US employee here - I've signed one (plus a patents & inventions at one firm) at every firm I've worked at since 2000 or so. Thus far any side projects haven't been a problem for them, as I have made sure to target a different industry. But legally, they could have enforced the contract and taken possession of my code.
Even winning a lawsuit costs a lot of money and stress. Unless there is a law that makes courts throw out frivolous lawsuits immediately the employer with lawyers on staff still can make your life very difficult
It is common in the US, yes. I've signed a few over the years. I always check the wording of the restrictions to be sure my side projects are clear. And most of the time, the legal counsel for your employer will let you explicitly add on projects as being excluded form the agreement, so you can continue to work on open source projects or prior inventions without having to worry about it.
I definitely recommend that people consult an attorney if they are concerned about the specifics of their own contract. The details of each situation can be quite different.
This gets super muddied when you consider doing FOSS contributions as part of your work. Sure you can sign a contributor agreement, but its not yours to give away. The employer owns the code you contributed to a FOSS project. The project got the signature from the wrong entity.
> The employer owns the code you contributed to a FOSS project.
I think this is a pretty US-only type thing; at least it's not very common in Europe. Usually (in Europe) ownership of code depends entirely on when you did the coding -- if it's on your own time you own the code. If it's when you're at work then obviously it's the company's code. Of course there are the usual caveats about "is it too closely related to work code?", etc. but if it's a totally different area of business, then you should be fine. There may be differences between employers, but even if employers explicitly specify the "we own everything" clause you can usually get specific exemptions as long as you ask in advance.[1]
[1] I don't know if there's any legal theory (in Europe) to support the claim of ownership over everything you do, but Europe is pretty fragmented when it comes to law, so it's probably pointless to speculate on this point. I'm actually not sure if the "we own everything" clause would hold (or has held) up in court in any European country.
In Germany you usually have some paragraphs on this in the (work) contract (there are a couple popular variations - there isn't much leeway provided by German law here, which is good). "We own everything you do" is definitely illegal in Germany, and also not put into work contracts (such a clause would be void anyway).
The legal construction is basically that the employee grants an exclusive, irrevocable license[1] to any IP produced by the employee for the employer. There is of course a grey zone here, but it's quite narrow, and directly non-existent if the side project is unrelated to the current core business of the employer.
FOSS contributions aren't really touched by this; you work on behalf of the employer to contribute to a FOSS project and the exact same terms and conditions apply as always (you put your name on it, not your employers; since exclusivity of the license implicitly granted to your employer conflicts with the FOSS terms, but the employer explicitly commissioned you to do that, the latter "wins" over the former, ie. the license of your employer to the diffs you write becomes non-exclusive in these cases, because the exclusivity is implicitly revoked by the work assignment, essentially action implying intention) -- or so it was explained to me).
[1] This also means that you retain your copyright: it's not possible to transfer copyright in Germany. Very rarely things like "Copyright (c) 1871-1918 Softwareschmiede GmbH" pop up in open sourced stuff, but it's obviously something stamped on when open sourcing, and equally obviously incorrect. The copyright still belongs to the developers involved in the project, but because the company "Softwareschmiede GmbH" has an exclusive license they can re-license it on their own accord under any terms they want. They'd still have to, technically, state the correct copyright, though.
UrhG § 69b is the regulation specifically for software developers that work contracts typically refer to. Usually there is also a clause referring to UrhG § 31a to license usage rights of unknown kinds of usage as well.
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btw. seems that I was wrong about copyright attribution. Got a mail, apparently some contracts include a clause that the employer can in fact attribute any work to herself, so "Copyright (c) 1871 Foobar GmbH" can happen and can be correct.
Usually (in Europe) ownership of code depends entirely on when you did the coding -- if it's on your own time you own the code
Despite all the paranoia that would suggest otherwise, that's quite often the case in the US as well. Regardless of what your employment agreement says, it can't trump state law, and many (hell, maybe most) states have laws that clarify that work you do on your own time, on your own equipment, that isn't in the course of your employer's business, belongs to you. Of course IANAL, but I did a lot of research on this topic a while back, since I have been in the position of working on a side project while maintaining full-time employment elsewhere.
You can ever be sure what a given court will decide on a given day, if it comes to it, but I think a lot of people overstate the extent to which your employer "owns your brain".
That said, plenty of employers do at least try to "own your brain" and I think the reasonable response to that is to demand they pay you commensurately - including opportunity cost. If someone wants to "own your brain" they need to be paying on the order of millions of dollars per year, IMO.
> Sure you can sign a contributor agreement, but its not yours to give away. The employer owns the code you contributed to a FOSS project. The project got the signature from the wrong entity.
>The project got the signature from the wrong entity.
IANAL but... i believe (in the UK so presumably other common law jurisdiction like the US) the idea of agency solves this. If you sign that contract on behalf of your employer, the other party has the right to assume that you are authorised to sign and the contract is sound. The fact you just gave away something that belongs to your employer is now an issue between you and your employer. I would struggle to see how this could get beyond an employee disciplinary process unless it could be shown that the employee was showing some kind of intent in deliberately leaking secrets they knew they should not leak.
Google is actually pretty good about this. They clarify some areas that are no-no, and there is a simple process for asking if a side project can be released as open source.
A company I worked for (property appraisal company) got acquired by another company. They forced one of the higher up developers out. 6 months later that developer wrote an app dealing with lines at Disney and was making money on ad revenue. The company came after him claiming they owned it because he used skills and knowledge he gained while employed to write that app. We had a "everything you do at any time belongs to us" contract.
He was at the original company for 15 years at the time and was the 2nd developer at the company. So he had a lot of friends at the company and he told his friends at the company that he made this cool app and word got around because everyone thought it was harmless to repeat.
They got acquired by another company and then gutted, most of the management that did that got thrown out after anyway so I don't know how much it matters.
That being said I always read my employment contracts now.
Google has an application process where, before you've written any code, you can ask for copywrite release. However, if you don't do that, they can and WILL claim ownership over your personal projects. It's happened to me.
If you read the full article, it covers the law in California which has three tests. Two of those tests are straightforward (company time and company equipment), but the third (related to the company's business) is less straightforward. My impression as a non-laywer is that the courts will probably take a somewhat narrow view of that third test, but the actual language in the law is pretty vague and some companies are involved in many fields.
EDIT: May be a bit less narrow than I thought. This [1] journal article cites some relevant case law.
I think he is too dismissive of company time though. Company time is very straightforward only if you work 9-5, but a lot of companies let developers work flexible hours and work from home, which I think makes company time less straight forward. Then when you add on call or emergency work you have to do off hours or on weekends (even once every 6 months) it makes the idea of "company time" even more vague.
The hope that one of my side projects will some day succeed, and I can leave my 9-5 is the only thing that drives me. If I said, "welp, legal" i'd die inside. Some people have church, I have side projects.
Same here. While I've worked for larger companies who are onerous about side project, that's been a large reason I've left and tended to avoid them. It's just too much effort to play along with them even if there's no overlap.
I went through a tough time when I wasn't sure if I wanted to be software engineer anymore. Working on my side projects not only made me go through that time, it made me truly happy. Reminded me why I am in this in the first place.
It's disappointing that there are no conventions or legislation to rectify this situation. I have several side projects going right now, and it gets frustrating going to interviews and being asked to give up all of it just for the supposed "privilege" of being able to write code for a larger company. The solution I've found is freelancing, but this has the problem of not really providing steady work.
Many companies allow you to hold on to "previous inventions" if you document them before signing up with them. It gets a bit fuzzier for projects you start while working at said company, and the trouble of documenting said previous inventions is enough that I am not sure is worth it except in the case of major projects or patents granted to your name personally, though.
Yes and no. My thinking is coloured by a few years in law school before dropping out.
If there is a true "five nines" in our lives, it's the reliability of the law. We each interact with and under the law dozens, hundreds, even thousands of times every day without ever needing recourse to lawyers.
But when you need a lawyer, you need a lawyer. One might as well sigh heavily about needing plumbers when the pipe bursts. Specialisation is normal and -- this is what I like most -- lawyers are more than a paid service. They have a fiduciary duty, they are ethically required to be dutiful advocates.
Personally, while I wish the world was simple and lawyers were cheap, I have never regretted spending the money to consult with them.
Not really. They're experts in law. We're experts in engineering. Doctors are experts in medicine. Would you say it's tragic that one needs to pay a doctor to tell you what's wrong with you?
But often when things come up and it's "Hire a lawyer" it feels like responding to "How do I change my password?" with "Hire a software engineer." The law is very user-unfriendly.
Also hearing that I should take the same remedy whether I have a question or I need to be defended against criminal prosecution seems strange and intimidating, like being told I should hire a brain surgeon for a migraine headache.
So lucky to live in a country where the average number of interactions with a lawyer in a human life, both personally and professionally, is between zero and one.
I got a little confused of this article. Firstly, the author try to say that side projects are belong to the company hires you as full time employee, and, then throw the game designer example, but it sounds to me like the game designer is contractor not a full-time employee, so, it follows the default copyright, I am ok with that, and then, the author start using this case to approve the relationship between your side project and your employer as you are a full time employee. Am I missed some info?
I remember that in Canada, the full time employee contract mentions something like, 40 hours per week, and also explicitly mention if you use company's property or equipments to produce some, or you produce some at company venue, then all copyright belongs to the company.
That's $72k a year, which sounds like a full-time employee somewhere outside of silicon valley. In addition, you don't generally pay contractors a fixed amount per month, but rather per hour. Note how the example of Sarah the contractor has the pay rate set at $20 per hour. Also, further on down, it explicitly says the game designer is being paid a salary, which is something that employees, not contractors, get.
My experience with employment contracts has been that in addition to the "anything related to employer's business" clause, there will also usually be a schedule at the end of the contract where you can list specific side projects you're working on --- and that schedule can be amended (or extended with a clause like "anything agreed to in writing with your manager") later on.
It's not ideal from an employee's perspective, but it's at least less unpredictable.
This is a good article, but the "let them eat cake"-iness of the last paragraph is pretty chilling.
> the only way to gain independence is to be independent. Being an employee of a high tech company whose product is intellectual means that you have decided that you want to sell your intellectual output, and maybe that’s OK, and maybe it’s not, but it’s a free choice.
I was hoping for a closing argument about how thoughtful employers could accommodate their legal requirements while also respecting independent employee creations.
Instead he seems to just be saying that employees that want to keep their side projects should just quit.
Reading that might give me pause about taking a position at Fog Creek.
This is true, but ultimately if your company wants to be a dick about it, you could still end up having to fight them in court. They just have to say "when we signed that form you said it was a <domain A> app, but now it's turned into a <domain B> app which competes with our business. Hand it over."
As Joel says, a judge/jury will probably be inclined to find for you, but you still have go through the pain and cost of litigation. Also, while it's not usually in a company's best interest to pick legal fights with their employees, the catch-22 is this: the only time it's worth it for them to be dicks is when/if your business takes off. I'm sure your employer doesn't care about your little news aggregator until you're shopping around for $100 million in VC funding.
Ultimately he's right. If you seriously want to start a side business, quit your day job.
All startup advices, left and right, in unison say: it's way better to develop your product on somebody else's dime :) . Don't hurry to leave your work until your own business starts to fly.
Go figure... What are the practical ways to benefit from side projects? It's hard enough to work on two works at the same time, would be sad if the results would be lost.
But you have to quit your day job before starting the side business, or working on it at all. Otherwise your ex-employer still has a claim on your business.
The beauty of side projects is not having to make them pay the bills. As soon as you have to make them pay the rent, they stop being side projects.
But having an ex-employer sue you for lots of money because your side project is booming is a great problem to have ;)
that becomes a question for lawyers at the appropriate time.
Put it like this:
not having a side project because you're afraid your employer will sue will get you exactly and definitely $0.
Having a successful side project will teach you a ton of useful stuff and probably earn you more than $0 even after the lawyers have finished arguing (depending on your definition of successful).
That may be a temporary bodge solution to this, but the final solution is to eradicate the kind of legal implications that being an employee entails, aside from the only fact that it is no different than you selling a service to the employer during the contracted working hours. An employee is nothing more than a consultant that, most of the time, works on location, and should legally be treated like that.
Obviously that wouldn't stop you from signing your work away in a contract, but at least removes the whole "it's a different kind of transaction" legal mentality from it.
Not quit - above he outlines different attitudes the employing company might have about side projects.
I think his message distilled would be that by default you may not own your side project - so talk with your employer, and maybe get an agreement in writing, if you want to change that.
"Buyer's market" seems like it doesn't apply to this. Both sides in the market have ample selection and competition. I'd have a hard time saying which side you even mean is favored if you said it was imbalanced. Software companies seem to search vigorously for good hires and vice versa-- the sign of a healthy and competitive market.
> Instead he seems to just be saying that employees that want to keep their side projects should just quit.
I thought he was suggesting that employees take it as an opportunity to negotiate for higher salary, since the company will be buying all of their inventive output. Then they should just work 9-5 and enjoy their free time by relaxing instead of working on side projects. That seems like pretty reasonable advice, unless you're in California, in which case an employee doesn't have that bargaining leverage.
Be a little careful, because I think you're reading a Stack Overflow question recast as a blog post (Spolsky just moved his blog from CityDesk --- can you believe he was still using CityDesk? --- to WordPress, and so I guess we'll be seeing some more stuff like this on it). People are less careful capturing all angles of an issue on forums than they are in blog posts.
I assume Stack Overflow is just like most big software shops, in that if you have a side project you want to work on and be severable from your employer, you just fill out a little form and get it signed by your manager.
You'd be pushing things to take it further than that, but I'll add anyways: if they're like most firms (and I have every reason to think they would be, since they're famously dev-friendly), even if you didn't follow this process, they're not going to fuck with you. It would be terrible for their own business.
But if you're going to take a side project and turn it into a business, it behooves you to do things by the book, because the worst possible problems for a startup to have are the kind that don't become apparent until after your project is successful.
(Also: Spolsky is the CEO of Stack Overflow; Anil Dash is the CEO of Fog Creek.)
I think the article was supposed to be informational, and from the perspective of the average software developer (who will almost certainly never have any contact with Fog Creek), rather than promotional and from the perspective of a tech CEO.
Not a lawyer, probably wrong, but: California's courts won't enforce a contract not recognized by California law, but the courts of other states will, and it will depend on whether the employer can get personal jurisdiction for the case in the right state.
The short answer is: in your situation, you'd need a lawyer.
(I think --- not sure, not an authority --- that the "incorporation in Delaware" part of this has minimal impact; your residence in North Carolina, and the firm's operations in California, are probably the big two salient facts).
I've never seen a contract that didn't stipulate the jurisdiction it would be enforced in. Maybe that doesn't matter, I know there's a lot of overreach in these things.
With that said, which employer wants their employee watching TV and not breathing software 24/7? I really struggle to imagine the risk here is greater than the reward.
I certainly would prefer that my employees not get burned out. What they do after work is none of my business, but I definitely hope most of them aren't living and breathing work 24/7.
The conclusion of this article hinges on the vagueness of "related to your employer’s line of work". From that he concludes that all employee developers have effectively sold their total intellectual output. But that is bullshit. The vagueness doesn't make the law meaningless. He admits that a judge and jury would probably side with the employee but still picks the company's side for his conclusion (the sarcastic "big bad Google" gives away his mindset). It is true that a company will generally have more resources than you and can grind you down legally, but in general they don't because, besides the money, it's a time suck for everybody, potentially bad press, and really bad for morale
I negotiated IP assignment out of my employment contract before taking my job. I wouldn't take a job that tried to lay claim to my work outside of work.
For the most part, a developer shouldn't be in a poor bargaining position by the time a contract is on the table. They've invested time and money into you. They want to hire you. This is where you stake out your claim.
And we should never be coerced into death marches. But it still happens in reality.
The offer of a contract might bolster one's bargaining position a tiny amount, but usually it is still dwarfed by the huge power the company still wields. Especially if one is in the position where they really need the job. If you're unemployed, then you have no bargaining power, regardless of whether they're offering you a contract or not.
>If you're unemployed, then you have no bargaining power
I see what the problem is. I can read it in your tone. You only have no bargaining power if you think you have no bargaining power. I successfully negotiated up $15000 (to $60000) with paid relocation on my very first dev job. I was unemployed for nine months (in which time I masted a rather obscure framework) and coming from a background in sales. It seems being quite good in sales has helped me where other developers fail: bargaining.
This is why programmers need unions! Or a guild. Or something! That employers totally dictate everything in a field that is in such high demand is absolutely unacceptable.
Also, I feel most managers & non-tech people take advantage of programmers. You want to build a business out of an app with good programmers but you don't want you chicken to go & lay egg in your neighbor's house.
You can't go out and open an office as lawyer or doctor without a license. You will get into trouble quickly. You also have to comply with a lot of rules. Anybody can call himself "software engineer" and he can pretty much do whatever he wants. That freedom is the exciting part about software but it has the disadvantage that there is no protection for "software engineers".
Yep, and don't call it a union. Barrier of entry is not a problem, we dont need an organization to limit entry into the field, we just need political representation. Now "tech" in politics means executives/VCs. We just need an association that funds employee friendly lobbying.
There is an organization in the UK, the BCS, that is widely regarded as irrelevant, and no-one can understand how it still exists. It adds zero value to anyone working in the industry and in fact frequently undermines workers for the benefit of large employers or the government. For example it is peddling the "skills shortage" myth.
If we have a guild it needs to be by, and for, actual workers.
I'm union, as are most of my colleagues, even though we are highly paid white collar people. The union would step in with lawyers etc if I got into some kind of trouble.
I think we need the same at least an organization we can belong to with the sole purpose of protecting our creative freedoms via lawsuit defense etc... I'm also willing to promote the cause on my YouTube channel with close to 5 million tech viewers for FREE. This article really pissed me off.
I have to say, I'm really, really sick of the entitled mentality that companies take towards those that actually do the work keeping their business afloat.
It's not an entitled mentality per se, it's just that a company is a profit-maximising entity a-la a hypothetical paperclip-producing AI that eventually turns the entire Earth into paperclips through no ill intent.
I've had three companies rewrite or append something about past IP or even current IP on the weekends unrelated to the company, the company's hardware, or the company's time.
If you approach it right (sometimes I show them how this limits our ability to work with OpenSource software) you can often swing it. Admittedly, the larger companies are less likely to entertain the request of some new hire.
I think more people should bring this up in the hiring process (you don't have to push it), but lets teach companies that it's not just vacation that maters to us.
One good way I thought of, is to mention that you volunteer your skills to nonprofits on the weekends / vacation, and that you want to make sure they don't have any legal issues down the road. So if they hand you that form, tell them you need to send it to your lawyer first. Then have your lawyer and their lawyer figure it out.
As a Canadian I don't even know what the requirements are, or protections if any. But I did notice one thing in particular: you need your own equipment (no company equipment) to qualify under the Californian protections.
How does this factor into bring your own device (BYOD)? At what point is it your employers equipment, and at what point is it yours? I think BYOD is a terrible idea for several reasons (usually leveraged as a cost-saving measure, can't 100% verify that all company data is wiped at end of employment, etc), but this seems like it muddles the whole thing further. If you only own the devices that you use to work, does everything belong to your employer and how can you draw a line?
The problem looks reasonably clear. If something is provided to you by the employer, don't use it for a side project.
This can be hardware, software, know-how, office space, work hours, etc. If something was not provided by the employer as a part of your work environment, it's probably fine to use it. But a clear separation should additionally help.
I agree it's probably wise to separate the two, but it's very hard to prove you worked on company equipment.
My personal projects are all in my dropbox, which is synced to all my computers (both home and work). That means all the code for my side projects is always sitting on my work computer as well. I doubt that makes a difference.
I used my own equipment, including my own personal licenses for all tools, but my employer still claimed my work on it (at home) was theirs - because they claimed IT professionals all prefer to use their own equipment for their work.
> If you only own the devices that you use to work, does everything belong to your employer and how can you draw a line?
I would say: don't do that. If you do, you should probably have a contract leasing your equipment to the company. Generally, if you need to use your own equipment for work, then you should probably have an agreement that falls under the "contracting" (or B2B or consulting) umbrella.
This presents a false dilemma. There are other options than "own everything" or "be negligent and get sued."
Contracts can say almost anything. You can agree to grant the company a liberal license to anything you deliver to the company or incorporate into any product of the company. You can make a similarly protective agreement on the patent front.
There, now you own what you do on your own time and the company isn't at risk of a lawsuit from you.
after i figured that he is CEO and cofounder of many famous startups, I feel bias in this article and I will make sure I will not work him in the future for sure :-)
CA 2870 is attached to any such agreement you sign in California, and protects independent invention. You should read it. This law forms the legal basis for innovation in Silicon Valley.
Something like this might be a deterrent for a company that would otherwise be interested in suing, but it's not going to stop a determined foe from really messing up your life. You'll win ... if you have the cash to fight them (which you don't, unless you're making enough money that a lawsuit is a total non-issue). In practice, you'll settle to stop the legal expenses, and they'll get at least a chunk of your project.
When you're successful you have to expect that some people you knew before you found success will get salty and think that you owe it all to them. A few of these people may be inclined to file a lawsuit, including your former employers. They see a pie and want to claim a piece of it.
On the other hand, in Texas my quite nice house cost less than $300,000, my state government is totally solvent, and very little is on fire or running out of water.
Your standard contracts may be better, but California certainly has its share of drawbacks.
And did you know there's a Fry's and an In-N-Out burger within ten miles of my house?
It would help if their webmaster would just take down or outright forward the old URL, which goes back to 1995. It's been deprecated since at least early 2016.
> Your game designer works for a year and invents 7 games. At the end of the year, she sues you, claiming that she owns 4 of them, because those particular games were invented between 5pm and 9am, when she wasn’t on duty.
> ...
> So before you hire this developer, you agree, “hey listen, I know that inventing happens all the time, and it’s impossible to prove whether you invented something while you were sitting in the chair I supplied in the cubicle I supplied or not. I don’t just want to buy your 9:00-5:00 inventions. I want them all, and I’m going to pay you a nice salary to get them all,” and she agrees to that, so now you want to sign something that says that all her inventions belong to the company for as long as she is employed by the company.
Wait, what? Wouldn't the fix for this just to say, "You transfer the rights to any games you give us" (or whatever the legal wording for that is)?
It seems incredibly odd to go from "you gave us a game but kept the IP" to "we own all IP of games you make".
I furrowed my brow at that example, too. He may have been simplifying or misrepresenting reality. I would think it's disingenuous that you're presenting all 7 of those games as projects done on the company time (unless there is something to insinuate you were forced to work off the clock for free--which wouldn't be different than any other kind of work).
Lets say, without notifying my boss, I went on vacation and refactored some company code I maintain, then checked it in when I got back. I can't imagine claiming that as my own unless there were other shady things going on.
I think the standard contract should say something like "I assign copyright of and grant a licence to any patents I own pertinent to every single line of code that I create and give the company".
> Your game designer works for a year and invents 7 games. At the end of the year, she sues you, claiming that she owns 4 of them, because those particular games were invented between 5pm and 9am, when she wasn’t on duty.
That's not what I'm afraid of. I'm afraid that after developing 7 games that belong to my employer, my personal website project that computes tax returns in ethiopia would somehow belong to my employer because
I'm perfectly fine with my employer owning everything related to what I'm employed there to do unless explicitly agreed otherwose
I'm not fine with my employer owning every single piece of "IP" (god I hate that term) that I have created during my employment but outside of work, if it's unrelated to their business. I don't even agree to that even if I have a "standard contract" in which I have stated that they own everything I do. I'm not going to argue over that contract, no one does, and I'm still not ready to give up the ownership of my personal projects.
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[ 3.9 ms ] story [ 312 ms ] threadNot necessarily. Depending on what state you live in, there's a good chance that agreement would violate state law and would be unenforceable.
I definitely recommend that people consult an attorney if they are concerned about the specifics of their own contract. The details of each situation can be quite different.
I think this is a pretty US-only type thing; at least it's not very common in Europe. Usually (in Europe) ownership of code depends entirely on when you did the coding -- if it's on your own time you own the code. If it's when you're at work then obviously it's the company's code. Of course there are the usual caveats about "is it too closely related to work code?", etc. but if it's a totally different area of business, then you should be fine. There may be differences between employers, but even if employers explicitly specify the "we own everything" clause you can usually get specific exemptions as long as you ask in advance.[1]
[1] I don't know if there's any legal theory (in Europe) to support the claim of ownership over everything you do, but Europe is pretty fragmented when it comes to law, so it's probably pointless to speculate on this point. I'm actually not sure if the "we own everything" clause would hold (or has held) up in court in any European country.
https://en.wikipedia.org/wiki/Moral_rights
In Germany you usually have some paragraphs on this in the (work) contract (there are a couple popular variations - there isn't much leeway provided by German law here, which is good). "We own everything you do" is definitely illegal in Germany, and also not put into work contracts (such a clause would be void anyway).
The legal construction is basically that the employee grants an exclusive, irrevocable license[1] to any IP produced by the employee for the employer. There is of course a grey zone here, but it's quite narrow, and directly non-existent if the side project is unrelated to the current core business of the employer.
FOSS contributions aren't really touched by this; you work on behalf of the employer to contribute to a FOSS project and the exact same terms and conditions apply as always (you put your name on it, not your employers; since exclusivity of the license implicitly granted to your employer conflicts with the FOSS terms, but the employer explicitly commissioned you to do that, the latter "wins" over the former, ie. the license of your employer to the diffs you write becomes non-exclusive in these cases, because the exclusivity is implicitly revoked by the work assignment, essentially action implying intention) -- or so it was explained to me).
[1] This also means that you retain your copyright: it's not possible to transfer copyright in Germany. Very rarely things like "Copyright (c) 1871-1918 Softwareschmiede GmbH" pop up in open sourced stuff, but it's obviously something stamped on when open sourcing, and equally obviously incorrect. The copyright still belongs to the developers involved in the project, but because the company "Softwareschmiede GmbH" has an exclusive license they can re-license it on their own accord under any terms they want. They'd still have to, technically, state the correct copyright, though.
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btw. seems that I was wrong about copyright attribution. Got a mail, apparently some contracts include a clause that the employer can in fact attribute any work to herself, so "Copyright (c) 1871 Foobar GmbH" can happen and can be correct.
Despite all the paranoia that would suggest otherwise, that's quite often the case in the US as well. Regardless of what your employment agreement says, it can't trump state law, and many (hell, maybe most) states have laws that clarify that work you do on your own time, on your own equipment, that isn't in the course of your employer's business, belongs to you. Of course IANAL, but I did a lot of research on this topic a while back, since I have been in the position of working on a side project while maintaining full-time employment elsewhere.
You can ever be sure what a given court will decide on a given day, if it comes to it, but I think a lot of people overstate the extent to which your employer "owns your brain".
That said, plenty of employers do at least try to "own your brain" and I think the reasonable response to that is to demand they pay you commensurately - including opportunity cost. If someone wants to "own your brain" they need to be paying on the order of millions of dollars per year, IMO.
Which is why the FSF requires documents from contributors' employers: https://www.gnu.org/prep/maintain/html_node/Copyright-Papers...
http://faif.us/cast/2016/nov/01/0x5E/
IANAL but... i believe (in the UK so presumably other common law jurisdiction like the US) the idea of agency solves this. If you sign that contract on behalf of your employer, the other party has the right to assume that you are authorised to sign and the contract is sound. The fact you just gave away something that belongs to your employer is now an issue between you and your employer. I would struggle to see how this could get beyond an employee disciplinary process unless it could be shown that the employee was showing some kind of intent in deliberately leaking secrets they knew they should not leak.
Maybe the possibility of being publicly shamed is a deterrent from pursing ownership.
So it does actually happen.
That being said I always read my employment contracts now.
Speaking of, I'd like some collaborators to help with my side project "Terra Plant": https://baqqer.com/collaborate
EDIT: May be a bit less narrow than I thought. This [1] journal article cites some relevant case law.
[1] https://digital.law.washington.edu/dspace-law/bitstream/hand...
If that's Google, Apple, or Microsoft... related is a LOT of topics.
Also say you're a games programmer - better not code up a hobby game in your spare time and sell it.
... and so on.
I went through a tough time when I wasn't sure if I wanted to be software engineer anymore. Working on my side projects not only made me go through that time, it made me truly happy. Reminded me why I am in this in the first place.
Here is a previous discussion on HN: https://news.ycombinator.com/item?id=2208056
If there is a true "five nines" in our lives, it's the reliability of the law. We each interact with and under the law dozens, hundreds, even thousands of times every day without ever needing recourse to lawyers.
But when you need a lawyer, you need a lawyer. One might as well sigh heavily about needing plumbers when the pipe bursts. Specialisation is normal and -- this is what I like most -- lawyers are more than a paid service. They have a fiduciary duty, they are ethically required to be dutiful advocates.
Personally, while I wish the world was simple and lawyers were cheap, I have never regretted spending the money to consult with them.
Also hearing that I should take the same remedy whether I have a question or I need to be defended against criminal prosecution seems strange and intimidating, like being told I should hire a brain surgeon for a migraine headache.
It's irreducibly complex because it involves humans.
I remember that in Canada, the full time employee contract mentions something like, 40 hours per week, and also explicitly mention if you use company's property or equipments to produce some, or you produce some at company venue, then all copyright belongs to the company.
This is what origin say in the article, it sounds to me really not like a full time employee.
It's not ideal from an employee's perspective, but it's at least less unpredictable.
> the only way to gain independence is to be independent. Being an employee of a high tech company whose product is intellectual means that you have decided that you want to sell your intellectual output, and maybe that’s OK, and maybe it’s not, but it’s a free choice.
I was hoping for a closing argument about how thoughtful employers could accommodate their legal requirements while also respecting independent employee creations.
Instead he seems to just be saying that employees that want to keep their side projects should just quit.
Reading that might give me pause about taking a position at Fog Creek.
Get written agreement from your employer that your side project is your own. Some employers even have a standard process for doing this.
They might say no, but then you know not to put any more work into it.
As Joel says, a judge/jury will probably be inclined to find for you, but you still have go through the pain and cost of litigation. Also, while it's not usually in a company's best interest to pick legal fights with their employees, the catch-22 is this: the only time it's worth it for them to be dicks is when/if your business takes off. I'm sure your employer doesn't care about your little news aggregator until you're shopping around for $100 million in VC funding.
Ultimately he's right. If you seriously want to start a side business, quit your day job.
Go figure... What are the practical ways to benefit from side projects? It's hard enough to work on two works at the same time, would be sad if the results would be lost.
The beauty of side projects is not having to make them pay the bills. As soon as you have to make them pay the rent, they stop being side projects.
But having an ex-employer sue you for lots of money because your side project is booming is a great problem to have ;)
Your comment is inspiring. The question then becomes, how much of your project's worth, as a percentage, are they going to come after you for?
Put it like this:
not having a side project because you're afraid your employer will sue will get you exactly and definitely $0.
Having a successful side project will teach you a ton of useful stuff and probably earn you more than $0 even after the lawyers have finished arguing (depending on your definition of successful).
Obviously that wouldn't stop you from signing your work away in a contract, but at least removes the whole "it's a different kind of transaction" legal mentality from it.
I think his message distilled would be that by default you may not own your side project - so talk with your employer, and maybe get an agreement in writing, if you want to change that.
A job isn't a product that is bought by employees.
I thought he was suggesting that employees take it as an opportunity to negotiate for higher salary, since the company will be buying all of their inventive output. Then they should just work 9-5 and enjoy their free time by relaxing instead of working on side projects. That seems like pretty reasonable advice, unless you're in California, in which case an employee doesn't have that bargaining leverage.
I assume Stack Overflow is just like most big software shops, in that if you have a side project you want to work on and be severable from your employer, you just fill out a little form and get it signed by your manager.
You'd be pushing things to take it further than that, but I'll add anyways: if they're like most firms (and I have every reason to think they would be, since they're famously dev-friendly), even if you didn't follow this process, they're not going to fuck with you. It would be terrible for their own business.
But if you're going to take a side project and turn it into a business, it behooves you to do things by the book, because the worst possible problems for a startup to have are the kind that don't become apparent until after your project is successful.
(Also: Spolsky is the CEO of Stack Overflow; Anil Dash is the CEO of Fog Creek.)
The short answer is: in your situation, you'd need a lawyer.
(I think --- not sure, not an authority --- that the "incorporation in Delaware" part of this has minimal impact; your residence in North Carolina, and the firm's operations in California, are probably the big two salient facts).
I work remote for a large SF Bay Area firm from NC.
With that said, which employer wants their employee watching TV and not breathing software 24/7? I really struggle to imagine the risk here is greater than the reward.
The offer of a contract might bolster one's bargaining position a tiny amount, but usually it is still dwarfed by the huge power the company still wields. Especially if one is in the position where they really need the job. If you're unemployed, then you have no bargaining power, regardless of whether they're offering you a contract or not.
I see what the problem is. I can read it in your tone. You only have no bargaining power if you think you have no bargaining power. I successfully negotiated up $15000 (to $60000) with paid relocation on my very first dev job. I was unemployed for nine months (in which time I masted a rather obscure framework) and coming from a background in sales. It seems being quite good in sales has helped me where other developers fail: bargaining.
The problem is that programming is so attractive because the barrier for entry is so low that anybody can get into it without problems.
I'd wager that it's easier to be a quack doctor or a lawyer than fake being a programmer. Most people cannot just grasp the needed details.
Not that it's a competition, though.
If we have a guild it needs to be by, and for, actual workers.
Chris Hawkes
If you approach it right (sometimes I show them how this limits our ability to work with OpenSource software) you can often swing it. Admittedly, the larger companies are less likely to entertain the request of some new hire.
I think more people should bring this up in the hiring process (you don't have to push it), but lets teach companies that it's not just vacation that maters to us.
How does this factor into bring your own device (BYOD)? At what point is it your employers equipment, and at what point is it yours? I think BYOD is a terrible idea for several reasons (usually leveraged as a cost-saving measure, can't 100% verify that all company data is wiped at end of employment, etc), but this seems like it muddles the whole thing further. If you only own the devices that you use to work, does everything belong to your employer and how can you draw a line?
This can be hardware, software, know-how, office space, work hours, etc. If something was not provided by the employer as a part of your work environment, it's probably fine to use it. But a clear separation should additionally help.
My personal projects are all in my dropbox, which is synced to all my computers (both home and work). That means all the code for my side projects is always sitting on my work computer as well. I doubt that makes a difference.
I would say: don't do that. If you do, you should probably have a contract leasing your equipment to the company. Generally, if you need to use your own equipment for work, then you should probably have an agreement that falls under the "contracting" (or B2B or consulting) umbrella.
Contracts can say almost anything. You can agree to grant the company a liberal license to anything you deliver to the company or incorporate into any product of the company. You can make a similarly protective agreement on the patent front.
There, now you own what you do on your own time and the company isn't at risk of a lawsuit from you.
Surprised nobody has mentioned the most essential thing to know about regarding this stuff in California. The site is down at the moment, but the link is: http://www.leginfo.ca.gov/cgi-bin/displaycode?section=lab&gr...
CA 2870 is attached to any such agreement you sign in California, and protects independent invention. You should read it. This law forms the legal basis for innovation in Silicon Valley.
When you're successful you have to expect that some people you knew before you found success will get salty and think that you owe it all to them. A few of these people may be inclined to file a lawsuit, including your former employers. They see a pie and want to claim a piece of it.
Your standard contracts may be better, but California certainly has its share of drawbacks.
And did you know there's a Fry's and an In-N-Out burger within ten miles of my house?
Seriously though, the state of contract law regarding this stuff in most states is purely predatory for large companies and hurts innovation.
http://leginfo.legislature.ca.gov/faces/codes_displaySection...
> ...
> So before you hire this developer, you agree, “hey listen, I know that inventing happens all the time, and it’s impossible to prove whether you invented something while you were sitting in the chair I supplied in the cubicle I supplied or not. I don’t just want to buy your 9:00-5:00 inventions. I want them all, and I’m going to pay you a nice salary to get them all,” and she agrees to that, so now you want to sign something that says that all her inventions belong to the company for as long as she is employed by the company.
Wait, what? Wouldn't the fix for this just to say, "You transfer the rights to any games you give us" (or whatever the legal wording for that is)?
It seems incredibly odd to go from "you gave us a game but kept the IP" to "we own all IP of games you make".
Lets say, without notifying my boss, I went on vacation and refactored some company code I maintain, then checked it in when I got back. I can't imagine claiming that as my own unless there were other shady things going on.
That's not what I'm afraid of. I'm afraid that after developing 7 games that belong to my employer, my personal website project that computes tax returns in ethiopia would somehow belong to my employer because
I'm perfectly fine with my employer owning everything related to what I'm employed there to do unless explicitly agreed otherwose
I'm not fine with my employer owning every single piece of "IP" (god I hate that term) that I have created during my employment but outside of work, if it's unrelated to their business. I don't even agree to that even if I have a "standard contract" in which I have stated that they own everything I do. I'm not going to argue over that contract, no one does, and I'm still not ready to give up the ownership of my personal projects.