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Re: Professional Employees and Works for Hire

by dws (Chancellor)
on Mar 20, 2002 at 18:58 UTC ( #153079=note: print w/ replies, xml ) Need Help??


in reply to Professional Employees and Works for Hire

<caveat type="I am not a lawyer">

The situation in California is much more benign. You're protected for work that you do on your own time, with your own equipment, that doesn't rely on non-public information gleaned from your employement. You can be further protected by an employment agreement.

Every place I've worked in Silicon Valley over the the past 20 years has had some form of "Intellectual Property" agreement that they require employees to sign. Some of these were benign, and reaffirmed that anything you did on behalf of the company on their time and equipment was theirs, and what you did on your own time was yours. But over the past decade, the gradual drift has been toward the more Draconian, because this is what lawyers are advising companies to do. The opening bid is now often "we own you." The trick is to realize that this is most often the company's initial position in a negotiation, and that pushback is possible.

Here's what's worked for me:

  1. Ask for a copy of their Intellectual Property Agreement before you accept the job. Once you sign on, your negotiating leverage is greatly reduced. Plus, asking in advance signals that you're savvy.

  2. Make a list of what you want to protect. Do you want the freedom to contribute to CPAN on your own time? Do you want the freedom to contribute to an Open Source project? The freedom to write articles? Make a list.

  3. Protect your existing Intellectual Property. Make a list of what you've already done, or have in progress, so that there's a written record of what you're staking prior claim to. Most companys (in Silicon Valley, at least) will ask for such a list, so be prepared.

  4. Update the Agreement. Strike out parts you aren't willing to abide by, and be prepared to offer a story about why this isn't going to be a problem for the company.

  5. Make a low-key Counter. I've found that a low profile counter works best. Hand back a marked up, signed copy of the IP agreement, and say "Here's what I'll agree to. Please look this over," and leave it at that. In 6 out of 7 times I've done this, there's been no pushback. End of story. In only one case, my most recent employer, has a company countered. I was ready with a story about how my side project wouldn't compete with their business objectives, and how it actually enhanced the skill set I was bringing to the table, and they agreed.

  6. Think through what you're willing to give up. The quickest way to feeled screwed by a negotiation is to go into it without knowing what your limits are, and find yourself pushed past them.

  7. Be prepared to use Judo. If they say "our lawyers insist that you sign this," ask "do you work for your lawyers, or do they work for you?" If thay come at you with "we don't want our employees to have side jobs," counter with "contributing to the Perl community isn't a job. It's education. Do you want employees who don't take care about their own education?"

This has worked for me, in Silicon Valley. That's not to say that there are lots of unreasonable employers out there this wouldn't have worked with. YMMV.


Comment on Re: Professional Employees and Works for Hire
Re: Professional Employees and Works for Hire
by croaker (Sexton) on Mar 21, 2002 at 04:36 UTC
    Several years ago I worked for one of the large credit card companies. Prior to working at this company, while at another employer, I had developed POS terminal code on the side. I continued to develop POS terminal code on the side while employed by said credit card company. The credit card company had me sign a typical employment agreement containing an intellectual property clause as discussed in this message thread. I eventually was assigned to a project to develop a special prototype terminal and to reduce the project time I reused a substantial amount of my previously developed POS terminal code and retained my copyright notice which was displayed when the prototype terminal initialized. Said credit card company put about 5 or 6 prototype terminals at various banks who immediately wanted to know why my copyright notice displayed during initialization. I explained to the credit card company management about the previously developed code. They responded by asking what it would take to remove the copyright notice. Off the top of my head, I immediately replied that they had to purchase a non-exclusive software license from me for X-dollars. About a month later, the credit card company's legal department notified me that there was an apparent conflict of interest. I agreed that that was probably the case (I essentially said "yeah, so what?"). A few weeks after that I received a check from the company for the software license. Go figure. The company eventually went on to get a patent to cover some of the application specific stuff in the prototype terminal devices that I had developed under this project and I didn't balk when they politely (really) asked me to sign a patent assignment agreement because the patent didn't cover any functionality of the previously developed code that I brought to the project. YMMV
Re: Re: Professional Employees and Works for Hire
by DrHyde (Prior) on Mar 21, 2002 at 12:33 UTC
    My employer's "opening bid" was that they owned everything I did, including the letters I write to my granny. I edited the contract to replace that with something reasonable - that they owned what I did on their time and anything else I did which was *directly* applicable to my job. That's the last I heard about it, and I am assured by one of my union's tame landsharks that because they have been paying me for the last several months, that constitutes acceptance of my revised contract. At the same time, I also excised a couple of other 'orrible clauses from the contract too, such as giving up my rights under the EU Working Hours Directive. I'm glad I could call on my union for help. Everyone else should join a union too for the same reasons.
      Is there such unions in UK?
        Is there such unions in UK?

        Amicus (was MSF/AEEU), BECTU (if you're in "new media") and many others are happy to have IT people as members.

        You might find The TUC's union finder of use.

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