Why NYC is not Palo Alto cc: MikeBloomberg
ajayjapan.posterous.com
ajayjapan.posterous.com
http://answers.onstartups.com/questions/19422/if-im-working-...
tl;dr from the post:
"So... to answer your question. There is unlikely to be substantial difference between the contracts that you sign at various companies in the US working as a programmer or in the law that applies."
What I think the OP is pointing out is that in NY a company is able to set up a more restrictive contract than a company. At the very least (and from personal experience), companies in NY can introduce more gray areas in the contract (making it more difficult for entrepreneurs to feel safe in working on weekend projects) while still making it seem as if they follow the spirit of the CA labor code.
I'm not sure how common this is, but it seems like something that everyone should look at before signing on with a company, especially with the battle for talent that's going on right now.
At least that's my view of it. If anyone has an example of some programmer having his side project legally taken (i.e. a judge made him hand it over. Getting intimidated into handing it over outside of court doesn't count) by a company I'd love to see it.
How about analyzing the situation for what it is: failing to protect independent innovation may result in less independent innovation. All the legal speculation and contract theorizing in the world will do no good if the facts of the matter tell a different story.
That said a lot of these issues are being resolved, and I see both founders and investors making a very big dent this time around particularly with mobile start-ups.
Add to this that the side project problem isn't relevant for many people, and people can't predict 5-10 years out whether it will be relevant to them. How many 22-year-olds expect to write a $20,000/month iPhone app, some time in the future, and aren't already trying to do it? Also, if you do a side project on your own equipment and time, most of the time you can hide the fact that much of the work occurred while under a surrender-all; if nothing else, just rewrite the code outright after you leave, since the code will be better and take much less time to write on a second write. This means, from a practical standpoint, that most people don't worry about this situation until/unless they end up in the 0.1% it actually affects and it's too late. This law is only relevant to extreme edge cases; for the rest, it merely makes a statement about the meaning of employment, and in the New York case, it makes a disgusting one.
You do have to push hard though, its extra legal work for them and so they'll deter you mainly for that reason.
I used to have this attitude as well that I couldn't ask for stuff and no one would agree, I gave it up, started approaching things earnestly and honestly and it's amazing the things people will do if you ask them in a respectful and polite manner.
I actually think it's best, as a general principle, not to work on side projects while employed. If the side project really is a side project (i.e. it's unrelated to your work and therefore something you justly own) you'll do a much better job of it if you work on it full-time. The side project and the day job usually both suffer if you try to serve two masters. But there are cases to which this principle doesn't apply (i.e. an iPhone app that doesn't take much time to build but becomes very popular) and it's for those that we need (in NY) better laws.
You're absolutely right that companies would be better off in attracting talent by revising portions of their contract. You're absolutely wrong to suppose that they're necessarily going to do that.
You just need to mention it when they give you the agreement to sign. By the time there's a piece of paper printed out with your name on it, they're committed. And on the other side of the table from that piece of paper is the guy who hired you. A reasonable person that can recognize a silly clause when you point it out.
Just cross out the paragraph, initial next to it, then sign and hand it back. If they want to make a big deal about it, it's them making the big deal, not you.
Libertarian arguments like this which stress contracts often seem to fall flat by the following reasoning:
1 We seem to agree on what the desired outcome is.
2 If contract theory fails here, the outcome is undesirable.
3 If contract theory succeeds, the outcome is identical to what we would have achieved with legislation.
4 A legislative solution doesn't carry with it the uncertainly that a contractual solution would.
∴ Legislation seems preferable.
You have to know what outcome you want to effect of course, and be reasonably sure your legislation will achieve that. In this case we see (or at least strongly suspect) that when companies are not allowed to own IP produced by their employees independent of company resources and unrelated to their business, the financial benefit to the employee and the benefit to society in economic growth far exceed the benefit to the company (in most cases this benefit is zero). If there were a wider range of solutions I would not support legislation (or possibly I would support narrower legislation), but that doesn't seem to be the case. So I support legislation.
While IANAL, the consensus on a number of websites is that, while working for a tech startup, anything that you do in your free time could technically belong to the company you work for as its related to your "employer's business."
There are obviously lots of gray areas in between. If you're planning to try and make money off something you built in your spare time, you should talk to a lawyer.
http://answers.onstartups.com/questions/19422/if-im-working-...
"Not related to your employer's line of work. Um, wait. What's the definition of related? If my employer is Microsoft, they do everything. They made a goddamn BARNEY PLUSH TOY with a computer in it once. Are plush toys related? Obviously operating systems, compilers, desktop applications, search engines, and games are related to Microsoft's line of work. Hmmm."
"This ambiguity is meant to create enough of a chilling effect on the employee working in their spare time that for all intents and purposes it achieves the effect that the employer wants: the employee doesn't bother doing any side projects that might turn into a business some day, and the employer gets a nice, refreshed employee coming to work in the morning after spending the previous evening watching TV."
I don't think it's this devious. It's simpler than that. Strategically and legally speaking, you never don't want rights, even if those are rights you shouldn't, by any reasonable moral judgment, have. Companies ask for aggressive terms not to be malevolent and devious but because the lawyer's job is to get the most aggressive terms (i.e. the most rights) possible. If it were legal for a company to assert rights over an employee's work for 2 years after employment, shareholders would expect executives, and executives would therefore expect lawyers, to push for those terms. The game, at least in theory, is about getting the most aggressive (and yes, often unfair) terms upfront and letting the courts sort it out.
Look at this earlier HN thread for more info - http://news.ycombinator.com/item?id=2208056 . It talks about all the potential ramifications and that one should almost always talk to a lawyer.
Yet another reason I will never work in the United Corporations of America again.
The IEEE put out a publication that gives a solid overview of the differences in state laws; it mentions Illinois law specifically in a few places and includes a citation to Illinois statues that you can consult:
I think the real issue with Silicon Alley (having been a part of the scene since the early 90s) is that Wall Street still swallows quite a bit of the top tech talent — that with a super high overhead can get in your way. It's better than it was years ago, but that's more of the big issue for NYC as I see it.