It is hard to know what happened from the small bit of information. However, there's really no context where the phrase "You Are an IBM Employee 100% of the Time" is good.
Edit: Meaning the tone and language suggest a work culture you might want to avoid. Separate from any actual policy.
It's obviously bad wording, but isn't that exactly what the law of employment suggests? If not, what problem are these[1] articles trying to solve, as there shouldn't be any?
2) still worth discussing when companies do try to enforce that for no good reason, even if they can (and often they can't, but still do as a scare tactic)
It's a rhetorical argumentation technique. They make it seem like it's inevitable and follows naturally from the obvious fact that you are an employee 100% of the time, so they don't even need to spell out the specific point in the contract, implying that it's not just a technicality in the contract but something fundamental. Which is of course not true, as in many countries you can't have such valid terms.
There is some bullshit that goes on here though. Many companies do not have a contract that you sign and consent to, they just try to back door it as fungible company policy - like the way social media companies get you to agree to new privacy policy and terms by your continued use.
Many companies put these IP and non-competition clauses into bonus award agreements. By accepting a bonus you agree to a bunch of terms and that’s where consideration comes in and makes it a real contract and legal. I have less of a problem with this arrangement than the back door approach.
> There’s more to that than the simple example you give.
It's likely "You are an IBM employee 100% of the time" has a similarly complex backstory.
> I dunno, does your bakery need that cake? Are your tools at home equal or better than the ones in your office?
Ultimately, if the bakery explicitly says "stop putting your personal shit in the work display", you obey or be fired. Even if it's a better cake, or your at-home tools are better.
The analogy is a little fraught. If a baker bakes at home it's ostensibly not for public consumption. If you work at IBM you could literally code at home too.
This is more like a baker baking things at home, and giving them away for free under their own shingle. That still lacks the nuance of software scalability and licensing but it's a little closer.
A bunch of these tech companies have ip clauses in employment agreements about employees transferring all ip they create to the company, including off hours. It’s probably what they are referring to.
I’m not sure why people sign these things though...
Yeah, I imagine there is something contractual at play, or at least more to the situation than is being reported, but this wording just really irks me.
I understand it's legal but I was always wondering how this could be morally acceptable and why developers don't lobby against this. I understand the view of the employer: if you work on a project A at work, and on a n open-source project B that is direct competition to project A, you might be acting against the interests of the company. So to save everybody's time, they claim the right to everything and it's done.
However, this is hurting you as developer when you work on unrelated projects. Your work for the community is impeded (e.g. in the case of Google you need to go through a lot of bureaucracy) or completely impossible. In theory you can write some code for yourself, but what motivation do you have, knowing that your employer will be its owner anyway? You will have less motivation to explore new areas of interest for the same reason. It's terrible for personal development.
IANAL, but as I understand it, it's not legal in the UK, EU or California (but it doesn't take much for a company to be able to claim the IP - using a company laptop or a company subscription to a journal, for example, would easily push it over the edge)
It's true but they also have a reasonable set of processes for open sourcing things. I have been through various forms of it a few times and never had problems getting permission.
I can understand both points of view, but I imagine from Google's standpoint: they do an incredibly large number of things, "working hours" are often a pretty nebulous concept in the world of software development, and simple accidental leaks could lead to bad litigation situations or critical IP leakage.
I came to the conclusion early on that that is the nature of capitalist work generally, so pick your poison. I don't agree with the whole system, but also don't think this employer is worse than most others on that front. It's just formulated in a legal clause where other employers might just litigate later if they needed to.
I get paid well, and have never had a problem -- or seen others have problems -- open sourcing things where it made sense; including things that I worked on at work during work hours such as abandoned/cancelled projects or things that made sense for the community to have access to.
EDIT: also your tone sucks, this is HN not reddit.
No, realistically, it is called exempt salary works for hire, and there are legal limits to it. No salaried job has "set hours".
The limits you can work with are: working on your own equipment, non-working hours, working on it at home in an area not typically used for $dayjob, the subject of the work, and above all else your locality. These agreements are generally overreaches by the lawyers drafting them, depending on the nature of the job. Remember: no contract can limit rights granted to you under the law, every contract has limits, and you cannot be prevented from working, even if stated otherwise.
Washington, for instance, has state laws against this kind of IP assignment.
IANAL, so don't read into this too much, but I have consulted IP attorneys about this. If you're doing something like this, definitely consult -- the kind of work you do does matter. In this guy's case, it seems he does have a conflict of interest w.r.t. the work he does for IBM.
'I own everything you create' is intellectual slavery, plain and simple. It is nowhere near as bad as full slavery like before the U.S. civil war, but it is slavery of the mind none the less. Saying that in some cases your master may be willing to let you take credit for what you created on your own time and share it, this frames it as a gift that you may be given if you are deemed worthy enough and it does not hinder the company's interests. Think about that - you are being something you created as a gift, and there is no guarantee that you'll be given it, and you won't know until you create it and submit the request.
I suspect all the FAANG companies do this, because they are big enough to get away with it and the cachet of having them on your resume is impressive enough convinces some that it's worth it.
If it weren't legal I could go and say "oh, I invented that algorithm in the morning in the shower, sorry company not yours" Creative work, software development isn't like factory work, where you switch off the assembly line and are done.
The complicated part is to find the right balance. Company lawyers will by default be more protective over the company.
It is not obvious such contracts are legal without any form of compensation. E.g. some company have a clause where if you invent something in your free time they can choose to buy the invention from you at a fixed price determined by the contract, and that is legal. But it is not as clear that just getting all intellectual property without any extra compensation is legal. A contract need to be quid pro quo, and in addition to that local employment law can contain limitations.
> just getting all intellectual property without any extra compensation is legal
Generally it's not legal. Under Canadian contract law at least you need to offer some compensation for a specific clause in the contract that involves transfer. That's also why you see stories like "she purchased the IP off Nortel for $1". Makes it harder to call foul later. Not a lawyer, but this is how it's been explained to me.
As a matter of general Anglo-American contract law it’s true that a contract needs to have consideration (i.e. something for each side) but each clause in a contract doesn’t. So if you are being paid to work then that’s sufficient consideration for all the employment terms. There doesn’t need to be identified additional compensation for each requirement the employer imposes.
As a co-op student for IBM in the late 90's I had to sign something similar... Anything I worked on outside of work... And for x years after leaving the company belonged to them. Was an eye opener for sure.
It's the same thing, really. They pay you for eight hours but continue to own you for the next 16 hours. They pay you for two years but continue to own you for the next two years after they no longer pay you.
Yes. I had one company try to get me to sign a non-compete that would have ensured I couldn't get a job in my field for two years unless I moved across the country. I countered that I would sign that, if and only if (a) I was paid a two-year salary equivalent bonus on hiring, and (b) my offer was tripled since they expected to own everything I created 24/7. They backed down from requiring the noncompete.
True but it becomes more of an issue once it evolves to be an industry standard. You're not forced to work for IBM but you're pretty much forced to work somewhere.
The legal perspective/doctrine here is that people who produce IP as a core part of their work are "always on." They're not paid for hourly labor, they're paid for an intellectual product which only loosely relates to hours worked.
Note that I'm not necessarily endorsing that view, but stating what it is.
In Australia I’ve had a lot of success negotiating that part of the contract out, or reducing its scope significantly. I’ve only ever had one contract where they really didn’t even want to discuss it let alone work with me on negotiating a satisfactory clause (I walked away from the offer instead)
Generally, most companies use boilerplate employment agreements provided by their lawyer/HR person/firm. The reaction I usually get is that employers are surprised to learn that clause was even in there, and had no problems removing it.
Granted, these were small companies and not tech focused. There was really no conceivable overlap between my side projects and their line of business.
MY ADVICE:
Use a little human psychology here.
Don't create conflict by refusing to sign it, or create work for them by asking them to amend the contract.
Instead, amend the contract yourself. Draw a line through the offending clause. Sign the amended contract. Let them know about the amendment you made because you have side/hobby/opensource/whatever projects whose ownership you can't sign over to the company. Ask them to re-sign the amended contract.
In other words, make the acceptance of your proposed changes the "path of least resistance"... know what I mean?
One acceptable way I've seen this implemented is: Anything you create, that could be sort of work related belongs to your employer. The employer will be required to compensate you for the time you spends, if they want the whatever you built.
There's a variation that says the employer has to buy it from you, and if they don't want the thing, then you can sell it to someone else, or give it away.
This is a game for many multinational corporations though, because they work on so many things that almost anything could be construed as something relating to one of their product domains.
The troll in me wonders - if forced in such an immoral agreement, would it be possible to create a slew of shady projects with the sole purpose of making the company deal with any fallout. Anything the company wouldn't want to be associated with basically. Then automate and repeat as a form of protest :)
That’s the deal about those things - the company has all the power in this situation.
Usually if the company finds out you’re doing something they really don’t want to be involved in they do one of the following:
- Officially distance themselves from your project (some people actually abuse this to get free reign over a side project by weaving in pornography, gambling, etc.)
- Tell you to cease and desist immediately or face repercussions.
- Deem you a legal risk and fire you on the spot for code of conduct breach or just simply lay you off. (yes, severance is pennies compared to legal risk for some companies)
> I’m not sure why people sign these things though...
The clauses are usually (in my experience anyway) restricted to things that are "related" in some way to your core work. I personally don't question the boundaries on this "related" and assume that anything that involves writing code belongs to my employer. This doesn't bother me because I rarely write code outside of work [0], and I suspect most people who are employed full-time to write software are the same.
[0] Rare exceptions: solving silly puzzles when I get nerdsniped, and automating random things on my personal phone/laptop. If my employer finds out I'm doing either of those and would like to claim they own the IP for them, they can be my guest.
It's standard in all IT contracts. You will not get a job otherwise.
The point isn't that they take everything, but you'd have to run it by them for approval. You are not then not allowed to have e.g. a second job with a potential competitor or provide the same service as a freelancer as through your company.
In this case, I assume IBM wants its employees contributions to be noted as open source support. They are a major contributor to Linux, in and off paid hours, they will not have a problem with one employee doing open source work, just want the PR.
One funny anecdote, I went through a relatively lengthy recruitment process for a company. The company, the role, the team, the tech, everything was interesting and enticing. We eventually agreed on compensation and the process moved on. I asked for a copy of the contract minutes before they had everything ready so I could read it without causing delays, which they complied.
I pointed out a few minor details but this one was sticking out so I was pretty clear that I was bothered by that. After a few of their tentatives to explain why and convince me it was fine and that clause had never been enforced, and that my comments had reignited internal conversations about this, in one call I was told they were in advanced talks with legal to make the change.
I told them I would be delighted to be in touch again when the clause was removed from my contract.
Very few developers are paid by the hour. Your contract defines what hours you're expected to be available, but your pay isn't related to that. If you work more hours, or less hours, you pay doesn't change (assuming you're not paid overtime.)
Whether or not your employer owns what you do in your hours outside of what you're contracted to work is a matter of what you negotiated when you joined. That often comes as a surprise to less experienced developers.
If you are a salaried worker at IBM and choose to work on an IBM driver in the IBM kernel driver directory in your spare time isn't that fair?
In other words, if you optionally choose to do work after hours for no extra pay then it's still considered work and the company is probably still liable for it.
On the other hand if he chose to write and publish music in his spare time, or a video game, he should he able to use his personal email address, or I would hope IBM would give him permission to do so.
> If you are a salaried worker at IBM and choose to work on an IBM driver in the IBM kernel driver directory in your spare time isn't that fair?
In that case, everyone would agree that the work was done in their capacity as an employee. The employee isn't going to dispute that, or they'd essentially be admitting to unauthorized use of IBM systems.
Perhaps I misinterpreted in the IBM kernel driver directory. I'm imagining a developer remotely accessing their IBM workstation.
The developer could contribute to a Free and Open Source IBM driver on their own time, and reasonably insist that IBM do not get to claim ownership, the same way anyone else can.
Whether that's a sensible choice of personal programming project, is another matter. It's unhelpful to muddy the waters.
This is tricky. There is one sense of "spare time" which concerns output - you aren't always expected to be working. But salaried knowledge workers are commonly considered to have no "spare time" in an intellectual sense, especially when it comes to overlap with the company's core competencies.
This is obviously controversial for individual contributors, but it's well established in IP precedent. It's why you can't work at Google and develop a competing product in your off hours, even if it's "on your own time" and on your own equipment.
In this case, it appears the employee was being paid to work on this part of the kernel driver by IBM.
The sticking point is that he wanted to use his personal e-mail address for the work but IBM wanted him to retain the attributions to his professional and paid association with IBM.
Your employer writes your contract of employment and has fancy lawyers to make sure everything works in favour of the employer. You likely did not have input into the contract at all, and also likely did not have fancy lawyers to help you understand the terms of the contract. Your employer has made up the rules of the game and you do not understand them.
I've had a lawyer review my employment contract before. I've had it modified.
It's totally worth it if you're getting paid a good SWE or higher salary. You can run the numbers on odds of litigation and on expected costs/benefits.
Once you do it once or twice, you start being able to understand the legal code a little bit better.
And yes, it is a code. Employment contracts are overly broad, and then limited by statutory law. At one point, I had an OC tell me I was reading something wrong. I make it a policy never to take advice from an OC, so I called up my employment lawyer.
For once, OC was right.
That almost never happens.
The layman's read made the contract totally untenable, but what it meant was perfectly reasonable. This was years ago, but I think it was some overly-broad we-own-your-life clause (non-compete or out-of-work-time or similar, probably). Statutory law made such clauses of limited power in my state, and it didn't block what I wanted to do.
The last company i worked for wanted to charge employees for laptops in case of accidental damage or loss (appart from a clause charging for negligent damage or loss).
I decided not to sign unless they removed the accidental part. In the end they removed it.
People dont realise but they have more power than they think. Specially in smaller companies.
Companies wait until the end of the interview to reveal all those nasty bits. But at that exact time, it's when they know they need you and they wa y you. Ask for your a copy of your contract before you decide. And feel free to comment on it. It is the only moment when you as an individual have the upper hand.
> Ask for your a copy of your contract before you decide
Hmmm, usually when I change jobs it goes like this: apply for job -> receive offer letter -> make decision -> sign offer letter -> give notice -> wait out last two weeks -> sign a bunch more stuff on the first day of the job or during the last two weeks, usually including what I think of as the contract. I could be wrong, I'm trying to be more conscious of these things.
It seems like in this scenario, you might get hit with this info after you've turned in your notice with your current job. Did they really let you see everything you needed to sign before you turned in your notice? Is that a normal request?
I always ask to review the paperwork before I make a decision.
It's never been a problem.
Now, I don't job hop a lot, so that's not a large sample size, but at least the companies I worked for all let me review paperwork before deciding. Not all let me change it, but many did. It's not strictly a function of company size either.
And if they don't let you review it, that's a sign too. If someone is using information asymmetry against you, it's a bad sign. Likewise, if you're getting an offer, and you know you have 100,000 stock options, but no idea the size of the pool, it's probably not a place you want to work.
First job out of college, you'll probably get fleeced, and that's probably okay -- you're mostly building your resume and learning -- but most of the time, you should hold your employers to reasonable expectations.
I should also mention -- you learn a lot talking to lawyers. Part of the upside is reviewing your new contract, and part, it's an educational expense. The more you learn on your own going in before talking, the less you'll spend, and the more you'll get out.
America's ubiquitous but "invisible" "caste system" controls the poor and middle-classes with expectations of consumption, debt, "hard work is your duty," and meeting unreasonable demands.
It would probably only take a handful of engineers to mount a solid DoS attack by requesting approval for every shell script they write, home Ubuntu ISO they install, or neighbour's printer they fix to get this policy a little more sensibly refined. In any case whoever wrote that e-mail to him is not someone I would possibly tolerate working for
This is not a DoS attack -- this is business as usual, in some environments. And the employees cannot proceed with releasing scripts, patches, or other software until they have approval (this is the case we're talking about, not "ISO installs" or "neighbor printer fix").
This all feel like something only a fevered corporate mind could dream up. But on the other hand it follows the same pattern IBM/Red Hat took w/r CentOS.
This probably works in the U.S.A. (or some of its states only, even), but prohibiting open-source work on the employee’s spare time is, to the best of my knowledge, illegal in most of Europe. Unless of course in the case of blatant conflict of interest between the open-source work and the product being worked on during company time.
Contracts still include such clauses (mine does say that all intellectual property at any time during the validity of the contract is the property of the company), but no company in their right mind would go to court trying to enforce it.
The article isn't 100% clear on this, but I got the impression this was the upstream driver for an IBM product (VNIC) that the guy worked on as part of his job, but listed his gmail address in the maintainers file... In which case, fair enough.
If they work on it as part of their job, then sure (although I find the tone of the email very unprofessional). But it would have made more sense to update the file with a linux.ibm.com address like the other maintainers, rather than delete it.
IBM Power SRIOV Virtual NIC Device Driver
M: Dany Madden <drt@linux.ibm.com>
M: Lijun Pan <ljp@linux.ibm.com>
M: Sukadev Bhattiprolu <sukadev@linux.ibm.com>
L: netdev@vger.kernel.org
S: Supported
F: drivers/net/ethernet/ibm/ibmvnic.*
And so it looks like Lijun was asked to remove himself from the project (perhaps because he was reassigned at work or who knows why) and instead put himself with a gmail account, and then that was noticed and 'nice tried'.
As I said, mine too, that does not mean it is in any way legal (and as most of my coworkers have FOSS projects of their own, I would like to see them try).
I believe the use of a contract and signatures in fact does literally make it legal, since that is the point of a contract. Everything depends on what you signed.
A contract cannot override law. A prime example is the minimum wage laws - it is illegal for an employer to pay less than the minimum wage, and an employee can't sign a contract to make it actually alright after all.
There are laws, and there are judgements which are the courts interpretation of the laws; a signed contract does not have the power to overturn either.
It is the job of HR & Legal depts to make sure a contract is legally viable, not mine, and I happen to know my rights. There are at least 5 illegal clauses in my contract, and I am certainly keeping them close by if I need to go to court against them one day.
I don't see how that is enforceable except in circumstances where the creative content of your work is in some way related to what the company is involved in (which can be expensive for a large for a multinational corp., admittedly)
For example, the photographs of your family taken by yourself. Would you expect your employer to retain copyright?
In Spain your employee must pay for “after business hours” exclusivity in the monthly payroll. It must clearly state that every month the company pays for the exclusivity. It’s not enough with a contract saying you cannot work after your business hours, they must pay for it and they must proof they are paying it in the monthly payroll.
Not sure in other countries, but probably in Western Europe and 100% sure in Spain even large corporations know it’s really hard to enforce contractual and post-contractual exclusivity, unless the employee breaks some IP of the employer.
Still, it is always a good idea to tell your new employer that you are “moonlighting”.
Russia is even stricter: to transfer the IP from the employee to the company the company must first give the employee that specific task in writing. Even if you write something on company time and using company tools it's still yours, the company can just fire you for misusing their resources.
I don't think things like this lie on the capitalism-communism spectrum. You're an employee during work hours, and what you do outside of work hours is your own. It's completely orthogonal to capitalism or socialism. Capitalism definitely has its issues, but this is not one of them as far as I can tell.
Who said anything about Communism? I’m talking about the people who do the work for a business owning and managing the business themselves, and competing in a free marketplace.
Having a class of workers and a class of capital owners is central to capitalism.
No, my view is essentially that companies should be democratic institutions, and in order to achieve that it means the workers must also be capital owners.
Corporations today are essentially authoritarian regimes, whose agents have wide remit to dictate the working conditions of other people.
The bit that usually confuses people about the socialist axis is that capitalism vs socialism is always framed in terms of free market enterprise vs statism; I’m arguing you can keep the free market dynamic while having a truly empowered workforce (not just some management spiel). This is very different to the models where the state either runs everything, or taxes private enterprise to run half the things.
It’s a good question; the exact instruments used would be for the employees to decide, but I would propose either restricted or common stock for the initial grant.
The weird part is that IBM employees contribute to the kernel with personal email addresses all the time. I think this was one confused mid-level manager rather than company policy at work unless things have changed quite recently.
Sounds like an overzealous manager "respect my authoritah." I often find such people tend to be narcissistic trying to get control of other people because their own lack of internal sense of control.
Edit: It isn't helpful for morale and makes employees want to leave whenever autonomy, purpose, social cohesion/community, and/or meaningfulness are threatened with, or actually, eliminated. I worked at a Big Name university academic dept where an insecure/inexperienced new manager postdoc came in and told the developers they're going to do X his way and they all immediately quit. And that classic video about motivation. https://www.youtube.com/watch?v=hmWD2HdoZ7k
Do they contribute to the kernel with personal emails on IBM maintained projects? I could easily see a "We're IBM, we're going to maintain our IBM drive, here's the list of IBM maintainers" rule which would preclude a personal gmail account (especially if you were assigned OFF the project internally).
I don't see how this is legal anywhere but with IP exfil concerns, lack of disclaiming representation of views and effort, and/or not working on personal time on personal equipment at home.
Did the story's subject work on company equipment from work?
To be fair, they should have the right to say you can't work on our project as a hobby. They did at least make an effort to say this was related to just VNIC.
Why would IBM care that an employee spend free time working on something. Can they be held legally responsible or something? I can understand that if it's with normal working hours that they would like IBM to get the credit associated with a commit to the Linux kernel. That seems reasonable, given that they effectively bought that persons time.
Also, is it only because he committed code to something related to IBM? Could he have submitted patches to other unrelated parts of the kernel, without using his IBM email?
If the employee works in a similar area within the company then there is no defense against copyright infringement in IBMs commercial product(s).
Every IBM software engineer knows this and is inculcated annually. IBM basically doesn't care what you're doing unless there is a clear legal reason, at which point the company will move heaven and earth.
Check the MAINTAINERS file in your current kernel sources:
IBM Power SRIOV Virtual NIC Device Driver
M: Dany Madden <drt@linux.ibm.com>
M: Lijun Pan <ljp@linux.ibm.com>
M: Sukadev Bhattiprolu <sukadev@linux.ibm.com>
L: netdev@vger.kernel.org
S: Supported
F: drivers/net/ethernet/ibm/ibmvnic.*
I don't know how to dig the diffs out of the kernel (maybe git blame on Linus' tree?) but clearly Lijun changed from his IBM address to his personal address at some point, and now the personal address is being removed.
Obviously the practical problem employers have is that some employees will research using company time then produce on "personal time". It's a phenomena common to industries where creative work is compensated. Consider music, Hollywood, academia, etc. - other industries where this type of stipulation is common.
Perhaps I’m misreading this, but it appears that IBM employed him to work on this kernel driver. He was getting paid to do this, but he used his personal e-mail address. IBM wanted him to attribute his IBM-paid work for hire to IBM.
If IBM was prohibiting employees from working on unrelated projects in their off time, that would obviously be bad. However, if they’re paying people to work on teams to develop open-source code, it’s not unreasonable to expect them to use their IBM e-mail address to do it.
Both ends of this subject are equally stupid and tone deaf.
First of all the employee was working on a driver for an IBM product and is an IBM employee so the IBM opinion is not completely wrong even if awkward and extreme. If the employee wants to work on their employers products, even as a hobby outside of work, they should disclose their affiliation even if my email address.
Secondly, many employers forbid moonlighting even when profit is not a motive. This is rare for a technology company but common for financial companies due to potential for ethical conflicts in both regulations and transfer of funds/services.
On the other hand I remember submitting an RFC ID about 12 years ago for an alternative web technology where the technical merits of the idea would later become proposals in other forms more directly aligned to HTML5. The idea went back and forth on the mailing list about how it wasn’t worth considering unless directly aligned with HTML5 regardless of any technical merits. I eventually said “fuck this” and left. I remember after that side comments about how I wasn’t really employed by Sabre. I listed Sabre as my primary employer on the last page of the document. I didn’t have a Sabre Holdings email address because I worked for Travelocity a wholly owner subsidiary that did not own IP (Sabre did). I was also contributing to the mailing list using my military email because I wrote the document while working at Travelocity but had temporarily separated for a military deployment to Afghanistan. Fuck that group.
My experience from working on open source taught me that an employer owns it and can slap a patent on it if not already exposed to the public. So, always expose your hobby work to the public using extreme licenses like AGPLv3 or CC0-1.0 and completely separate that work from any revenue stream until you are ready to incorporate.
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[ 1.9 ms ] story [ 165 ms ] threadhttps://news.ycombinator.com/item?id=26869877
Edit: Meaning the tone and language suggest a work culture you might want to avoid. Separate from any actual policy.
I might be wrong, please correct me if so.
[1] https://www.forbes.com/sites/joanmichelson2/2019/02/01/7-tip...
1) highly dependant of where you are
2) still worth discussing when companies do try to enforce that for no good reason, even if they can (and often they can't, but still do as a scare tactic)
The law isn't the end of all things.
Then it should say so in the comment. Preferably adding their thoughts about it, whether it's enforced in their company, etc.
Debating whether you're technically an employee 100% of your time is both true and needlessly pedantic.
Many companies put these IP and non-competition clauses into bonus award agreements. By accepting a bonus you agree to a bunch of terms and that’s where consideration comes in and makes it a real contract and legal. I have less of a problem with this arrangement than the back door approach.
If I work for a bakery, bake a cake at home, and come put it in the display cooler at work, they might have issues with that.
There’s more to that than the simple example you give.
It's likely "You are an IBM employee 100% of the time" has a similarly complex backstory.
> I dunno, does your bakery need that cake? Are your tools at home equal or better than the ones in your office?
Ultimately, if the bakery explicitly says "stop putting your personal shit in the work display", you obey or be fired. Even if it's a better cake, or your at-home tools are better.
This is more like a baker baking things at home, and giving them away for free under their own shingle. That still lacks the nuance of software scalability and licensing but it's a little closer.
I’m not sure why people sign these things though...
However, this is hurting you as developer when you work on unrelated projects. Your work for the community is impeded (e.g. in the case of Google you need to go through a lot of bureaucracy) or completely impossible. In theory you can write some code for yourself, but what motivation do you have, knowing that your employer will be its owner anyway? You will have less motivation to explore new areas of interest for the same reason. It's terrible for personal development.
I can understand both points of view, but I imagine from Google's standpoint: they do an incredibly large number of things, "working hours" are often a pretty nebulous concept in the world of software development, and simple accidental leaks could lead to bad litigation situations or critical IP leakage.
So its "mother may I?" for the 'privilege' of working for such a shit company?
For a company to claim ownership of everything I do when not working is called indentured servitude or slavery.
I get paid well, and have never had a problem -- or seen others have problems -- open sourcing things where it made sense; including things that I worked on at work during work hours such as abandoned/cancelled projects or things that made sense for the community to have access to.
EDIT: also your tone sucks, this is HN not reddit.
The limits you can work with are: working on your own equipment, non-working hours, working on it at home in an area not typically used for $dayjob, the subject of the work, and above all else your locality. These agreements are generally overreaches by the lawyers drafting them, depending on the nature of the job. Remember: no contract can limit rights granted to you under the law, every contract has limits, and you cannot be prevented from working, even if stated otherwise.
Washington, for instance, has state laws against this kind of IP assignment.
IANAL, so don't read into this too much, but I have consulted IP attorneys about this. If you're doing something like this, definitely consult -- the kind of work you do does matter. In this guy's case, it seems he does have a conflict of interest w.r.t. the work he does for IBM.
I suspect all the FAANG companies do this, because they are big enough to get away with it and the cachet of having them on your resume is impressive enough convinces some that it's worth it.
Their process is public actually, you can take a look: https://opensource.google/docs/releasing/
[1] https://www.californialaborandemploymentlaw.net/2017/intelle...
No one should ever be able to contract away a right.
That's bullshit. One step of signing away a right is a direct slope to slavery.
The complicated part is to find the right balance. Company lawyers will by default be more protective over the company.
Generally it's not legal. Under Canadian contract law at least you need to offer some compensation for a specific clause in the contract that involves transfer. That's also why you see stories like "she purchased the IP off Nortel for $1". Makes it harder to call foul later. Not a lawyer, but this is how it's been explained to me.
The problem is how many people seem to be surprised by it after signing their contract.
This is the even more crazy part. They continue to own you after no longer paying you.
If there were many companies offering the same pay, with a higher ratio of offerings to applicants than yes that would be applicable.
I'd your trying to say that they can sign away their rights than that is a different argument.
Pay and rights arnt/shouldnt be interchangeable, I'll work for you for X money but there isn't an amount that will make me give uo my rights.
Why? Well someone else will undercut that , and then they will be undercut and you eventually end up with no rights.
Note that I'm not necessarily endorsing that view, but stating what it is.
Generally, most companies use boilerplate employment agreements provided by their lawyer/HR person/firm. The reaction I usually get is that employers are surprised to learn that clause was even in there, and had no problems removing it.
Granted, these were small companies and not tech focused. There was really no conceivable overlap between my side projects and their line of business.
MY ADVICE:
Use a little human psychology here.
Don't create conflict by refusing to sign it, or create work for them by asking them to amend the contract.
Instead, amend the contract yourself. Draw a line through the offending clause. Sign the amended contract. Let them know about the amendment you made because you have side/hobby/opensource/whatever projects whose ownership you can't sign over to the company. Ask them to re-sign the amended contract.
In other words, make the acceptance of your proposed changes the "path of least resistance"... know what I mean?
There's a variation that says the employer has to buy it from you, and if they don't want the thing, then you can sell it to someone else, or give it away.
Two reasons actually:
1. Companies actually need those agreements because it's how copyright works [0].
2. Capitalism - companies have leverage.
[0] https://www.joelonsoftware.com/2016/12/09/developers-side-pr...
Usually if the company finds out you’re doing something they really don’t want to be involved in they do one of the following:
- Officially distance themselves from your project (some people actually abuse this to get free reign over a side project by weaving in pornography, gambling, etc.)
- Tell you to cease and desist immediately or face repercussions.
- Deem you a legal risk and fire you on the spot for code of conduct breach or just simply lay you off. (yes, severance is pennies compared to legal risk for some companies)
The clauses are usually (in my experience anyway) restricted to things that are "related" in some way to your core work. I personally don't question the boundaries on this "related" and assume that anything that involves writing code belongs to my employer. This doesn't bother me because I rarely write code outside of work [0], and I suspect most people who are employed full-time to write software are the same.
[0] Rare exceptions: solving silly puzzles when I get nerdsniped, and automating random things on my personal phone/laptop. If my employer finds out I'm doing either of those and would like to claim they own the IP for them, they can be my guest.
In this case, I assume IBM wants its employees contributions to be noted as open source support. They are a major contributor to Linux, in and off paid hours, they will not have a problem with one employee doing open source work, just want the PR.
US is not the whole world. In some of the other parts of the world this wouldn't even be legal.
One funny anecdote, I went through a relatively lengthy recruitment process for a company. The company, the role, the team, the tech, everything was interesting and enticing. We eventually agreed on compensation and the process moved on. I asked for a copy of the contract minutes before they had everything ready so I could read it without causing delays, which they complied.
I pointed out a few minor details but this one was sticking out so I was pretty clear that I was bothered by that. After a few of their tentatives to explain why and convince me it was fine and that clause had never been enforced, and that my comments had reignited internal conversations about this, in one call I was told they were in advanced talks with legal to make the change.
I told them I would be delighted to be in touch again when the clause was removed from my contract.
They never called back. :)
Very few developers are paid by the hour. Your contract defines what hours you're expected to be available, but your pay isn't related to that. If you work more hours, or less hours, you pay doesn't change (assuming you're not paid overtime.)
Whether or not your employer owns what you do in your hours outside of what you're contracted to work is a matter of what you negotiated when you joined. That often comes as a surprise to less experienced developers.
Because it is utterly unreasonable.
In other words, if you optionally choose to do work after hours for no extra pay then it's still considered work and the company is probably still liable for it.
On the other hand if he chose to write and publish music in his spare time, or a video game, he should he able to use his personal email address, or I would hope IBM would give him permission to do so.
In that case, everyone would agree that the work was done in their capacity as an employee. The employee isn't going to dispute that, or they'd essentially be admitting to unauthorized use of IBM systems.
The developer could contribute to a Free and Open Source IBM driver on their own time, and reasonably insist that IBM do not get to claim ownership, the same way anyone else can.
Whether that's a sensible choice of personal programming project, is another matter. It's unhelpful to muddy the waters.
This is obviously controversial for individual contributors, but it's well established in IP precedent. It's why you can't work at Google and develop a competing product in your off hours, even if it's "on your own time" and on your own equipment.
The sticking point is that he wanted to use his personal e-mail address for the work but IBM wanted him to retain the attributions to his professional and paid association with IBM.
Your employer writes your contract of employment and has fancy lawyers to make sure everything works in favour of the employer. You likely did not have input into the contract at all, and also likely did not have fancy lawyers to help you understand the terms of the contract. Your employer has made up the rules of the game and you do not understand them.
I predict you're going to lose.
It's totally worth it if you're getting paid a good SWE or higher salary. You can run the numbers on odds of litigation and on expected costs/benefits.
Once you do it once or twice, you start being able to understand the legal code a little bit better.
And yes, it is a code. Employment contracts are overly broad, and then limited by statutory law. At one point, I had an OC tell me I was reading something wrong. I make it a policy never to take advice from an OC, so I called up my employment lawyer.
For once, OC was right.
That almost never happens.
The layman's read made the contract totally untenable, but what it meant was perfectly reasonable. This was years ago, but I think it was some overly-broad we-own-your-life clause (non-compete or out-of-work-time or similar, probably). Statutory law made such clauses of limited power in my state, and it didn't block what I wanted to do.
I decided not to sign unless they removed the accidental part. In the end they removed it.
People dont realise but they have more power than they think. Specially in smaller companies.
Companies wait until the end of the interview to reveal all those nasty bits. But at that exact time, it's when they know they need you and they wa y you. Ask for your a copy of your contract before you decide. And feel free to comment on it. It is the only moment when you as an individual have the upper hand.
Hmmm, usually when I change jobs it goes like this: apply for job -> receive offer letter -> make decision -> sign offer letter -> give notice -> wait out last two weeks -> sign a bunch more stuff on the first day of the job or during the last two weeks, usually including what I think of as the contract. I could be wrong, I'm trying to be more conscious of these things.
It seems like in this scenario, you might get hit with this info after you've turned in your notice with your current job. Did they really let you see everything you needed to sign before you turned in your notice? Is that a normal request?
It's never been a problem.
Now, I don't job hop a lot, so that's not a large sample size, but at least the companies I worked for all let me review paperwork before deciding. Not all let me change it, but many did. It's not strictly a function of company size either.
And if they don't let you review it, that's a sign too. If someone is using information asymmetry against you, it's a bad sign. Likewise, if you're getting an offer, and you know you have 100,000 stock options, but no idea the size of the pool, it's probably not a place you want to work.
First job out of college, you'll probably get fleeced, and that's probably okay -- you're mostly building your resume and learning -- but most of the time, you should hold your employers to reasonable expectations.
I should also mention -- you learn a lot talking to lawyers. Part of the upside is reviewing your new contract, and part, it's an educational expense. The more you learn on your own going in before talking, the less you'll spend, and the more you'll get out.
glad that some things never change in this turbulent world of ours.
Contracts still include such clauses (mine does say that all intellectual property at any time during the validity of the contract is the property of the company), but no company in their right mind would go to court trying to enforce it.
It is the job of HR & Legal depts to make sure a contract is legally viable, not mine, and I happen to know my rights. There are at least 5 illegal clauses in my contract, and I am certainly keeping them close by if I need to go to court against them one day.
For example, the photographs of your family taken by yourself. Would you expect your employer to retain copyright?
Not sure in other countries, but probably in Western Europe and 100% sure in Spain even large corporations know it’s really hard to enforce contractual and post-contractual exclusivity, unless the employee breaks some IP of the employer.
Still, it is always a good idea to tell your new employer that you are “moonlighting”.
Having a class of workers and a class of capital owners is central to capitalism.
Are you arguing for the abolishing of capital and business owners?
Corporations today are essentially authoritarian regimes, whose agents have wide remit to dictate the working conditions of other people.
The bit that usually confuses people about the socialist axis is that capitalism vs socialism is always framed in terms of free market enterprise vs statism; I’m arguing you can keep the free market dynamic while having a truly empowered workforce (not just some management spiel). This is very different to the models where the state either runs everything, or taxes private enterprise to run half the things.
[1] https://medium.com/incerto/how-to-legally-own-another-person...
― G. K. Chesterton
Edit: It isn't helpful for morale and makes employees want to leave whenever autonomy, purpose, social cohesion/community, and/or meaningfulness are threatened with, or actually, eliminated. I worked at a Big Name university academic dept where an insecure/inexperienced new manager postdoc came in and told the developers they're going to do X his way and they all immediately quit. And that classic video about motivation. https://www.youtube.com/watch?v=hmWD2HdoZ7k
Did the story's subject work on company equipment from work?
https://www.theonion.com/ibm-emancipates-8-000-wage-slaves-1...
But are they still IP and branding slaves?
Why would IBM care that an employee spend free time working on something. Can they be held legally responsible or something? I can understand that if it's with normal working hours that they would like IBM to get the credit associated with a commit to the Linux kernel. That seems reasonable, given that they effectively bought that persons time.
Also, is it only because he committed code to something related to IBM? Could he have submitted patches to other unrelated parts of the kernel, without using his IBM email?
Every IBM software engineer knows this and is inculcated annually. IBM basically doesn't care what you're doing unless there is a clear legal reason, at which point the company will move heaven and earth.
According to some of the other comments here, this kernel work may have actually been part of his job rather than an unrelated free-time project.
If IBM was prohibiting employees from working on unrelated projects in their off time, that would obviously be bad. However, if they’re paying people to work on teams to develop open-source code, it’s not unreasonable to expect them to use their IBM e-mail address to do it.
First of all the employee was working on a driver for an IBM product and is an IBM employee so the IBM opinion is not completely wrong even if awkward and extreme. If the employee wants to work on their employers products, even as a hobby outside of work, they should disclose their affiliation even if my email address.
Secondly, many employers forbid moonlighting even when profit is not a motive. This is rare for a technology company but common for financial companies due to potential for ethical conflicts in both regulations and transfer of funds/services.
On the other hand I remember submitting an RFC ID about 12 years ago for an alternative web technology where the technical merits of the idea would later become proposals in other forms more directly aligned to HTML5. The idea went back and forth on the mailing list about how it wasn’t worth considering unless directly aligned with HTML5 regardless of any technical merits. I eventually said “fuck this” and left. I remember after that side comments about how I wasn’t really employed by Sabre. I listed Sabre as my primary employer on the last page of the document. I didn’t have a Sabre Holdings email address because I worked for Travelocity a wholly owner subsidiary that did not own IP (Sabre did). I was also contributing to the mailing list using my military email because I wrote the document while working at Travelocity but had temporarily separated for a military deployment to Afghanistan. Fuck that group.
My experience from working on open source taught me that an employer owns it and can slap a patent on it if not already exposed to the public. So, always expose your hobby work to the public using extreme licenses like AGPLv3 or CC0-1.0 and completely separate that work from any revenue stream until you are ready to incorporate.