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Comment by fierarul | Hacker News Reader

> Oh, please. It's standard industry practice for companies to claim ownership of everything a software engineer comes up with, even "on their own time".

In the US. Problem is the US is infecting the rest of the world too, especially through subsidiaries which basically just translate from English the 'standard' employment contract.

I had to refuse employment in Romania since the clauses were so broad and basically illegal under Romanian law. (Of course, I had no interest in proving in court they were illegal but the contract was reviewed by an attorney on my side).

So, yeah, maybe apply some logic. If the employer owns your brain 24h/day maybe the hourly rate your are getting is not such a great deal.

And don't get me stared on clauses the survive the contract, including multi-year employment bans to competitors, etc. For a large multinational that basically mean you have to get a job landscaping or something because they compete with anybody would offer you a comparable job for your skills.

This 'standard industry practice' should die.

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There are certain things employers put in their contracts even though they know 100% it is non enforceable due to being illegal etc. Years ago when I was an employee it was common practice in IT(in UK) to have a non-compete clause in your employment contract that said: "if you leave you can't work for a competition for 6-12 months". When I looked into it I found out statements like this are unenforceable under UK law as it would basically deny a person a right to work and one can't sign off right's that are inalienable just like one can't sell himsel/herself into slavery.

The process to enforce such a statement in UK would be for the past employer to obtain a court injunction requesting a past employee stops working for competition. I was told almost all such injunction requests are declined as unreasonable. The only exception is if the statement was severely limited by geography. So for example if the contract says: "you can't work for competition in 5 mile radius" it may be enforceable, unless your whole home town is 10 miles across and the statement basically bans you from working in your profession where you live - then no court will grant an injunction like this.

So why did employers put that into their contracts if they knew it can't be enforced? I think they did it to discourage employees from going to competition. Finding out that it is unenforceable requires some googling and one may have doubts about their specific situation. I'm not sure how it is now. My experience with this is over 10 years old.

This is all well and good, until you end your employment at a firm that is extremely vengeful, and as a deterrent to other employees, does in fact decide to take you to court and make your life miserable for several months. Because, remember; you don't have to be guilty to be dragged into court.

Having worked for one such company, who made a spectacle out of punishing disloyal former employees way past the point of what the legal system is built for (https://news.ycombinator.com/item?id=18499712 ), and then holding staff meetings to announce how they've just destroyed that employees life (he wasn't the first, and while he actually did break the law, it's very Arguable the Quadrature guys did not), I took the safe choice sitting out my non compete period and took a nice long holiday.

I'll repeat the most important part of this story;

You don't have to be guilty to be dragged into court.

I made a similar argument in a previous HN thread [1] and people were absolutely incredulous over this idea that not only do companies try to own everything you do but that you don't have to be guilty to be sued by a vengeful employer.

I'll repeat here what I said there. A lot of engineers cannot work on projects in their free time due to being locked into horrible contracts that assert copyright and ownership over anything they do in their free time. Which has a chilling effect on engineers who would otherwise contribute to FOSS. Even if those provisions are illegal, it still costs a lot of money to strike them down in court and the court system is generally always stacked in favor of the corporation.

[1] https://news.ycombinator.com/item?id=21771325

Most of the places I've worked at, this is standard practice if stuff you're developing is on their time and they're paying you.

I have gotten around this by having a list of side-projects I'm working on that give a brief description of what they are and that the business has no claim on them. I attach this to the contract/NDA as an addendum in order to protect myself. I have yet to have a company make a claim on anything I've ever put on the list.

As far as multi-year NDA's, I work in a state where these rarely if ever hold up. The only limitations in these is if you're going to work for a direct competitor. Which means if you're a Ford engineer and you're going to work for Chevy. Then the courts could ban you from working at Chevy for a few years, but your company can't keep you from being gainfully employed anywhere. If you're able to be employed as an engineer elsewhere, it will hold up in court. But trying to keep someone from working in their chosen field at another company doesn't go well in court.

I had one incident with a company who tried that and I took them to court. First day judge just laughed and told the company attorney that you can't legally keep someone from being gainfully employed just because you want to keep them from working at another company that also develops software. A few objections from the company's attorney got struck down immediately and I was out of there in a less than an hour.

Not just USA this time.

Readers might be interested in this recent case in the UK Supreme Court regarding employee compensation for "outstanding benefits" from an employee's invention (Unilever made £24M selling it, he got his wage).

https://www.ipwatchdog.com/2019/10/28/uk-supreme-court-rules...

It frames the fact that employers claim ownership, and have for decades, but that UK IP law, at least, does something about that.

> So, yeah, maybe apply some logic. If the employer owns your brain 24h/day maybe the hourly rate your are getting is not such a great deal.

> And don't get me stared on clauses the survive the contract, including multi-year employment bans to competitors, etc. For a large multinational that basically mean you have to get a job landscaping or something because they compete with anybody would offer you a comparable job for your skills.

> This 'standard industry practice' should die.

Addressing things like these would be a good thing for a tech workers union to take up.

> If the employer owns your brain 24h/day maybe the hourly rate your are getting is not such a great deal.

If you're a software engineer for Google, it's a pretty good hourly rate.

In the case of those 6-digit salaries that Google engineers get, I admit it's not entirely unreasonable. If they really do want to own all your ideas and they're willing to pay extra for it, then why not? But know what you're agreeing to. And it's certainly not reasonable for a company paying you 5 figures to expect to own everything you think of.

It’s not just a claim on some pseudo-equivalence with respect to hourly rate. It’s a claim on the possible future earnings resulting from the activity.

Future earnings that would be reflected in the share values of the stock that Google granted to the employee that created the copyrightable material.

Not if they claim ownership on your side projects.

While I definitely wouldn't claim that the Google software engineer compensation package is enough to buy everyone's side projects---obviously, because some people consider theirs priceless---I suspect it's enough for a lot of engineers to be willing to sign that away (especially given that there is a process for having the company explicitly relinquish their copyright claim back to the creator).

Google pay their engineer outrageous salary.

Yes, and we’re all just temporarily embarrassed millionaires.

At Google engineer rates, that would not necessarily be an unreasonable assessment.

Can confirm from my experience (~10 years in the industry). I've never even heard of this practice until I applied to Google. None of the EU companies I've worked at before had anything like this. None of the EU companies I've worked at since had anything like this.

It's US imperialism, nothing less.

Please don't throw gratuitous nationalistic flamebait into HN comments. We'll get gratuitous nationalistic flamewars that way. Those don't help anybody.

Your comment would be fine without that last bit.

https://news.ycombinator.com/newsguidelines.html

I did a group project in my senior year of college, working with a US division of a German company, and they needed us to sign an NDA, which was far more egregious than anything Google requires. One part of it was:

>The Undersigned agrees that any inventions or ideas in whole or part conceived or made by the undersigned during or after the term of their relationship with $COMPANY [...] shall be considered part of the Confidential Information for purposes of this Agreement.

Basically saying they own everything I invent forever. I responded to them, basically saying this was ridiculous, and they said it's "generally implied" that this only applied to the context of the project, but they could amend it to make that explicit it if I wanted. I said yes, and after several weeks they sent us a revised version.

But I didn't have much of a choice in this; this project is a requirement to graduate. My friend, working with another company that also required an NDA, refused to sign it and basically fought with the school of engineering administration over it. He ended up finding a new project to work on by himself, on an open-source product, so it didn't require an NDA.

It is highly questionable whether such an agreement would be enforceable in Germany.

Without diving into the ins-and-outs of this, my current contract contains a claim like this. Well outside the US, and the UK/EU - it's in South East Asia.

It says something like "on company equipment" and/or "reasonably related to skills/knowledge gained or applicable during employment with the company".

So I wouldn't quite quote this as being US imperialism. I seem to recall similar clauses in my previous contracts, but can't swear on it.

My take is the "skills/knowledge gained or applicable with the company bit": if its in my company's core market, then sure. If it's from training they paid for/provided (say - I don't know - Kotlin, if I didn't already know Kotlin) then OK.

But if I make a PHP/JS app, in my own time, in an unrelated market, then they can bite me for it. Obviously, in a more litigious environment, some people may not want to take that risk.

>reasonably related to skills/knowledge gained or applicable during employment with the company

Let's imagine that you didn't know how to read and write before being employed at that company. If you learn how to read and write during your employment then the company owns rights to anything you write? And they own the rights to anything you make that requires reading too.

This clause essentially tells the employee to go out of their way not to learn anything new while employed at the company. Does the company, by chance, offer training in very broad skills to employees "free of charge"?

Let's not imagine a ridiculous hypothetical where someone gets a job without knowing how to read. That doesn't make any sense as an analogy. Learning how to read is not any domain specific skill anyway, if you work for a pharmaceutical company they don't give a shit if you write, unless you are spilling company secrets.

I don't know. Lots of people learn to write different kinds of code at work. I also think writing code isn't domain specific as I've never worked in the same industry twice over 6+ jobs.

Seems pretty comparable

the problem with that is that you "gain skill" in their programming language when you work there. And you "gain skill" as a programmer...

Suppose you learn Japanese at work ... can't you use that knowledge in the field?

Germany has an entire law around this which came into force 1957: https://www.gesetze-im-internet.de/arbnerfg/__49.html

Many work contracts don't have clauses for inventions related to your field of employment because there's no ambiguity.

Most patches would not fall under the law, but entire libaries or novel approaches might. (basically anything patent-worthy)

IIUC this governs patentable inventions, not copyright.

No, it also covers technical improvements that are not patentable: https://www.gesetze-im-internet.de/arbnerfg/__3.html

That's just defining the term. AFAICT the law only says that an employee has a right to receive fair compensation for a technical improvement in some cases. It explicitly says that apart from that, procedures covering technical improvements are a matter of contracts: https://www.gesetze-im-internet.de/arbnerfg/__20.html

This is the point I think the tweeter and a lot of commenters on here miss.

In the EU all those laws are part of the statutory employment law /eu directives and not in an individuals contract - so employees don't ever know about that unless they know about employment law.

> so employees don't ever know about that unless they know about employment law.

I'd really recommend all employees to read up at least on the generics of employment law. No need to read up on the edge cases, but the general law is pretty clear and not too long.

I work in the US and have always had side-projects, and have never signed anything which would give my employer the rights to them. I think this isn't just a US thing, but a US mega-corporate thing, maybe?

I hadn't seen this until recently. It seems to be pushed by VCs and the tech megacorps, so if you work at a VC-backed startup it's likely in your contract or if you work for one of the bigger tech companies. I believe IBM had this for a long time. If you're working for a company outside of "pure tech", it's much rarer

Mega-corps have a) broader domains of "what's relevant" and b) more lawyers to actually take action on this stuff. Those are the only real differences. I've turned down jobs with even smaller companies over this.

I think it depends on how tech-focused your company is. Things like Google, Amazon and Bell Labs, sure, things like J.B Hunt and JG Wentworth (It's my patent and I want it NOW!) not so much.

Depending where you work in the US you may have not needed to sign anything because your employer already has that right by default. For example that is true in New York.

It will never get enforced unless there is some other conflict.

If I remember correctly, I had similar or worse in my employment contracts in France.

Worse being "your skills are to be used exclusively for the benefit of Employer". That means that you can't do freelance work, or open source contributions. In theory, you're not even permitted to fix your parents printer.

"Honey, can you carry my shopping into the kitchen?" - "I'm sorry, my skills are to be used exclusively for the benefit of my employer."

Those are not the type of skills listed in your job description (which is part of your contract).

The argument still stands.

"Honey, can you take a look at why this script isn't compiling the shopping list correctly?"

"Sorry, my skills are to be used exclusively for the benefit of my employer."

It's Google imperialism. We don't have a similar clause at Microsoft if you use your own equipment and your own time.

Having seen the employment agreements for both, I can confidently say that Google's clause is the same as Microsoft's. Microsoft may be less strict about enforcing it, but the language was the same.

It's entirely possible that at Microsoft nobody cares and it's an unwritten rule that you can do what you want, while Google has explicit policies which have the effect of chilling things further when they don't work.

Let people do nothing and they will do whatever they want. Let people do a little bit and they'll be scared out of doing any more, for fear of having that little bit taken away, or being made to look ungrateful for what they were allowed. Which is exactly what happened/is happening to me, when cdibona banned me from the corp processes, and now when tytso etc are saying I should've been thankful.

I think you make an excellent point, in particular regarding the fact that this is a US-based policy.

US copyright law is extremely friendly to individual creators at the expense of corporations. It makes corporations bend over backwards to avoid getting into a messy legal dispute with somebody that they've employed to create for them. This policy is so broad because if an individual Google employee were to try and claim that basically anything they came up with (including things that were, common sense dictates, done as work for Google) had been done on their own time, the burden of proof would be on Google to prove otherwise.

> US copyright law is extremely friendly to individual creators at the expense of corporations.

You must be joking! Yes, the "Work made for hire" requirements are convoluted, but most of the complexity applies only to independent contractors anyways. I have never heard of a US corporation be in danger because of an employee claiming copyright, yet people's personal projects and own companies constantly get screwed by former employers.

See, for example, the entire history of IP in comics, which Disney is now using to print money.

Yeah, about that, there was an artist named Ken Penders who worked on Archie's Sonic the Hedgehog comics. He sued Archie and Sega over the characters he created for the Sonic stories. Apparently work-for-hire due diligence was not done on Archie and Sega's part, because rather than squash him like a bug they settled out of court saying in effect: "go away, and take your stupid characters with you".

So apparently, companies do have to go through a few hoops to make their claim on their employees' IP airtight.

Please cite relevant statutes or case law. It's pretty easy to write a contract that only assigns copyright to the corporation for works that were created on company time. That is standard practice for pretty much every job, including non-tech ones.

When does company time start and end for a salaried employee? If I'm working on a side project and get paged to look at something for work, does work time start when I look at the alert? Am I on work time if I answer a work email on a work device with my personal laptop open doing side work at 3 am?

I mean, if it was done on non-Google hardware, off Google property, and using resources that you paid for / own, then I can't see any problems with that. They can still argue that it competes with their core business, but they would have to provide some justification if they wanted to fire you for cause or have the IP assigned to them. I guess they can just terminate you for no reason (I think?), but that's the risk you take.

The possible need to prove that an employee's work was done on company time (which is a vaguely-defined notion for US salary employees in the era of remote work) or with company hardware is a huge hassle for the employer, which can probably shed light on why they'd use blanket assume-ownership-of-copyright agreements, so long as employees are willing to sign such agreements.

Except Google is one of many corporations that exploit passion for the work their employees are doing to get hundreds of extra hours out of them off the clock.

You're right, it's very easy for them to say "only work at work" but they don't want to do that, so instead, anything created by employees is their IP.

You haven't heard about this because it's illegal in many (most?) places outside US.

It's not illegal in Europe except maybe Germany and that's more because of not being able to assign moral rights in work for hire than anything to do with at work/not at work.

I work in Europe and every company I've ever worked for has had a substantially similar clause.

It's legal and automatic that the company has rights to invetions you came up with at work (if invention is associated in any way with your tasks) but company has no right to anything you do, think or create outside of your working hours with your own equipment.

That's the way it is in Poland.

That's nonsense. In Germany the default for contracts is that you need your employers permission to do side projects. Germany is in the EU.

That's nonsense.

> In Germany the default for contracts is that you need your employers permission to do side projects.

You generally need to notify your employer if you take on a second (paid) job. The employer may veto that employment, but must specify a good reason (you can't be in competition, exceed the total legal working hours, bring ill repute to your employer, ...), but the default is "allow". Clauses that require approval are generally not enforceable. As always, there are exceptions depending on the exact circumstances. See for example this discussion (in german) https://www.haufe.de/personal/arbeitsrecht/top-thema-nebenbe...

You generally don't need permission to do open source work, though the ownership of inventions that qualify under the ArbnErfG may fall to the employer. As such, it's good to get clarification and explicit approval from your employer beforehands.

(not legal advice, ...)

I suspect in Germany not informing your employer about other jobs would end badly for you

I'm not a lawyer, so take this with a grain of salt. I'm an employer, though, so I was incentivized to read up a little on employment law (you learn a lot of things you never wanted to know...)

German labor courts are most of the time well aware of the power imbalance between employer and employee. Even we, as a tiny company could bring more legal resources and funds to bear than most of our employees. So courts usually favor the employee.

Given that, I'd expect that the result would largely depend on how bad the infraction rates. If you failed to report a job that the employer could not have vetoed on any grounds, I'd generally expect a slap on the wrist (Abmahnung, "written warning") or such as the result. Worst case regular termination. On cases where the employee failed to report a side job that could or would have been vetoed, immediate termination with cause is possible - the link I posted above cites such a case. If the side job caused damages, suing for damages would be possible. However, suing for damages requires you to prove damages, which will be hard in many cases.

So I'd really recommend that as an employee you dutifully report when you plan to take on a second job - just be sure to phrase it as such: Don't make it a request. It's a notice.

That wasn't my experience, but most employers actually referenced that case in their contract, so I am not sure what the default rule is.

Also, a second job is one thing. What about ownership of things you produce in your spare time? I don't think the former necessarily covers the latter.

> That wasn't my experience, but most employers actually referenced that case in their contract, so I am not sure what the default rule is.

The law is as the law is and the law is clear: Without good reason, no employer can forbid you taking on a second job. Now, employers pulling shenanigans in their employment contracts is not entirely uncommon - either due to lack of knowledge or trying to intimidate their employees. That's why it's good to know to have a general idea what the law says - because the law trumps the contract.

> What about ownership of things you produce in your spare time? I don't think the former necessarily covers the latter.

No, it doesn't. This is covered by the ArbnErfG (Gesetze über Arbeitnehmererfindungen) https://www.gesetze-im-internet.de/arbnerfg/index.html#BJNR0...

In a very short and inaccurate summary: Your employer can claim inventions that cross a certain threshold that are related to your work. You're entitled to compensation. Your employer can also claim a (nonexclusive) license for inventions that do not relate to your job, but relate to any of their areas of business under fair and reasonable terms (in doubt, a court gets to decide). You must notify your employer of any such invention.

Obviously, trade secrets or code that your employer owns the copyrights for is off limits for any of your spare time work.

Here is some more information (in German): https://www.nebenjob.de/ratgeber/2479-ihr-recht-auf-den-zwei...

If your second job leads to the total of your work taking up more than 48 hours per week, your employer can forbid it. Likewise if you work in your holidays.

I don't think it is as straightforward as you make it sound.

It still seems to me the latter is a problem for people working on their side projects in their spare time. Like if you are a software developer, and develop some software at home, it is kind of related to your job.

No, that's nonsense. Just because Germany does it doesn't mean the parent commenter's experience in other EU countries is invalid.

He claimed it is an US only thing and US imperialism. The example of Germany refutes that. So it is nonsense.

But funny how you choose to believe his personal experience, rather than mine. All hail the narrative.

European employment law is pretty unified, so it does at least suggest a significant commonality.

This is standard practice in Australia and has been for many decades. I came across this practice in the late 80's and early 90's and it became even more common and egregious as time went on. At the time, the company I was working for decided to update the employment contracts of all of its employees and we were all supposed to sign these new contracts having these "ownership" clauses in them. I know I didn't and there were many of my collegues didn't as well, but every new employee didn't have a choice. When I hit the 00's and went contracting, I was able to change my basic contract to avoid this on occasions. On others I was not able to get the appropriate changes made. As a contractor though, the "ownership" clause were less demanding. But still, I basically had to stop work on all my side projects (all of them, even outside of the software field) during each employment contract.

These days I can do what I like and don't have to worry about any company interfering. This is a consequence of no longer being employed in any such field.

Actually its UK law that this descends from and it is only "related" works. If you where a semi pro musician google would not own the rights to your song's for example.

And it not copyright they "own" it - I suspect the tweeter is confused between intellectual property and copyright

Germany has this http://www.mondaq.com/germany/x/645260/Patent/Artificial+Int...) which is similar its probably EU countries relay on statutory law and don't explicity put it into the contract so you would never know

In the EU, the universities sometimes use this logic, so it's not totally unknown here either.

have never seen this clause in canada and it seems like something that would not be upheld in the courts either (cf. non compete clauses)

Non-compete clauses are not automatically illegal in Canada, just like most US states (California is a famous exception). The courts usually look at a lot of specifics based on case law to determine what they consider reasonable. For any individual clause they might throw it out, modify it (unsure if this is an option in all provinces), ornl enforce it.

I first encountered this at SCEE in 2008.

Remember Anthony Levandowski?

> I had to refuse employment in Romania since the clauses were so broad and basically illegal under Romanian law.

If it's illegal, it's void, isn't it? (Maybe Romania does it differently?)

It doesn't make a lot of sense to sign a contract you know to be illegal, though. Better get it out before you sign it. And it being illegal is a very good argument for getting it out. If the company has a problem with that, you know the company intends to make a problem out of it in the future.

Do you _really_ want to go against Google's lawyers in court?

But it's still against my principles to sign a contract that has clauses I know to be illegal, and that I would never agree with if they weren't.

No actually in the Eu its pretty much legal - with restrictions.

EU law is fairly common across all states so there will be something like the "Masters and Servants" laws that US and UK law has.

What I learned about IP rights in uni, it also works like that in the Netherlands. But I'm not sure if bosses are difficult about it in practice. The one time it was relevant for me, I gave my boss a heads up and it was fine.

It's how the law works so it applies automatically. It has to be the same type of work, though. But one example of that was a webdeveloper building a website for his local sports team.

This doesn't apply to the US as a whole. Each state is (sometimes radically) unique.

https://www.faircompetitionlaw.com/wp-content/uploads/2019/1...

It's illegal in California as well (as the Twitter poster discovered when he actually examined the CA labor code).

I always ask that this specific clause be removed, and if they refuse I don't go work for them.

I don't really understand how people don't get offended at the idea of a company owning any work that you do. At that point you've lost your autonomy as a human being.

Yep. My creative life is my lifeblood. Signing it away would be literally selling my soul.

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