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Comment by mjolk | Hacker News Reader

>If you want to do open-source work on an area related to your job you must talk to your employer first

I promise you that's not the law.

A bartender that makes drinks for his friends at a house party doesn't have to reimburse his employer for skills learned when tending a bar.

> and whatever open source work you do you should be sure you're either not using company resources or have permission to use them

But this is a valid point. If you're using company hardware and resources, you're arguably spending resources owned by the company.

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That is the law in many places, California being one. Companies generally own anything you do related to their business. Related is up to a judge to decide if it gets to that point but some arguably obvious examples: making a game on the side while working for a game company. Making an email website while working for a company that makes an email website.

Why it makes sense IMO. Without the company owning work related to their business outside of work hours that would seem to make something along these lines legal.

Employee is at home, after work hours, and thinks of solution to problem at work on his project. The next day he comes to work and demands if the company wants this solution he must be compensated for work he did on his own time that belongs to him.

Your bartender case I have no idea how a judge would take that. The judge might see it as common sense. On the other hand if the bartender took a second job bartending a judge might decide that's not okay. Examples: Bartender invents new drink in Bar #2. Does Bar #2 own that? Can Bar #2 trademark the new drink? Can Bar #1 claim bartender has a conflict of interest because while working at Bar #2 it's arguably his job to lure people away from Bar #1.

Here's a quote from Nolo: "

Moonlighting

Generally speaking, working more than one job is lawful. However, an employer has the right to limit after-hours work that is in conflict with the employer's own business. For instance, going to work for the competition could provide grounds for discipline or discharge.

http://www.nolo.com/legal-encyclopedia/off-duty-conduct-empl...

Here's another

"Employees Owe a Duty of Loyalty to Their Employers ... Thus, an employee who improperly competes with his employer, assists a competitor during the course of employment, or makes use of the employer's confidential information to compete with the employer after termination may have breached the duty of loyalty. " etc..

http://shawvalenza.com/publications.php?id=68

>making a game on the side while working for a game company. Making an email website while working for a company that makes an email website.

The first example made me cringe.

Let's say that I work at EA (I don't), coding up the next iteration of Sport Ball 2k15. In this example, at home, I'm writing Yet-Another-Dungeon-Crawler (YADC) (tm). All the two have in common is that they are video games. Should EA get rights to YADC(tm)? What's the scope?

On the second, this is even worse. If I worked at Ford building cars all day and was working on a Go Karts on the weekend, is there a gray area here? What if I repaired and sold vintage Jaguars on the side? Can I not apply skills that I've learned in my side-pursuits?

Why would I not be able to use my training to produce things for myself? Why should companies be the default owner of the fruits of our personal labors?

>Your bartender case I have no idea how a judge would take that. The judge might see it as common sense.

I think it's a fun thought experiment.

Of course the bartender won't have to pay the bar owner for his labors outside of work, he's just making drinks! However, when your skills are technical, the non-technical audience treats it differently.

Yes, EA would own your work.

1. You're making a competing product.

EA makes games. You're making a game

2. You're have a conflict of interest.

If you figure out how to speed something up 20% at home you arguably have a duty to share that at work. If you have a game idea for your game at home you think it unique you arguably have a duty to share that at work.

It would be up to a judge to decide what "related to their business" means. There's a spectrum. Both are FPS games, One is FPS, one is RTS. One is Online, on is offline. Is a gaming web site related? EA runs a gaming website. I have no idea. Do you want to find out after spending XXX hours on something it belongs to your employer? No? Then maybe you should ask them.

Note: Many companies will sign an agreement on request and review that allow you to make things that might have a conflict of interest. My understanding is EA specifically does this because so many of their employees wanted to make mobile games on the side. I have no idea what that agreement says. It might say EA gets the first right to publish it. Again I have no idea.

I know Google allows outside projects with permission. You submit a description of your project. They review it. If they don't see a conflict of interest they'll give you a signed document saying so so you can work on it with no issues.

Under what authority is "We own everything you do in a related market" the default condition?

From what I understand on this kind of stuff, it's completely determined by what contracts an employee has signed. "We own everything you do on company property or with company equipment" is basically universal and things done at your job are understood to be works-for-hire, but a company can't just claim "We own everything you do in your free time if it's related to computers" unless the employee has agreed to that in a contact. Am I wrong here?

For your Google example, I would assume their review framework was set up by an agreement with the employees. I had an offer for a job where I was told "Anything you do on your own time is yours. And if you want to put that in a written agreement for a particular project, we're happy to." From what you say, maybe Google doesn't have quite as lax an approach, but their ability to decide what you can and can't work on must have been specified in an employment contract.

No, it is the default of the law. They don't need an employment agreement. See the links in my replies in this thread. The laws says the own nothing...EXCEPT...anything related to their business.

They are being generous (or maybe just trying to make sure people don't quit) by signing agreements that let you out of the default law.

I've found that employers are quite accommodating when an employee asks for permission to do a side project. Even if you're not obliged to, it's a matter of professional courtesy.

It's more like, what would happen if the bartender invented the next margarita, i.e. something that becomes an international standard? Can the bar he works at claim some kind of trademark or patent to it? Or it would be, if it weren't nearly impossible to get any sort of IP for food.

I should note that California is a generous state in this regard. New York is much worse - if you're a programmer, they own anything that you program on the side, related or not.

I have long believed that this legal difference is a big part of why "doing a startup on the side" is far more common in California than New York.

I'm not sure that it matters all that much what state you're in; whatever the state defaults are, they're "corrected" by boilerplate employment rights assignment contracts.

It matters intensely which state you're in, because quite a few states, such as California, have declared that kind of rights assignment contract unenforceable / illegal.

Don't forget how common it is for companies to sign their staff to nonsense in the hope of scaring them out of their rights through ignorance.

From what I can tell, California requires IP assignment to be narrowly construed, but that's probably not enough to keep you out of court.

Well in the vernacular, "you can sue for a ham sandwich;" virtually nothing can keep you out of court.

I can sue you, and get you into court, for murdering my pet vampire using the power of forgiveness, if I want to, and am willing to waste the money.

I mean, to your actual point, yes, there are cases where this can come up and be valid, but my understanding of this part of the thread was that we were making comparison to New York state boilerplate contracts that would take ownership of anything produced on side time, and that has been tested and there is a significant body of "oh hell no" in California law.

IANAL, TINLA, etc ad nauseum.

I think the vernacular is that you can indict a ham sandwich. But yes, my point is just that no matter what US jurisdiction you work in, you probably won't go wrong by adopting the most conservative interpretation of your employment contract.

I would argue that this is a moot point since computer hardware is a commodity. Most companies around here buy their employees new hardware and said employees will simply use them for all their computing needs as is convenient (would you travel with 2 laptops just to be able to claim you didn't use company hardware).

I frankly find this kind of legal posturing by companies abhorrent and immoral. It's almost like treating employees as slaves.

>I would argue that this is a moot point since computer hardware is a commodity.

The cost of the hardware is recognized (in accounting) over the life of the machine.

>(would you travel with 2 laptops just to be able to claim you didn't use company hardware).

I have a really nice computer from work and an old laptop at home. I use my old laptop for all personal projects to avoid just such an issue.

> (would you travel with 2 laptops just to be able to claim you didn't use company hardware)

I do.

Oh come on two MBPs is not an unreasonable travel burden(though for a while I was doing it with an MBP(personal) and a W520 and that made people mad at me at airport security)

Whoah. Be careful. Off-hours work doesn't statutorily belong to employers (ie, it's not "the law"), but employees can and often do sign contracts conceding the rights to their off-hours work to employers. The law most definitely sees many of those contracts as enforceable.

It depends on the state; in 8 states there are restrictions, most notably California. Such contracts aren't enforceable in CA:

http://www.intellectualpropertylawfirms.com/resources/intell...

But of course, if you use any company resources (including computers)... then they can be.

My employment agreements typically include something about work product and rights assignments to the employer. I gather that my employers' contracts with their customers have similar intellectual property transfers (from the contractor to the customer). As a result, I've always explicitly sought exceptions from both employers and customers. Even if it isn't required, it doesn't hurt to have something on paper that says my contributions to some free software project are on the up-and-up.

>If you want to do open-source work on an area related to your job you must talk to your employer first

It isn't the law, but a some employment agreements give de factor ownership of any intellectual property an employee produces to the company, own time or not.

A bartender is typically an hourly employee, clearly paid for the time they are "clocked in". A salaried, "exempt" employee is a little bit of a different thing.

Which isn't to say that the quoted imperative is "the law" - that depends on jurisdiction and the wording of contracts that have been signed. In any event, the imperative is great advice, though!

> But this is a valid point. If you're using company hardware and resources, you're arguably spending resources owned by the company.

Really? you are going to try to defend this point of view?

OK, so he should just pay $3.50 for the electricity and internet he used for those commits and everyone will be happy.

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