> When you take a job, in most places in the world, by default, your employer owns and/or effectively controls all your copyrights.
Is this really true? I haven't checked my employment agreement, but I'm pretty sure that my employer only controls the copyrights for a) work I do for them, and b) any other side work I happen to do in my employer's field (which never happens).
AFAIK, work I do on my own that is unrelated to my employer belongs to me, and I've never had anyone from my job try to assert otherwise. (I have plenty of publicly-visible code on GitHub that they could glom onto if they wanted, although none of it is commercially important.)
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Edit: My employee agreement says "I understand that the
provisions this Agreement requiring assignment of Company Work Product do not apply to any Non-Company Work Product that qualifies fully under the provisions of Section 2870 of the California Labor Code, or any similar state invention law."
That labor code says "Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an invention to his or her employer shall not apply to an invention that the
employee developed entirely on his or her own time without using the employer’s equipment, supplies, facilities, or trade secret information except for those inventions that either:
(1) Relate at the time of conception or reduction to practice of the invention to the employer’s business, or actual or demonstrably anticipated research or development of the employer; or
(2) Result from any work performed by the employee for the
employer."
The employment lawyer I consulted a few years back stated all work done outside office hours is essentially implicit property of your employer in Canada/UK... unless explicitly stated in your employment contract that external unrelated projects are your own.
In most of the US, all work done outside of your employers business is implicitly your own... unless explicitly stated in your employment contract that they have rights to such works.
In general, most commercial businesses won't care unless their IP or resources were misappropriated for a personal project. Best of luck =3
My UK contract had no IP terms and after many years they tried to sneak them in via the employee handbook - I objected and we negotiated, ending up with a reasonable and amicable split: anything directly related to their line of business is theirs (whether in the office or not) but everything else is mine personally.
This seems the ideal balance as we each get what's valuable to us without overreaching (the original proposed terms would've covered literally everything including random stuff like books and video posts, which they didn't genuinely care about)
Indeed, there are also some hidden advantages to contractor status, in that personal copyright implicitly remains your property until licensed to a firm.
An NDA can also have some nasty obfuscated golden-handcuff clauses. =3
Yeah. I think a lot of people who write these contracts (or work in HR) simply never consider the idea that people would create things outside of business hours. They don’t want to steal your fanfic or that song you’re writing or whatever. Just talk to them and make the contract look right.
I‘m currently trying to get a mechanism established at my employer where developers can (optionally and voluntary) show their „private projects“ and get an official statement that the company does not consider it company property. Parallel to how the company can release inventions it does not plan to patent.
It‘s not supposed to change any legal rules, but to document a usually silent agreement, if the employee wants that peace of mind. Obviously, nobody is under any obligation to show what they are doing in their private time, but especially when there can be a question if it is „too close“ to what the company is doing, it should be valuable to establish that line early and give the employee something tangible.
Depends on the company. I've had companies do this for me.
In one large company I won't name, the way we did it was to have someone with enough authority give me a statement in writing acknowledging that anything I made outside of business hours, using my own computing equipment wasn't owned by the company. That was good enough for me.
> anyone below a "department head" is not getting custom addendums added to their contract.
Nonsense. My wife negotiated modifications to her employment contract in her first job out of school. This included a diabolical adjustment to the non-compete clause that essentially made it worthless because it granted her the right to work so long as it was more than one mile away from one of the branch offices.
And since two of the branch offices were more than a mile from each other, that meant she could work anywhere, since any location, including in the same building as one of the branches, was at least a mile from a different branch.
You should probably check it, in the UK this is pretty standard, and I believe it is in the US as well. I suspect most of Europe is similar as well. It will vary by company and industry, but in my experience when you ask HR and Legal to put together a contract for a knowledge-worker, this is a standard edition by them.
I've never had a job actually assert anything around this personally, but I do make sure to have anything notable signed off by my employer as "mine". That's assuming it's unrelated to my employers field of course.
Yeah I always check this too - and if needed add a clause to my contract to make it clear that programming work I do outside of business hours & using my own equipment remains mine. I do a lot of opensource work and it would be a disaster to have copyright ownership clouds hanging overhead.
But for a company to assert a copyright like this, they would have to actually sue. And companies will always be loathe to sue employees over incidental stuff like this because the negative press will almost always make it not worth it.
They agree with you that your company does not want to sue. Specifically (in some cases) they explicitly remove your ability to sue violators.
Obviously each company and employee situation is different, but the default position is they own the copyright, and they'd prefer not to sue anyone.
This leads to copyright violations being ignored.
Whether violations are something you care about or not is up to you. Personally I don't get over wound up by it (my code is pirated all the time) but others feel very strongly in this space. This article is pointing out that if you do care, then it pays to make sure where your copyright exists.
I work at a fortune 500 and you have to go through hoops to own anything. By letter of the contract they own all the IP we produce which legally includes photos taken. Doubtful they'd enforce that, but it gives them a strong position if one were to write any useful code outside of work.
Are you saying if you worked as a programmer in your standard fortune 500 company and wrote fiction on the weekends they own the copyright to the fiction?
Would be interesting to see how it would play out if a programmers fiction blew up as big as Harry Potter or something.
If you utilize any of the company’s assets or property in its creation then they can argue ownership. For example if you write it on their laptop that you take home on the weekend, or you spend your lunch break at the computer in your office writing it, etc. (this will almost certainly be outlined in your employee contract)
If you write it at home on your personal property during your personal time, then they have as much claim to it as the work you do on your house or the models you paint or the soap you make and sell to your friends… which is none.
However, if it’s work you’re doing in the same industry, then you have to deal with non-compete clauses in your employment agreement depending on what state you live in.
Sure; but it’s a lot more ambiguous if you’re a programmer & writing code on the weekend. Especially if the code is in any way related to your work. Also whatever your contract says takes priority over the law in cases like this.
Always read your employment contract carefully and clarify stuff like that if you need to. Your company doesn’t want copyright over the fanfic you’re writing on the weekend. If that matters to you, the best time to clarify it is before you sign the contract.
Yes, I've seen that too. Then I said "well, you're hiring me in part because of my opensource work. It looks like this contract wouldn't allow me to continue doing any opensource work once I start working here. That would be a huge problem for me." I think the managers involved hadn't read the employment contract itself - or didn't understand the implications of a clause like that for opensource devs. They didn't want to stop me writing opensource code when I felt like it. So we figured it out.
Contracts aren't written in blood. They're just an agreement between two parties. You don't have to agree to whatever crappy, one sided terms are waved in front of your face.
And remember, its common for companies to spend 40+ hours of work in sourcing, interviewing candidates, hiring panel discussions and so on before they finally give you an offer. Especially in the era of AI generated resume spam. It would be extremely silly to throw all that work away over a grabby IP assignment clause added on a whim by one of their lawyers. Now, yes - some companies are absolutely that silly. But most people have a lot more negotiating power than they think. Especially when it comes to ridiculous clauses like this. At a minimum, its always worth raising.
This is an extremely important point. A lot of managers don’t read the employment contracts. Often times the legal departments (or just lawyer depending on company size) has just drafted something that protects the company as much as is legally possible. That’s often the safest thing for the attorney to do.
It’s never a bad thing to redline a contract and have discussions over sections that you’re uncomfortable with. A good company will work on them with you.
First, definitely consult a lawyer and your contract. In the US contract law pretty much says if you signed it, you agreed to it, then it holds, unless the law overrides it. For example, you could sign a contract that says you are now an indentured servant, but that violates the law, so would be unenforceable (at least in the US since 1917). However if it says the equivalent of “any code you write on your personal time is our property” you basically agreed to that being the case and you’d have to consult a lawyer in your state before making a determination if that contract would hold up in court. The best assumption prior to that would be to assume it is valid.
In addition, the FTC recently banned non competes country wide, which went into effect in September 2024. There have been a number of challenges to the ruling that have yet to work through the legal system, so it’s best to consult your states laws for the time being.
But outside of that, if a company in the US is telling you that your software that you can prove you developed on your personal time on your personal property is somehow theirs, and you are certain you never signed such a non-compete or an assignment agreement that covers work on your personal time; then find a new company to work at. They are basically bullying you. If your employee contract is so ambiguous regarding copyright assignment of software written on your own personal time and assets as to not be certain, find a new company as well, as they are probably incompetent. (You’d probably be safe however, as Contra proferentem in the US is a rule that states an ambiguous contract term should be construed against the drafter of the contract)
In fact, in the US, the author always owns the copyright. So in fact the company has to put in place an agreement that outlines that your code copyright is transferred to them. If you pay someone to write software, without such an agreement, the author will still actually hold the copyright. The company can use “work for hire” but since that means they have to prove that they hired you specifically for what your wrote, that it was written in the “scope of employment”; most employers who know what they are doing will have you sign an assignment agreement. Without an assignment agreement; if you write something they didn’t hire you to write and you didn’t agree to assign the copyright to them, you own it.
In fact, if a company also wants to patent something that you’ve invented or been part of inventing, they need to get you to file a patent assignment with the USPTO. This may or may not be outlined in your employment contract, but the assignment still needs to be made. You could refuse, most likely at the cost of your employment, however the patent rights would still remain with you the inventor. Not even work for hire would transfer patent or trademark rights.
All that said, it should be obvious, however it’s probably best pointed out.. if you copy any code that is owned by the company (code written by another employee or that you transferred ownership of to the employer) then you’re committing copyright infringement and can be held liable. So you better be sure your code is 100% yours.
Just adding some links for reference.. in both California and New York, employers explicitly can NOT enforce IP assignment of work done on an employees own time and with their own equipment. (As long as the work is not related to the employers buisness). In other words such clauses in employment agreements in those states would be unenforceable.
As I said, there have been challenges to the rule and it’s currently under injunction.
However, if you talk to any corporate attorney they will tell the company to prepare and position itself for having to comply with the ban.
If you’re an employee with a current non-compete, assume it applies unless you consult with an attorney.
If you’re a prospective employee, and a job offer includes signing a contract with a restrictive non-compete.. personally I’d redline it, and if they pushed back I’d find another job.
Don't write code related to work on the weekend. That is unethical no matter what the law says. There is plenty of code not related to work that you can write on weekends and thus it is ethical (may or may not legally be yours but ethicaly it is)
There is no way that it is unethical. According to who’s ethics?
According to my ethics it’s unethical for a company to believe it has any say whatsoever about what I author unless I give them specific assignment of what I create for specific compensation. Outside of that, they can go float a boat.
They hired me for my talent; and will compensate me adequately or I will provide my services elsewhere; and it’s up to me to determine what that looks like when I signed a contract with them.
It sounds like the corporate lawyers have succeeded in making you think they’re doing you all the favor when you create the value for them.
There’s a reason the FTC ruled against non-competes. It’s “ethically un-American”.
The work related part makes it unethical. Unless they pay you to work weekends or otherwise compensate you (on my team when you work a weekends we expect you to take time off in the near future to compensate for that time) doing something that competes with the company you work for is not ethical.
Are you perhaps not from the United States? Your take that it’s unethical seems to contradict with nearly 200 years of American IP law, or even further back to the 1400s in English common law where non competes were considered unjustifiable restraints on trade.
In the United States IP rights go to the inventor and most must be explicitly transferred to an employer. The whole point of the patent office is to encourage inventors to invent and not allow corporations to own everything and prevent competition. Although some companies have attempted to rig the system to prevent competition, ultimately the law has come down to foster competition (see the recent defeats of patent trolls)
And as the other commenter here points out, there are so many cases where someone working at a company discovers a way to improve business in the industry they are employed in, that could compete with their current employer, and that employer is unable or unwilling to devote resources or compensate for it. Huge swaths of US innovation or driven by such things. Probably the most iconic example is Steve Wozniak inventing the Apple I while he was working at HP, which HP refused to acquire and support causing Steve to resign and start Apple.
I also write this as someone with a name on a patent I chose to transfer to a company I helped found for an invention I helped create while working there. But to be clear, that was my choice. Ultimately the law said it was my invention by default, and there was no legal, moral, ethical, or god given obligation preventing me from walking away with it.
On August 20, a district court issued an order stopping the FTC from enforcing the rule on September 4. The FTC has appealed that decision. The district court’s decision does not prevent the FTC from addressing noncompetes through case-by-case enforcement actions.
They are not, in fact, blanket banned as we speak.
First off I never said they were “blanket banned”. I said “they were totally banned by the FTC” which is true and correct. And I said other states “also limited them significantly” which is also true and correct.
A Texas federal court ruled the FTC overstepped its bounds and has currently issued an injunction. However a federal court in Pennsylvania has ruled the opposite. Our legal system isn’t so simplistic that you could possibly interpret that as “it’s perfectly legal” as in the comment I was replying to.
In addition , in many if not most states (especially states in my opinion where innovation and economic activity matters most), most courts have ruled consistently against non-compete overreach and have precedents that do not favor non-competes.
For example § 16600 of the California’s Business and Professions Code, for the most part bans all non-competes along with civil penalties of $2500 per violation. Other states also have severe restrictions on what can be prevented in non competes, especially things not specifically related to the job the employee is hired for or outside of proven trade secrets, as has been the focus of most of the discussion here.
As can be seen on the following map the vast majority of states have restrictions on non competes.
So any attempt to intemperate the current law around non-competes in the US as perfectly legal is ill informed. I don’t know if the comments on here attempting to paint things as “non-competes are perfectly legal” is either just employees being ill informed, or employers on here trying to convince people of things they wish were true.
Short take, If a company is attempting to get you to sign a non-competes you should definitely consult an attorney. Personally I will not work for anyone attempting to get me to sign a non-compete.
Maybe different states hav different laws. Even where they are legel courts look down on the idea that someone wouldn't be allowed to do there job. In all states there is some form of noncompete but generally for the most obvious cases - don't work for two companies doing the same thing with access to their private plans at the same time type of thing
Ehhh this is way more complicated than you make it sound.
For example, I've been in situations where I've successfully argued for some component of what we do at work to be opensourced. But I wasn't given any extra resources to opensource it. I was doing consulting work at the time and the company didn't have a culture of contributing to opensource. In that case, I spent a couple weekends cleaning up the code I'd opensourced & triaging github issues. I'm proud of my work, and I want to share it.
In another company, we were running into some limitations of the database we were using. I spent a weekend writing up a super simple database prototype from scratch, mostly as a research project for myself. I don't think we ever used any of the code I wrote. I probably ended up throwing it on github and then forgot about it. That database prototype was clearly "work related". But it was also very clearly not part of my job. - Although, working on that database made me better at my job. It helped me understand the limitations of the database we were using, and gave me some ideas on how to work around them.
How can you argue that it was unethical to do any of that work? Frankly, everyone benefited. I learned a lot. I got better at my job - (and more employable). And my company benefited directly (and immediately) from my work.
It is about doing unpaid work. Most progarmmers - at least in the us - are not paid by the hour and so you get nothing for you extra time put in which is not ethical for them to ask. It is perfectly leagal for you to do it.
laws and ethics are often different but many fail to realize that.
If someone does unpaid work on weekends and it is not done as hobby or something they are very silly, exploited or both.
> which is not ethical for them to ask
definitely, though I am highly confused why someone would agree to this (unless they are basically enslaved or something which would make it even blatantly unethical)
I guess that if you agree to sky-high wages with implicit agreement to work absurdly long hours, despite written contract being different?
> laws and ethics are often different but many fail to realize that.
not sure about "many", people in general I quite happy to break laws, especially ones widely agreed to be silly and not enforced at all
As I said what is legal and what is ethical. I believe ethically code not related to your job that you do on weekends is yours. The law may or may not agree.
It's not that clear cut. If you work for Amazon, they claim all of your IP -- everything they are in the business of. Amazon produces movies, books, products. It's not just code.
That said, "they claim" might be leagues away from "what they could win in court", but they still try.
I have published novels and awhile ago an Amazon recruiter reached out to me for a tech role on a team building story tracking software.
It never went anywhere but I did wonder at the time how they view employees writing their own novels or movies etc. For example, would they have any possible claims on any future novels based in those existing worlds and characters in my previous works.
Obviously they have the funds to outlast you in any claim if by small chance you happen to have a hit at some point.
I work for a Fortune 100 company. Dystopian hell hole of out of touch executives in an amorphous blob of a company that only continues due to its massive size and momentum, gobbling up companies because they can't compete and eventually sucking the soul from them... but they only own the rights to things produced on their time or on their equipment.
Let's say you take a photo and paste it on the internet. It is then used (without your permission) in a global ad campaign.
Your ability to sue is zero. All the user has to do is show that you don't have standing.
Your employer doesn't care. They'll happily ignore the violation. They're not interested in defending some random photo.
Incidentally if you posted the photo to somewhere like Facebook, the user can buy the license to use it from Facebook instead of from you, but that's another discussion for another day.
> you grant us a non-exclusive, transferable, sub-licensable, royalty-free, and worldwide license to host, use, distribute, modify, run, copy, publicly perform or display, translate, and create derivative works of your content
Notably absent from this list is the right to sublicense the content
From my personal experience, this really depends. Some employment agreements are stated very widely, so the employer even gets retroactive ownership of things you do in the past; some include copyrights for work you'll do in the future, after employment, in the same domain which can be said to be based on work you've done for the employer; some include all side-work regardless of domain, while you work there; some don't.
Likewise, I have commercially irrelevant code on GitHub/Codeberg. But as it is all under BSD or MIT licenses, it makes no practical difference to me if my current employer wants to claim ownership; I can pick up where I left off all the same.
IANAL, but I think that if they were to assert copyright over your code, the license you chose would be irrelevant (since the code was never yours to license in the first place).
I should have clarified (and it's too late to edit) that this refers to code I wrote and licensed before the applicable employment. It was already made public under a BSD/MIT license, so everyone (including me) is allowed to use and fork that version, even the ownership later changes and the new owner licenses theirs differently.
Maybe. If you’re a senior engineer, I could also imagine arguing that I had authority to license it under BSD or whatever as an agent of my employer. The argument would probably be much stronger if you got sign off from your boss though. And legal if your company is big enough. (Though IANAL)
Good luck enforcing that if there's a controversy. You never check personal email on company devices? Participate in mailing lists? Bug trackers for personal projects?
Business hours is an obsolete concept in modern world, unless you work in an office with precise time tracking.
A signed agreement from your employer is the only thing that holds and that's why FSF asks for it.
> You never check personal email on company devices? Participate in mailing lists? Bug trackers for personal projects?
No, of course I don't. Work time is work time, and personal time is personal time.
> Business hours is an obsolete concept in modern world, unless you work in an office with precise time tracking.
It's not obsolete at all. Some people are foolish enough to blend working time and personal time, which is their affair. But lots of us understand the wisdom of keeping business hours separate.
Is this really true? I haven't checked my employment agreement, but I'm pretty sure that my employer only controls the copyrights for a) work I do for them, and b) any other side work I happen to do in my employer's field (which never happens).
AFAIK, work I do on my own that is unrelated to my employer belongs to me, and I've never had anyone from my job try to assert otherwise. (I have plenty of publicly-visible code on GitHub that they could glom onto if they wanted, although none of it is commercially important.)
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Edit: My employee agreement says "I understand that the provisions this Agreement requiring assignment of Company Work Product do not apply to any Non-Company Work Product that qualifies fully under the provisions of Section 2870 of the California Labor Code, or any similar state invention law."
That labor code says "Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an invention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the employer’s equipment, supplies, facilities, or trade secret information except for those inventions that either:
(1) Relate at the time of conception or reduction to practice of the invention to the employer’s business, or actual or demonstrably anticipated research or development of the employer; or
(2) Result from any work performed by the employee for the employer."