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.
> 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.
It seems like a lot of engineers, both here and elsewhere, have a very simplistic view of what other departments do. I've seen similar simplistic statements about design and management. I guess that's just part of human nature, to develop the view that only your work is complex or nuanced.
Maybe . . . are you OK with the legal department assuming you are a lazy simpleton if you launch software with any bugs? Especially considering any misfeatures may have been implemented under management's direction?
I'm not sure that I see your point. Adding extra bits is more work for the legal team, and might lead to 'bugs', but a clause like this is going to lead to pissed off engineers who might leave.
To further mangle the analogy, what if I release bug free code that doesn't do what it's supposed to do?
Lawyers see a "mistake" and go for a landgrab. FB/Instagram TOS update was probably a similar dynamic. Legal likes to err on the side of over-reach, all other things equal.
the primary function of a programming department is to crank out code
OP didn't say the primary function of the legal department was to crank out legal language. He does say their job is to crank out advice that "prevents legally actionable mistakes".
Similarly, I think most developers at core are expected to output code that fulfill some communicated requirement.
Most programmers code to a "spec" - what they were asked to do. Only a small minority would voice their opinion if the spec is badly written or the product is not a good business idea.
>> 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.''?
I don't see where you are getting KLOC; KLOC is rarely a metric that Programmers like. They'd choose readability, or (run-time) efficiency or something.
But yes; That's what you see. In both cases, really; I know last time I went to a lawyer for help with a AUP or privacy policy, I got something ridiculously one-sided that protected me, but would have been an absolute PR disaster to actually hand out as policy.
And yeah, I've seen programmers come up with solutions that were equally good from a purely technical perspective, but equally insane from the perspective of the whole business.
This is why managing a business is so difficult. You can't expect the lawyer to understand PR any more than you can expect your programmer to understand marketing. (I mean, sometimes you get lucky and find someone that is pretty good at both... those people are quite valuable, if you can find them.)
Actually, that's another discussion entirely. When you see the company you are working for (as a narrow specialist) doing something that is bad outside of your specialty, how hard do you try to change that? I mean, certainly, you should say "This isn't my specialty, but I think doing X is wrong, I think you should do Y" - the question then, is how hard do you fight for it. I mean, it is the person managing the company's job to choose specialists who are competent. At what point do you step out and say "Hey, you screwed it up" outside of your specialty?
That is an impression of legal departments informed by what tends to be poor staffing of such departments and/or poor management scapegoating the legal department.
I used to have a very poor opinion of legal departments until I had the opportunity to work with legal departments staffed seemingly exclusively with people who were at least as sharp as the folks in engineering. Turns out, good legal departments are as interested in solving problems as good engineering departments.
As with most departments, legal works on a continuum.
Some coders push buggy code and some coders polish their bits endlessly. The good ones write code that meet the requirements in a reasonable amount of time and move on to the next task.
Some lawyers are strict letter-of-the-law types and some will approve anything to make the profit centers happy. The good ones balance the legal risks with the commercial reality.
Under the circumstances I'd be curious to know what the cost-benefit analysis of this change might look like. Given how seldom employment contracts are negotiated and how rarely these IP clauses are enforced, my guess is the biggest cost might be something even more intangible, such as stifled employee creativity.
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.
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.
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.
California law only seems different to other states.
In practice, it's much the same.
Engineers often misinterpret the provisions of the law.
" (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."
#1 is pretty vague, and it has been interpreted broadly by most courts.
Almost every engineer i've talked to think it means "unrelated to the work i'm doing for the employer" (which is really part #2 of the law).
However, it in fact says that not just "work related to stuff you are doing for your employer", but "work related to stuff your employer does at all or has said they will probably do in the future" can be owned by the employer, even in your spare time.
So if you work for a company that does a lot of things, you should not expect to own anything.
In practice, this is not very different from the laws of most states.
While I am a lawyer, this is not legal advice. Just trying to correct a misconception.
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.
It's also ridiculously outdated. It's from 1957 and based on an outdated, traditional understanding of "big" industrial/engineering companies and their employees ("the little guys"). Also, it protects the companies' interests to the detriment of the employees' interests, which is understandable given that it is based on a war-time law (WWII) which was supposed to support German war engineering.
I'm not so sure that it's ridiculously outdated. Sure, it could use a brush-up but it acknowledges the basic fact that your employer often spends time educating you and allows access to ressources in your line of work that form the basis of your inventions - hence the requirement that the invention be related to your work. Fact is that inventions are rarely a stroke of genius that happens instantly in vacuum. They're often refinements and improvements of readily known things. Quite often they're obvious and simple in hindsight.
It's a hard balance to strike, but just giving the option of moving all "inventions" to after-hours so that the employee gets all benefits won't cut it either, especially with modern work-time models such as flex-time or home office. I don't have a perfect solution, but giving the employer first-buy rights seems like a reasonable starting point for a compromise. The law stipulates a reasonable and fair compensation for the work provided.
I love it how German seems to be able to put the whole law in one word :) It doesn't sound that stupid, depending on what "related" means - if it is indeed almost the same as you are being paid for, then it may make some sense (I'm not sure I agree with it, as it's basically means employer owns your thoughts, which seems a weird concept to me, but even if it is wrong it's not completely stupid). If it's just "it's all computer stuff so must be the same" then it's stupid. I'd say it all depends on how the courts will be treating it.
Overly broad applications are rare in germany. If you look at an engineering or research context it's easier to nail down: If you're a researcher the employer pays you for your thought and provides the lab, access to related research, to peers to discuss stuff with etc. Now you've been working on a particularly hard problem and the stroke of genius strikes you at midnight, you get up, work straight for two days and write down the formula you've been working on for years. It's worth a billion dollars. Technically it's during off-hours, so is it yours?
There is such a law but you should not assume it means what you think it means. Talk to a legal professional if it's important to you. One IP lawyer I interacted with maintained that the rulings in actual court practice are very unfavorable to the moonlighting employees. To the point that CA labor code 2870 might as well not exist (although of course he didn't say that in so many words.) "Actual or demonstrably anticipated research or development of the employer" can be made to mean anything. I asked, "Say I worked for a company that makes software for medical devices, and I work on cell phone apps in my spare time, could they still claim that it's related to their research and development?" He said, "Yes."
I hear you. While living at my prior location, I was always integrating plausible deniability into my business plans and their initial implementations, besides keeping my work super secret. Now I don't worry about the secrecy, and feel more relaxed about deniability. (Not that I've been doing anything seriously since I moved here --- I like my team, and I would like to accomplish big things with them.)
That sucks. "Actual or demonstrably anticipated research" looks like a fairly clear attempt to make sure that companies can't just claim that they might be planning to go into some unrelated field, and it's unfortunate the courts don't see it that way.
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)
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.
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.
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.
One of the few things I've learned over the last 10 years or so is to be much bolder in work/job relationships. If I see something in a contract that is too one-sided, I strike it out and bring it up and say "I'm not agreeing to that". Will I sign a contract with, say, a 5 year non-compete (even assuming the non-compete is enforceable)? Generally no, unless there's a huge compensation package tied to make up for the time when I can't use my knowledge in the market. Would I sign one with a 3-6 month non-compete? Probably.
15 years ago I'd sign anything. Today, not so much.
In GA the constitution USED to be written such that unenforceable contracts, especially unenforceable employment contracts, were void in their entirety.
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?
Collective bargaining rights was developed to counter exactly this power imbalance with minimum government involvement. Unfortunately I'm not aware of any programmer unions.
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.
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.
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.
You should be careful imputing views to others, then criticizing them, it's easy to miss nuances, then jump on the nuances you missed. For instance, here's a consistent view: "Unions can be forces for good but the government has gone too far in empowering them, creating a monster." I live in Michigan, a state that, no matter how much unions would love to deny it, has been badly damaged by them.
I'm a libertarian, and I support the existence of unions... but I also support the existence of Right to Work laws. A union should have to work to justify itself to its members, not be empowered by law to collect funds from individuals who do not wish to be in the union. Unions should be shielded from punitive violence by their employers... which I wouldn't even see fit to mention except that history says it needs to be mentioned... but if the employer can "just" hire replacements then the simple truth is that the union is negotiating itself right out of its market, and it needs to be forced to face up to that, not hide behind the government.
Unions are part of the free market, and should remain part of the free market. They should come and go as companies do, and the very fact that so many are The Union for their industry and that the same unions are nearly-permanent fixtures of the landscape is significant evidence that they are themselves artificially-created government monopolies, and I view them with the same suspicion I would any other government-created monopoly.
I don't see that as inconsistent at all. Why can't you be pro-free-market and anti-union? You can agree with the concept of a free market, but disagree with how unions currently operate. You appear to be confusing "I hate how unions tend to behave" with "I think unions should be forbidden".
I think unions can do great things to protect the workers they represent, but I hate that many (most?) of them seem more focused on things like retirement benefits and policies that have the effect of making it difficult to impossible to fire bad employees.
I'm pro free market, and against unions, just as I am against fascist political parties. One could analogously say 'the choice to vote oneself into serfdom is the ultimate freedom' - this is the age old 'problem' with freedom, and while I acknowledge that it's a paradox in the ideology of freedom, I also find it hardly ever a problem in practice. Just as with unions, since they invariably turn into choice- and freedom-restricting guild-like entities.
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.
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.
The concept you're talking about is the so-called "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.
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.
Huh. Those sort of closed shops are illegal in the European Union, and have been for years, your right to join a trade union must mean you have the right to not join a union. Needless to say, unions and socialists in EU were not so happy with that.
It's weird to think that part of the USA have more union friendly than the EU
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.
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.
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.
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.
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.
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.
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.
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.
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.
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).
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?
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-prot...
How exactly will it help when all employers adopt stupid and evil clauses in their contracts?
Because that's what they do. Legal documents ("best practices") seem to circulate between companies, growing more bulk with each round. There's no place in this process for the consideration of employees' wishes. There can't be because legal department is famously isolated from the rest of the company and only cares about covering their own ass.
They don't care about productivity. They don't care about happiness. They only care about having all bases covered. So I don't see why they won't grab every right from you that they can without violating the law.
If the law is where they stop, then there should be the law and nothing else. There's no reason for all those contracts-writing people to be employed.
I think for many people it's going to be hard to fulfill the following:
> ... 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 ...
As a programmer, there's not a lot I can do that is going to be considered wholly unrelated to what I'm employed for... at least it would be murky enough that the employer would have a good court case. This is infinitely more so for anyone working with Google, Apple, or any other company that has got their fingers in everything.
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.
I'm with you, though you're fighting a pointless battle on HN, a great bastion of the privileged who don't even know their own privilege. They are young, male, predominantly white with knowledge that is (almost always) accidentally gained in a field of absurdly high demand.
99.9% of the world doesn't have the leverage we do. The amount of clucking and tsk-tsk-ing HNers do at the rest of the world is sickening.
This entire "well duh, quit" argument is the employment equivalent of "let them eat cake".
It's not a pointless battle. There are two possible reactions to any such post: engagement, which provides the possibility of changing the other person's mind, or disengagement, which at minimum gave you a little practice at making your point. The cost is the time and energy expended to write the post in the first place; as long as that doesn't outweigh either possibility, it's not pointless.
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!
I believe the point was that programming is a seller's market, so the ease with which someone like you may be able to switch jobs doesn't necessarily translate to other industries.
But even for programming, who says there's always another company doing the same work in your area that's hiring? Unemployment may be low for us, and telecommuting may be a valid option for many, but it seems easy to suggest there are practically infinite possibilities for programmers when the list can actually be pretty small depending on your geographic location, resume/skill set, and a variety of other personal factors.
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.
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.
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.
>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.
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?
>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.
So presumably your employer decides which parts of your work are and are not confidential. They then provide this information to you in writing and the implication is that by working for them you agree to abide by these rules.
In other words basically the definition of a contract.
The only difference I can see in this case is that your approach would actually make it a criminal offence (presumably involving a possible prison sentence) to violate your employers terms.
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.
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.
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.
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..
> 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.
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 that tries to fairly handle stuff like IP created after hours.
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.
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.
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]"
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.
(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):
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.
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?
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.
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.
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.
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.
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.