Would be interesting to see how it would play out if a programmers fiction blew up as big as Harry Potter or something.
If you write it at home on your personal property during your personal time, then they have as much claim to it as the work you do on your house or the models you paint or the soap you make and sell to your friends… which is none.
However, if it’s work you’re doing in the same industry, then you have to deal with non-compete clauses in your employment agreement depending on what state you live in.
Edit: This is USA law as I understand it (IANAL)
Always read your employment contract carefully and clarify stuff like that if you need to. Your company doesn’t want copyright over the fanfic you’re writing on the weekend. If that matters to you, the best time to clarify it is before you sign the contract.
Contracts aren't written in blood. They're just an agreement between two parties. You don't have to agree to whatever crappy, one sided terms are waved in front of your face.
And remember, its common for companies to spend 40+ hours of work in sourcing, interviewing candidates, hiring panel discussions and so on before they finally give you an offer. Especially in the era of AI generated resume spam. It would be extremely silly to throw all that work away over a grabby IP assignment clause added on a whim by one of their lawyers. Now, yes - some companies are absolutely that silly. But most people have a lot more negotiating power than they think. Especially when it comes to ridiculous clauses like this. At a minimum, its always worth raising.
It’s never a bad thing to redline a contract and have discussions over sections that you’re uncomfortable with. A good company will work on them with you.
In addition, the FTC recently banned non competes country wide, which went into effect in September 2024. There have been a number of challenges to the ruling that have yet to work through the legal system, so it’s best to consult your states laws for the time being.
But outside of that, if a company in the US is telling you that your software that you can prove you developed on your personal time on your personal property is somehow theirs, and you are certain you never signed such a non-compete or an assignment agreement that covers work on your personal time; then find a new company to work at. They are basically bullying you. If your employee contract is so ambiguous regarding copyright assignment of software written on your own personal time and assets as to not be certain, find a new company as well, as they are probably incompetent. (You’d probably be safe however, as Contra proferentem in the US is a rule that states an ambiguous contract term should be construed against the drafter of the contract)
In fact, in the US, the author always owns the copyright. So in fact the company has to put in place an agreement that outlines that your code copyright is transferred to them. If you pay someone to write software, without such an agreement, the author will still actually hold the copyright. The company can use “work for hire” but since that means they have to prove that they hired you specifically for what your wrote, that it was written in the “scope of employment”; most employers who know what they are doing will have you sign an assignment agreement. Without an assignment agreement; if you write something they didn’t hire you to write and you didn’t agree to assign the copyright to them, you own it.
In fact, if a company also wants to patent something that you’ve invented or been part of inventing, they need to get you to file a patent assignment with the USPTO. This may or may not be outlined in your employment contract, but the assignment still needs to be made. You could refuse, most likely at the cost of your employment, however the patent rights would still remain with you the inventor. Not even work for hire would transfer patent or trademark rights.
All that said, it should be obvious, however it’s probably best pointed out.. if you copy any code that is owned by the company (code written by another employee or that you transferred ownership of to the employer) then you’re committing copyright infringement and can be held liable. So you better be sure your code is 100% yours.
https://www.ebglaw.com/insights/publications/new-york-restri...
https://law.justia.com/codes/california/code-lab/division-3/...
However, if you talk to any corporate attorney they will tell the company to prepare and position itself for having to comply with the ban.
If you’re an employee with a current non-compete, assume it applies unless you consult with an attorney.
If you’re a prospective employee, and a job offer includes signing a contract with a restrictive non-compete.. personally I’d redline it, and if they pushed back I’d find another job.
According to my ethics it’s unethical for a company to believe it has any say whatsoever about what I author unless I give them specific assignment of what I create for specific compensation. Outside of that, they can go float a boat.
They hired me for my talent; and will compensate me adequately or I will provide my services elsewhere; and it’s up to me to determine what that looks like when I signed a contract with them.
It sounds like the corporate lawyers have succeeded in making you think they’re doing you all the favor when you create the value for them.
There’s a reason the FTC ruled against non-competes. It’s “ethically un-American”.
In the United States IP rights go to the inventor and most must be explicitly transferred to an employer. The whole point of the patent office is to encourage inventors to invent and not allow corporations to own everything and prevent competition. Although some companies have attempted to rig the system to prevent competition, ultimately the law has come down to foster competition (see the recent defeats of patent trolls)
And as the other commenter here points out, there are so many cases where someone working at a company discovers a way to improve business in the industry they are employed in, that could compete with their current employer, and that employer is unable or unwilling to devote resources or compensate for it. Huge swaths of US innovation or driven by such things. Probably the most iconic example is Steve Wozniak inventing the Apple I while he was working at HP, which HP refused to acquire and support causing Steve to resign and start Apple.
I also write this as someone with a name on a patent I chose to transfer to a company I helped found for an invention I helped create while working there. But to be clear, that was my choice. Ultimately the law said it was my invention by default, and there was no legal, moral, ethical, or god given obligation preventing me from walking away with it.
I'm sure you will find that non-competes are perfectly legal in the US.
https://www.ftc.gov/news-events/news/press-releases/2024/04/...
And why do people even comment before they do like 30 seconds of googling?
On August 20, a district court issued an order stopping the FTC from enforcing the rule on September 4. The FTC has appealed that decision. The district court’s decision does not prevent the FTC from addressing noncompetes through case-by-case enforcement actions.
They are not, in fact, blanket banned as we speak.
A Texas federal court ruled the FTC overstepped its bounds and has currently issued an injunction. However a federal court in Pennsylvania has ruled the opposite. Our legal system isn’t so simplistic that you could possibly interpret that as “it’s perfectly legal” as in the comment I was replying to.
In addition , in many if not most states (especially states in my opinion where innovation and economic activity matters most), most courts have ruled consistently against non-compete overreach and have precedents that do not favor non-competes.
For example § 16600 of the California’s Business and Professions Code, for the most part bans all non-competes along with civil penalties of $2500 per violation. Other states also have severe restrictions on what can be prevented in non competes, especially things not specifically related to the job the employee is hired for or outside of proven trade secrets, as has been the focus of most of the discussion here.
As can be seen on the following map the vast majority of states have restrictions on non competes.
https://eig.org/state-noncompete-map/
So any attempt to intemperate the current law around non-competes in the US as perfectly legal is ill informed. I don’t know if the comments on here attempting to paint things as “non-competes are perfectly legal” is either just employees being ill informed, or employers on here trying to convince people of things they wish were true.
Short take, If a company is attempting to get you to sign a non-competes you should definitely consult an attorney. Personally I will not work for anyone attempting to get me to sign a non-compete.
That is really different from "Don't write code related to work on the weekend. That is unethical no matter what the law says."
I see no problem whatsoever with taking contract for emergency fixes done on weekend, billed appropriately. Or working flexible tine billed hourly.
(unless it impacts your family badly or something, but it is far from blanket ban on working on weekends)
For example, I've been in situations where I've successfully argued for some component of what we do at work to be opensourced. But I wasn't given any extra resources to opensource it. I was doing consulting work at the time and the company didn't have a culture of contributing to opensource. In that case, I spent a couple weekends cleaning up the code I'd opensourced & triaging github issues. I'm proud of my work, and I want to share it.
In another company, we were running into some limitations of the database we were using. I spent a weekend writing up a super simple database prototype from scratch, mostly as a research project for myself. I don't think we ever used any of the code I wrote. I probably ended up throwing it on github and then forgot about it. That database prototype was clearly "work related". But it was also very clearly not part of my job. - Although, working on that database made me better at my job. It helped me understand the limitations of the database we were using, and gave me some ideas on how to work around them.
How can you argue that it was unethical to do any of that work? Frankly, everyone benefited. I learned a lot. I got better at my job - (and more employable). And my company benefited directly (and immediately) from my work.
Why getting paid and working on weekend would be unethical? Why law would relevant at all for ethics here?
laws and ethics are often different but many fail to realize that.
Yes, definitely true.
> It is about doing unpaid work.
If someone does unpaid work on weekends and it is not done as hobby or something they are very silly, exploited or both.
> which is not ethical for them to ask
definitely, though I am highly confused why someone would agree to this (unless they are basically enslaved or something which would make it even blatantly unethical)
I guess that if you agree to sky-high wages with implicit agreement to work absurdly long hours, despite written contract being different?
> laws and ethics are often different but many fail to realize that.
not sure about "many", people in general I quite happy to break laws, especially ones widely agreed to be silly and not enforced at all
It never went anywhere but I did wonder at the time how they view employees writing their own novels or movies etc. For example, would they have any possible claims on any future novels based in those existing worlds and characters in my previous works.
Obviously they have the funds to outlast you in any claim if by small chance you happen to have a hit at some point.
A majority of employees in the US are at-will, meaning there is no employment contract whatsoever.