (a) consider it part of your job or (b) were already aware of it, and if so they will claim ownership. If you disagree with their decision there's a third party arbitration process so that you can hash it out without risking the exposure of a trade secret.

Even worse, Google/Alphabet is in so many businesses, it’s probably very hard to do something outside those areas (and near impossible to refute a claim of “oh, another division is working on that”).

Indeed, the famous Windows Solitaire game was written by a then intern (Wes Cherry) in his spare time in 1988. He never got any money for it, but he was eventually hired for a paying position on the Excel team, so I guess it helped him in that sense.

Back in the 90s through early 00's when I worked at Microsoft, they had a strict no moonlighting policy. I think they ended it because this was given as a reason no one was writing any mobile phone software for windows phone.

How do they define “after hours” ?

sounds to me like one couldn't do anything creative in their spare time. Even a picture painted would belong to their employer.

Fortunately it seems that most things like this are relatively unenforceable, but IMHO it's still a good idea to keep anonymity/"firewall" what is done on company time from everything else. Don't publish non-work-time material under an identity that could be traced back to your real identity with the company, for example.

And don`t use company resources for personal projects.

To me that's a given, but it seems a lot of people are not too aware of that fact --- I've seen coworkers nonchalantly working on their personal blogs or email or other such things using company property, for example. It irks me, because employees doing that can dilute the argument about owning non-work IP: "why can't we own the stuff you do at home? You're already doing personal stuff at work."

Unfortunately it is a standard boilerplate in many Employment Agreements in the US. Over broad terms written by contract lawyers completely one sided.

Fortunately most of the time if the employer is stupid enough to sue for non-work related IP many courts will toss the case and render the clause void in the agreement. However there have been a few bad rulings as well.

I remember on case where the employer sued an employee over a book they wrote after the book was successful, the employer happened to be having financial problems... If I remember correctly the judge ruled in favor of the employer

>Unfortunately it is a standard boilerplate in many Employment Agreements in the US.

Every organization says it wants to be exceptional, except where it comes to employee rights and compensation. Then it's "sorry but this is just how everyone does it", e.g. "you can't get b tyer treatment elsewhere"

Do you remember the book? Was it related to the area of employment?

I dont, it was several years ago that I read the analysis in an obscure publication, if I recall it was not related to employment, it was a work of fiction and the guy worked as a engineer or some other profession close to that

In Canada, you wouldn't be able to work as a software engineer without signing a contract with such a clause. Investors like these clauses because they don't want some employee saying "Well, this part of the product I wrote in my evenings, so now that you're selling the company, I'm claiming ownership of it." It can be messy.

That said, most companies I've worked for here put that in your contract, but then are more than happy to give you written permission to release rights to (for example) open source projects, or things not related to the business. I worked very briefly for one company which literally tried to assert ownership of photographs we took in our spare time while we worked for them (I won't name them, as they're a little over-litigous). I did not work there for long.

In Canada I worked as a computer technician. I often had to design my own circuits and wiring to solve problems.

The company I worked for owned all my hardware designs.

However, if it was not hardware it was mine. About three years after the company grew I had to sign a contract - the contract clear said they owned all my designs.

I crossed that out, wrote in a clause they only got hardware designs made in shop, signed and date it, THEN had the president (small company still) also sign and date the changes.

Even if legally challenged, I could prove in court I was acting honestly and the expections of the signed contract.

this company behavior should be extremely illegal. noone can tell you you cant program FOSS in your own time(!!! such as they cant prohibit you from drinking beer on friday night with friends). and claiming stuff such as "Well, this part of the product I wrote in my evenings, so now that you're selling the company, I'm claiming ownership of it." should be equally easy to dismiss by judge as 'crap argument'.

I quit my job over that at one of the largest Canadian tech companies soon after the golden hancufs of acquihire expired. As far I'm aware they lost everyone but two engineers of the acquired company within 18 months.

I've had that clause in initial version of the contract at every Canadian tech company I've worked at except my current employer - I had to negotiate having it removed, and succeeded except the one time I've mentioned

Just nod if it rhymes with boracle

In some states like Texas this is in fact the case. Worse, your knowledge can be used to keep you from working in the same field because the stuff in your head is deemed property of your employer.

I believe the crucial case was Conley v. DSC Communications Corp

I worked for a company that required me to tell them about all personal software developed for a period after I left the company. I suspect the intent was to make sure I did not create competing software... but the terms were clear and had a small reimbursement for filling it out and sending copies.

They got a bunch of custom ADND software for Windows CE. At some point, I got a phone call asking why I was sending them this stuff. It apparently irritated someone enough they released me from those terms.

This is a great way to demotivate programmers from self-learning and side projects.

Programming used to be my hobby and I was always creating webapps or whatnot. Whatever I learned during off-hours, it improved my productivity at work.

Since starting work at this new company, I have lost all the zeal for programming on the side. It feels unfair. Not that my little apps will ever make enough money to get noticed at work. However, there is always a little voice in my head which keep saying don't spend too much time on this project, you don't own it.

Looking to get out as soon as possible.

How are such clauses even legally possible? It's ridiculous.

> His employment agreement states that any and all intellectual property he generates while employed with us, even during weekends/free-time, is the property of the company.

> even during weekends/free-time

It sounds illegal. In the US, you can really specify such clause in the contract?

Usually, it just means that you ask your employer for an exception of you're doing something in your spare time.

Few employers will want to claim ownership of your mobile game/app or whatever, unless it's related to the company or what it does.

You're supposed to ask your employer if you're allowed to share that dick pick?

Only if you tattoo source code on your.....

I personally prefer to keep my code private by other means. But no judgement, hehe :)

You don't need source code for that. Photos are copyrighted by default, so it's IP. Some companies demand all IP created in spare time.

It's very unlikely that IP not related to software will be ruled to fall under the contract if challenged.

But, hey I'm no lawyer..

AIUI, this is mostly unenforceable in CA.

> If I had such a clause in a contract, I would turn down the opportunity.

It sounds like you haven't worked in tech before? Apple is one company well known for a clause like this.

I do work in tech, in fact I am on the employer side. Our contracts contain clauses to prevent employees from using company property in whatever they do outside work but I would never had the idea to claim their after hour inventions.

How do you define “after hours”? I’ve never worked at a job that had defined “work hours”.

In jobs like what you describe, one approximation of "after hours" would be "when you're not working or at the office and are not in violation of a reasonable expectation/policy to be doing one of those things."

At some employers this would also include "present at the office at a time when you're not expected to do work."

In reality, it would be up to the judge, jury, arbitrator, or hearing officer to apply this phrase to the facts or circumstances of any dispute (possibly with deference to on-point precedential or persuasive case law).

With an on-site contract, "working hours" refers to all times on the premises of the employer (us) except for break time.

For people working remotely, this is more difficult, there’s no clear definition. Eventually, I don’t see a problem there anyway, given we measure by output and prohibit engineers from reusing our stuff in their private projects.

We do not employ people we don’t trust so we never had issues so far.

Also an employer.

I would generally define this as not during work hours. Work hours are flexible, but don't be stupid: just don't interleave work stuff and personal project stuff and use your own equipment and you'll be fine.

ie if you take breaks from work and instead of wasting time on HN or reading news you bang out code on your personal projects, I'm not going to be enthused about that. But if you generally work 10-6 or so, and by 610 you've shut our laptop and you're coding away on your personal laptop? Great, have fun. Please don't burn out.

And ditto re: trust. The way to solve not trusting your employees is to fire them and hire trustworthy ones.

As a concrete example: we have had to implement a lot of data table stuff in javascript. If an employee copied that (functionality, not our code) and productized it, I wouldn't care. We'd probably even license it. I would want a discount on that license :)

This generally only applies in CA, and also to companies that are heavily invested in keeping the goodwill of their employees. Personally, I don't pick fights I can't win, and having valued eng leave is definitely not a win.

> ie if you take breaks from work and instead of wasting time on HN or reading news you bang out code on your personal projects, I'm not going to be enthused about that. But if you generally work 10-6 or so, and by 610 you've shut our laptop and you're coding away on your personal laptop? Great, have fun. Please don't burn out.

That works well enough for employees who work 8 uninterrupted hours per day 5 days per week as their work week. (Even for them, sometimes copyrightable personal projects are different enough to serve the same mentally restorative purpose during the workday that browsing the Internet can, like if it's poetry or designing a sweater.)

But not everyone performs best or happiest like that.

What about the employees that typically work 11-2, go for a gym break 2-4, work 4-6, go for dinner and time with their family, and then work 8pm-2am... but mix some personal side projects into the 8pm-2am part and think up advances on those personal projects while at the gym, plus do extra work for both personal and employer purposes on weekends?

Yes, these patterns are consistent with people I know in the industry. (I'm combining multiple people for anonymity.)

Notice those hours added up to well more than 8 work hours per day and more than 40 per week. If such people can't interleave personal and work stuff, they'll probably spend less time on work stuff overall and give less productivity to the company (if they don't switch to a more permissive employer).

bluntly, not every employee is for every employer.

And this is also for the protection of the employee. I'm a founder, and I can make pretty durable promises, but even my promises aren't 100% durable. If we get bought, or we don't perform and I get fired, my promises no longer matter. The employee doesn't want to be in a situation where he or she has built something valuable, I'm no longer in a position to keep my commitment, and the new owners want a piece.

I see that you're SRE/ops so your work is naturally more bursty, so that may color your perspective. For my company, I'm not sure how we would deal with that, except we don't really keep people on call outside of hours. We hired ops living in E Europe so they come on as we go to bed.

edit: given your suggestions of poetry or sweaters, sure, knock yourself out. I still won't be stoked about working a different business during my hours.

Some of the people I combined in my example are SRE/ops like me (though as of recently I'm now more manager than IC); some are product people, some oversee a bunch of different engineering teams, and I'm including both ICs and executives and many different ages in this amalgam... lots of productive people are bursty. It's chiefly the young single typical-lifestyle neurotypical software application developer that isn't.

There are better ways to protect the employee, though: the legalese can omit time of day / day of week / place of work / equipment used as conditions of IP assignment. My current employer does this. (No it's not based in the US, but it is a startup funded by both US and home-country VCs).

Of course, the employer does own stuff created within the course of employment. Not a problem in any of the plausible future successful or failed exit scenarios.

Last thought: many good people in tech, very much able to do the jobs you ask of them, have ADHD, or kids, or athletic hobbies, or other reasons to do a bursty workday. Sometimes people seemingly outside these categories may turn out to be in them (e.g. new parents). Being incompatible with such workers makes it harder to hire and keep the talent tech companies need to succeed. (Sometimes it's illegal too, but that's a separate conversation.)

Omitting equipment-used from IP ownership is an absolute non-starter. Similarly for time of day; I have to have clean ownership of IP for future funding and/or acquisition.

I feel the same for people who require very bursty working hours. Part of the job -- perhaps the most important part! -- is to collaborate with your team. If you want to spend 90m during the workday to go to the gym, make sure you're not holding your teammates back. We currently have two employees that do that and it works well for everyone. If you require 3 hour breaks mid afternoon, you're probably not going to work here.

Well, all I can do is elaborate on my first-hand anecdote as evidence that it can work in the VC-funded world: my employer has exactly the same corporate-future concerns you listed, uses contract language from a well-known law firm intended to protect their needs as they grow, did not receive any input from me before adopting legalese with these properties, and has already received multiple funding rounds.

And, everyone I've described manages to collaborate enough during the workday (and asynchronously at other times) despite often taking multiple hours per day for things like gym or family. I'm happy that I can hire such people, and I wish you luck in evolving your company to the point where you can similarly access the full pool of qualified candidates.

I think we've continued this conversation thread as much as we usefully can; thanks for an interesting exchange!

It sounds you're missing out on the existence of many companies making do without such clauses if you think someone not accepting them can't be working in tech.

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