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I have never signed a non-compete or a "we own everything you do" clause. However, rather than just saying no, I offer a compromise. I agree not to go after clients if I leave, and I agree anything I make ON COMPANY TIME is solely the property of the company.

It's been a non-started for a couple of companies, but if that's the case, I don't want to work for them anyway.

Once I worked for a company, and me and the owner had a disagreement that wasn't resolvable so I said that I'd have to quit. She leaned back, smirked, and said, "remember that you signed a non-compete." I simply replied, "No, I didn't." She suddenly had an "oh crap" look on her face and looked at the HR director, who said, "I thought I'd get him to sign it later so we let it slide when he came on." The owner then tried to stop me from leaving, but after seeing that shark smile on her face I knew it was only a matter of time before she found another way to screw me and left anyway.

There are more of us than there are them. We all need to stop agreeing to these clauses.

I shed a happy tear. That's beautiful.

This is great. I totally want to emulate this.

Why would leaving with a non-compete be so bad that the owner thought they somehow had an upper hand?

If I has signed a non-compete, that limits my income potential, meaning they have me in a bad position if I quit. That means I'm more likely to just go along with their orders rather than wait out a non-compete on savings or an alternative industry.

If you have side projects that you want to keep ownership of, your options are limited.

California Labor Code 2870 and similar laws in some other states protect you under certain circumstances. However, you basically cannot go work for one of the bigs, for two reasons.

First, these laws only protect you if the project doesn't relate to the business, and the bigs operate in so many different spheres that basically any software project can be argued as relating to their business.

Second, it doesn't matter what the law is if a huge company decides to sue you — they will throw lawyers at you until you are bankrupt.

What you can do to minimize your risk is work for a small company which does not overlap with the space that your side projects are in. They still might go after you anyway at some point (companies can get bought and new owners may have more resources and more inclination to sue), but for open source the odds that it happens are very small.

I don't believe that you will get any traction in your current company. Not when you have proof that the company is willing and able to lie to you. While not easy in the current environment, line up a new job. Sort IP assignment out during negotiations, and make it clear that if they want to own your brain 24/7 they need to pay extra for that privilege.

Hiring negotiations are the point where you have greatest leverage - the company won't want to burn another bucket of money screening bozos. They've decided they want you. Go read patio11's post on salary negotiation to get the correct mindset.

An anecdote: my current employer's _standard_ contract basically says "we own what you do for us, you own what you do for yourself, and if you're getting close to a grey area you should speak with legal". So there are businesses out there that do this.

As far as assigning copyright, that clause probably has no effect, simply due the legislation already saying the employer holds the copyright.

The IP rights part may have an effect depending upon how it is phrased, and what it covers (say patents).

See Copyrights, Designs, and Patents Act, 1988; section 11

http://www.legislation.gov.uk/ukpga/1988/48/section/11

"11 First ownership of copyright.

(1)The author of a work is the first owner of any copyright in it, subject to the following provisions.

(2)Where a literary, dramatic, musical or artistic work [F1, or a film,] is made by an employee in the course of his employment, his employer is the first owner of any copyright in the work subject to any agreement to the contrary."

Computer programs are deemed to be a "literary work".

The important part is that the work has to be "in the course of employment".

If the s/w does not relate to what the company does, then it would not be such. IANAL.

There are some employment contracts which widen the scope to cover stuff which is not in the course of employment.

You have already stated how one gets such resolved. Discuss with the employer and agree a change, or leave.

I am not a native English speaker so excuse my ignorance, but how is "in the course of employment" different from "during employment", or "while employed". Don't all of them pretty much mean "for as long as I have an employment contract with the company"? Or does the word "course" mean something different in this case?

Well there is this: https://www.gov.uk/guidance/ownership-of-copyright-works

I've generally interpreted it as meaning acts performed in fulfilling your role/position as an employee. So if you're essentially doing free work for your employer on your own time, at home, using your equipment, it belongs to them.

Stuff done which has nothing to do with your employment, created on your own time, with your own resources, belongs to you.

Otherwise every poem, sketch, photo, or even a letter you wrote, etc that you create would be their copyright, which is patently a nonsense unless your contract explicitly states that. It would state such if "course" it referred to the time you were their employee.

The difficulty occurs where there could be a conflict of interest between what you create privately, using your own resources, and what the company employees you to do. So don't do that. However that may be difficult for companies which have their fingers in a lot of pies.

This is the sort of policy imposed company-wide where trying to get an individual exception is very difficult or impossible depending on how bureaucratic your organization is, possibly even damaging your career and relationships with your managers. This is exactly the kind of policy change that a union could help tech workers with.

Ctrl+F "union" 1 result

Of course next time tech unions come up, there will be 10 stories of how their uncle wasn't allowed to plug in a ventilator because he wasn't a union electrician or something.

Why are those stories less relevant though? To have a healthy discussion, one needs as many angles of the story as possible.Also, Unions might not help with this. Unions care about the majority, and vast majority of tech workers have bigger problems than not being able to contribute to their favorite open source.

This is Apple you are talking about. The same time they made you sign contracts impeding on your speech in your free time, they were part of a fricking criminal conspiracy to bring down tech wages, to eliminate what limited free market there is for software developers.

Right. It's even conceivable that a programmer's union would actively oppose side projects and/or open source. Possible reasons: first, developers who participate in them will have stronger resumes, which creates an unfair expectation that you should be doing uncompensated work outside of your job. Second, the existence of free software devalues the work of paid developers. Companies shouldn't be using your open source project for free; they should be paying for union-built software.

I entirely disagree with those arguments, but I could see them being appealing to "501 developers" (https://501manifesto.dev/), and they're the majority.

> Our personal creative projects over commercial products the world doesn't need

It's literally on the page you linked to.

You’re on the right track. Find a different job where they respect your projects and move on. You don’t really have much leverage right now as your current place doesn’t have much inventive to change their policy and doesn’t seem to respect your requests.

These policies, when they exist, tend to be very entrenched in the organization. The legal department will push management to keep them so they can avoid the associated risks.

I would look for another job. While these clauses are relatively common, it's also relatively easy to find employers with less restricting policies. You'll probably have better luck at tech-led companies, in general. I think I've also heard that California's employment law doesn't allow this sort of thing, FWIW.

What legal risk is the company at without a clause like this?

I am not a lawyer but my guess is their fear (no idea how plausible) would be a situation where an employee creates an open source project and uses it at work in a way where it becomes critical to the business, then later leaves the company and demands some sort of royalties/licensing

If it's opensource under the usual OSS licenses, the former emplpyee can only demand something for further work/improvements, not for already existing code.

And companies typically have no trouble critically relying on OSS projects they have no chance of forking/maintaining if something changes that they can't accept.

Your employee creates your direct competitor.

> how exactly do you go about getting that part of you contract removed

They told you that already "if you don't like this then why are you still working here".

The way to get this limitation removed is to hand in your resignation. Preferably after finding another job.

Make sure that before you sign a contract at the new place, that you strike out anything in the contract that requires you to hand over IP of things developed outside of company time and outside of company resources.

> Make sure that before you sign a contract at the new place, that you strike out anything in the contract that requires you to hand over IP of things developed outside of company time and outside of company resources.

Practically impossible with companies moving to electronic forms. I've found every electronic form presented to me has had less than zero ability to actually negotiate with the other party.

Just because you can't physically strike a clause from an electronic contract doesn't mean it's not negotiable. Email the company back and say "let's chat about paragraph such-and-such, because I have the following concerns," or something to that effect.

Right, but surely there is a person at the company that you can bring it up with?

I've been working remotely for nearly a decade now, and the majority of contracts I've signed have been in electronic form, and for each of them there has been back and forth about certain items - IP and copyright in particular always coming up - and we go back and forth until the wording and meaning is something both parties are happy with.

Only once that's happened do I need to sign the electronic form - and that's where the negotiating leverage exists, because I don't need to work for someone if they impose conditions on me that I am not willing to accept.

If it helps, I have negotiated with companies in the US and the UK to have that clause modified to be more liberal so that I could continue to work on open source stuff.

It's easier when they offer you the job but all large companies will have lawyers who know what to do. It just takes willingness on their part.

Smaller companies might just be using a boilerplate contract so you might want to suggest alterations.

Basically the company wants you so they should bend.

Could you please share how the clause is written on your contract now, as opposed to how it was initially? Just to get an idea of how something like that is worded. I could go to them and request my contract say "this" instead of "that" and see what they tell me.

I spent most of my career in Silicon Valley, where employers routinely take the position that they own every thought their employees have, and every work they create. That position, legally enforceable or otherwise, has always rankled me.

I've recently moved to the UK to start a tech business here (https://www.hackworthltd.uk), and now that I'm on the other side of the table, I very much wanted to create a personal projects policy that was as employee-friendly as possible, while still protecting the interests of the business. I hired a UK IP lawyer to help me draft an acceptable policy, and I'm happy to share that with you, if it helps.

The intellectual property section of our employment contract is mostly standard boilerplate, as I understand it, except that it refers to our personal projects policy, which is contained in our staff handbook. I've copied the relevant sections of both and put them here:

https://gist.github.com/dhess/21b7d2d72c4f9d4e0cdd8004385ef7...

Please feel free to use it as a reference in future negotiations with your employer(s).

Comments from others are also welcome! I'm open to any suggestions for how it could be improved.

Thank you for posting that gist, here are some things that I'm interested in:

- 2.2.a I would like to not be required to tell you about them at all, and not need an approval from you before I contribute/develop, unless 2.2.b and 2.2.c apply. So basically the contract should forbid me to develop a project that directly competes with anything your company is doing (as it is right now). In case it's not competing I could ask for your opinion, in case I am unsure I am advised to ask, otherwise I'm responsible, and in case it has elements that are in competition, or work relevant then I need ask for your permission.

- 2.2.k about projects that someone "might otherwise consider inappropriate", isn't this going to far? I think 2.2.m (We cannot be held responsible or liable for anything to do with your personal project) and 4.2 should be enough, you don't need to act as a moral authority to be able to defend the company against employee wrongdoing outside of work.

- not sure how this situation (that I detailed in my post) would be handled by your clauses: a project/library I develop on my free time but end up using at work. The company should not claim it as it's own, any thought on that?

> I spent most of my career in Silicon Valley, where employers routinely take the position that they own every thought their employees have, and every work they create. That position, legally enforceable or otherwise, has always rankled me.

I'm bit surprised that practice is so prevalent in SV, with California Labor Code 2870 and all. Because of that law, I'd rate SV/CA as the place that position is the least enforceable (in the U.S. at least).

Find another company to work for and then have a Chinese wall between work and home. Non-competes are basically illegal in the UK and most employers should be able to say “don’t work on X areas”. Remind them that work you do in your own time will benefit them as well.

I have none of my personal project code on my work laptop, I’ve never searched or thought about personal project work on it and I never take professional development time in work hours (unlike many other members of staff).

I’m at work to work for the company, I’m at home to work on myself. I never blur the lines, the downside to this is that my employer massively benefits from my time investment at home but oh well, it makes me better at my job and so I’m happier.

There are circumstances in which non-competes are enforceable in the UK. Even if it doesn’t technically apply to your situation, it can end up with a court deciding. At the least, a bloody minded employer can make it too expensive and painful to hire you by taking out an injunction against the new employer.

Sadly, thinking non-competes don’t apply in the UK has led people to sign them glibly and then face problems later.

Interesting - I’ve been given the advice twice UK UK solicitors when signing VC deals that non-competes are unenforceable in the UK and not to bother fighting to remove them (we will did on the first raise and the VC took it off). I think the main argument used by the solicitor is that it’s illegal to stop someone from making a living. I’m not a lawyer, just going on experience here. You may well be correct

"how exactly do you go about getting that part of you contract removed so you own copyright and IP "

You don't.

One of the reasons companies want this clause is to limit their liability and exposure. They're not going to make a dime off of your side-show projects, so it's really not about the money, it's about the risk.

Their IP clauses will have been gone over and over by lawyers, and the costs involved in making exceptions/changes is very expensive, partly in billable hours, but mostly in risk.

Put another way: having 'your own special contract' is like 'roll your own security'. It just opens up 'legal attack surfaces' and it's just not worth it for a company that has a lot of money or IP, which makes them a troll target.

There'd generally have to be a pretty good reason for you to want to work on it, that also makes sense to the company, but obviously risk tolerances vary as well.

I line out portions like that when they're overly restrictive and not limited to work time on work systems. I've never gotten much push back. Worst case, I wouldn't take such a job... it's something I look at very carefully and ask about during interviewing.