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Comment by yen223 | Hacker News Reader

Does the company have any jurisdiction over what appears to be Nick's own project? This really sounds ridiculous.

If he's working in the US, then debatably yes. Though 'jurisdiction' isn't the right word.

Work performed by an employee during the course of operations is considered 'work for hire', and is the intellectual property of the employer. If he then goes on to replicate a large quantity of that work 'on his own time', he is most likely infringing on that work that he previously did (unless he's very careful about it. Since he didn't seem aware that it was a potential issue, he probably was not).

Now, it's not obvious that the employer would have won such a suit, but it's not a frivolous and un-winnable case either. It's generally best to talk to your employer about this sort of thing before releasing it - if they had been real jerks, they could have sued him for infringement despite his taking it back down when they asked.

What if that's the other way around? He wrote something for himself and at later time was hired and did some work for company and that work was based on his previous work that he had all copyright for.

Wouldn't company had no right to use the code that he wrote for them because it would mean infringing on his copyright, or copyright of his mom if he sold the rights to the original software to her?

I'm not a lawyer, and the rules get messy - I'd need to do at least a few hours of research to answer you with any confidence. The type of stuff you're talking about is not addressed by the code itself, it's tangled up in case law, which is the reason that lawyers go to school forever.

Personally, I would write that 'previous work' as a library, open-source it, and then use the library at the company later. That's clearly safe.

Considering copyright law is like counting angels that could dance at the head of the pin. I hope people will ditch it some day altogether.

As a non-American, that concept is very alien to me. Say, if a burger-flipping cook at a fast-food joint cooks burgers for himself and a few friends at home, is he infringing? Are those burgers company property? Baffled...

No, burgers aren't "intellectual property". If he wrote the burger-flipping manual for work, and then wrote another one and published it online, he'd have more of a problem.

And yes, the entire concept of IP is on the strange side and needs some dramatic revisions, I'd agree.

Let me explain. My company's employee manual had a clause stating (and I paraphrase here) that any intellectual property (patentable invention, copyrightable materials, etc) created by the employee was owned by the employer.

Technically, this means that they own the bedtime stories that I make up for my kids. And certainly any open-source code that I may write in my free time, even if I used absolutely NO company resources and worked only on evenings and weekends.

But this story has a happy ending: I signed it (I like getting paid), then went to the company lawyers and raised the issue. I used the "you own my kid's bedtime stories" example and provided alternate language they could consider. (My alternate language said they owned it only if it was written using company time or company resources or if it related to the line of business the company was in.) The next year, they changed it to a variant of my proposed wording (actually, they used "only if written on company time or using company resources" which was an even more expansive exception).

Of course then a few years later we got bought by a new company, and they had a different clause. So I started a conversation with THIS company's lawyers. . .

Well... this strays into the territory of unenforceability and severability.

You know how practically every contract you sign anymore has something to the effect of 'invalidating some portion of this contract does not invalidate the rest of it'? The courts have held that an unenforceable clause in a contract that is not indicated as 'severable' will make the entire contract unenforceable. Instead of doing the pleasant thing, and making contracts that stay within in the bounds they are allowed by law, companies started claiming that every portion of every contract was severable.

What this means is that they can throw any kind of crap in there, whether they could actually invoke it or not. Add that to the fact that the majority of the population of the US doesn't even read the contracts they sign (seriously, they don't), and companies are incentivized to throw the kitchen sink into their documents, and leave the decisions about what is enforceable until later.

Specifically, the region of your work that they can claim ip rights over is tightly limited by the definition of 'work for hire', regardless of what they try to claim in your contract.

Yes, but severability just means that a clause which is illegal will not be enforced. It doesn't mean you can ignore clauses which are undesirable or just plain stupid. Any clause which is LEGAL will still stand. And as far as I know, both state of PA and US law permit a person to sign away the copywrite on any work they wish to. So I think (although I am not a lawyer) that this clause would have had a good chance of being enforceable.

> And as far as I know, both state of PA and US law permit a person to sign away the copywrite on any work they wish to

They do, but not until it exists. You can't sign away work until you've done it, unless it fits the work-for-hire definition.

Now, you can write a contract agreeing to transfer the IP afterward, but then you have to actually perform that transfer, and if you don't you can get sued for breach of contract, but not for infringement.

It's possible that there's case-law interpreting this type of contract to imply a commitment to transfer IP, but I don't think it's very likely.

> Let me explain. My company's employee manual had a clause stating (and I paraphrase here) that any intellectual property (patentable invention, copyrightable materials, etc) created by the employee was owned by the employer.

Is that the same manual that starts with the statement: Nothing in here should be construed as a contract?

This is one side of the argument. The other side is that attempts to own the code the employee does outside of work hours may constitute restraint of trade.

> If they'd been real jerks they could have sued him for infringement despite his taking it back down when they asked.

That is a good point. I know we all want to get out the pitchforks and torches, but they may have a legit reason for needing him to take the project down. I can say that I could not open source ANYTHING that was remotely related to work right now, and my current employer has no say in the matter.

Nick seemed to be sad, and disheartened, but not upset at his company and I think he is in the most informed person we have here, so lets take his advice and not form a mob.

Pretty much the run of the mill employment contract will claim ownership of an employees creations, most regardless of whether that creation has anything to do with their every day activities. Some go so far as to claim all creations related to their discipline, even if conducted outside work hours.

The problem is simply that its too hard to challenge if such an issue ever arose. Any decent business wouldn't just claim everything under the sun. It is a worrying grey area though.

Well in the contract with my current employer, it pretty much states that every IP I create during my employment belongs to my employer. So if I wanted to create a project that I own, I would have to terminate my contract first. This is especially annoying being a Student and having many ideas all the time. Oh well.

Even IP created outside of work?

Unless an employee contract says otherwise, the default copyright position is that all work done is part of "work-for-hire".[1] There are a few reasons for this, and Joel Spolsky covered them pretty well.[2]

[1]: http://en.wikipedia.org/wiki/Work_for_hire

[2]: http://answers.onstartups.com/questions/19422/if-im-working-...

Every employment contract I have had (I'm not in the US and, I think, neither is crazysaem) has had rather a lot to say about copyright and IP - not all of which might be enforceable in a court (I have had lawyers look at contracts).

Speak to them and get an exemption, even on a case-by-case basis. Those ideas need to not die out, and you might find that being able to give life to them makes you simply a better employee.

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