Third Party Developer Projects
About the author. Joel Spolsky is co-founder of Trello and Fog Creek Software, executive director of Stack Overflow.
Almost 100% of developers who work for hire eventually end up signing an “agreement on the ownership of inventions” in some form, but almost all of them misunderstand its essence. Most people think that what they did at work belongs to the employer, and what they have done at home or during their free time belongs to them. This is a rather dangerous error.
Consider this question: if you are a programmer who works for a software company, does the company own what you write in your free time?
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Immediately make a reservation: be careful, listening to legal advice from the Internet. I see a lot of incorrect information that can bring you problems. Readers outside the United States should also understand that laws and legal practice in their country may be completely different.
To answer this question, you need to consider three key factors.
1. In which state (country) do you work?
Some laws vary from state to state, and may even outweigh specific contracts.
2. What does your contract with the employer say?
Usually in the US, courts condescendly referring to the fact that people sign any type of contract they want, but sometimes state laws clearly say that “if you sign such and such a contract, then the law is more powerful”.
3. Are you a contractor or employee? In the US, you can be hired in two ways, and the law is different in each case.
But before I can even begin to explain these problems, I need to make a digression.
Imagine that you have opened a software company. You need a developer. So you hire Sarah from a nearby street and enter into an agreement under which you pay her $ 20 per hour, and she writes the code for your software product, and everything is fine. Right?
Well, maybe. In the US, if you hired Sarah as a contractor, she will keep the copyright on her work. It's a little strange, because you can say: "I paid her for it." It sounds weird, but in this way copyright and related rights legislation works by default. In fact, if you invite a photographer to your wedding, you will own the received copies of the photos, but the photographer will still retain the copyright and legal monopoly on making additional copies of these pictures. Surprise! The same applies to the program code.
Each software company wants to get copyright on the code that its employees write for it, so no company will accept the way the law works by default. That is why all software companies under good management require at least all developers to sign an agreement that at least says that:
This condition may appear in the contract or in a separate “Proprietary Invention Assignment”. It is often expressed using the legal phrase “ copyright for service works ” (work for hire), which means “we decided that the copyright would belong to the company, not the employee”.
We haven't said anything about work in our free time. Now suppose you have a small gaming company. Instead of developing software, you give out three or four smart games every month. You cannot invent all the games yourself. So you go and hire a game designer for this. You are going to pay him $ 6,000 for inventing new games. These games will be ingenious and innovative. They can be patented. For you, as a company, it is important to have patents for these games.
Your game designer works one year and invents 7 games. At the end of the year, he sues you and claims that he owns the rights to 4 of them, because these particular games were invented between 5:00 pm and 7:00 pm when he was not at work.
Oops. This is not what you meant. You wanted to pay it for all the games that it invents, and you understand that the real invention process for which you pay can take place at any time ... on weekdays, weekends, in the office, at home, in the shower, during the ascent mountain on vacation.
So before you hire this developer, you say: “Listen, I know that games are invented continuously, and it’s impossible to prove that you invented something just sitting in a chair in an office provided by the company. I want to buy not only your inventions from 9:00 to 17:00, but all the rest, and I offer you an attractive salary to get them all. ” And he agrees to this, so now you want to sign some kind of agreement that says that all his inventions while working at the company belong to the company.
This happens by default. This is a standard working contract for developers, inventors and researchers.
Even if the company decides, "Oh my God, we don’t need inventions from 5:00 pm to 9:00 am", it will soon get into trouble. Because she can try to get investments, and the investor will say: “Prove that some disgruntled former employee will not sue you, who will declare that he has invented what you are selling.” The company wants to be able to get a list of all current and former employees - and show the contract from each of them , where he conveys the company's inventions. This is assumed as part of legal expertise in absolutely all financing, merger or acquisition transactions in the high-tech sector. So if a software company cares about transferring copyright, then it will have problems getting funding or merging or taking over, and the ONE GUY who did not sign the agreement in 1998 will be a real idiot if he signs it today, that he knows perfectly well that in his hands a deal worth $ 350 million, and he can demand a lot of money for his signature.
So ... any software company is trying to get the rights to everything that employees do. (She does not necessarily insist on this in the case of third-party amateur projects, but on paper she probably can).
Software developers, as you can see from the discussions, are unhappy with this state of affairs. They always imagined that they could sit at night in their room at their own computer and write their own code for their own purposes - and own all the rights and patents. Legislators also think in some states (like California), but not in others (not in New York, for example). These states usually have laws that say something like this:
Since this is California law, this particular clause is part of the standard Nolo contract and almost all of the standard contracts that California law firms prepare for their software company customers, so programmers throughout the country can have the same contracts, even if in law their state does not have such a norm.
Let's look at the wording more closely.
In own time . Easy to determine, I suppose.
On its own equipment . Trivially determined.
Not relevant to your employer's line of work . Hm, wait a minute. What is meant by "related" ? If my employer is Google, they do everything . They made damn AIR BALLS with internet routers inside. Do balloons relate? Obviously, search engines, mail, web applications and ads are relevant to the way Google works. Hmmmm
Well, let my employer be a small company that develops software for the legal industry. Will accounting software be "relevant"?
I dont know. This is quite a big ambiguity, and you can ever run into it. Probably, everything will depend on the judge or jury.
The judge (or jury) is likely to be supportive of the poor employee, who is opposed to Big Bad Google, but you should not depend on their personal opinions.
Such ambiguity cools the employee who works in his spare time sufficiently. This is the effect that fully corresponds to the goals and objectives of the employer: the employee no longer thinks about third-party projects that can ever turn into a business, and the employer gets a good, fresh employee who comes to work in the morning after spending the entire previous evening watching TV .
So ... answering the question. It is unlikely that there is a significant difference between legislation and contracts that you sign in as a developer in various US companies. All companies need to buy your copyright and patents without having to prove that they were created “during working hours”, so that all of them will try to do this, if only a careless company has forgotten to prepare the relevant contracts. If there is no such contract, then the company is probably very poorly managed, and this is another reason not to work in it.
The only difference in the position of management is how they want to exercise their rights under the contract. This may take different forms, for example:
Everything can depend on who you are talking to, who is in power at this particular moment, whether you are sleeping with your boss or not. Basically, you are on your own: the only way to gain independence is to become independent. Being an employee in a high-tech company that produces an intellectual product means that you decide to sell your intellectual produce. Maybe this is normal, maybe not, but this is a free choice.
Almost 100% of developers who work for hire eventually end up signing an “agreement on the ownership of inventions” in some form, but almost all of them misunderstand its essence. Most people think that what they did at work belongs to the employer, and what they have done at home or during their free time belongs to them. This is a rather dangerous error.
Consider this question: if you are a programmer who works for a software company, does the company own what you write in your free time?
')
Immediately make a reservation: be careful, listening to legal advice from the Internet. I see a lot of incorrect information that can bring you problems. Readers outside the United States should also understand that laws and legal practice in their country may be completely different.
To answer this question, you need to consider three key factors.1. In which state (country) do you work?
Some laws vary from state to state, and may even outweigh specific contracts.
2. What does your contract with the employer say?
Usually in the US, courts condescendly referring to the fact that people sign any type of contract they want, but sometimes state laws clearly say that “if you sign such and such a contract, then the law is more powerful”.
3. Are you a contractor or employee? In the US, you can be hired in two ways, and the law is different in each case.
But before I can even begin to explain these problems, I need to make a digression.
Imagine that you have opened a software company. You need a developer. So you hire Sarah from a nearby street and enter into an agreement under which you pay her $ 20 per hour, and she writes the code for your software product, and everything is fine. Right?
Well, maybe. In the US, if you hired Sarah as a contractor, she will keep the copyright on her work. It's a little strange, because you can say: "I paid her for it." It sounds weird, but in this way copyright and related rights legislation works by default. In fact, if you invite a photographer to your wedding, you will own the received copies of the photos, but the photographer will still retain the copyright and legal monopoly on making additional copies of these pictures. Surprise! The same applies to the program code.
Each software company wants to get copyright on the code that its employees write for it, so no company will accept the way the law works by default. That is why all software companies under good management require at least all developers to sign an agreement that at least says that:
- in exchange for salary,
- the developer agrees to "assign" (transfer) the copyright of the company.
This condition may appear in the contract or in a separate “Proprietary Invention Assignment”. It is often expressed using the legal phrase “ copyright for service works ” (work for hire), which means “we decided that the copyright would belong to the company, not the employee”.
We haven't said anything about work in our free time. Now suppose you have a small gaming company. Instead of developing software, you give out three or four smart games every month. You cannot invent all the games yourself. So you go and hire a game designer for this. You are going to pay him $ 6,000 for inventing new games. These games will be ingenious and innovative. They can be patented. For you, as a company, it is important to have patents for these games.
Your game designer works one year and invents 7 games. At the end of the year, he sues you and claims that he owns the rights to 4 of them, because these particular games were invented between 5:00 pm and 7:00 pm when he was not at work.
Oops. This is not what you meant. You wanted to pay it for all the games that it invents, and you understand that the real invention process for which you pay can take place at any time ... on weekdays, weekends, in the office, at home, in the shower, during the ascent mountain on vacation.
So before you hire this developer, you say: “Listen, I know that games are invented continuously, and it’s impossible to prove that you invented something just sitting in a chair in an office provided by the company. I want to buy not only your inventions from 9:00 to 17:00, but all the rest, and I offer you an attractive salary to get them all. ” And he agrees to this, so now you want to sign some kind of agreement that says that all his inventions while working at the company belong to the company.
This happens by default. This is a standard working contract for developers, inventors and researchers.
Even if the company decides, "Oh my God, we don’t need inventions from 5:00 pm to 9:00 am", it will soon get into trouble. Because she can try to get investments, and the investor will say: “Prove that some disgruntled former employee will not sue you, who will declare that he has invented what you are selling.” The company wants to be able to get a list of all current and former employees - and show the contract from each of them , where he conveys the company's inventions. This is assumed as part of legal expertise in absolutely all financing, merger or acquisition transactions in the high-tech sector. So if a software company cares about transferring copyright, then it will have problems getting funding or merging or taking over, and the ONE GUY who did not sign the agreement in 1998 will be a real idiot if he signs it today, that he knows perfectly well that in his hands a deal worth $ 350 million, and he can demand a lot of money for his signature.
So ... any software company is trying to get the rights to everything that employees do. (She does not necessarily insist on this in the case of third-party amateur projects, but on paper she probably can).
Software developers, as you can see from the discussions, are unhappy with this state of affairs. They always imagined that they could sit at night in their room at their own computer and write their own code for their own purposes - and own all the rights and patents. Legislators also think in some states (like California), but not in others (not in New York, for example). These states usually have laws that say something like this:
Everything that you do in your own time on your own equipment, which is not related to the direction of your employer's work, belongs to you, even if the contract specifies other conditions.
Since this is California law, this particular clause is part of the standard Nolo contract and almost all of the standard contracts that California law firms prepare for their software company customers, so programmers throughout the country can have the same contracts, even if in law their state does not have such a norm.
Let's look at the wording more closely.
In own time . Easy to determine, I suppose.
On its own equipment . Trivially determined.
Not relevant to your employer's line of work . Hm, wait a minute. What is meant by "related" ? If my employer is Google, they do everything . They made damn AIR BALLS with internet routers inside. Do balloons relate? Obviously, search engines, mail, web applications and ads are relevant to the way Google works. Hmmmm
Well, let my employer be a small company that develops software for the legal industry. Will accounting software be "relevant"?I dont know. This is quite a big ambiguity, and you can ever run into it. Probably, everything will depend on the judge or jury.
The judge (or jury) is likely to be supportive of the poor employee, who is opposed to Big Bad Google, but you should not depend on their personal opinions.
Such ambiguity cools the employee who works in his spare time sufficiently. This is the effect that fully corresponds to the goals and objectives of the employer: the employee no longer thinks about third-party projects that can ever turn into a business, and the employer gets a good, fresh employee who comes to work in the morning after spending the entire previous evening watching TV .
So ... answering the question. It is unlikely that there is a significant difference between legislation and contracts that you sign in as a developer in various US companies. All companies need to buy your copyright and patents without having to prove that they were created “during working hours”, so that all of them will try to do this, if only a careless company has forgotten to prepare the relevant contracts. If there is no such contract, then the company is probably very poorly managed, and this is another reason not to work in it.
The only difference in the position of management is how they want to exercise their rights under the contract. This may take different forms, for example:
- We love third-party projects. Enjoy!
- We do not really like third-party projects. You should think about your work.
- We love third-party projects. We love them so much that we want to own them and sell them!
- We somehow do not care. If you throw us, we will find ways to get you. If you quit and become a competitor or even half a competitor, we use this contract to put you on your knees. BUT, if you don’t throw us away and work faithfully for us, we’ll turn away and don’t notice that your iPhone app has started to bring in $ 40,000 a month.
Everything can depend on who you are talking to, who is in power at this particular moment, whether you are sleeping with your boss or not. Basically, you are on your own: the only way to gain independence is to become independent. Being an employee in a high-tech company that produces an intellectual product means that you decide to sell your intellectual produce. Maybe this is normal, maybe not, but this is a free choice.
Source: https://habr.com/ru/post/326154/
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