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Dealing With an Overly-Restrictive Intellectual Property Policy? 467

Posted by timothy
from the they'll-take-a-mile dept.
An anonymous reader writes "I am very happy with my current job, but there have always been a few ideas for things I've wanted to develop on the side. Ideally I'd keep my day job, reserving mornings, evenings and weekends to see if the side-projects could become viable. The problem is: my employer has an IP policy that states that anything I do while under their employ is theirs, even when I'm off the clock. Does anyone have suggestions about workarounds, magic loopholes, false identity for the side projects? Anything?"
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Dealing With an Overly-Restrictive Intellectual Property Policy?

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  • by Anonymous Coward on Sunday February 12, 2012 @05:27PM (#39013491)

    Disclaimer: Where I work they are cool with "moonlighting", with the stipulation being that you must check with legal. Never been in this situation so this is largely guess work based on stories I've heard from others!

    The obvious is of course to get a new job. I'm sure lots of people are going to recommend that, but of course it is rarely that simple.. especially in this economy and you like where you are working now.

    The less obvious is to negotiate with your employer/your employers legal department. Just be cognisant of the fact that this may inadvertently force you into option 1. If the terms of your employment are there just to cover their ass.. you might be able to work something out if your ideas arn't within their business area. Just keep in mind that you are asking to work on something that you hope will lead to you resigning and pursing full time (I assume) and they may have a problem with that as well.

    I guess the real question is, how sold on your own ideas are you? Willing to risk your job?... because I really don't see a way of persuing this that doesn't end there.

    • by mrvan (973822) on Sunday February 12, 2012 @05:34PM (#39013547)

      What I did at my current (academic) job is to keep copyright with my employer, but have them license it back to me under GPL. This means that if I move jobs or start my own business I can keep working on these projects. You can sell it to them as showing how they (ie, you) contribute to the community etc, and that they keep all IP so there is no danger of you suing them and they can always relicense.

      Downside is of course that your future business model would have to build around an OSS core, but there are various options (OSS backend with proprietary frontend, web business / software as a service (no distribution = no requirement to give source code), proprietary modules that actually make it work (but make sure that the proprietary part cannot be construed as a derived work), etc etc.

      • by Sir_Sri (199544) on Sunday February 12, 2012 @05:41PM (#39013639)

        At least in academia most places let you separate your work on the side. If you want to use your work on the side as part of your research work well that's where you get into your situation. When they ask "what are you doing on our time" you have to say something.

        When it comes to the question at hand, one option is to pitch the ideas to your employer. The other is to get a separate job, or ask to renegotiate that portion of your contract or move into a job within the company with a less restrictive contract. Expect that to come with a significant paycut though.

        You actually run the risk, even asking the question, of implying you have an idea for a product on your current companies time, that you may be thinking about (even if not implementing), so if you leave they may claim that work was done on this project on their time, and you're in violation of their agreement, and they have ownership of some of your work. The question posed could be phrased as 'i have this great idea for a product, how do I get out of having to give my employer any money for it'.

        • by ray-auch (454705) on Sunday February 12, 2012 @05:59PM (#39013809)

          At least in academia most places let you separate your work on the side. If you want to use your work on the side as part of your research work well that's where you get into your situation.

          I wouldn't trust that to be the case everywhere - my recollection is of research grants / studentships coming with "everything you do while you get this grant belongs to...". Plus you had to co-operate in patenting it if they wanted and sign over the patents. etc.

          That was a lot of years ago though - maybe it's all more enlightened, less money focused and less bureaucratic in academia these days...

          • by KeithIrwin (243301) on Sunday February 12, 2012 @07:50PM (#39014573)

            For professors, post-docs, and most assistant positions, the standard university contract in the US tends to say that you own the copyright of everything you do and the university owns the patents. This is likely not the case if you're working as an in-house programmer or copywriter or other similar positions, but for academics, they usually own their own copyright.

            • by Sir_Sri (199544) on Sunday February 12, 2012 @08:06PM (#39014689)

              I'm in canada, and different universities have different rules, some of which even apply to undergraduates. My guess is that harvard doesn't own a large chunk of facebook just because it was developed in their dorm, but YMMV.

              I wasn't trying to do an exhaustive breakdown of IP rights in academia. That would be well outside my very narrow experience of universities in ontario (canada) and east of ontario, and I believe at some places you can negotiate this as part of your contract. The only time I was on a hiring committee no one asked, and I was student rep anyway, so if they did it might have been when I wasn't in the room.

            • by sconeu (64226) on Monday February 13, 2012 @01:31AM (#39016377) Homepage Journal

              Not just profs, etc...

              My daughter works in the dining hall at UCSB, and she got a "Patent Amendment" that she had to sign.

        • by graphius (907855) on Sunday February 12, 2012 @07:14PM (#39014317) Homepage

          You actually run the risk, even asking the question, of implying you have an idea for a product on your current companies time...

          This is one of the reasons I don't think corporations should be able to hold copyright or patents. While the company may have helped fund creation of an idea/project, it was a person, or at most a group of people that actually came up with the idea. I do think that the company should be able to stipulate generous licensing terms, or even be exempt from paying royalties (they already pay the inventor a salary after all), but ownership resides in the inventor. This also gives the corporation incentive to treat their employees well, so they will stay and continue to license the ideas to said corp.

          Of course the downside is that things can become a bit more complicated when a group of people invent something, but any lawyer worth their salt should be able to figure out a succession plan. In fact that is all the corporate ownership really is, a complicated, one sided succession plan....

          • So does that mean that I, as an employer, am unable to hire / employ someone to invent a something new for me? If not, how would I do so?

            • by ArsonSmith (13997) on Monday February 13, 2012 @12:05AM (#39015983) Journal

              you and at most a few others would have to get together and form a legal entity that could then hold that copywright. We could call it a grouporation or a cooperative relationship or something. You'll probably want to make sure you have someone to manage the inventors and some people to help find other talented inventors so you may want to make a people resources department. You'll need to take in some money to get everything started and you'll want some people that can manage it for you so you'll want to hire some money counting people. You'll want to sell your invention so maybe you could have a whole depart^H^H^H^H^Hsection of product price negotiator people. You'll probably want more people to help manage some of these things too. Just as long as it's not a corporation that holds these patents and copywrites.

          • The thing is, companies really don't own any copyrights or patents, unless some person or group of persons enters into a contract with the company giving them the rights to it. This is usually called an employment contract.

            There are three options when approaching this:

            1) (re)negotiate the contract,
            2) find another employer,
            3) go it on your own.

            Option 1 is best applied before signing an employment contract. Once employed you have far less negotiating leverage. Also, the mere fact of renegotiation alerts the

        • by scsirob (246572) on Monday February 13, 2012 @11:34AM (#39019427)

          You actually run the risk, even asking the question, of implying you have an idea for a product on your current companies time, that you may be thinking about (even if not implementing), so if you leave they may claim that work was done on this project on their time, and you're in violation of their agreement, and they have ownership of some of your work. The question posed could be phrased as 'i have this great idea for a product, how do I get out of having to give my employer any money for it'.

          You can get around this by posing the question differently. Simply suggest that you do not have that idea, instead one of your friends does. And your friend has asked if you could help out on the side. You are now doing the prudent thing by asking your employers legal department if they have anything against that.

      • by mysidia (191772)

        Downside is of course that your future business model would have to build around an OSS core

        Then don't use the GPL for this. There are plenty of free software licenses this could be licensed under that would enable you to sublicense.

        For example: You could have them retain copyright, but grant you an irrevokable write to modify, redistribute, sublicense, and produce derivative works.

        Or use the BSD license / Academic Software License / Mozilla Public License.

    • by tchuladdiass (174342) on Sunday February 12, 2012 @05:55PM (#39013771) Homepage

      This may or may not help with the current situation, but with regards to choice 2, (especially during the hiring process) mention that you do some community work on the side for non-profits, and that the entities you deal with want to make sure there are no legal issues with anything you contribute to them. Sell it as you helping your church with their web site (even if you don't have a church...), or helping with backend systems for running a homeless shelter, etc. That opens the door to them letting you adjust that part of your contract -- after all, which employer would want to be seen as squashing their employee's ability to do charity work / help the community?

      Then, take the contract to your lawyer, tell him what you want to have covered, and he will be able to re-word that section of the contract as an amendment for you to have your employer sign. This may work better at hire time than once you've been at a place for a while though. But worth a try.

      • by patchmaster (463431) on Sunday February 12, 2012 @06:37PM (#39014071) Journal

        In my admittedly limited experience, the subterfuge you recommend is not necessary. Just be honest about the situation. If your side projects are in an area that overlaps with your employer's business, then they have a legitimate right to refuse. If there's no overlap, then there's no legitimate reason for them to not make an accommodation.

        I had a side business doing software for material handling. When a prospective employer showed me their IP/non-compete agreement we had a discussion about the situation. They had the lawyers modify the agreement to accommodate what I was doing. The result was we both understood each other's position and knew ahead of time exactly where the lines were drawn. In the end it turned out there was some conceptual overlap between the two endeavors, but this turned out to be to my employer's benefit as things I'd learned in my side business were directly applicable to my primary job. There was no conflict with customers because we were addressing completely different industries.

        Dishonesty is not a good foundation for any kind of new relationship, but especially not for one with an employer.

        • by niktemadur (793971) on Sunday February 12, 2012 @09:08PM (#39015013)

          If your side projects are in an area that overlaps with your employer's business, then they have a legitimate right to refuse.

          You bring up a very valid point. On first impression, overly restrictive intellectual property smacks of intellectual slavery, but then there's always the risk of an employer's ideas, know-how and internal processes being used against them by ambitious yet unimaginative and unscrupulous employees.

          It's a classic scenario, isn't it? The manager of a X business quits and opens a copycat store, sometimes even right across the street, and a working relationship has turned into a rivalry, with the new business having privileged information about how his former employer does what he/she does.
          Then, the new business could sell tacos, sandwiches, salads, pitas, gyros, ANYTHING, but inevitably it's also gotta be burgers, right? WHY does it have to be the exact same fucking thing?

          True story: An office/school supply store was doing pretty good business, until some misguided imbecile tried to duplicate lightning in a bottle and opened another supply store next door. Now there's two businesses sharing the same number of customers in the same block, both struggling to make ends meet now, a toil and chore just to stay afloat.

          Another one: For ages, there were no Spanish cuisine restaurants in my town. One finally opens up, and it's a resounding success. Within a year, there were five Spanish restaurants. Within another year, all had closed down, not enough customers to go around. Meanwhile, during all that time, no Thai or Vietnamese, no Peruvian or Brazilian, no Greek or Turkish, not even a place to get a decent baked potato with toppings. BRILLIANT!!!

        • Before I got my first pure IT job (back in 1984) I was developing sw for my father-in-law's company, I mentioned this during the interview and got an exception clause that would allow me to keep on supporting that software.

          I have since then had a number of offers of new jobs/gone to multiple interviews: I have always mentioned the situation with my father-in-law and it has never been a problem.

          At the same time (1982-1984) I had also developed some terminal emulation/file transfer software which was moderate

    • by LehiNephi (695428) on Sunday February 12, 2012 @06:03PM (#39013841) Journal
      I found myself in exactly the same position about a year ago. Here's the thought process I went through:

      1) If it's a marketable idea, one that could make bucketloads of money, the employer is going to pursue it. They'll even want you to spend work hours on it. Or they'll apply other company resources ($$$) to it.
      2) If it's something you think is super cool, but isn't marketable, the employer isn't going to care about whether you do it on your own free time.
      3) If it's an idea you think is awesome, your employer doesn't agree, and you turn out to be right (it becomes successful), this is the only place where there's a rub. One option (if it's some sort of internet site) is to run it through a proxy (person)--get a friend/neighbor to set up the service but give you all the necessary access to develop/administer it. Another is to fully develop the idea, but hold off on implementing until you're out of the employ of your current employer. A third option is to talk to legal and/or your boss and see if you can carve out an exemption from your contract for work not related to your employer's business.

      For my current employer (who has a policy quite similar to yours), they were very open about the reason for such a policy. Simply put, they're hiring you for your mind, and if you've got a great idea, like it or not you'll be thinking about it during work hours. If you feel your current employer isn't compensating you sufficiently for all of the products of your mind, then you probably need to either A) talk to your employer about it, B) find a new job, or C) reassess how valuable your work really is. No offense is intended, but since you haven't mentioned how well you're paid, or even what industry you're working in, I have to leave it as a possibility.
      • by Anonymous Coward on Sunday February 12, 2012 @06:12PM (#39013893)

        Simply put, they're hiring you for your mind

        No, my employer is hiring me to do work. If they can't tell me ahead of time what work they want done, they have no claim on it.

        and if you've got a great idea, like it or not you'll be thinking about it during work hours.

        I think about a lot of things during work hours. As long as I'm not wasting work time just thinking about stuff, they have no reason to complain and no right to dictate what I can or can't think about.

        • by gbjbaanb (229885)

          no, your employer is paying you to work for them. You are their bitch, you should know this as you agreed to it when you signed the contract that exchanged your time for their money. If you had any sense you'd have read it and had the bit that says "all work done during this employment" changed to "all work done during contracted hours" (or similar)

          If you don't like it, you have 2 choices: ask them to alter the contract terms (as both parties signed) or cancel the contract (by quitting).

          You can try to avoid

          • by epyT-R (613989) on Sunday February 12, 2012 @09:59PM (#39015255)

            no, he is not not their bitch. he is their employee. there is supposed to be a difference, though in today's world things like individual liberty and life balance are dying out in favor of unhealthy social dynamics. I think the bigger point is that employers should not have the right to expect or have such control.. it blurs the line between employee and slave. agreeing to stuff in a contract under duress (which this is since the choice is work or don't eat) is morally questionable at least, and probably against the law.

          • by v1 (525388)

            no, your employer is paying you to work for them. You are their bitch, you should know this as you agreed to it when you signed the contract that exchanged your time for their money. If you had any sense you'd have read it and had the bit that says "all work done during this employment" changed to "all work done during contracted hours" (or similar)

            In most cases people are hired to perform specific tasks. They are not expected to perform tasks far outside the bounds of those things. If you're hired to be

      • by ArsonSmith (13997) on Monday February 13, 2012 @12:08AM (#39016001) Journal

        What other industries have stipulations like this. If I'm a home modeller and I remodel my own house can my employer claim that my house is now theirs?

      • by SirSlud (67381)

        1) If it's a marketable idea, one that could make bucketloads of money, the employer is going to pursue it.

        They may not. (IE, I think your third point is a lot more common than the 1st.) I had a friend who kept trying to get his project made and kept getting shutting down. So he left, and now he on the cusp of making boatloads of money. Companies are risk adverse, and of great ideas are pooh poohed until you're the one that proves that it's commercially viable.

        I'd always recommend what I do, at least within

    • by MSTCrow5429 (642744) on Sunday February 12, 2012 @06:07PM (#39013871)
      Consulting with the employer's legal department is likely to be unproductive. Their client is the corporation, and they are not under any obligation and are likely prohibited by their State bar's code of professional conduct from telling you what is and is not enforceable in an employment contract. Do not contact the employer's legal department absent your own legal representation and do not attempt to negotiate with the employer's legal department absent your own legal representation. You should also consult with a lawyer on what, if any, retaliation the employer may legally perform in response to any attempts to modify or nullify the employer-employee IP contract.
    • The policy is illegal, the same as so many of those non-competes that they copy off the web "because everyone uses them, so they must be enforceable". If you're off the clock, you're off the clock.

      And before all the ID-10-Ts start whinging about "non-exempt" - forget it - there is NOTHING an ermployer can do except fire you, and they only time they'll do that is if your idea is really really good and they're trying to get you to fork it over, in which case, aren't you in the drivers seat at that point?

      • by Kjella (173770)

        And before all the ID-10-Ts start whinging about "non-exempt" - forget it - there is NOTHING an ermployer can do except fire you,

        And sue you and get injunctions to prevent you making money from it. So now you're out of work, paying lawyer fees burning through the nest egg you were supposed to start a business with.

        They cannot claim your off-the-clock work, since you were neither hired to do it, nor paid to do it.

        They will find some bullshit way to say your work is tainted by some IP you've used or seen at your job, and you will be forced to defend against that. The cost of proving that you work is clean and only using general methods and skills is enough that even if you win, you lose.

    • The obvious is of course to get a new job.

      That doesn't always work anyway. Depending on how your IP agreement is crafted, some employers try to lay claim to anything you do up to two years in the future.

      The obvious solution is not to sign a restrictive IP agreement in the first place, or negotiate language changes up front that make it clear what you develop on your own time is your property. I did that, more than once, and turned down jobs when they wouldn't budge.

  • by icebike (68054) * on Sunday February 12, 2012 @05:29PM (#39013501)

    There is quite a bit of variation to be found in the practices of companies with regard to this issue.

    A good write up is found here: http://www.ieeeusa.org/members/IPandtheengineer.pdf [ieeeusa.org]

    The article suggest there are two or three broad models of what is acceptable practice in this ares.

    First

    The Massachusetts Model is so called because it is prevalent in the northeastern United States. It was developed toward the end of the industrial revolution as a response to shop rights. Agreements written on this model tend to imply that the intellectual life of the employee is company property.

    Never backed by law, this model is the most restrictive,

    The cycle of innovation and renewal is fundamental to a healthy market economy. To foster this cycle, individuals require the same protections for non-work-related intellectual property that employers enjoy for work-related creations. In 1977, Minnesota formalized this concept with a law limiting the enforceable terms of pre-invention assignment agreements. The Minnesota Model adopts the philosophy that while the employer should enjoy protection, it should not come at the expense of today's employee to become tomorrow's new employer.

    In California there are similar laws to the Minnesota system:

    The State of California followed in 1980, by implementing protection for its famous entrepreneurial culture. As of this writing Utah, Washington, North Carolina, Kansas, Delaware, and Illinois have also promoted new business formation by means of
    similar laws

    The text of the California law is on the web here [ca.gov]. Washington state Here. [wa.gov]

    Appendix B of the above linked article has a summary of legislation in various states and list of states where such agreements are already limited by state law.

    • by Kjella (173770)

      That's fine to keep your IP... but it's very hard to keep your job if they no longer want you employed. If you like to be able to do it on the side, hitting them over the head with the law might not be the best approach.

      • And that's exactly how they handle it at IBM- You get to choose between your job, and giving them first dibs on anything you may think up on the weekend. A condition of my employment at IBM Global Services was that if I so much as invented a better pair of scissors over the weekend, I was required to present my "invention" to management, or find myself in violation of my terms of employment. No longer work there.
  • by Anonymous Coward on Sunday February 12, 2012 @05:30PM (#39013515)

    Next time, modify the agreement before you sign it.

    • by Anrego (830717) * on Sunday February 12, 2012 @05:37PM (#39013583)

      May be fine if you have lots of experience and they have specifically saught you out...

      For the rest of the world, people are usually just happy to have snagged a job.. the last thing they are gonna do is start making waves before they even get their first pay cheque. Most "negotiations" regarding this kind of boilerplate "everyone signs it" agreement is along the lines of "your employment is conditional on your signing this, if you'd prefer not to, be sure to turn in your card on the way out!"

      • by St.Creed (853824) on Sunday February 12, 2012 @07:26PM (#39014425)

        I used to think that as well. Until I came to be in the position to make demands and say "well, too bad" when they didn't want to meet them. As it turned out, if your demands are reasonable, you're probably going to get most of them approved.

        No contract is ever boilerplate. Sure, they have a template. Usually you will find very few people with the contract as originally proposed.

        That having said, being freelancer I can appreciate the IP issues. So what I normally do is tell people in advance which projects I'm working on, and are mine. Just titles and a very short summary. Never had a problem with that.

        I can also appreciate an employer not liking his workers to moonlight. It always spills over into your normal day job, even if it is just lack of sleep because you were so stoked from your new idea that you couldn't sleep. It always affects them. An open discussion about this, showing you understand those issues and how you will make sure they are mitigated, will usually go down well. Not always though - understand how your boss operates before doing anything.

      • by Rakishi (759894)

        Wow, you lack a spine don't you?

        "your employment is conditional on your signing this, if you'd prefer not to, be sure to turn in your card on the way out!"

        And then they either spend another $10k+ looking for another potential employee or hire someone they deemed inferior to you. Finding qualified workers is generally a pain in the ass across the board in IT. So the company is on the hook as much as you are at that point.

    • by Almahtar (991773)
      I've worked for a few places that gave me their invention assignment agreements in .doc format. They wanted me to print it, sign it, give it back.
      If I'd felt the terms were not reasonable I would have just edited it, signed it, and handed it in without a word. Problem solved.
      In my case the terms were reasonable enough so I left them unmodified.
      • Nice try, but it would be an invalid contract because there was no "meeting of the minds" to assent to the new contract. Of course if the terms were unfavorable, you might not be interested in a valid contract, and just wanted to shut HR up... which is fine, but it's not an enforceable contract.

        • by pla (258480)
          Of course if the terms were unfavorable, you might not be interested in a valid contract, and just wanted to shut HR up... which is fine, but it's not an enforceable contract.

          This.

          The terms of such agreements, without exception, contain nothing even the slightest bit favorable to the employee. Going forward without a valid contract, complete with the possibility of having them send you packing at a moments notice, usually works out more favorably than agreeing to their boilerplate.
        • A company officer would have to have signed it after the submission by the prospective employee in order for it to be a valid agreement. If said officer was silly enough to have signed it without reviewing it and any modifications, well, that's their problem.
    • by EdIII (1114411) on Sunday February 12, 2012 @06:03PM (#39013845)

      Next time don't even sign it.

      The last W2 job I ever worked tried to force something like this on me as well. My response was a lengthy legal agreement in which it spelled out all IP that I currently owned, was involved in creating, limited the scope of the IP they wanted to control to their specific business domains, etc.

      They never signed mine, and I never signed theirs. Received a couple of threats from HR, stood my ground, and it just quietly went away. Worked at that company for 3 more years without the signed contract.

    • by the_fat_kid (1094399) on Sunday February 12, 2012 @06:31PM (#39014027)

      "Pray I do not modify it again."

    • I tried this move at one employer with a very vague and all-encompassing non-compete/IP contract, and while I did keep the job and didn't have the sign, the manager I was working with became extremely irate and basically left the table while we were working out which clauses of the contract I was at odds with. That particular firm was quite small and probably didn't relish the cost of recruiting and hiring a replacement, but at a larger firm where I was one of many new hires I don't doubt I would have been

    • GOOD LUCK WITH THAT.

      each time I tried, they immediately find a reason to say they don't want you anymore. they will pluck another servant from the tree-of-humans.

      you have no bargaining power. NONE. you sign or you walk.

      if you think otherwise, you are dreaming.

      I hate this!! but I've found that this is reality in today's world ;(

  • TALK to them (Score:5, Informative)

    by swright (202401) on Sunday February 12, 2012 @05:33PM (#39013535) Homepage

    Yes - explain why you don't like this, and what you intend to do in your spare time that you wish to retain ownership of.

    These clauses usually come from a desire that employees don't misappropriate company IP and use it to write something competing. Or for a competitor (where the 'who owns what' question becomes murkier).

    Any reasonable employer will write you an exclusion, but likely with a no-compete clause, which is fair enough.

    IANAL, but I write the above as an employer, running a tech team of 21.

  • Attorney time (Score:4, Insightful)

    by nurb432 (527695) on Sunday February 12, 2012 @05:34PM (#39013545) Homepage Journal

    Time to talk to an attorney to see what is legal in your state.

    often times the 'restrictions' you are required to sign aren't actually legal and are designed just to scare you, but unless they are challenged they stick.

    If you find out its OK, with a company like that breathing down my neck id still document everything i do off hours so i can clearly show it was done on my time, with my materials if it ever came to that point. " Code section created x-date/time" "Receipts of hardware and software", etc.

  • You can't negotiate (Score:3, Interesting)

    by OzPeter (195038) on Sunday February 12, 2012 @05:35PM (#39013561)

    After the contract has been signed.

    So basically they have you by the short and curlies. But if you do try to hide stuff and manage to make it big time - hope that you make enough to hire a decent lawyer who will tie your current employer in knots. I hear that East Texas can be friendly for that sort of litigation.

    OTOH you can always delve into IP that while legal, would be the sort of thing that your current employer would find repulsive. What was that link again? 1 girl, 2 D sized cups???

    But one final comment. You say that "I am very happy with my current job", but given that you are trying to circumvent your employment contract I'd argue that you are not happy with your current job.

    • But one final comment. You say that "I am very happy with my current job", but given that you are trying to circumvent your employment contract I'd argue that you are not happy with your current job.

      It's not possible to have one gripe with your current job while still enjoying it?

      • by OzPeter (195038)

        It's not possible to have one gripe with your current job while still enjoying it?

        To say "I like my job, but there is this major part of it I want to change" is self deluding. Once you get past that then you can see what is really important to you.

  • by Pathwalker (103) <hotgrits@yourpants.net> on Sunday February 12, 2012 @05:40PM (#39013613) Homepage Journal

    You should have negotiated this before you started employment.

    Once, when I objected to terms that would have granted the company ownership over everything I did outside of work, they just swapped out that page with another one they had ready. The different terms were there and ready, but just not the default. They were perfectly happy to give me the rights to my own projects, as long as I was willing to ask for them.

    It does suck when you didn't pay attention to what you signed, and are stuck in a bad situation, and it can be hard to fix these things after the fact.

    Your best option would probably to look for another job, and pay attention to what they are asking you to sign.

    Hopefully you don't have any long term non-competes, or other clauses.

  • Can that be a legal requirement?

    If I do something legal in my own time on my own equipment in my own home with my own ideas, it has nothing to do with my employer. Surely that cannot stand up in court?
    But I do not have your constitution to 'protect' me.

    • by mjwalshe (1680392)
      Absolutely it can be legal it depends on the jurisdiction and how close the stuff you do in your own time is to your day job eg if you do embedded design at work but develop an nosql system in your spare time you might be OK.

      Certainly both US and UK employment law has similar roots so unfortunately employees get the short end of the stick here. IANAL but I am an "approved" person as defined in UK Law and I have had this discussion with some one who is now in a senior HR role in a FTSE 100 Tech company.
  • by mbone (558574)

    Seek a new job. Otherwise, if your invention or code makes any money, expect to be sued.

  • by dirk (87083) <dirk@one.net> on Sunday February 12, 2012 @05:41PM (#39013629) Homepage

    The first step should be to talk to them about it and see if they will revise it for you. I work for a company that took a boilerplate IP Policy and wanted to roll it out (like I'm sure many companies do). When they did this, I talked to them and asked them to change it because the way it was written, they basically controlled anything I did. I cited the fact that they could use it for anything from claiming rights to a novel I would write, to any invention I came up with, to even using it to force me to take down a personal website I designed for myself. They obviously replied with "but we wouldn't do that" so I asked them to change it since they had no plans to ever do any of that. I rewrote the agreement to include anything worked on during company time or anything directly related to company work, and they had no issues with that. If you are happy with your employer, and have a good relationship with them, going tot hem should be your first step. If they are reasonable (which is a big if depending on the company and area of business) they hopefully won't have any issue changing it.

  • As someone who has been in that situation: go talk to your employer. Some will allow you to modify your employment contract to cover the umbrella case of IP outside of work hours. Some will officially sign over rights to you on a particular side project you're working on. Some simply can't do either, as they have iron-clad contracts with other people who require that clause for rights clarity purposes. Some will offer to partner with you on the project, or otherwise compensate you for the idea but have

    • by Que_Ball (44131)

      And if you're not in one of the states that explicitly grants exemptions, don't just go ahead expecting that you'll win the legal battle.

      Good advice. I would suggest the outcome will depend on if the outside project is related in any way to the job you do. If it can be argued that your knowledge required to complete the project was acquired as a result of your employment or a result of training your received at work then things may not be resolved in your favour.

  • by www.sorehands.com (142825) on Sunday February 12, 2012 @05:42PM (#39013649) Homepage

    When the company has a blanket policy that takes the employee's inventions, it can come to bite them in the ass.

    When I was illegally fired by Microsystems, Inc. ("MSI") they took possession of work I did on my own time using my own tools. However, on the workers comp. claim their denial was based on the claim the tendinitis was caused in part by my work at home. Either MSI fraudulently denied the workers comp. claim, or committed fraud by asserting and taking possession of the work I did on my own time.

    By having a blanket policy of owning everything you do, the employer could be on the hook for everything you do.

  • This kind of work condition is absolutely unacceptable.

  • by Pathwalker (103) <hotgrits@yourpants.net> on Sunday February 12, 2012 @05:45PM (#39013681) Homepage Journal

    If you don't actually own the rights to what you are writing, please don't contaminate open source projects by including code owned by your employer.

    Cleaning up a contaminated code base is a big pain. Please make sure you own the code, or have the rights to release it before setting it free.

  • If you're in California, call me. :) Mention Slashdot and receive 50% off the initial consultation, normally priced at $0.00 (USD).

  • Renegotiate contract, talk to your company about your plans, quit... don't try to cheat your way around a contract you knowingly signed.

    I've been open about my private programming endevors with each employer I worked for, before I signed the contracts, and none have ever been a problem. They usually require you to sign a paper which states you can't use company-specific knowledge/IP/etc (which I find understandable), but otherwise I've never been limited to what I can do in my own spare time. Most employers

  • It'll depend in part on how willing your employer is to negotiate those terms, and in part on what the law in your state is. For instance in California you have California Labor Code sections 2870-2872 [ca.gov] governing IP agreements. That law trumps anything in the agreement. Since I live and work in CA, I make it a point to mark up any IP agreements with a note about those sections before signing it. You'll want to check the law in your state, depending on what it says you may have more leverage with your employe

  • Just strike out those bits before you sign it - chances are they don't actualy care enough about them to argue.

    Of course since you already have, either find out it is overridden by some applicable law or bad luck.

    Don't try and "trick" your way around - while chances are they won't care at all if you happen to luck into the next angy birds/minecraft/facebook/google you can bet those tricks won't hold up when the lawyers come.

  • by subreality (157447) on Sunday February 12, 2012 @05:52PM (#39013741)

    I am very happy with my current job, but there have always been a few ideas for things I've wanted to develop on the side. Ideally I'd keep my day job

    Stop right there and put a period at the end. That's the opening of the letter you send to HR.

    The next part is, "But I'll quit if I have to."

    Then stop and consider real hard whether this is actually true before you sign your name to it.

    Then the ball's in their court. You'll either get canned in short order, or they'll sit down with you and negotiate a contract where you belong to them during business hours but you own your own soul afterward. Which result you get depends on what kind of company it is... Some really do think that owning your whole life like property is the proper order of the world and be offended at your sheer audacity of thinking otherwise. Perhaps if they're paying really well that will be worth it, but if that was the case, you wouldn't be here now, would you?

    I personally suggest you reneg even if you live in a state where such IP agreements are invalid. They can still sue you for the rights to your New Big Thing, and you will not have the time or money to fight it even if you'd theoretically win in the end. Get it in clear writing that you own your own time.

  • what happens to open source work? under laws like this I don't thing some places can say you did work on X open source projects and now we own the rights to the full IP of the project.

  • Don't quit your job ... just yet. And don't start your side project, yet, either.

    Do start the hunt for a new job. Investigate the laws of various states you would be willing to move to, to see what kind of negotiating power you might have with potential employers in those states. Only after you have acquired a new job should you resign from your old job.

    Whether to tell them this is the reason, or not, is up to you. They MAY want to counter offer. If they do, suggest to them that in addition to matching

  • IMHO, of course. There are NDAs and Proprietary Technology agreements that any company can require for specific projects or capabilities. It should end there. The thought that a corporation can own your thoughts, no matter how derivative, is just sad. Then again, so is the currrent state of copyright law. Not much way around IP (and copyright) law without a massive multi-target Pelican Brief operation :-(

  • by MSTCrow5429 (642744) on Sunday February 12, 2012 @06:01PM (#39013825)
    If you are working off the clock, and not using the employer's resources or facilities, I'm nearly certain this is void. If you're using the employer's resources or facilities, the employer likely has at least partial ownership. You may want to visit a law library and ask the law librarians how to search for materials relevant to your concern, or consult with an employment lawyer.
    • by pacergh (882705) on Sunday February 12, 2012 @07:59PM (#39014645)

      You're incorrect.

      These agreements are enforceable. There are limits, and things well beyond the work you do for the company may very well be excluded from the agreement, but how often is that the case?

      If you are a programmer, and work for a company as a programmer, and create a work on your own that involves programming, then it is related to the work you do for the company.

      Beware the advice you receive on Slashdot about this.

      If you think there is a chance you can make money off of a potential side project, protect yourself and your partners by hiring a tech startup lawyer.

      Otherwise you may be paying a lot more in legal fees down the road.

      And I am a lawyer, and this is an area in which I practice.

      • by hey! (33014)

        I agree with you. That said, one thing that ought to be noted is that everyone is assuming this guy signed a contract; it doesn't say that in the summary. It just says:

        my employer has an IP policy that states that anything I do while under their employ is theirs, even when I'm off the clock.

        Stating that something is their policy doesn't necessarily make it so. They can't unilaterally impose something like that, although if you are working on a competing product in your spare time they wouldn't have to. You'd be in the soup in any case.

        If it's something really unrelated to work and it's non-commercial, I'd say the best bet is to

  • by TwineLogic (1679802) on Sunday February 12, 2012 @06:20PM (#39013929)
    Maybe your state has a similar law?

    From http://apps.leg.wa.gov/rcw/default.aspx?cite=49.44.140 [wa.gov]

    RCW 49.44.140

    Requiring assignment of employee's rights to inventions — Conditions.

    (1) A provision in an employment agreement which provides that an employee shall assign or offer to assign any of the employee's rights in an invention to the employer does not apply to an invention for which no equipment, supplies, facilities, or trade secret information of the employer was used and which was developed entirely on the employee's own time, unless (a) the invention relates (i) directly to the business of the employer, or (ii) to the employer's actual or demonstrably anticipated research or development, or (b) the invention results from any work performed by the employee for the employer. Any provision which purports to apply to such an invention is to that extent against the public policy of this state and is to that extent void and unenforceable.

    (2) An employer shall not require a provision made void and unenforceable by subsection (1) of this section as a condition of employment or continuing employment.

    (3) If an employment agreement entered into after September 1, 1979, contains a provision requiring the employee to assign any of the employee's rights in any invention to the employer, the employer must also, at the time the agreement is made, provide a written notification to the employee that the agreement does not apply to an invention for which no equipment, supplies, facility, or trade secret information of the employer was used and which was developed entirely on the employee's own time, unless (a) the invention relates (i) directly to the business of the employer, or (ii) to the employer's actual or demonstrably anticipated research or development, or (b) the invention results from any work preformed [performed] by the employee for the employer.
  • by geezer nerd (1041858) on Sunday February 12, 2012 @08:02PM (#39014659)
    The OP's assessment of "Overly-Restrictive" seems rather naive. During my entire career, just about every job I held had such provisions about intellectual property rights. I would not call it "overly-restrictive" at all. And that said, I found it usually possible to get some "wiggle-room" by up-front telling them exceptions that I wanted to preserve my sole rights in. Renegotiate, though it is harder to do once you are onboard.
  • I always stroked out those "all your code are belong to us" clauses and signed beside the cross-out before handing over employment contracts. When the person doing the hiring would question it, I'd explain that I had MSS Code Factory under development, show them the project, and make it clear that they did NOT own something I'd worked on since the late '80s to early '90s.

    I never had a single employer complain about me doing that.

  • by Lumpy (12016) on Sunday February 12, 2012 @08:53PM (#39014943) Homepage

    That is what I did I took my pen and drew a line through that clause noting that I did not agree with it and initialed the spot. Then signed the contract.

    I never signed an employment contract that I did not modify.

  • by Fujisawa Sensei (207127) on Sunday February 12, 2012 @10:37PM (#39015411) Journal

    Sorry to hear that, but when your job starts controlling what you do with your spare time, its no longer a good fit.

    So the market is good, I had 3 calls on Friday alone, so its time to start looking and find something that's a good fit.

    And remember, during the interview process, you already have a job and you're also interviewing them.

  • Two choices (Score:4, Insightful)

    by dskoll (99328) on Sunday February 12, 2012 @11:02PM (#39015549)

    You have two choices:

    1. Talk to your employer and try to get an exemption written into your contract. If choice 1 fails, then you are left with:

    2. Quit.

  • by maple_shaft (1046302) on Monday February 13, 2012 @08:56AM (#39017891)
    Joel Spolsky, co-founder of StackExchange had probably the best answer to this question that I had read anywhere. http://answers.onstartups.com/questions/19422/if-im-working-at-a-company-do-they-have-intellectual-property-rights-to-the-st/20136#20136 [onstartups.com]

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