
Developers’ side projects - grabeh
https://www.joelonsoftware.com/2016/12/09/developers-side-projects/
======
alexmingoia
> Not related to your employer’s line of work. Um, wait. What’s the definition
> of related? [...] I don’t know. It’s a big enough ambiguity that you could
> drive a truck through it.

No, it's not that ambiguous at all. The courts rarely side with the company,
and only in cases where it's quite obvious the work was directly related. If
your side project isn't directly related to the work you are doing, then you
don't need to worry.

Don't let Joel or any other tech CEO scare you into not working on side-
projects. Don't even tell your employer about side projects. Leave them out of
the loop entirely.

~~~
ImTalking
You don't quite understand Joel's point. Regardless of whether you are legally
right, a larger company could sue you for the sake of suing, and make your
life very miserable. And if the fight continues and you run out of money, what
then?

I had exactly that thing. I was being bought-out and a small client decided
(against the contract that they had signed) that the changes we had made to
our mortgage broker commission system were their own IP, and that they would
suffer damage if those changes were part of the overall IP we were selling to
our prospective buyers. And it was absolute nonsense since their changes were
just a collection of reports and small features which were part of the public
domain since whenever. It took weeks to iron-out the agreement and obviously
could have scuttled the buyout.

And when I left the company that bought me out to start another project, I
made sure that I had a release to say that I'm indemnified against any future
legal actions and I started the project the day after I got that release.

The old adage is correct: plan for the worst, hope for the best.

~~~
johnwheeler
> Regardless of whether you are legally right, a larger company could sue you
> for the sake of suing, and make your life very miserable

A company with resources could sue you for a number of bogus reasons if they
wanted to be dicks.

~~~
dimino
Yeah but law isn't magic, you can take away their options by planning ahead.

~~~
djsumdog
I really disagree with this. The law is a type of magic.It's socially
constructed. The idea of blind justice is sort of a fairytale. Reality shows
us that some of the most powerful get away with murder while the people least
able to defend themselves take plea deals rather than fight charges.

At the very least, the law is subjective:

[http://khanism.org/security/legality/](http://khanism.org/security/legality/)

------
sgentle
I find this mindset totally disgusting, but I'm glad it's been summed up in
such a concise way.

> Being an employee of a high tech company whose product is intellectual means
> that you have decided that you want to sell your intellectual output, and
> maybe that’s OK, and maybe it’s not, but it’s a free choice.

Let's clarify that phrase, "sell your intellectual output". Keep in mind that
earlier in the article we discovered that "during work hours" or "related to
your work" are not limits on its scope. What are the limits? The evident
conclusion is that there are none. You are selling _all_ of your intellectual
output.

A situation where every idea you come up with, everything you think, every
last shred of creativity is owned by someone else is one of the most
profoundly dystopian things I can imagine. But this isn't a sci-fi story, this
is standard business practice.

Selling all your intellectual output is selling yourself, and I think it's
unconscionable. If you don't even own your own thoughts, what do you have
left?

~~~
yongjik
> A situation where every idea you come up with, everything you think, every
> last shred of creativity is owned by someone else is one of the most
> profoundly dystopian things I can imagine.

That's rather overdramatic. Several centuries ago, every idea you come up
with, everything you think, you could probably keep as your own because no one
was interested and there was no way you could sell them and make living, even
if you really wanted to, which you probably did not, because such a lifestyle
was out of most people's reach.

"What are you saying you've been up to all this morning, _thinking_? Cut out
the laziness and go feed the cows, or there will be no lunch for you!"

~~~
dwaltrip
We are currently living in the current age, not several centuries ago.

Should one accept terrible medical care, as such care would be considered
revolutionary a few centuries ago?

Additionally, there _were_ people back then whose intellectual output was
their own and were able to do things with that output.

~~~
ozim
Joel also wrote that as a contractor you own all the copyright by default, and
it is your free will to sell it. That is your choice to sign up for contract
and let the company take over. If you do not want that, simply do your
buisness on your own and don't look for work for someone else.

~~~
ozim
For downwvoters, I am from Poland I live in Netherlands. I am all in for
personal freedom. I cry when freedom is taken away from people. It is about
beeing more educated, knowing your options. Not just signing up with big corp
because you will get more money. It is about you can loose some of your money
because you choose freedom.

Please upvote it. Don't be like a child who wants to have cookie and eat
cookie, it is You loose some money in return you get freedom. Those who want
money can get all they want, but you loose something more valuable. You can't
have all the money and all the freedom...

------
nostromo
This is a good article, but the "let them eat cake"-iness of the last
paragraph is pretty chilling.

> the only way to gain independence is to be independent. Being an employee of
> a high tech company whose product is intellectual means that you have
> decided that you want to sell your intellectual output, and maybe that’s OK,
> and maybe it’s not, but it’s a free choice.

I was hoping for a closing argument about how thoughtful employers could
accommodate their legal requirements while also respecting independent
employee creations.

Instead he seems to just be saying that employees that want to keep their side
projects should just quit.

Reading that might give me pause about taking a position at Fog Creek.

~~~
skybrian
Yes, it seems weird that he doesn't say how to fix this:

Get written agreement from your employer that your side project is your own.
Some employers even have a standard process for doing this.

They might say no, but then you know not to put any more work into it.

~~~
rqebmm
This is true, but ultimately if your company wants to be a dick about it, you
could still end up having to fight them in court. They just have to say "when
we signed that form you said it was a <domain A> app, but now it's turned into
a <domain B> app which competes with our business. Hand it over."

As Joel says, a judge/jury will probably be inclined to find for you, but you
still have go through the pain and cost of litigation. Also, while it's not
usually in a company's best interest to pick legal fights with their
employees, the catch-22 is this: the only time it's worth it for them to be
dicks is when/if your business takes off. I'm sure your employer doesn't care
about your little news aggregator until you're shopping around for $100
million in VC funding.

Ultimately he's right. If you seriously want to start a side business, quit
your day job.

~~~
marcus_holmes
But you have to quit your day job _before_ starting the side business, or
working on it at all. Otherwise your ex-employer still has a claim on your
business.

The beauty of side projects is not having to make them pay the bills. As soon
as you have to make them pay the rent, they stop being side projects.

But having an ex-employer sue you for lots of money because your side project
is booming is a _great_ problem to have ;)

~~~
aithoughts
> is a great problem to have ;)

Your comment is inspiring. The question then becomes, how much of your
project's worth, as a percentage, are they going to come after you for?

~~~
marcus_holmes
that becomes a question for lawyers at the appropriate time.

Put it like this:

not having a side project because you're afraid your employer will sue will
get you exactly and definitely $0.

Having a successful side project will teach you a ton of useful stuff and
probably earn you more than $0 even after the lawyers have finished arguing
(depending on your definition of successful).

------
tetrep
> Your game designer works for a year and invents 7 games. At the end of the
> year, she sues you, claiming that she owns 4 of them, because those
> particular games were invented between 5pm and 9am, when she wasn’t on duty.

> ...

> So before you hire this developer, you agree, “hey listen, I know that
> inventing happens all the time, and it’s impossible to prove whether you
> invented something while you were sitting in the chair I supplied in the
> cubicle I supplied or not. I don’t just want to buy your 9:00-5:00
> inventions. I want them all, and I’m going to pay you a nice salary to get
> them all,” and she agrees to that, so now you want to sign something that
> says that all her inventions belong to the company for as long as she is
> employed by the company.

Wait, what? Wouldn't the fix for this just to say, "You transfer the rights to
any games you give us" (or whatever the legal wording for that is)?

It seems incredibly odd to go from "you gave us a game but kept the IP" to "we
own all IP of games you make".

~~~
pfranz
I furrowed my brow at that example, too. He may have been simplifying or
misrepresenting reality. I would think it's disingenuous that you're
presenting all 7 of those games as projects done on the company time (unless
there is something to insinuate you were forced to work off the clock for free
--which wouldn't be different than any other kind of work).

Lets say, without notifying my boss, I went on vacation and refactored some
company code I maintain, then checked it in when I got back. I can't imagine
claiming that as my own unless there were other shady things going on.

~~~
Asooka
I think the standard contract should say something like "I assign copyright of
and grant a licence to any patents I own pertinent to every single line of
code that I create and give the company".

------
swalsh
The hope that one of my side projects will some day succeed, and I can leave
my 9-5 is the only thing that drives me. If I said, "welp, legal" i'd die
inside. Some people have church, I have side projects.

~~~
hyperopia
I was checking out your side project but couldn't figure out what it was/did?

~~~
swalsh
Sorry, it's pretty poor quality. I've gotten out of it what I want though.

------
OliverJones
Joel doesn't often miss things, but with respect I think he missed something
here.

If you, the employee, are working for an employer you respect, and vice versa,
YOU CAN HAVE A CONVERSATION!

If your day job is, say, maintaining high-capacity forum software in dotnet,
and you have this hankering to develop, say, a WordPress plugin to show the
time of sunrise, you can talk about it.

If you respect your boss and she respects you, the conversation will be
fruitful. She may say, "please don't do that," and you'll understand why not.
She may say "go ahead."

If you DON'T respect your boss, there's lots of advice here about how to
proceed. But why not start out assuming mutual respect?

~~~
slmyers
I'll be damned if I'm going to let my boss tell me if I can write a WordPress
plugin on my own time.

~~~
zaphar
He's not suggesting that. He's saying that you can always cover yourself
legally starting with a conversation.

Hey boss, I'm going to write this wordpress plugin as a side project. I'll be
doing on my own time and with my own equipment. I'd like the company to
disclaim any right to the code.

9 times out of 10 they will do so. If they don't then you know it's time to
polish the resume. As tptacek says elsewhere here. It's too good a job market
to risk the legal hassle of working someplace like that.

~~~
slmyers
Oh, thanks for clarifying. I misunderstood.

------
ChicagoDave
I've been a contractor and entrepreneur for many years. I do like the higher
income that I can command as a contractor, but it's also a matter of principal
that any work I do on my own for my own endeavors belong to me.

My current client and I have talked about going "full-time" and I've even
discussed it with their legal department. The problem is they have a culture
of standard employment contracts and are extremely uncomfortable with the idea
of someone having a non-standard employment contract. They said it was
"possible", but I'd have to list the projects to be excluded from their
interests.

That precludes any opportunity to pursue any new ideas I would come up with.

That's just a flat out non-starter for me. I come up with new ideas all the
time and I pursue or network those ideas all the time.

This is definitely a problem with my client and other large corporations. They
understand that entrepreneurship is a growing interest of my many technical
people and it has become a barrier to attracting those types of people.
Something every corporation needs...people who think outside the box.

Of course the primary issue is leverage. If you need the company/paycheck and
don't have enough of a background to command a change in the standard
employment contract, then you have to sign away all rights. Or you can just
decide to be a contractor and explicitly state (where it's necessary), that
the work you're assigning rights to is in some amendment and is listed in
detail. All other creations/works are yours.

Or you have a strong background with proven results and the corporation is
interested in your services enough so that they will work with you on a non-
standard employment contract.

~~~
mrottenkolber
I agree with your critique, but I disagree with this line of thinking:

> If you need the company/paycheck and don't have enough of a background to
> command a change in the standard employment contract, then you have to sign
> away all rights.

You're not signing away your rights, your signing away everyone's rights. What
about the person who doesn't like to sign his rights away, but is now expected
to, because some other poor person lead the way? Accepting this kind of
bondage from employers means either setting a very bad precedent, or following
a very bad precedent. Either way it hurts the workforce.

~~~
dwaltrip
This person doesn't have the opportunity or financial freedom to fight for
everyone. He or she has bills to pay. The leverage dynamic is very real.

It seems the law should be improved here. It would directly promote innovation
and new businesses. I don't see much downside either. Businesses would be less
entrenched, which on first glance sounds good.

------
pfranz
I was at a larger company and tried to play ball with their policies for
personal work. My contract gave them "right of first refusal" and had a space
for exclusions of things you were working on outside of work. Some friends
weren't allowed to continue contributing to a few Open Source projects...which
seemed excessive, but makes sense if they're overly cautious.

I mentioned I was helping a friend on a short film. I was just showing up on
set and possibly doing technical stuff on editing and mixing. I asked, "It's
not my project, I'm just helping out. What would you like to see from the
project?" "Everything" "Really? We haven't started shooting. Does that mean
the script? Raw footage? The final edit?" "Everything" I don't think they
actually knew anything at all about what I was talking about (even though it
was multi-gigabytes of information) and they handed it all over to a co-
worker.

I think the lesson is to think about where they're coming from. The lawyer is
paid to cover the company's ass and they may not even have the expertise to
make the right call, so they'll error on the side of being safe.

~~~
delinka
This situation sounds terrible. Were you writing software for your employer?
Why would you have told them you were volunteering non-coding assistance to a
film production? Did they honestly think they had the right to require you
show them copyrightable works created by other people who were not their
employees? Did you truly take those creations and show them to your employer?

This whole situation sounds ludicrous and should never have been required to
happen by management in a company whose focus is creating software.

~~~
pfranz
It was a large animation studio and I was a guy who monitored their render
farm. So they were making content and I would write tools (Python, Perl, and
Shell scripts) and did have access to their whole codebase.

I told them because there was a box in my contract (I was new to the industry)
and the last thing I wanted was to have my friend's short film litigated
against.

It's weird because I'm not sure what I'd do different. In that case I probably
wouldn't tell them, but I often have side projects that might be profitable.
Often I'd see artists working on short-films or publishing their own art books
and they would sometimes be internal events promoting those things. I'm not
sure if there was just some "understanding" I didn't quite get or if tech and
art were treated separately.

------
rjurney
You ALL need to read California Labor Code 2870!

Surprised nobody has mentioned the most essential thing to know about
regarding this stuff in California. The site is down at the moment, but the
link is: [http://www.leginfo.ca.gov/cgi-
bin/displaycode?section=lab&gr...](http://www.leginfo.ca.gov/cgi-
bin/displaycode?section=lab&group=02001-03000&file=2870-2872)

CA 2870 is attached to any such agreement you sign in California, and protects
independent invention. You should read it. This law forms the legal basis for
innovation in Silicon Valley.

~~~
DrScump
The leginfo.ca.gov site has been deprecated for awhile. The current code is
here:

[http://leginfo.legislature.ca.gov/faces/codes_displaySection...](http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=2870&lawCode=LAB)

~~~
rjurney
Thanks, google is slow to update!

~~~
DrScump
It would help if their webmaster would just take down or outright forward the
old URL, which goes back to 1995. It's been deprecated since at least early
2016.

------
joeljumpedshark
Joel is both asserting that a particular state of affairs presently exists
that quite likely doesn't--specifically that employers have a strong rather
than tenuous legal claim to all side projects produced by their developers due
to the vagueness of the relatedness clause of the California law and the
contracts incorporating it--and also attempting to convince his readers, most
of whom are developers, that this is entirely appropriate and that they should
just accept it as a normal consequence of salaried employment.

This really does change my opinion of both Joel and FogCreek, and certainly
for the worse. I wonder, did FogCreek actually prevent Ted Unangst from
contributing to OpenBSD as a side project while he was with them? If so,
that's horrible. And how much have FogCreek, StackOverflow, and other
companies that seek to greedily arrogate the entire creative output of their
employees benefited from open source software began and continued as the very
side projects this blog post cautions against? Utterly hypocritical.

I second the call of another poster: we need a professional association
(union) of the kind that lawyers, doctors, and dentists have. IEEE and ACM
could easily function as such, and in fact, they already provide many of the
same practice standardization and continuing education functions that other
professional associations do. All that's missing is the rent-seeking behavior
to ensure we earn what we're worth and keep employers like Joel honest.

~~~
__derek__
> we need a professional association (union) of the kind that lawyers,
> doctors, and dentists have

A nit-pick: those professions have guilds, not unions.

------
eel
I thought I recognized this article. Here is Joel's original answer (2011) on
a Stack Exchange site with some comments:
[https://web.archive.org/web/20130329010105/http://answers.on...](https://web.archive.org/web/20130329010105/http://answers.onstartups.com/questions/19422/if-
im-working-at-a-company-do-they-have-intellectual-property-rights-to-the-
st/20136)

Here is a previous discussion on HN:
[https://news.ycombinator.com/item?id=2208056](https://news.ycombinator.com/item?id=2208056)

------
ThomPete
When I ran my design studio at it's height of 80 people I would encourage
everyone to have side projects. When you reach that size people coming and
going starts to become the norm. Just as each employer is not going to be
valued as when you are a much smaller company, neither should the employee be
forced to some sort of fake commitment to a company who is no longer able to
care for others as a small tight band of brothers might do. So it's better to
have people be able to do whatever they like to do in life. It's up to you to
capture as much value out of them as possible and it's often quite telling
about the position they have whether they end up wanting to spend more time on
sideprojects than their main one.

You have to expect people leaving you, because the reasons they join a bigger
company is much different than a smaller one and it's quite shortsighted as a
CEO of a company of the size of fog creek to think like that.

Luckily there are other companies doing great encouraging side projects too.

~~~
bb611
Minor correction: As of December 6th, Joel is no longer CEO of Fog Creek:
[https://www.joelonsoftware.com/2016/12/06/anil-dash-is-
the-n...](https://www.joelonsoftware.com/2016/12/06/anil-dash-is-the-new-ceo-
of-fog-creek-software/)

However, he is still CEO of Stack Overflow and has over 300 employees, if I
were one of them I might be pretty concerned about his take on side projects
as my employer. I think in all likelihood, Joel means the article as a warning
to developers who think they have more freedom than they might actually, and
he's probably quite permissive about side projects at SO, but I agree the
article doesn't come across that way.

------
ThatGeoGuy
As a Canadian I don't even know what the requirements are, or protections if
any. But I did notice one thing in particular: you need your own equipment (no
company equipment) to qualify under the Californian protections.

How does this factor into bring your own device (BYOD)? At what point is it
your employers equipment, and at what point is it yours? I think BYOD is a
terrible idea for several reasons (usually leveraged as a cost-saving measure,
can't 100% verify that all company data is wiped at end of employment, etc),
but this seems like it muddles the whole thing further. If you only own the
devices that you use to work, does everything belong to your employer and how
can you draw a line?

~~~
nine_k
The problem looks reasonably clear. If something is provided to you by the
employer, don't use it for a side project.

This can be hardware, software, know-how, office space, work hours, etc. If
something was _not_ provided by the employer as a part of your work
environment, it's probably fine to use it. But a clear separation should
additionally help.

~~~
alkonaut
I agree it's probably wise to separate the two, but it's very hard to prove
you _worked_ on company equipment.

My personal projects are all in my dropbox, which is synced to all my
computers (both home and work). That means all the code for my side projects
is always sitting on my work computer as well. I doubt that makes a
difference.

~~~
__derek__
You can turn off syncing to specific machines. You may want to consider doing
that.

~~~
anondev77
I used my own equipment, including my own personal licenses for all tools, but
my employer still claimed my work on it (at home) was theirs - because they
claimed IT professionals all prefer to use their own equipment for their work.

------
ascotan
This article is FUD.

Employer contracts are concerned that you are attempting to take company
proprietary information and repackage it on your own time for sale. This sort
of behavior clearly falls into 'inventions'.

However, most of the contracts I've seen have a clause which states that the
invention must be related to the business of the company. If you work in the
games industry and make games on your own time for sale, your employer might
take issue with that.

If you work at a games company and run a real estate business on the side, who
cares? Similarly, if you work at a games company and write real estate
software, they're still not likely to care.

The issue arises:

\- where the customer you are getting money from is the same customer
(potential customer) of your current employer.

\- where the IP in your side project has potential business value to your
current employer.

If in doubt, you simply tell your employer up front and get it in writing
(email) that it's o.k. I've done this in the past, and the HR department
usually will defer the decision to your Manager, who has to make a
determination if the work you're doing has potential cross-cutting business
concerns. The bigger issue (from an employer standpoint) is that you are not
devoting 100% effort to your current employer.

So as long as:

\- you make it clear that there are no customer overlaps

\- there is no IP that the company would ever be interested in

\- that this is done own your own time (and off-premises)

No one should care what you do in your own time.

~~~
simonh
Everything you write here is consistent with the article. What are you
actually disagreeing with?

~~~
ricardobeat
Not at all. The bottom line of the article is 'your employer owns _everything_
you do during the employment period, quit if you don't agree'.

------
oelmekki
I encountered such clause in my contracts twice, in France. I'm glad to
finally know the reason why, it just looked suspicious to me (and when I asked
about it, each time I was answered: "this is standard contracts").

The two times, I asked to change it. First time I asked to mention that I keep
ownership of my opensource projects, since it was what I was doing mainly with
my free time.

The second time was less obvious, because I was cofounder/CTO, and I didn't
really have a distinction between my "work for company" time and "work
outside" time. I also was working on a side project meant to become a
business. I took it that they wanted me to transfer IP to the company, but
didn't want to let the ownership of my other project go as well.

So what I asked was to change text to say that company had ownership for all
my non opensource code that was effectively used by the company. This gave
them ownership of everything I was writing for them while at home, while still
securing my ownership on my totally unrelated project (without any ambiguity
possible).

------
guelo
The conclusion of this article hinges on the vagueness of "related to your
employer’s line of work". From that he concludes that all employee developers
have effectively sold their total intellectual output. But that is bullshit.
The vagueness doesn't make the law meaningless. He admits that a judge and
jury would probably side with the employee but still picks the company's side
for his conclusion (the sarcastic "big bad Google" gives away his mindset). It
is true that a company will generally have more resources than you and can
grind you down legally, but in general they don't because, besides the money,
it's a time suck for everybody, potentially bad press, and really bad for
morale

------
jbrazile
I am surprised nobody here has yet mentioned the real case of what happened to
Evan Brown, the former president of the Dallas Ft Worth Unix Users Group who
worked at a telephone switch company as a system administrator and had an idea
for a generic code translator.

Maybe the New York Times tells it best:

[http://www.nytimes.com/1997/09/08/business/an-idea-not-
yet-b...](http://www.nytimes.com/1997/09/08/business/an-idea-not-yet-born-but-
a-custody-fight.html)

~~~
zem
interesting case. the everything2 writeup seems better than the nyt one:
[http://everything2.com/title/The+Thoughts+of+Evan+Brown](http://everything2.com/title/The+Thoughts+of+Evan+Brown)

~~~
ScottBurson
Ah, thank you. Yes, that puts quite a different light on it.

------
a_e_k
Where I work, there's a fairly streamlined process for getting waivers for
side projects, including open source contributions. Fill out a page-long form
broadly describing the intended side project and send it to Legal. If approved
(and I've never had one rejected), a couple of weeks later they send back two
copies of a document signed by them saying that the employee promises not to
use company time or resources for that project and in return they agree to
disavow any interest in it. Sign and date both copies, send one back, keep the
other. Done. Everyone knows where they stand.

~~~
wallstop
While it's great that you've never had one rejected, what would happen if that
event occurred? Imagine a situation where you submit a proposal for a
completely unrelated project, that you really want to happen, and they deny
it? Further conversations, talks, they don't budge. What then?

~~~
a_e_k
Assuming I felt that passionately about it? I'd start looking for other
employment.

------
tc
This presents a false dilemma. There are other options than "own everything"
or "be negligent and get sued."

Contracts can say almost anything. You can agree to grant the company a
liberal license to anything you deliver to the company or incorporate into any
product of the company. You can make a similarly protective agreement on the
patent front.

There, now you own what you do on your own time and the company isn't at risk
of a lawsuit from you.

------
vesak
This is why programmers need unions! Or a guild. Or something! That employers
totally dictate everything in a field that is in such high demand is
absolutely unacceptable.

~~~
maxxxxx
Most professionals have some kind of trade organization that sets standard.
Doctors, laywers, many types of engineers.

The problem is that programming is so attractive because the barrier for entry
is so low that anybody can get into it without problems.

~~~
vesak
>The problem is that programming is so attractive because the barrier for
entry is so low that anybody can get into it without problems.

I'd wager that it's easier to be a quack doctor or a lawyer than fake being a
programmer. Most people cannot just grasp the needed details.

Not that it's a competition, though.

~~~
maxxxxx
You can't go out and open an office as lawyer or doctor without a license. You
will get into trouble quickly. You also have to comply with a lot of rules.
Anybody can call himself "software engineer" and he can pretty much do
whatever he wants. That freedom is the exciting part about software but it has
the disadvantage that there is no protection for "software engineers".

------
tptacek
My experience with employment contracts has been that in addition to the
"anything related to employer's business" clause, there will also usually be a
schedule at the end of the contract where you can list specific side projects
you're working on --- and that schedule can be amended (or extended with a
clause like "anything agreed to in writing with your manager") later on.

It's not ideal from an employee's perspective, but it's at least less
unpredictable.

------
kcl
Is Joel a supervillain? Why is Joel writing this and, given his obvious
conflict of interest, addressing it to developers as if it were friendly
advice, when it is not?

I advise people not to work for Joel or his companies. This is developer-
hostile advice from someone who should know better. You don't want to work for
a guy like this or his companies.

------
tdeck
I just started at Google this week, and this is something I'm terrified of.
Side projects are vital to my personal identity and development, and knowing
that I own them is vital to my motivation. The thought that my employer might
try to claim ownership of work I've done all on my own fills me with
apprehension and I still haven't figured out what I will do about it.

My old employer was one I felt that I could trust to not abuse its power.

------
maerF0x0
This gets super muddied when you consider doing FOSS contributions as part of
your work. Sure you can sign a contributor agreement, but its not yours to
give away. The employer owns the code you contributed to a FOSS project. The
project got the signature from the wrong entity.

~~~
lomnakkus
> The employer owns the code you contributed to a FOSS project.

I think this is a pretty US-only type thing; at least it's not very common in
Europe. Usually (in Europe) ownership of code depends entirely on _when_ you
did the coding -- if it's on your own time you own the code. If it's when
you're at work then obviously it's the company's code. Of course there are the
usual caveats about "is it _too_ closely related to work code?", etc. but if
it's a totally different area of business, then you should be fine. There may
be differences between employers, but even if employers explicitly specify the
"we own everything" clause you can usually get specific exemptions as long as
you ask in advance.[1]

[1] I don't know if there's any legal theory (in Europe) to support the claim
of ownership over everything you do, but Europe is pretty fragmented when it
comes to law, so it's probably pointless to speculate on this point. I'm
actually not sure if the "we own everything" clause would hold (or has held)
up in court in any European country.

~~~
dom0
Indeed. Example:

In Germany you usually have some paragraphs on this in the (work) contract
(there are a couple popular variations - there isn't much leeway provided by
German law here, which is good). "We own everything you do" is definitely
illegal in Germany, and also not put into work contracts (such a clause would
be void anyway).

The legal construction is basically that the employee grants an exclusive,
irrevocable license[1] to any IP produced by the employee _for the employer_.
There is of course a grey zone here, but it's quite narrow, and directly non-
existent if the side project is unrelated to the _current_ core business of
the employer.

FOSS contributions aren't really touched by this; you work on behalf of the
employer to contribute to a FOSS project and the exact same terms and
conditions apply as always (you put your name on it, not your employers; since
exclusivity of the license implicitly granted to your employer conflicts with
the FOSS terms, but the employer explicitly commissioned you to do that, the
latter "wins" over the former, ie. the license of your employer to the diffs
you write becomes non-exclusive in these cases, because the exclusivity is
implicitly revoked by the work assignment, essentially action implying
intention) -- or so it was explained to me).

[1] This also means that you retain your copyright: it's not possible to
transfer copyright in Germany. Very rarely things like "Copyright (c)
1871-1918 Softwareschmiede GmbH" pop up in open sourced stuff, but it's
obviously something stamped on when open sourcing, and equally obviously
incorrect. The copyright still belongs to the developers involved in the
project, but because the company "Softwareschmiede GmbH" has an exclusive
license they can re-license it on their own accord under any terms they want.
They'd still have to, technically, state the correct copyright, though.

~~~
BuuQu9hu
I thought it was the moral rights that couldn't be transferred, not copyright?

~~~
dom0
These two are the same in Germany; German doesn't have a word for moral
rights.

------
x3al
Disclaimer: I'm not a lawyer.

In some countries, it's quite different. In Russia, you own anything you made
as long as

* you don't touch it while you're on duty

* you don't use the employer's equipment

Obviously, you still can't use any information classified as 'trade secrets'
at your current job because it's covered under another law.

You can even work in a directly competing company (or start one) WHILE being
employed because job contract can't legally regulate your off-duty time and
you can have unlimited number of side-jobs, as long as it's under 20-hours-a-
week, in addition to your current full-time job. You don't even have to notify
your full-time employer about it. The 'non compete clause' doesn't work. And
your full-time employer can't even fire you (legally) just because you work
in/own a competing company, as long as you follow all the regulations.

Even the 'I don’t just want to buy your 9:00-5:00 inventions. I want them all'
in the job contract can't work if I understand the Russian laws correctly.

------
mojomark
As an engineer at a defense contractor, I recently had to go through the
process of having my company waive my 100% IP ownership clause so that I could
work with a startup on my own time without fear of putting them in jeopardy.
It took about 3 weeks to process the paperwork, and answer a lot of questions,
but eventually the paperwork was signed. It only allows me to work freely with
the one startup.

However, the important issue here is the opportunity companies are missing by
not offering any significant profit sharing from disclosed inventions. If I
submit IP to my company and it gets patented, I get a $500 check. That's
idiitic because it dissincentivises significant innovation, but it's
unfortunately commonplace.

To solve the dilema, companies simply need to get their greedy heads out of
their rears and offer inventors a profit share percentage such as 10%. If they
don't accept, the inventor should be able to do with the invention as they
please, which includes selling or licensing.

~~~
webmaven
_> offer inventors a profit share percentage such as 10%_

Hmm. Good idea, but don't focus exclusively on profits. Many innovations
aren't profitable sources of new revenue per-se, but cost reducers (which can
then make other previously-ignored sources of revenue viable).

~~~
mojomark
"...don't focus exclusively on profits. Many innovations... [are] cost
reducers"

I agree and I like your idea of also covering cost reduction efforts in profit
sharing models. It is undoubtedly easier for companies to swallow a
significant cash payout to an employee when they are receiving a large
corresponding cash infusion resulting from sales of a developed idea.
Following implementation of an efficiency improvement, understandably, as time
passes companies tend to only see the current bottom line as the norm vice
seeing "what could have been". You can project a companie's profitability over
time and use this as a basis for a cost savings award. However, increased
uncertainty with time makes it difficult to validate the truth behind
estimated savings calcs (i.e. what is vs. what could have been).

For example, if I intoduce a cost savings initiative instructing my customer
to switch from diesel to LNG fuel based on the price of the fuels today, then
next year diesel prices unexpectedly plummit, at the one year mark the
initiative actually became a cost increaser. Thus, any award based on annual
projected savings will also need to factor in the diminished value as a result
of uncertainty. Cost savings projections are non-deterministic.

I guess my point is that I think cost savings sharing is much more complex
than a profit sharing, in which you simply take a cut of any profits (albeit a
significantly smaller portion since the company is assuming the
development/commercialization risk) that roll through the door.

That said, I could see cost savings awards as a one-time award based on the
agreed upon value at a given time, rather than an ongoing profit sharing
program that pays out until the product is no longer profitable.

------
stevesun21
I got a little confused of this article. Firstly, the author try to say that
side projects are belong to the company hires you as full time employee, and,
then throw the game designer example, but it sounds to me like the game
designer is contractor not a full-time employee, so, it follows the default
copyright, I am ok with that, and then, the author start using this case to
approve the relationship between your side project and your employer as you
are a full time employee. Am I missed some info?

I remember that in Canada, the full time employee contract mentions something
like, 40 hours per week, and also explicitly mention if you use company's
property or equipments to produce some, or you produce some at company venue,
then all copyright belongs to the company.

~~~
eridius
The game designer is a full-time employee.

~~~
stevesun21
'You are going to pay the game designer $6,000 a month to invent new games.'

This is what origin say in the article, it sounds to me really not like a full
time employee.

~~~
eridius
That's $72k a year, which sounds like a full-time employee somewhere outside
of silicon valley. In addition, you don't generally pay contractors a fixed
amount per month, but rather per hour. Note how the example of Sarah the
contractor has the pay rate set at $20 per hour. Also, further on down, it
explicitly says the game designer is being paid a salary, which is something
that employees, not contractors, get.

------
spacelizard
It's disappointing that there are no conventions or legislation to rectify
this situation. I have several side projects going right now, and it gets
frustrating going to interviews and being asked to give up all of it just for
the supposed "privilege" of being able to write code for a larger company. The
solution I've found is freelancing, but this has the problem of not really
providing steady work.

~~~
maxxxxx
In my view there should be clear laws for this kind of stuff. Right now
everything is about the employer's interest. Nobody cares about the employees.

------
mombul
I want to ask the author, Joel, what is their stance on the matter at
StackOverflow and Fog Creek?

------
cauterized
I'm fortunate enough to have a friend who is an employment lawyer and as a
favor will read through any new employment contract before I sign it.

She'll point out any clauses (not just IP clauses) designed or phrased in such
a way as to be unfair in the employer's favor, and will suggest alternative
language that protects both them and me.

I have yet to encounter an employer who wouldn't accept a few small changes to
an overly broad IP clause, and print and sign a fresh copy of the contract
with the changes incorporated.

My current employer took very little convincing to accept the idea that they
only wanted the IP created for them, not all IP created during the period of
my employment.

After all, as I pointed out, they have no more interest in owning the code or
design of my block association's website than I have in giving it to them. And
it's unreasonable to expect me to cease to be its maintainer just because of a
job switch from a fashion startup to an entertainment industry startup. As
long as I don't work on it during work hours or using a work
computer/internet/etc, why should they care what I do with my evenings and
weekends?

So they accepted a modification. Of course, we might have trouble if I tried
to compete with them in some way. But even if in my spare time I create a tool
or library that eventually ends up being useful in building their own
software, I retain the IP to that library. I might not get away with licensing
something like that to them for a fee (good faith cuts both ways), but if it's
already BSD licensed anyway, they can add it as a dependency and everyone's
happy.

And if I want to be paid for contract work for an unrelated startup on
weekends, well, that wasn't the use case I used to convince them. But the
contract modifications give me the right to do so without turning the IP over
to them. And again, if it's not competing, why should they care?

TLDR: Read and understand contracts before you sign them. Get help
understanding if you need it. Don't sign something you don't want to be held
to the letter of. Sometimes employers are flexible.

------
anonymousDan
What would people think of a website that collates instances of companies
taking legal action against employees regarding side projects and then ranks
them with respect to 'side-project' friendliness? Would a bad rating for a
company impact your decision to take a job there?

Also, it would be cool if there was some widely available standard 'developer
friendly' contract (or even addendum to a contract) that software engineers
could table when negotiating a new job. It should be fair to the employer too
of course, but it would give less experienced developers or those in a weaker
negotiating position for whatever reason something well thought out to use.

~~~
ditonal
I'm very interested in this because it's a great first step towards
politically organizing. PM my username on Reddit if youre interested in
collaborating.

~~~
chrshawkes
I sent you an PM on reddit, my name is Chris Hawkes I have a YouTube
programming channel with close to 5 million views and over 40,000 subscribers
all in the tech niche. I'll be glad to promote and provide exposure to this
website/cause for free. Let's get this going?

------
ns8sl
And of course, nothing stops an employer from harassing you legally.

I was working on a personal project once and it seemed to make sense to join
it with another product from another company. We collaborated on the
combination design, but never moved forward with it. I never joined the
company and I was never compensated in any way. No joint product or code or
anything was ever produced.

However, the CEO of that company threatened me with legal action when I joined
a different company to implement what I was working on. He sent a cease and
desist to me and the company. I had to retain a lawyer to fend that off.
Luckily, the accusations were so ridiculous it wasn't hard.

------
caseysoftware
Another key thing here, it doesn't matter if your boss says "sure, go ahead
and do it!"

That is NOT protection.

Odds are your boss isn't authorized to say that. And further, it's not in
writing so it's your word against theirs.

------
anondev77
I'm in this exact situation right now where I worked as a developer for a
small company. I did a side project, and they demanded I hand over the project
so they benefit from it. I refused, and we are deep in a costly legal battle.
But it is a matter of principal that I won't let those a*holes benefit from
something I did at home, on my equipment, without any of their IP, and
unrelated to the work I did. I can tell you I've learnt a valuable lesson and
will never sign an generic software development employment contract like that
again.

------
Illniyar
I've had to reject an offer I wanted because the IP terms were draconian (even
beyond what I consider standard) and the company wouldn't badge on it. Other
companies did agree to make changes to get an otherwise unacceptable contract
bearable.

This situation has taught me 2 things: 1 - most developers don't care, those
that do know about it, don't think it's a big deal. 2 - because it has
basically become industry standard developers assume it's OK and that no one
would sue them.

------
andrewstuart
One idea for tackling this is for the employer to say to the employee "We own
everything you do 365 X 24, but we will give you exclusions for pretty much
anything as long as you identify the side project name and description in
writing."

This means that just about all side projects are permitted, but must be
identified in writing in advance, and gives the employer the chance to decline
to approve, and in that circumstance then the employee can leave if they want.

------
johnwheeler
It's just so wrong on so many levels to deny anyone their shot at
independence.

Companies taking advantage of ambiguities in the law or making employees live
in fear of innovating on their own terms is wage slavery in its illest form.

------
LeanderK
this is an absurd agreement, i have never heard of something like this in
germany. Is this common in other countries?

~~~
chiph
US employee here - I've signed one (plus a patents & inventions at one firm)
at every firm I've worked at since 2000 or so. Thus far any side projects
haven't been a problem for them, as I have made sure to target a different
industry. But _legally_ , they could have enforced the contract and taken
possession of my code.

~~~
mindcrime
_But legally, they could have enforced the contract and taken possession of my
code._

Not necessarily. Depending on what state you live in, there's a good chance
that agreement would violate state law and would be unenforceable.

~~~
maxxxxx
Even winning a lawsuit costs a lot of money and stress. Unless there is a law
that makes courts throw out frivolous lawsuits immediately the employer with
lawyers on staff still can make your life very difficult

~~~
mindcrime
No doubt. I'm certainly not claiming the current situation is ideal. Just
pointing out that it's not always _as_ bad as people think.

------
xvilka
Well, why not just go development and collaborative way of doing things and
not make a gist/repo with a list of companies friendly to side projects, and
unfriendly? Like Glassdoor it will add more clarity and competition to those
companies, since people would know what they're signing for _before_ sending
CV, going to interview or signing the offer.

------
makecheck
No topic for a side project is really “safe”, which is why I hope most laws
focus on what _you_ do for a company and not what your _company_ might ever
do.

I mean, imagine for instance that you simply had a _band_ and tried to sell a
few songs. And that you were an engineer. _At some point in history_ , it
would have made perfect sense to do this at Apple, with no overlap at all.
Heck, I remember the ongoing lawsuits over the years from Apple Music just
because of the _name_ of Apple Computer at the time, and I think at one point
they reached an agreement simply because Apple Computer was not going to be in
the music business. And at the time, this seemed like a no-brainer, crazy to
imagine Apple doing anything in music. And then, oops. So no, on a company-
wide basis, no side project is _really_ “safe”; companies can and do enter new
lines of business, even things that seemed implausible at some point in the
past.

------
chrshawkes
Joel's exposure and 100 million dollar mindset is frustrating. I created a
video response expressing my distaste for such contracts Joel feels should be
the status quo and really feel we need to come together to make sure laws are
passed to protect the creative freedoms of all developers.
[https://www.youtube.com/watch?v=l6ypPpk9ymg](https://www.youtube.com/watch?v=l6ypPpk9ymg)

The ball shouldn't just be in the employers court for all intellectual
property created while employed. Joel is just another uber rich techie doing
what he can to make sure nobody under his staff is able to build the next big
thing.

I'm boycotting StackOverflow & all of StackExchange as well.

------
paulrosenzweig
I haven't heard about many disputed cases. I'd hope that if Google went around
suing for possession of unrelated side projects, we'd hear about it.

Maybe the possibility of being publicly shamed is a deterrent from pursing
ownership.

~~~
KallDrexx
A company I worked for (property appraisal company) got acquired by another
company. They forced one of the higher up developers out. 6 months later that
developer wrote an app dealing with lines at Disney and was making money on ad
revenue. The company came after him claiming they owned it because he used
skills and knowledge he gained while employed to write that app. We had a
"everything you do at any time belongs to us" contract.

So it does actually happen.

~~~
st3v3r
Were they successful? I can't imagine any judge agreeing that, since you left
a company, you can no longer make a living.

~~~
KallDrexx
It was settled out of court, he never did tell us what the final outcome was.

------
schwarrrtz
At my last job working for a small software company, I was able to get my boss
to modify the employment contract such that a specific list of other projects
(attached as an appendix to the contract) was excluded from the work product &
IP ownership clauses. The idea was that if I wanted to work on a side project,
I would clear it with him first, and then we would sign a quick amending
agreement to the original contract which added the new side project to the
list.

Major caveats: I haven't ever tested this method in an actual legal dispute.
Also, the negotiation involved a shouting match in a crowded bar. YMMV.

~~~
caseysoftware
That's what I've always done. I've found that most employers have few issues
with saying "these projects predate employment and we don't own or want them."

In one case, I had a clause that said "anything that increases my recognition
in [area of tech] is now owned by the company." It was almost too broad but I
managed to stay well within the bounds and never have a "questionable"
project.

------
Xeoncross
I've had three companies rewrite or append something about past IP or even
current IP on the weekends unrelated to the company, the company's hardware,
or the company's time.

If you approach it right (sometimes I show them how this limits our ability to
work with OpenSource software) you can often swing it. Admittedly, the larger
companies are less likely to entertain the request of some new hire.

I think more people should bring this up in the hiring process (you don't have
to push it), but lets teach companies that it's not just vacation that maters
to us.

~~~
derekp7
One good way I thought of, is to mention that you volunteer your skills to
nonprofits on the weekends / vacation, and that you want to make sure they
don't have any legal issues down the road. So if they hand you that form, tell
them you need to send it to your lawyer first. Then have your lawyer and their
lawyer figure it out.

------
Buttons840
What happens if you and a few friends work on a side project and then your
employer tries to claim ownership?

Do your friends get to remove their contributions while you turn over a gutted
and completely broken project?

------
avmich
What about a situation when you develop something in a company, then company
doesn't show interest in it and effectively shelve it, and then you leave the
company and want to come back to developing it? Be it in another company,
which is yours or not?

Technically it's a property of the previous company. However if you later
enhanced and expanded it further, you ought to have a share. And in practice,
don't we have some good examples of startups which were built on ideas
initially rejected?

------
malikNF
Reminds me of something I read awhile back.

(Companies, not employees, to get credit for inventions if merit system in
place)

[http://www.japantimes.co.jp/news/2014/10/10/national/compani...](http://www.japantimes.co.jp/news/2014/10/10/national/companies-
to-get-credit-for-inventions-rather-than-employees-if-merit-system-in-place/)

------
solatic
Isn't there a relatively easy way to solve this problem?

As an employer, when you decide to hire someone to produce software for you,
you assign them a private key tied to a certificate issued by the employer's
certificate authority. The employer then has tooling which requires all
commits to the employer's repositories to be signed with a certificate issued
by the employer's certificate authority.

Then it's very simple: any code which has been signed by those certificates
unambiguously belongs to the employer. Any code which has not been signed by
those certificates does not belong to the employer.

Employers can demand that employees sign their work with these certificates in
order to consider the work done, so employees who refuse to sign the work with
those certificates risk giving up their salary for breach of contract.
Employees are then free to sign whichever code they want on their free time,
and assert ownership by virtue of it not being signed with their employer's
certificate.

~~~
walshemj
What is to stop an employee cloning his work and signing it with his key

~~~
solatic
There isn't, but remember, the whole point of signing something is to put it
out there in the open. If an employee grabs older work, signs it with his
personal-project key, and then tried to sue the employer for using code which
belonged to him, then the employer could easily show a court the
timestamps/logs which prove that the code was originally signed over to the
employer and thus belonged to the employer under contract. And if the employee
is secretly signing work with his own key over time before signing it with the
employer's certificate, then his own record of ownership will be in parallel
to the employer's record of ownership, thus proving that the work belongs to
the employer under contract.

The whole point is how to distinguish work that the employee is not signing
over to the employer _at all_ \- because it's originally a personal project.
Then the employer will have no record of the code being signed over to the
employer, and the proof clearly shows the code belonging to the employee.

~~~
walshemj
I meant they recreated the company's work (not physically copied)but signed it
with there key

------
dfraser992
If you read the fine print, software can't fall under the 'work for hire'
provisions. At all. People think so, but just saying 'work-for-hire' in a
contract isn't valid (enough). There has to be a explicit copyright transfer
process backed up by paperwork.

I ran into this myself, but decided not to get in a tussle with this client
who turned out to be ripping off customers, not paying me, etc. etc. Things
had been progressing along under the assumption the company owned the
copyright, or I was implicitly transferring copyright, and to go and try claw
back everything I'd written would have been perhaps futile (the courts would
not have thought much of my change of mind) and a very big time and money
black hole.

I thoroughly pay attention to contract matters now. I never had a bad client
before and none of the stuff I'd developed before either seemed valuable
enough. But writing _all_ the code for a startup that ... oh, I don't want to
take about it :)

------
ed_blackburn
It seems completely alien to me that a third party could claim ownership of
something I've built because I'm using a craft / skill that they pay me to use
too. I live in the U.K. And work as a contractor. I've seen odd looking IP
clauses in contracts but have amended them or felt confident I can sign them
irrespective.

~~~
pmiller2
What are some examples of clauses that looked odd that you signed anyway?

------
stefek99
"Most developers think that the work they do at work belongs to their
employer, but anything they work on at home or on their own time is theirs."

NOT ME.

I dread the time when in order to pay my bills I had to sign a contract...

Released all my ideas to the public domain:
[https://github.com/genesisdotre/wiki/wiki/Ideas-released-
to-...](https://github.com/genesisdotre/wiki/wiki/Ideas-released-to-public-
domain-prior-to-signing-very-restrictive-employment-
contract-\(January-2014\)#releasing-ip-before-it-is-too-late)

"original matter, work or creation" \- on my occasions I wanted to ask how
about: 1) cake recipes 2) gardening 3) drawing with my kids 4) urine and
excrements 5) photography

(if I was to create YouTube channel talking about philosophy that would
inevitably belong to them as well)

Can we please introduce employment contracts that are fair to both sides?

------
andy_ppp
I'd love to see some clear legal advice from YC on this; my guess would be if
you are taking a first employee the idea that they would have any time to do
anything other than the startup means they were the wrong first, second or
even twentieth employee.

After that YC what is the score?

------
red_admiral
I'm not familiar with the US legal system but this sounds to me like solving
the wrong problem. Take the example of the game developer - why can't you
create a contract that says you pay her for 6 game ideas, including the IP to
these games?

It shouldn't matter if she comes up with those ideas during 9-5 or any other
time. It shouldn't matter if she comes up with another 4 ideas of her own on
the side, or even works part-time for someone else too. You're paying for an
outcome, 6 games including all associated IP because that's what you're going
to sell on to the public.

------
ivanhoe
Why not just ask for a permission from the management? Drop 'em an email,
explain what kind of side projects you plan and that the work will be done
strictly in your free time and not interfere with you work for them. It's 99%
that they'll answer it's OK, it's at that early point insignificant issue for
them, and later that email response is legally binding as much as any
contract. Of course, it's a smart move that you get a legal advice how to
phrase the question to cover your ass properly for your state/country laws.

~~~
csomar
I highly doubt they'll answer "Ok". That makes the contract void and
pointless.

------
dustinmoris
This was totally biased bs. Not all companies try to own all your intellectual
work and if they do then look for a new employer. And in 99.9% of cases it's
super easy to understand what is related work and what is not. If your company
builds an online casino and you write code for a slot from 9-5 then the next
social network, airbnb or uber you do at home is completely unrelated. Only a
total jerk would try to claim the right on such a side project and only an
even greater jerk would try to justify it with a biased blog post.

~~~
yoz-y
You have obviously never tried to find a job in France. All big companies and
laboratories will make you sign a no-compete agreement which encapsulates 100%
of any code you could write. Even most startups do so. It is a shitty
situation.

~~~
dustinmoris
You are right I never worked in France. I worked at many companies and I never
had anything like this in my contract. The only standard thing I get every
time is to not be able to work on anything that directly competes with my
employer.

~~~
yoz-y
The problem is that the "direct competition" is too vague of a term to rely
on. If you work in a services company, then practically any code is competing
with them. If you work for a startup, then they can pivot at any time.

The one concession I got was that I can negotiate the ownership of code I do
outside work case by case.

------
knocte
There's a loophole in most of these draconian contracts: they might own the
copyright of what you do in your spare time, but they don't get to decide the
license you use for your software (at least I've never seen any clause about
this, ever). Then the solution is to use a liberal opensource license (MIT),
and publish it somewhere. If you decide to reuse that code in the future for
your own venture, you can just use it, the license allows you to do so even if
the copyright is owned by your previous employer.

~~~
dangoor
That's not right. The owner of the copyright is the _only_ entity that can
decide the license of the code.

~~~
knocte
That's an assumption. Following that assumption, you would need to ask your
employer if he agrees with any tiny contribution you do to any open source
project out there. Which doesn't scale. What the employment contract does is
own the contribution precisely because it doesn't make any sense to ask
permission everytime an employee writes anything in his own time.

~~~
dangoor
> That's an assumption.

You're saying it's "an assumption" that only the copyright holder can dictate
the license? That's not an assumption. That's the whole point of copyright.
The owner of the copyright determines the terms under which others can use the
copyright.

Consider this: every open source project that has wanted to relicense but did
not explicitly require a copyright assignment, had to talk to every single
contributor to get their permission to relicense.

> Following that assumption, you would need to ask your employer if he agrees
> with any tiny contribution you do to any open source project out there.
> Which doesn't scale.

This gets into not what is _legal_ but what is reasonable and sensible.

If you write 20 lines of code using your work computer on work time and don't
have prior authorization to give that code to an open source project, you
_technically_ have to get your employer's permission. Realistically, few
employers would frown upon that.

There are still companies out there that are not open source friendly. If you
work for one of those, you'll find that you actually _do_ need to get
permission before contributing code.

I should note that I am taking the US perspective on this. Different countries
have different views of copyright, and as noted in the original post different
US states have different views on employment contracts.

IANAL, but I have managed and worked closely with some reasonably large open
source projects and spent more than my fair share looking into licensing
terms.

------
hellofunk
My three colleagues and I just took a look at our contracts after reading
this. We are contractors, not employees. We saw this interesting phrase:

"Contractor may provide services to third parties so long as Contractor does
not provide any software development services to other entities. "

"Other entities" is an interesting term. Since the contractor is explicitly
mentioned in the text separate from these third parties or other entities, it
would seem the contract does not prohibit the contractor doing work for
himself.

------
tbabb
He doesn't mention that many companies who want to be friendly to their
creative tech employees' habits have a legal/approval process for carving out
specific side projects.

------
aorloff
Usually when you sign that inventions assignment agreement (the dreaded PIAA),
there is a place where it says, now list on Appendix A all the inventions you
previously created PRIOR to coming to work here.

And THAT'S the place to leave truck-sized holes to drive through, especially
if you have a good idea of what your side project interests are at that point.

------
epynonymous
it seems to me if the technology is unrelated, for example, if you work for an
enterprise software company and you created a web app for consumers regarding
your hobby of sports. i think what joel's saying is if that they're sick
enough and the employer wants to sue you, they definitely can, they have the
legal ballast to take you to town. but would they? i guess that question
depends on a couple things, one if they have some personal vendetta against
you, they want nothing more than to make your life miserable. or two, they
think what you've built is lucrative and they want a piece of it.

i'm just curious if there are precedents where someone's side project,
completely unrelated to their company's product/market/customer base, but it
ended up being lucrative and the company negotiated some shares/ownership of
the side project become startup.

------
kodisha
At the moment I am not working at any side project, but occasionally I have
idea or two, and I was just waiting for a right time to start working on them.

Reading this was quite devastating, not even started, and I feel like I
already lost, even though my side project has next to nothing to do with my
current industry.

------
lowglow
IIRC california if you don't use company assets, side projects are yours.

Speaking of, I'd like some collaborators to help with my side project "Terra
Plant": [https://baqqer.com/collaborate](https://baqqer.com/collaborate)

~~~
mikepavone
If you read the full article, it covers the law in California which has three
tests. Two of those tests are straightforward (company time and company
equipment), but the third (related to the company's business) is less
straightforward. My impression as a non-laywer is that the courts will
probably take a somewhat narrow view of that third test, but the actual
language in the law is pretty vague and some companies are involved in many
fields.

EDIT: May be a bit less narrow than I thought. This [1] journal article cites
some relevant case law.

[1] [https://digital.law.washington.edu/dspace-
law/bitstream/hand...](https://digital.law.washington.edu/dspace-
law/bitstream/handle/1773.1/1169/8wjlta79.pdf?sequence=4)

~~~
KallDrexx
I think he is too dismissive of company time though. Company time is very
straightforward only if you work 9-5, but a lot of companies let developers
work flexible hours and work from home, which I think makes company time less
straight forward. Then when you add on call or emergency work you have to do
off hours or on weekends (even once every 6 months) it makes the idea of
"company time" even more vague.

~~~
walshemj
and pretty much all developers are salaried so the concept of 9-5 doesn't
apply

------
staticelf
In the country I live in (Sweden), such contracts are very rare and I don't
even think they would be valid in court here. What you do in your spare time
is your own shit.

In Sweden, you cannot force a worker to only have one job for example because
that is illegal.

------
klausjensen
Does NOLO nontract in

    
    
        "...this particular clause is built into the standard Nolo contract and most..."
    

...refer to the website nolo.com (which seems to be about legal stuff like
contracts), or is it an acronym for something else?

------
elihu
It seems to me that the right to work on side projects that aren't in direct
competition to the work you were hired to do for a company is the sort of
thing that unions might advocate for, if tech workers had unions.

------
mingabunga
We share a lot in my company - I don't mind if the devs want to use some of
the stuff we make and in turn they offer stuff they make to me. Works well and
there's a lot of trust. we cover it legally too.

------
known
Plausible for those who can
[https://en.wikipedia.org/wiki/Thinking_outside_the_box](https://en.wikipedia.org/wiki/Thinking_outside_the_box)

------
sbov
Do companies really want this?

Doesn't this mean I can host my side project on company infrastructure? Commit
it to company repositories? Submit it for code review which will probably be
done on company time?

------
ausjke
A good write definitely and I have been cautious on those, i.e. if I want to
make some real products I do not work for anyone in-between to stay clean.
Side-project is too tricky for both sides.

------
thebspatrol
This topic is very interesting to me.

With that said, which employer wants their employee watching TV and not
breathing software 24/7? I really struggle to imagine the risk here is greater
than the reward.

~~~
zippergz
I certainly would prefer that my employees not get burned out. What they do
after work is none of my business, but I definitely hope most of them aren't
living and breathing work 24/7.

------
stevesun21
after i figured that he is CEO and cofounder of many famous startups, I feel
bias in this article and I will make sure I will not work him in the future
for sure :-)

------
alfonsodev
Great, more reasons to procrastinate on our side projects :(

------
danjoc
I negotiated IP assignment out of my employment contract before taking my job.
I wouldn't take a job that tried to lay claim to my work outside of work.

~~~
st3v3r
That's cool, and I'm happy for you. But is this something that should be a
luxury only reserved for those in a good bargaining position?

~~~
eropple
For the most part, a developer shouldn't _be_ in a poor bargaining position by
the time a contract is on the table. They've invested time and money into you.
They want to hire you. This is where you stake out _your_ claim.

~~~
st3v3r
And we should never be coerced into death marches. But it still happens in
reality.

The offer of a contract might bolster one's bargaining position a tiny amount,
but usually it is still dwarfed by the huge power the company still wields.
Especially if one is in the position where they really need the job. If you're
unemployed, then you have no bargaining power, regardless of whether they're
offering you a contract or not.

~~~
danjoc
>If you're unemployed, then you have no bargaining power

I see what the problem is. I can read it in your tone. You only have no
bargaining power if you think you have no bargaining power. I successfully
negotiated up $15000 (to $60000) with paid relocation on my very first dev
job. I was unemployed for nine months (in which time I masted a rather obscure
framework) and coming from a background in sales. It seems being quite good in
sales has helped me where other developers fail: bargaining.

------
jpmcglone
What if the company does work out of San Francisco California, is incorporated
in Delaware, but I live in North Carolina? Am I still protected?

~~~
tptacek
Not a lawyer, probably wrong, but: California's courts won't enforce a
contract not recognized by California law, but the courts of other states
will, and it will depend on whether the employer can get personal jurisdiction
for the case in the right state.

The short answer is: in your situation, you'd need a lawyer.

(I think --- not sure, not an authority --- that the "incorporation in
Delaware" part of this has minimal impact; your residence in North Carolina,
and the firm's operations in California, are probably the big two salient
facts).

~~~
patmcguire
I've never seen a contract that didn't stipulate the jurisdiction it would be
enforced in. Maybe that doesn't matter, I know there's a lot of overreach in
these things.

------
iamcreasy
How does it affect the side projects(open/closed source) that you were already
working on before taking up the new job?

~~~
grabeh
It would depend on the local laws and the wording of the contract. It would be
highly unusual for an employer to claim ownership over pre-existing IP (unless
that was the reason they were hiring you).

Of course even if pre-existing IP is owned you don't want to be in a position
where contributions to the same project after date of new employment are owned
by the company, creating a divide in ownership.

------
max_
WOW! I like the new layout! :)

------
jacques_chester
Briefly: consult a lawyer.

~~~
ferbivore
Isn't it tragic how "pay a lawyer to tell you what your rights are" seems to
be the answer to everything?

~~~
jacques_chester
Yes and no. My thinking is coloured by a few years in law school before
dropping out.

If there is a true "five nines" in our lives, it's the reliability of the law.
We each interact with and under the law dozens, hundreds, even thousands of
times every day without ever needing recourse to lawyers.

But when you need a lawyer, you need a lawyer. One might as well sigh heavily
about needing plumbers when the pipe bursts. Specialisation is normal and --
this is what I like most -- lawyers are more than a paid service. They have a
fiduciary duty, they are ethically required to be dutiful advocates.

Personally, while I wish the world was simple and lawyers were cheap, I have
never regretted spending the money to consult with them.

~~~
ohyoutravel
Isn't law school a few years?

~~~
jacques_chester
4 years, full time or equivalent, for an LLB in Australia. I did one year full
time, 3 years part time, before dropping out.

------
brilliantcode
I feel like this article _grossly_ exaggerated the nature of the laws and
relationship between you and the employer. I think it's a good thing that Joel
isn't a lawyer because anyone following his advice will lead to implosion.

First, there is a very high bar for what is regarded the property of the
company vs your own work. Even if you created your own open source project
website and pushed code on your own github account using their laptop, as long
as it doesn't directly compete or use portions of proprietary code, there is
zero chance it will stand in court. Non compete clauses are next to impossible
to uphold unless they literally sold trade secrets or company's code directly
for profit. Even if they made a near identical version, it would be a tough
uphill climb if you didn't copy & paste their code _directly in your own
source code_.

Of course, the Goldman Sachs vs open source dev was a very interesting and a
rare case. I don't have more insight into that case but if somebody could that
'd be great.

But for the most part, Joel's piece is spreading FUD into innocent developer's
dreams and projects, and you don't need to heed attention.

For the truly paranoid and follower of Joel's flawed legal analysis which
looks at syntax than the semantics or spirit behind the written law which
almost always the overwhelming use:

1) Incorporate your own company

2) Purchase laptop under your new corp

3) Do your work on there.

Disclaimer: This is not a legal advice. I'm not a lawyer. I could be wrong.
Check with a real lawyer and do your own due diligence.

~~~
heisenbit
This may be violating your employment agreement as you are now providing
services to another legal entity.

------
st3v3r
I have to say, I'm really, really sick of the entitled mentality that
companies take towards those that actually do the work keeping their business
afloat.

~~~
Asooka
It's not an entitled mentality per se, it's just that a company is a profit-
maximising entity a-la a hypothetical paperclip-producing AI that eventually
turns the entire Earth into paperclips through no ill intent.

~~~
st3v3r
That sounds like an entitled mentality to me.

------
ommunist
I always thought of Joel as one of important Excel authors. I was very much
surprised to see he is CEO of Stack Overflow now. Giving context of the
article, I am going to re-read carefully Stack Overflow ToS.

~~~
webmaven
_> I always thought of Joel as one of important Excel authors. I was very much
surprised to see he is CEO of Stack Overflow now._

Huh. You've missed a _lot_ in the intervening years. eg.
[https://www.amazon.com/Joel-
Spolsky/e/B001K8FTIE/](https://www.amazon.com/Joel-Spolsky/e/B001K8FTIE/)

------
BuuQu9hu
SFC is working on a project called ContractPatch to show that it is possible
to (re-)negotiate your employment agreements so that you own copyright on your
work and to help developers go through that process. Some information about
ContractPatch is in this recent podcast episode and the show notes:

[http://faif.us/cast/2016/nov/01/0x5E/](http://faif.us/cast/2016/nov/01/0x5E/)

------
hasenj
Off topic, but I was surprised at the end of the article to realize this was
Joel Spolsky's blog! I like the new design.

