7 ms·

The Sex Tape Litmus Test

183 points by dustin 14y ago

guard-of-terra 14y ago
I think that any funny clauses in the contracts should be abolished and the worker/employer relations should only be regulated by law. This makes me pro-regulation and anti-market, but unfortunately I see exactly zero ways in which market can make contracts better. What are you expected to do in this situation - quit?
- wyuenho 14y ago
  Collective bargaining rights was developed to counter exactly this power imbalance with minimum government involvement. Unfortunately I'm not aware of any programmer unions.
  - mistercow 14y ago
    What's odd to me is that in many cases people who purport to be "pro free market" are also anti-union. As far as I can see, unions are the free market.
    - pretoriusB 14y ago
      Well, "pro free market" is usually (and silently) taken to mean "whatever benefit me as an employeer and screw the workers". As in: "if I want to have people working 20 hours per day, with no overtime for less than minimum wage, I should be FREE to do so, and people are FREE not to work for me". That's the kind of "FREE" the free market stands for usually. Of course, when all employers follow the same idea, or when people are desperate to find any work to survive (e.g because of a lack of jobs in their city), the latter point about "choice" becomes moot.
      - lostlogin 14y ago
        A fellow cynic! I see FREE MARKET and straight away re-read the paragraph to see who is getting screwed. I'm rarely disappointed.
        ansgri 14y ago
        As kylebrown noted the distinction between 'free from' and 'free to', your interpretation suggests that the free market is the freedom to screw everyone you could manage to. I like this description, but the question is: is it net negative for people / production / indvidual? -- a fellow cynic.
      - kylebrown 14y ago
        This train of thought leads to the philosophy of freedom: positive freedom (free to) and negative freedom (free from). I think the best way to think about freedom is not as a binary relationship (X is free from/to Y), but as a ternary relationship (X is free from Y to Z).
    - mgkimsal 14y ago
      I've thought that too. The difference seems to be that in general, an entire workforce in a company is either 'union' or 'non-union'. In places I've worked in that had unions, you didn't have a choice as to whether you wanted to join or not - you want the job, you join the union. At the macro-level, perhaps 'the market' for labor has said "union", but the choice is not there for the individual to join or not. I took at job in a grocery store where the union was on strike - the only reason I didn't have to join the union was because they were striking and I was working directly for the corporate HQ. Pay wasn't bad, though I suspect they were having to pay more to get us scabs to come in through the picket lines :) I'd prefer union places where you could elect to join the union or not. If they actually lobbied for better conditions for union members, and got those, there'd be more incentive to join - you'd be making the union mgrs work for their jobs, essentially.
      - jiggy2011 14y ago
        I guess the problem here is that from a purely selfish point of view it is better to not join the union (thus saving dues money) and let other people pay the union to negotiate on your behalf. Perhaps it would be possible for an employer to offer separate union and non-union contracts with different pay rates (employers can already sort of do this by outsourcing) but the issue here is that not all union issues are about contracts. For example , a union might negotiate for a factory to provide extra safety measures at the employers cost. All employees union or not would get the advantages provided by this unless the employer provided separate more dangerous machines for the non union workers to use.
      - georgefox 14y ago
        The concept you're talking about is the so-called "right-to-work law" (http://en.wikipedia.org/wiki/Right-to-work_law http://en.wikipedia.org/wiki/Right-to-work_law). The problem seems to be exactly what jiggy mentions: it's much cheaper not to join the union, and you still enjoy at least some of the benefits of the collective bargaining. The reality seems to be that right-to-work states have weaker unions, lower pay, and lousier benefits than non-right-to-work states. Whether this is directly related to right-to-work laws or not is not entirely clear, but there's no evidence to suggest that right-to-work actually makes unions stronger or better for their members. In terms of "making the union managers work for their jobs," is that really a problem right now? I haven't often heard arguments suggesting unions are just collecting dues and doing nothing. Generally the only anti-union argument I've heard is that unions are too powerful and their members have overly generous compensation.
    - gabemart 14y ago
      While it's not a position I hold myself, I imagine such people would argue that unions are not the free market because of the legal protections and privileges they enjoy. I'm no expert, but I know that in at least some jurisdictions a union-endorsed strike carries protections against worker dismissal.
      - dalke 14y ago
        It's odd for you to point out one of the legal protections unions have without also pointing out the things they are prohibited from doing, such as sympathy strikes, mass picketing, and (in some states) the ability to require a union shop. And the law gives company owners protection against personal liability, and taxes companies different from personal income, while it also prohibits employers from having an unsafe workplace, child labor, and practicing various types of discrimination. We are far from a free market. I agree with the earlier poster - I think a free market enthusiast should also want unions.
        georgefox 14y ago
        There's also a fair number of union workers who are not allowed to strike at all: http://en.wikipedia.org/wiki/Strike_action#In_the_United_States http://en.wikipedia.org/wiki/Strike_action#In_the_United_Sta....
        gabemart 14y ago
        I don't necessarily disagree with the argument that a free market enthusiast should desire unions. I disagree that a free market enthusiast should desire unions in their current form, which we both agree is far from a free market. In other words, I don't think it's unreasonable to say "Device X would be desirable in ideal situation Y, but as the current situation is far from ideal, device X currently does more harm than good". And again, I don't necessarily personally believe that to be true of unions.
        yummyfajitas 14y ago
        A union: some sellers of labor merge into a single legal entity, and it becomes illegal for some purchasers of labor to buy from alternate suppliers. To translate to another field: Apple and MS merge, and now consumers can't use Linux. Laws enforcing a requirement to purchase from a cartel are about as far from a free market as you can get. Saying free market supporters should favor unionization is like saying free market supporters should oppose net neutrality. In a free market, net neutrality is certainly something to oppose, but in the world we live in it's necessary to counteract the government granted duopoly held by Verizon/Cable.
    - dbecker 14y ago
      Most people claiming to be "pro free market" still oppose cartels. A cartel is the banding together of multiple companies or parties in an agreement to work together to raise prices. A union is a cartel. I don't mean that in as a normative statement. Unions may still be worth having, even if they are a cartel in that they workers band together to raise what they charge for their labor. But, that is the logic by which many "free market" advocates oppose unions.
    - wmil 14y ago
      Unions in the US always have specific views that employees often don't share. Everything is about retirement, preservation of existing employees, and supporting other unions. The problem is that most tech workers want incompetent workers fired, since they make other workers lives more difficult. The field also moves fast enough that credentialization is not particularly helpful. In fact, it can be harmful. Unions would call for rules like "10% of new projects must be in COBOL" to help older workers that don't want to re-train. German style unions aren't as opposed to guaranteeing worker performance, I'm not really sure why. That might fly, but keeping it German style would be difficult. The other option is something along the lines of the WGA/SAG. But individual developers are treated well enough that that isn't seen as worthwhile. Also there are the problems unions have with corrupt elections and organized crime. My point is that unions are a mixed bag, and for many tech workers they're a bad deal.
      - eli_gottlieb 14y ago
        Meeeehhhhh... I'd join a tech union that allowed me to participate in bargaining over working conditions and benefits. I've seen a surprising number of companies (coughAmazoncough) that pay very high base salaries and nice bonuses but completely crap out on health insurance, pension/retirement account, vacation time, work hours, etc.
        Evbn 14y ago
        What is wrong with employment benefits at Amazon, and besides the 'work hard'. ethic?
        jrockway 14y ago
        Only two weeks of vacation, no free food, etc.
      - mistercow 14y ago
        Sure, but my point is that a die hard free market advocate should either disagree with what you just said, or swallow that hard pill and say that the problems with unions are just a necessary evil. Instead, many seem to be vehemently anti-union while still holding to a "the free market will solve everything" point of view. I'm not saying that unions are perfect. I'm saying that it's inconsistent to admit that they can be problematic while still holding that the free market is the ideal.
    - InclinedPlane 14y ago
      Unions have very little to do with free markets, and they typically do not actually benefit everyone in labor (they benefit some folks who are already in the union). Because of the way our labor laws work unions, in the instances where they are prevalent, tend to end up being a monopoly on labor for a given industry. This creates distortions in the market just as great as monopolies of capital. Also, unions tend to erode meritocratic systems of compensation and advancement and replace them with systems based on seniority and union membership, which tends to disadvantage the business, customers, and most workers except those few at the top of the seniority ladder.
      - pyre 14y ago
        > unions tend to erode meritocratic systems of > compensation and advancement If such meritocratic systems exist, the awards are only dependent on the merits of your corporate politicking skills.
        InclinedPlane 14y ago
        Let's say you are a tech worker in silicon valley. Your wages and the sorts of jobs you have access to are dependent on the sorts of companies in existence, their needs, and your skillset. If you have a highly sought after skillset then you will be courted by multiple companies who will try to woo you with jobs that you find desirable and competitive compensation packages. Let's say instead you are a dock worker in long beach. In that case your compensation and career opportunities are far more dependent on your union membership and seniority. Certainly playing corporate politics can also have an effect, depending on the company, but that's also true in union shops as well.
        cdcarter 14y ago
        Very few unions have a mandatory favored nations policy. If you were significantly better at dock workering, such that a company sought you out, they can easily pay you more. That being said, many union labor positions don't have a wild variety of skillsets. They often do need protection.
    - philwelch 14y ago
      Unions are actually cartels.
- cracell 14y ago
  Negotiate for the removal of these clauses from your contract and don't sign it if they won't remove them. Sometimes this may mean passing on a job but if everyone did this then employers wouldn't try to get away with it.
  - pretoriusB 14y ago
    >Negotiate for the removal of these clauses from your contract and don't sign it if they won't remove them. Sometimes this may mean passing on a job but if everyone did this then employers wouldn't try to get away with it. The problem is that the effectiveness of this relies on the bargaining power of the employees, which, in a "buyer's market" is not that much. Better to get the law to change to forbid such abuses for everyone.
    - bconway 14y ago
      If that was the case, sure. But in what world is this a buyer's market? At the last tech meetup I went to: Employers looking for developers: 11 Developers looking for work: 2 Austin, TX, for reference.
  - ChuckMcM 14y ago
    In this case Sony is trying to change the agreement post employment. I wish the OP had said what HR said about ownwership of the sex tape, I really would have liked to use that example with the Google lawyers to see where they came down on it. I don't doubt that future contracts will say "We reserve the right to update this in the future as conditions change in order to remain compliant with applicable regulations and laws and in order to protect the interests of the company." Once you sign that, even with a permissive clause, they come back later than blam! Change it and you've pre-agreed to their changes which can now be much more restrictive.
  - benwerd 14y ago
    In smaller companies you can sometimes rewrite the contract. I've done this, specifically to remove this clause.
- sskates 14y ago
  Yes, you can quit and work somewhere else. Also you can read about what Sony does on Hacker News and decide not to apply there for a job in the first place. I really hope you are not actually against customized employment contracts- there are a lot of cases where they can be useful. What might be better is prohibiting instances of terms you find offensive. For example, California's moonlighting law, which effectively voids such clauses in employment contracts: http://www.quora.com/Legal-Issues/Which-California-laws-protect-moonlighting http://www.quora.com/Legal-Issues/Which-California-laws-prot...
  - pretoriusB 14y ago
    >Yes, you can quit and work somewhere else. As if people always have that luxury. What if most companies in your field (e.g computer games) follow similar practices? "Go work at another field"? Why fell prey and bow down, looking for work elsewhere, and not try to change the system instead? If a company didn't allow black or gay employees would that be acceptable, and people be told to just "work somewhere else"? I think not, people would revolt and try to change the laws so that the company cannot do that. Why should BS NDAs be any different? People forget that: a) we're not necessarily talking about the top 1% of employees companies fight over, but also for the rest 99% of the people, that don't have an upper hand in negotiations and don't always have the luxury of moving around, staying out of a job long enough to find a better one, etc. b) we're not necessarily talking about a "seller's market" such as programming c) even if we did (b), we're not necessarily talking about now and the Valley, but also about times and places where unemployment is rampant.
    - Symmetry 14y ago
      Not every company in your field is going to have contracts like that, I can pretty much guarantee that if you are willing to work for a smaller company you can negotiate something. And I did quit my job because we were bought by a larger company with a contract I didn't like just this summer. It's quite possible I'd be making more money if I hadn't restricted myself in this way, but, well, integrity is worth something. Also, what do you mean that being a programmer isn't a seller's market. Unemployment in our industry is just 2.5 percent!
- jiggy2011 14y ago
  I'm not sure a one-size-fits all regulated solution is the answer. For example , what about a startup that wants to make signing of an NDA a requirement for employment? Would they be expected to just take it on trust that a new employee isn't leaking stuff to their competitors for cash? What about employments that might deal with highly sensitive/classified information and thus require certain background checks to be performed before & during employment?
  - deleted 14y ago
    [deleted]
  - pretoriusB 14y ago
    >Would they be expected to just take it on trust that a new employee isn't leaking stuff to their competitors for cash? Well, make that punishable by law, and no need for an NDA.
    - jiggy2011 14y ago
      How? Pass a law forbidding anybody from talking about what they did at work that day including to their family or friends? The majority of jobs don't really require any real secrecy thus one size fits all fails.
      - pretoriusB 14y ago
        >Pass a law forbidding anybody from talking about what they did at work that day including to their family or friends? Yes. Pass a law forbidding anybody from talking about what they did at work, including to their family or friends, if they are warned by the company that their work is confidential. Then let a jury decide if they violated that. If you work at a McDonalds, they need not tell you to keep confidential about anything. If you work at Apple, they can tell you: "no telling to anyone outside of what we do here". No silly clauses about "all IP you create" and stuff.
        jiggy2011 14y ago
- andrewflnr 14y ago
  If we're going to have regulation, I think it would be more productive for it to make it easier to quit your job. That should actually improve the free-market dynamics.
  - HeyLaughingBoy 14y ago
    How could it possibly be easier to quit your job? If I want to quit my job all I have to is not show up to work and eventually, after a few attempts at communication, they will send me a form letter and my final paycheck and remove me from the list of active employees. Of course, being a more polite sort, I'd probably at least email my manager that I wouldn't be coming back. But seriously, how could it be easier?
    - andrewflnr 14y ago
      Include "less dangerous" in "easier". Simply not showing up is not a good option for a responsible person trying to get ahead. Making sure the employment market is healthy and decoupling health care from employment might be helpful.
- rayiner 14y ago
  It's only "anti-market" if you fall into the common fallacy of conflating ideas of individual and economic freedom with the functioning of the markets. It's not at all the case that increasing say contractual freedom is always coincident with the improved functioning of the markets. The classic example is anti-trust law. Laws banning producers from forming cartels to fix prices is a restriction on contractual freedom, but they're a restriction that produces better, more competitive markets. There are a lot of considerations on the elasticity of demand for labor, information asymmetries between employer and employee, relative bargaining leverage, etc, that weigh in favor of laws to regulate the labor market. I think a great example is bans on NDA's or non-competes. They help make the labor market more liquid and prevent anti-competitive labor practices, even though they are a restriction on contractual freedom.
- cbsmith 14y ago
  > I think that any funny clauses in the contracts should be abolished and the worker/employer relations should only be regulated by law. That tends to work well in a one-size-fits-all well established world, but tends to work particularly poorly in new and emerging industries.
dsr_ 14y ago
The primary function of a legal department is to provide advice that prevents legally actionable mistakes. This advice does not have to be sane, or efficient, or indeed have any consideration towards the interests of the company other than "prevents legally actionable mistakes". A few days ago HN saw an article about setting goals and perverse incentives. This is a simple example. Hypothetically, someone was reviewing the Sony USA employment contract and saw that there were, perhaps, non-video-game related developments which might be valuable. Then they asked the legal department "Please supply contract terms that give us as much as possible." And after an hour or two of research, they did. The surprising thing to me is that they tried to change language for existing employees out of cycle. If they did it during a regular review cycle, even fewer people would have noticed.
- endianswap 14y ago
  Do typical BigCorps require re-signing your contract during the review process? Neither of the ~300 person tech companies I've worked for have had me sign anything past the first day.
  - unreal37 14y ago
    Once a year there is an email that goes out saying "the law for X has changed, and so we require you to acknowledge you know this and sign Y". Basically updates to the employee handbook.
- dexen 14y ago
  > The primary function of a legal department is to provide advice that prevents legally actionable mistakes. This advice does not have to be sane, or efficient, (...) Strong disagreement. As a counterport, would you agree to the following: ``the primary function of a programming department is to crank out code. the code doesn't have to run predictably, nor be maintainable nor indeed have any business requirements. KLOC is the king.''? When I'm programming privately in my spare time, my code doesn't need to run, be maintainable or useful or anything. But as long as I'm clocked in during office hours, my work should further company's goals, in harmony with other teams and projects. And just as much with legal departments: those should consider the overall effects of advice they give out. If not them, who else is to do such analysis -- some meta-legal department? Been there just recently; an employment contract template prepared for my company by a lawyer was so one-sided and full of risks for potential employees, I stood up to the CEO and voiced against its proposed form. I've warned the CEO a lot of self-respecting hackers would rather give up offer than work on such conditions. The contract, while legally covering the company, would have detrimental effect on our ability to hire good hackers in the first place.
mgkimsal 14y ago
I've brought this up as the "child porn" clause, and had brought it up in an employment contract once many years ago. Basic language was "we own anything you create". I said "I don't really think you want that - if I create some child porn, you're the owners". I seem to remember I had some less restrictive language placed in my contract vs that one, but I don't think it made a change to anyone else's contracts. Yes, it felt a bit 'nuclear' dropping such a charged statement like that, and even when I bring it up as an example in conversation, some people cringe - a 'sex tape' analogy might be less offensive to some, but the basic premise still stands. Any company that wants to claim ownership of every piece of content or code I 'create' needs to understand what that really entails. It might actually give some people license to work on legally questionable stuff (not child porn so much as, say, banned crypto), knowing that they don't really 'own' it and thinking someone else might be responsible for the consequences.
- jiggy2011 14y ago
  IANAL , but I believe in this case the offence would be in the creation and distribution of this content not necessarily in owning the IP. Otherwise you could technically make the same argument about instagram for example.
  - mgkimsal 14y ago
    nothing said about distributing it, although I see your point on the creation of it. But I'm not sure I'd be able to make that distinction about anything else valuable - "well, company x, you might 'own' this, but I created it and can do whatever I want with it". They want the benefits without any risks - ain't gonna happen. Well... I say that, but I think everyone might have their price. I've got mine, and yes, sure, would I sign away all my IP created during employment for $x? yes, but no one has yet come close to that $x in job offers I get.
    - jiggy2011 14y ago
      Employment contracts are almost always written to supply as many benefits to the employer and mitigate as many risks as possible. The worst case scenario for them is that they find out that certain clauses are not enforceable. In reality I imagine it is often known that some may be unenforceable but they are added anyway on the basis that the employee doesn't know this.
nakkiel 14y ago
IP assignment is the only thing I really negotiate when I take on a new position. I had one company back-pedal as they were trying to change their terms from nothing to we own anything you make, any time. I had the CEO/CTO of another company write in plain English that anything done in my free time and without using company-owned facilities/hardware was my own IP (their legal bla-bla was unclear). In the first case, the corrected terms got applied to everybody in the company but in the second, I believe I'm the only one who is protected thank to that written note. I always use the analogy of an English teacher writing a book on his spare time. How he would actually be encouraged to do so, weighting how this would reflect nicely on the school he works at etc..
- colanderman 14y ago
  > I always use the analogy of an English teacher writing a book on his spare time. How he would actually be encouraged to do so, weighting how this would reflect nicely on the school he works at etc.. I think limiting IP ownership to right of first refusal is important for the same reasons. If I'm guaranteed that either the company will use the IP I developed, and I will (presumably) be rewarded for it or at least be able to include it on my resumé, or that I can own the IP myself, it is worthwhile to me to work on projects in my spare time. However, without that guarantee, it's entirely likely that works I produce which are significant to me but not to my company will end up gathering dust on a shelf. Hence I'm disincentivized to work on such (potentially enriching) spare-time projects.
redcircle 14y ago
California has a nice law that says that the employee owns IP created on his own time, unrelated to work, etc. This is a reason I moved to CA: the state I was in lacked such a law, and all the tech companies had contracts that failed the sex tape test. I suspect that for a place to flourish like Silicon Valley, it needs a law that protects self bootstrapping startups.
- ajays 14y ago
  I keep hearing this, and have taken it as gospel (I am in CA), but can someone point me to some citations? You know, just in case.... ;-)
  - loteck 14y ago
    Hi. Here's your link: http://www.leginfo.ca.gov/cgi-bin/displaycode?section=lab&group=02001-03000&file=2870-2872 http://www.leginfo.ca.gov/cgi-bin/displaycode?section=lab&#3... 2870 is what you're most interested in. IANAL, this is my lay understanding of the law.
  - linuxhansl 14y ago
    Your employer should have supplied you with the necessary paperwork to sign (this part is also stipulated in California, AFAIK, that you be made aware of that right)
- Xylakant 14y ago
  I guess the "unrelated to work" might be a point of debate once you create IP of high value. In fact, in Germany we have the "Arbeitnehmererfindungsgesetz (ARBNERFG)" [1] which stipulates that your employer has first right to all patents and inventions related to your work, even if you create them in your spare time. The basic reasoning is that your employer supplies you with all tools and ressources required for the invention in question. It would be way too easy to just clock out, return to your desk and a minute later write down the world formula and sell it for billions. You're entitled to a compensation though. The law looks a little stupid when applied to computer science but makes much more sense in a research or engineering context. [1] I just adore german legal terms.
jasonjei 14y ago
IANAL, but I have heard of something called the Reasonable Person Standard. Since the US is based on Common Law, I believe this standard could be used if this were really tested in court: ``The reasonable person (historically reasonable man) is one of many tools for explaining the law to a jury.[1] The "reasonable person" is an emergent concept of common law.[2] While there is (loose) consensus in black letter law, there is no universally accepted, technical definition. As a legal fiction,[2] the "reasonable person" is not an average person or a typical person. Instead, the "reasonable person" is a composite of a relevant community's judgment as to how a typical member of said community should behave in situations that might pose a threat of harm (through action or inaction) to the public.[3] The standard also holds that each person owes a duty to behave as a reasonable person would under the same or similar circumstances.[4][5] While the specific circumstances of each case will require varying kinds of conduct and degrees of care, the reasonable person standard undergoes no variation itself.[6][7] The "reasonable person" construct can be found applied in many areas of the law. The standard performs a crucial role in determining negligence in both criminal law—that is, criminal negligence—and tort law. The standard also has a presence in contract law, though its use there is substantially different.[8] It is used to determine contractual intent, or if a breach of the standard of care has occurred, provided a duty of care can be proven. The intent of a party can be determined by examining the understanding of a reasonable person, after consideration is given to all relevant circumstances of the case including the negotiations, any practices the parties have established between themselves, usages and any subsequent conduct of the parties.[9]"
bretthardin 14y ago
While I was working at Earthlink in 1999, they had a similar clause and I had a similar thought. Although not around a sex tape, I though about a computer virus released from my Earthlink corporate email account. If I sent it out the virus technically belonged to Earthlink and not me. However, after talking to a lawyer about it years later, he explained there is ways the corporation could get out of the clause.
matt2000 14y ago
In case anyone is in a position to hire programmers and cares about treating creative people fairly, we have an open source Hacker Employment Contract: https://www.docracy.com/hackercontract https://www.docracy.com/hackercontract that tries to fairly handle stuff like IP created after hours.
- dustin 14y ago
  Thanks for posting this. Standard documents are great. Even if you don't get to use them they provide a point of reference for negotiating terms.
btilly 14y ago
Note. The contract, as described , would not hold for California employees. See http://www.leginfo.ca.gov/cgi-bin/displaycode?section=lab&group=02001-03000&file=2870-2872 http://www.leginfo.ca.gov/cgi-bin/displaycode?section=lab&#3... if you don't know what I'm talking about. (That said, Sony probably does enough different things that the difference does not matter much to most people.)
- arkem 14y ago
  In California the contract is often modified to include something like "except where prohibited by law" which means that the company gets IP assignment any time that 2870 doesn't apply.
gnu8 14y ago
This story is missing the best part, which is where the compliance officer bluescreens after being asked about whether the sex tape would be owned by Sony.
josephlord 14y ago
I think my Sony (Sony Europe not SCE) contract said "in the course of employment" which I went back to HR for clarification that it meant things related to or done for work. The in/during difference being very key. I seem to recall that I got the necessary clarifications and I've left now so no need to worry.
andrew93101 14y ago
(tl;dr: in California, such agreements are unenforceable) I don't know what state the author was in when he was working for Sony, but California State law prohibits such arrangements in employer agreements (Labor code section 2870): http://www.leginfo.ca.gov/cgi-bin/displaycode?section=lab&group=02001-03000&file=2870-2872 http://www.leginfo.ca.gov/cgi-bin/displaycode?section=lab&#3... 2870. (a) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an invention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the employer's equipment, supplies, facilities, or trade secret information except for those inventions that either: (1) Relate at the time of conception or reduction to practice of the invention to the employer's business, or actual or demonstrably anticipated research or development of the employer; or (2) Result from any work performed by the employee for the employer. (b) To the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded from being required to be assigned under subdivision (a), the provision is against the public policy of this state and is unenforceable.
xsmasher 14y ago
Every time I've gotten one of these documents I've amended it to "any IP for aspect foo of business bar." Example: video training software, or freemium mobile games. My employers have not objected, and it's a restriction I cane live with. Honest employers want to keep you from competing with them while on the payroll, and want to avoid any claims that company IP belongs to you. Amend the document to address that and they may agree.
at-fates-hands 14y ago
The interesting thing to me is how is this even enforceable? Most of my friends keep a tight lid on all their freelance work - how would they even know someone had broken this contract?
shadowmint 14y ago
I'd love to know of any instances of this (work done in personal time being legally given to the company person worked for at the time) going to court. Sounds like a non-compete clause to me; ie. basically unenforceable.
kabdib 14y ago
My current employment contract says that even IP /related/ to my employer's business, as long as it is done on my own equipment and my own time, is mine. It's an enlightened place. I expect to have to prove it, to some extent, if it ever came up. Which is one of the reasons I have a private github account; commit logs on machines not controlled by me might be useful.

183 points by dustin 14y ago

I think that any funny clauses in the contracts should be abolished and the worker/employer relations should only be regulated by law. This makes me pro-regulation and anti-market, but unfortunately I see exactly zero ways in which market can make contracts better. What are you expected to do in this situation - quit?

wyuenho 14y ago
Collective bargaining rights was developed to counter exactly this power imbalance with minimum government involvement. Unfortunately I'm not aware of any programmer unions.
- mistercow 14y ago
  What's odd to me is that in many cases people who purport to be "pro free market" are also anti-union. As far as I can see, unions are the free market.
  - pretoriusB 14y ago
    Well, "pro free market" is usually (and silently) taken to mean "whatever benefit me as an employeer and screw the workers". As in: "if I want to have people working 20 hours per day, with no overtime for less than minimum wage, I should be FREE to do so, and people are FREE not to work for me". That's the kind of "FREE" the free market stands for usually. Of course, when all employers follow the same idea, or when people are desperate to find any work to survive (e.g because of a lack of jobs in their city), the latter point about "choice" becomes moot.
    - lostlogin 14y ago
      A fellow cynic! I see FREE MARKET and straight away re-read the paragraph to see who is getting screwed. I'm rarely disappointed.
      - ansgri 14y ago
        As kylebrown noted the distinction between 'free from' and 'free to', your interpretation suggests that the free market is the freedom to screw everyone you could manage to. I like this description, but the question is: is it net negative for people / production / indvidual? -- a fellow cynic.
    - kylebrown 14y ago
      This train of thought leads to the philosophy of freedom: positive freedom (free to) and negative freedom (free from). I think the best way to think about freedom is not as a binary relationship (X is free from/to Y), but as a ternary relationship (X is free from Y to Z).
  - mgkimsal 14y ago
    I've thought that too. The difference seems to be that in general, an entire workforce in a company is either 'union' or 'non-union'. In places I've worked in that had unions, you didn't have a choice as to whether you wanted to join or not - you want the job, you join the union. At the macro-level, perhaps 'the market' for labor has said "union", but the choice is not there for the individual to join or not. I took at job in a grocery store where the union was on strike - the only reason I didn't have to join the union was because they were striking and I was working directly for the corporate HQ. Pay wasn't bad, though I suspect they were having to pay more to get us scabs to come in through the picket lines :) I'd prefer union places where you could elect to join the union or not. If they actually lobbied for better conditions for union members, and got those, there'd be more incentive to join - you'd be making the union mgrs work for their jobs, essentially.
    - jiggy2011 14y ago
      I guess the problem here is that from a purely selfish point of view it is better to not join the union (thus saving dues money) and let other people pay the union to negotiate on your behalf. Perhaps it would be possible for an employer to offer separate union and non-union contracts with different pay rates (employers can already sort of do this by outsourcing) but the issue here is that not all union issues are about contracts. For example , a union might negotiate for a factory to provide extra safety measures at the employers cost. All employees union or not would get the advantages provided by this unless the employer provided separate more dangerous machines for the non union workers to use.
    - georgefox 14y ago
      The concept you're talking about is the so-called "right-to-work law" (http://en.wikipedia.org/wiki/Right-to-work_law http://en.wikipedia.org/wiki/Right-to-work_law). The problem seems to be exactly what jiggy mentions: it's much cheaper not to join the union, and you still enjoy at least some of the benefits of the collective bargaining. The reality seems to be that right-to-work states have weaker unions, lower pay, and lousier benefits than non-right-to-work states. Whether this is directly related to right-to-work laws or not is not entirely clear, but there's no evidence to suggest that right-to-work actually makes unions stronger or better for their members. In terms of "making the union managers work for their jobs," is that really a problem right now? I haven't often heard arguments suggesting unions are just collecting dues and doing nothing. Generally the only anti-union argument I've heard is that unions are too powerful and their members have overly generous compensation.
  - gabemart 14y ago
    While it's not a position I hold myself, I imagine such people would argue that unions are not the free market because of the legal protections and privileges they enjoy. I'm no expert, but I know that in at least some jurisdictions a union-endorsed strike carries protections against worker dismissal.
    - dalke 14y ago
      It's odd for you to point out one of the legal protections unions have without also pointing out the things they are prohibited from doing, such as sympathy strikes, mass picketing, and (in some states) the ability to require a union shop. And the law gives company owners protection against personal liability, and taxes companies different from personal income, while it also prohibits employers from having an unsafe workplace, child labor, and practicing various types of discrimination. We are far from a free market. I agree with the earlier poster - I think a free market enthusiast should also want unions.
      - georgefox 14y ago
        There's also a fair number of union workers who are not allowed to strike at all: http://en.wikipedia.org/wiki/Strike_action#In_the_United_States http://en.wikipedia.org/wiki/Strike_action#In_the_United_Sta....
      - gabemart 14y ago
        I don't necessarily disagree with the argument that a free market enthusiast should desire unions. I disagree that a free market enthusiast should desire unions in their current form, which we both agree is far from a free market. In other words, I don't think it's unreasonable to say "Device X would be desirable in ideal situation Y, but as the current situation is far from ideal, device X currently does more harm than good". And again, I don't necessarily personally believe that to be true of unions.
      - yummyfajitas 14y ago
        A union: some sellers of labor merge into a single legal entity, and it becomes illegal for some purchasers of labor to buy from alternate suppliers. To translate to another field: Apple and MS merge, and now consumers can't use Linux. Laws enforcing a requirement to purchase from a cartel are about as far from a free market as you can get. Saying free market supporters should favor unionization is like saying free market supporters should oppose net neutrality. In a free market, net neutrality is certainly something to oppose, but in the world we live in it's necessary to counteract the government granted duopoly held by Verizon/Cable.
  - dbecker 14y ago
    Most people claiming to be "pro free market" still oppose cartels. A cartel is the banding together of multiple companies or parties in an agreement to work together to raise prices. A union is a cartel. I don't mean that in as a normative statement. Unions may still be worth having, even if they are a cartel in that they workers band together to raise what they charge for their labor. But, that is the logic by which many "free market" advocates oppose unions.
  - wmil 14y ago
    Unions in the US always have specific views that employees often don't share. Everything is about retirement, preservation of existing employees, and supporting other unions. The problem is that most tech workers want incompetent workers fired, since they make other workers lives more difficult. The field also moves fast enough that credentialization is not particularly helpful. In fact, it can be harmful. Unions would call for rules like "10% of new projects must be in COBOL" to help older workers that don't want to re-train. German style unions aren't as opposed to guaranteeing worker performance, I'm not really sure why. That might fly, but keeping it German style would be difficult. The other option is something along the lines of the WGA/SAG. But individual developers are treated well enough that that isn't seen as worthwhile. Also there are the problems unions have with corrupt elections and organized crime. My point is that unions are a mixed bag, and for many tech workers they're a bad deal.
    - eli_gottlieb 14y ago
      Meeeehhhhh... I'd join a tech union that allowed me to participate in bargaining over working conditions and benefits. I've seen a surprising number of companies (coughAmazoncough) that pay very high base salaries and nice bonuses but completely crap out on health insurance, pension/retirement account, vacation time, work hours, etc.
      - Evbn 14y ago
        What is wrong with employment benefits at Amazon, and besides the 'work hard'. ethic?
        jrockway 14y ago
        Only two weeks of vacation, no free food, etc.
    - mistercow 14y ago
      Sure, but my point is that a die hard free market advocate should either disagree with what you just said, or swallow that hard pill and say that the problems with unions are just a necessary evil. Instead, many seem to be vehemently anti-union while still holding to a "the free market will solve everything" point of view. I'm not saying that unions are perfect. I'm saying that it's inconsistent to admit that they can be problematic while still holding that the free market is the ideal.
  - InclinedPlane 14y ago
    Unions have very little to do with free markets, and they typically do not actually benefit everyone in labor (they benefit some folks who are already in the union). Because of the way our labor laws work unions, in the instances where they are prevalent, tend to end up being a monopoly on labor for a given industry. This creates distortions in the market just as great as monopolies of capital. Also, unions tend to erode meritocratic systems of compensation and advancement and replace them with systems based on seniority and union membership, which tends to disadvantage the business, customers, and most workers except those few at the top of the seniority ladder.
    - pyre 14y ago
      > unions tend to erode meritocratic systems of > compensation and advancement If such meritocratic systems exist, the awards are only dependent on the merits of your corporate politicking skills.
      - InclinedPlane 14y ago
        Let's say you are a tech worker in silicon valley. Your wages and the sorts of jobs you have access to are dependent on the sorts of companies in existence, their needs, and your skillset. If you have a highly sought after skillset then you will be courted by multiple companies who will try to woo you with jobs that you find desirable and competitive compensation packages. Let's say instead you are a dock worker in long beach. In that case your compensation and career opportunities are far more dependent on your union membership and seniority. Certainly playing corporate politics can also have an effect, depending on the company, but that's also true in union shops as well.
        cdcarter 14y ago
        Very few unions have a mandatory favored nations policy. If you were significantly better at dock workering, such that a company sought you out, they can easily pay you more. That being said, many union labor positions don't have a wild variety of skillsets. They often do need protection.
  - philwelch 14y ago
    Unions are actually cartels.
cracell 14y ago
Negotiate for the removal of these clauses from your contract and don't sign it if they won't remove them. Sometimes this may mean passing on a job but if everyone did this then employers wouldn't try to get away with it.
- pretoriusB 14y ago
  >Negotiate for the removal of these clauses from your contract and don't sign it if they won't remove them. Sometimes this may mean passing on a job but if everyone did this then employers wouldn't try to get away with it. The problem is that the effectiveness of this relies on the bargaining power of the employees, which, in a "buyer's market" is not that much. Better to get the law to change to forbid such abuses for everyone.
  - bconway 14y ago
    If that was the case, sure. But in what world is this a buyer's market? At the last tech meetup I went to: Employers looking for developers: 11 Developers looking for work: 2 Austin, TX, for reference.
- ChuckMcM 14y ago
  In this case Sony is trying to change the agreement post employment. I wish the OP had said what HR said about ownwership of the sex tape, I really would have liked to use that example with the Google lawyers to see where they came down on it. I don't doubt that future contracts will say "We reserve the right to update this in the future as conditions change in order to remain compliant with applicable regulations and laws and in order to protect the interests of the company." Once you sign that, even with a permissive clause, they come back later than blam! Change it and you've pre-agreed to their changes which can now be much more restrictive.
- benwerd 14y ago
  In smaller companies you can sometimes rewrite the contract. I've done this, specifically to remove this clause.
sskates 14y ago
Yes, you can quit and work somewhere else. Also you can read about what Sony does on Hacker News and decide not to apply there for a job in the first place. I really hope you are not actually against customized employment contracts- there are a lot of cases where they can be useful. What might be better is prohibiting instances of terms you find offensive. For example, California's moonlighting law, which effectively voids such clauses in employment contracts: http://www.quora.com/Legal-Issues/Which-California-laws-protect-moonlighting http://www.quora.com/Legal-Issues/Which-California-laws-prot...
- pretoriusB 14y ago
  >Yes, you can quit and work somewhere else. As if people always have that luxury. What if most companies in your field (e.g computer games) follow similar practices? "Go work at another field"? Why fell prey and bow down, looking for work elsewhere, and not try to change the system instead? If a company didn't allow black or gay employees would that be acceptable, and people be told to just "work somewhere else"? I think not, people would revolt and try to change the laws so that the company cannot do that. Why should BS NDAs be any different? People forget that: a) we're not necessarily talking about the top 1% of employees companies fight over, but also for the rest 99% of the people, that don't have an upper hand in negotiations and don't always have the luxury of moving around, staying out of a job long enough to find a better one, etc. b) we're not necessarily talking about a "seller's market" such as programming c) even if we did (b), we're not necessarily talking about now and the Valley, but also about times and places where unemployment is rampant.
  - Symmetry 14y ago
    Not every company in your field is going to have contracts like that, I can pretty much guarantee that if you are willing to work for a smaller company you can negotiate something. And I did quit my job because we were bought by a larger company with a contract I didn't like just this summer. It's quite possible I'd be making more money if I hadn't restricted myself in this way, but, well, integrity is worth something. Also, what do you mean that being a programmer isn't a seller's market. Unemployment in our industry is just 2.5 percent!
jiggy2011 14y ago
I'm not sure a one-size-fits all regulated solution is the answer. For example , what about a startup that wants to make signing of an NDA a requirement for employment? Would they be expected to just take it on trust that a new employee isn't leaking stuff to their competitors for cash? What about employments that might deal with highly sensitive/classified information and thus require certain background checks to be performed before & during employment?
- deleted 14y ago
  [deleted]
- pretoriusB 14y ago
  >Would they be expected to just take it on trust that a new employee isn't leaking stuff to their competitors for cash? Well, make that punishable by law, and no need for an NDA.
  - jiggy2011 14y ago
    How? Pass a law forbidding anybody from talking about what they did at work that day including to their family or friends? The majority of jobs don't really require any real secrecy thus one size fits all fails.
    - pretoriusB 14y ago
      >Pass a law forbidding anybody from talking about what they did at work that day including to their family or friends? Yes. Pass a law forbidding anybody from talking about what they did at work, including to their family or friends, if they are warned by the company that their work is confidential. Then let a jury decide if they violated that. If you work at a McDonalds, they need not tell you to keep confidential about anything. If you work at Apple, they can tell you: "no telling to anyone outside of what we do here". No silly clauses about "all IP you create" and stuff.
      - jiggy2011 14y ago
andrewflnr 14y ago
If we're going to have regulation, I think it would be more productive for it to make it easier to quit your job. That should actually improve the free-market dynamics.
- HeyLaughingBoy 14y ago
  How could it possibly be easier to quit your job? If I want to quit my job all I have to is not show up to work and eventually, after a few attempts at communication, they will send me a form letter and my final paycheck and remove me from the list of active employees. Of course, being a more polite sort, I'd probably at least email my manager that I wouldn't be coming back. But seriously, how could it be easier?
  - andrewflnr 14y ago
    Include "less dangerous" in "easier". Simply not showing up is not a good option for a responsible person trying to get ahead. Making sure the employment market is healthy and decoupling health care from employment might be helpful.
rayiner 14y ago
It's only "anti-market" if you fall into the common fallacy of conflating ideas of individual and economic freedom with the functioning of the markets. It's not at all the case that increasing say contractual freedom is always coincident with the improved functioning of the markets. The classic example is anti-trust law. Laws banning producers from forming cartels to fix prices is a restriction on contractual freedom, but they're a restriction that produces better, more competitive markets. There are a lot of considerations on the elasticity of demand for labor, information asymmetries between employer and employee, relative bargaining leverage, etc, that weigh in favor of laws to regulate the labor market. I think a great example is bans on NDA's or non-competes. They help make the labor market more liquid and prevent anti-competitive labor practices, even though they are a restriction on contractual freedom.
cbsmith 14y ago
> I think that any funny clauses in the contracts should be abolished and the worker/employer relations should only be regulated by law. That tends to work well in a one-size-fits-all well established world, but tends to work particularly poorly in new and emerging industries.

dsr_ 14y ago

The primary function of a legal department is to provide advice that prevents legally actionable mistakes. This advice does not have to be sane, or efficient, or indeed have any consideration towards the interests of the company other than "prevents legally actionable mistakes". A few days ago HN saw an article about setting goals and perverse incentives. This is a simple example. Hypothetically, someone was reviewing the Sony USA employment contract and saw that there were, perhaps, non-video-game related developments which might be valuable. Then they asked the legal department "Please supply contract terms that give us as much as possible." And after an hour or two of research, they did. The surprising thing to me is that they tried to change language for existing employees out of cycle. If they did it during a regular review cycle, even fewer people would have noticed.

endianswap 14y ago
Do typical BigCorps require re-signing your contract during the review process? Neither of the ~300 person tech companies I've worked for have had me sign anything past the first day.
- unreal37 14y ago
  Once a year there is an email that goes out saying "the law for X has changed, and so we require you to acknowledge you know this and sign Y". Basically updates to the employee handbook.
dexen 14y ago
> The primary function of a legal department is to provide advice that prevents legally actionable mistakes. This advice does not have to be sane, or efficient, (...) Strong disagreement. As a counterport, would you agree to the following: ``the primary function of a programming department is to crank out code. the code doesn't have to run predictably, nor be maintainable nor indeed have any business requirements. KLOC is the king.''? When I'm programming privately in my spare time, my code doesn't need to run, be maintainable or useful or anything. But as long as I'm clocked in during office hours, my work should further company's goals, in harmony with other teams and projects. And just as much with legal departments: those should consider the overall effects of advice they give out. If not them, who else is to do such analysis -- some meta-legal department? Been there just recently; an employment contract template prepared for my company by a lawyer was so one-sided and full of risks for potential employees, I stood up to the CEO and voiced against its proposed form. I've warned the CEO a lot of self-respecting hackers would rather give up offer than work on such conditions. The contract, while legally covering the company, would have detrimental effect on our ability to hire good hackers in the first place.

mgkimsal 14y ago

I've brought this up as the "child porn" clause, and had brought it up in an employment contract once many years ago. Basic language was "we own anything you create". I said "I don't really think you want that - if I create some child porn, you're the owners". I seem to remember I had some less restrictive language placed in my contract vs that one, but I don't think it made a change to anyone else's contracts. Yes, it felt a bit 'nuclear' dropping such a charged statement like that, and even when I bring it up as an example in conversation, some people cringe - a 'sex tape' analogy might be less offensive to some, but the basic premise still stands. Any company that wants to claim ownership of every piece of content or code I 'create' needs to understand what that really entails. It might actually give some people license to work on legally questionable stuff (not child porn so much as, say, banned crypto), knowing that they don't really 'own' it and thinking someone else might be responsible for the consequences.

jiggy2011 14y ago
IANAL , but I believe in this case the offence would be in the creation and distribution of this content not necessarily in owning the IP. Otherwise you could technically make the same argument about instagram for example.
- mgkimsal 14y ago
  nothing said about distributing it, although I see your point on the creation of it. But I'm not sure I'd be able to make that distinction about anything else valuable - "well, company x, you might 'own' this, but I created it and can do whatever I want with it". They want the benefits without any risks - ain't gonna happen. Well... I say that, but I think everyone might have their price. I've got mine, and yes, sure, would I sign away all my IP created during employment for $x? yes, but no one has yet come close to that $x in job offers I get.
  - jiggy2011 14y ago
    Employment contracts are almost always written to supply as many benefits to the employer and mitigate as many risks as possible. The worst case scenario for them is that they find out that certain clauses are not enforceable. In reality I imagine it is often known that some may be unenforceable but they are added anyway on the basis that the employee doesn't know this.

nakkiel 14y ago

IP assignment is the only thing I really negotiate when I take on a new position. I had one company back-pedal as they were trying to change their terms from nothing to we own anything you make, any time. I had the CEO/CTO of another company write in plain English that anything done in my free time and without using company-owned facilities/hardware was my own IP (their legal bla-bla was unclear). In the first case, the corrected terms got applied to everybody in the company but in the second, I believe I'm the only one who is protected thank to that written note. I always use the analogy of an English teacher writing a book on his spare time. How he would actually be encouraged to do so, weighting how this would reflect nicely on the school he works at etc..

colanderman 14y ago
> I always use the analogy of an English teacher writing a book on his spare time. How he would actually be encouraged to do so, weighting how this would reflect nicely on the school he works at etc.. I think limiting IP ownership to right of first refusal is important for the same reasons. If I'm guaranteed that either the company will use the IP I developed, and I will (presumably) be rewarded for it or at least be able to include it on my resumé, or that I can own the IP myself, it is worthwhile to me to work on projects in my spare time. However, without that guarantee, it's entirely likely that works I produce which are significant to me but not to my company will end up gathering dust on a shelf. Hence I'm disincentivized to work on such (potentially enriching) spare-time projects.

redcircle 14y ago

California has a nice law that says that the employee owns IP created on his own time, unrelated to work, etc. This is a reason I moved to CA: the state I was in lacked such a law, and all the tech companies had contracts that failed the sex tape test. I suspect that for a place to flourish like Silicon Valley, it needs a law that protects self bootstrapping startups.

ajays 14y ago
I keep hearing this, and have taken it as gospel (I am in CA), but can someone point me to some citations? You know, just in case.... ;-)
- loteck 14y ago
  Hi. Here's your link: http://www.leginfo.ca.gov/cgi-bin/displaycode?section=lab&group=02001-03000&file=2870-2872 http://www.leginfo.ca.gov/cgi-bin/displaycode?section=lab&#3... 2870 is what you're most interested in. IANAL, this is my lay understanding of the law.
- linuxhansl 14y ago
  Your employer should have supplied you with the necessary paperwork to sign (this part is also stipulated in California, AFAIK, that you be made aware of that right)
Xylakant 14y ago
I guess the "unrelated to work" might be a point of debate once you create IP of high value. In fact, in Germany we have the "Arbeitnehmererfindungsgesetz (ARBNERFG)" [1] which stipulates that your employer has first right to all patents and inventions related to your work, even if you create them in your spare time. The basic reasoning is that your employer supplies you with all tools and ressources required for the invention in question. It would be way too easy to just clock out, return to your desk and a minute later write down the world formula and sell it for billions. You're entitled to a compensation though. The law looks a little stupid when applied to computer science but makes much more sense in a research or engineering context. [1] I just adore german legal terms.

jasonjei 14y ago

IANAL, but I have heard of something called the Reasonable Person Standard. Since the US is based on Common Law, I believe this standard could be used if this were really tested in court: ``The reasonable person (historically reasonable man) is one of many tools for explaining the law to a jury.[1] The "reasonable person" is an emergent concept of common law.[2] While there is (loose) consensus in black letter law, there is no universally accepted, technical definition. As a legal fiction,[2] the "reasonable person" is not an average person or a typical person. Instead, the "reasonable person" is a composite of a relevant community's judgment as to how a typical member of said community should behave in situations that might pose a threat of harm (through action or inaction) to the public.[3] The standard also holds that each person owes a duty to behave as a reasonable person would under the same or similar circumstances.[4][5] While the specific circumstances of each case will require varying kinds of conduct and degrees of care, the reasonable person standard undergoes no variation itself.[6][7] The "reasonable person" construct can be found applied in many areas of the law. The standard performs a crucial role in determining negligence in both criminal law—that is, criminal negligence—and tort law. The standard also has a presence in contract law, though its use there is substantially different.[8] It is used to determine contractual intent, or if a breach of the standard of care has occurred, provided a duty of care can be proven. The intent of a party can be determined by examining the understanding of a reasonable person, after consideration is given to all relevant circumstances of the case including the negotiations, any practices the parties have established between themselves, usages and any subsequent conduct of the parties.[9]"

bretthardin 14y ago

While I was working at Earthlink in 1999, they had a similar clause and I had a similar thought. Although not around a sex tape, I though about a computer virus released from my Earthlink corporate email account. If I sent it out the virus technically belonged to Earthlink and not me. However, after talking to a lawyer about it years later, he explained there is ways the corporation could get out of the clause.

matt2000 14y ago

In case anyone is in a position to hire programmers and cares about treating creative people fairly, we have an open source Hacker Employment Contract: https://www.docracy.com/hackercontract https://www.docracy.com/hackercontract that tries to fairly handle stuff like IP created after hours.

dustin 14y ago
Thanks for posting this. Standard documents are great. Even if you don't get to use them they provide a point of reference for negotiating terms.

btilly 14y ago

Note. The contract, as described , would not hold for California employees. See http://www.leginfo.ca.gov/cgi-bin/displaycode?section=lab&group=02001-03000&file=2870-2872 http://www.leginfo.ca.gov/cgi-bin/displaycode?section=lab&#3... if you don't know what I'm talking about. (That said, Sony probably does enough different things that the difference does not matter much to most people.)

arkem 14y ago
In California the contract is often modified to include something like "except where prohibited by law" which means that the company gets IP assignment any time that 2870 doesn't apply.

gnu8 14y ago

This story is missing the best part, which is where the compliance officer bluescreens after being asked about whether the sex tape would be owned by Sony.

josephlord 14y ago

I think my Sony (Sony Europe not SCE) contract said "in the course of employment" which I went back to HR for clarification that it meant things related to or done for work. The in/during difference being very key. I seem to recall that I got the necessary clarifications and I've left now so no need to worry.

andrew93101 14y ago

(tl;dr: in California, such agreements are unenforceable) I don't know what state the author was in when he was working for Sony, but California State law prohibits such arrangements in employer agreements (Labor code section 2870): http://www.leginfo.ca.gov/cgi-bin/displaycode?section=lab&group=02001-03000&file=2870-2872 http://www.leginfo.ca.gov/cgi-bin/displaycode?section=lab&#3... 2870. (a) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an invention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the employer's equipment, supplies, facilities, or trade secret information except for those inventions that either: (1) Relate at the time of conception or reduction to practice of the invention to the employer's business, or actual or demonstrably anticipated research or development of the employer; or (2) Result from any work performed by the employee for the employer. (b) To the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded from being required to be assigned under subdivision (a), the provision is against the public policy of this state and is unenforceable.

xsmasher 14y ago

Every time I've gotten one of these documents I've amended it to "any IP for aspect foo of business bar." Example: video training software, or freemium mobile games. My employers have not objected, and it's a restriction I cane live with. Honest employers want to keep you from competing with them while on the payroll, and want to avoid any claims that company IP belongs to you. Amend the document to address that and they may agree.

at-fates-hands 14y ago

The interesting thing to me is how is this even enforceable? Most of my friends keep a tight lid on all their freelance work - how would they even know someone had broken this contract?

shadowmint 14y ago

I'd love to know of any instances of this (work done in personal time being legally given to the company person worked for at the time) going to court. Sounds like a non-compete clause to me; ie. basically unenforceable.

kabdib 14y ago

My current employment contract says that even IP /related/ to my employer's business, as long as it is done on my own equipment and my own time, is mine. It's an enlightened place. I expect to have to prove it, to some extent, if it ever came up. Which is one of the reasons I have a private github account; commit logs on machines not controlled by me might be useful.