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Legal Arguments Can Hurt Tech Job Mobility
camelcai writes "Microsoft's suit against Kai-Fu Lee and Google is based off of the thought that in some circumstances people can't avoid sharing or relying on trade secrets from their former employer when moving to a competitor. In MS's filing it says: 'Lee's conduct threatens to disclose or Lee inevitably will disclose Microsoft's trade secrets to Google and/or others for his and/or Google's financial gain in the course of working to improve Google search products that compete with Microsoft, and in the course of establishing and building Google's presence in China to compete with Microsoft's efforts in China.' According to CNET, thanks to this increasingly popular legal argument, defectors might face a lawsuit even if they did not sign agreements not to compete or not to disclose confidential information."
" . . . though Microsoft says a document it found in the recycle bin of one of Lee's computers indicates Google anticipated a possible lawsuit in hiring Lee."
Which is worse?
1. Reading over competitor's job offers using company equipment? Or
2. forgetting to empty recycle bin and wiping disk before returning company computer?
It's an easy way for a company to pwn its employees.
Sheesh, evil *and* a jerk. -- Jade
And you can't spell 'slaughter' without laughter!
By reading this you acknowledge that you have read it.
"Lee's conduct threatens to disclose or Lee inevitably will disclose Microsoft's trade secrets to Google and/or others for his and/or Google's financial gain"
It means that one Lee is in a new job, he can't always prevent himself from disclosing Microsoft trade secrets.
"in the course of working to improve Google search products that compete with Microsoft, and in the course of establishing and building Google's presence in China to compete with Microsoft's efforts in China."
Lee would be tempted to disclose Microsoft's trade secrets because Google is competing in an area where Microsoft holds trade secrets and is likely to have disclosed them to Lee.
-William Brendel
The old employer pays the person as much as the new employer was offering for a year (or however long the non-compete contract is) and puts up money equal to 10x that in case the new company doesn't want the employee after the year is up and he has to find a new job.
Anything less is indentured servitude (a form of slavery).
If the companies want to play that game, then they should be financially responsible.
La conduite de la lie menace de révéler ou la lie inévitablement révélera les secrets commerciaux de Microsoft à Google et/ou à d'autres pour le sien et/ou le gain financier de Google au cours de travailler pour améliorer les produits de recherche de Google qui concurrencent Microsoft, et au cours d'établir et d'établir la présence de Google en Chine pour concurrencer les efforts de Microsoft en Chine.
This reminds me of that novel Jennifer Government, where in the dystopian anarcho-capitalist future, companies can sue former employees for losses in productivity which might result from an employee leaving their job.
Here, we have a company suing over potential losses in intellectual property which might result an employee leaving their job.
You tell me which is more surreal.
The future, is.... now?
May the Maths Be with you!
Intresting that MS decide that inevitable disclosure is a problem when their employees leave given that it wasnt an issue when they poached/bribed a lot of the guys from Borland in the .NET ramp up.
Do not try to read the dupe, thats impossible. Instead, only try to realize the truth
What truth?
There is no dupe
Maybe it should be law that if a company wants to bind you to a long non-disclosure, it should also be forced to agree to a golden-parachute clause as long as the non-disclosure?
Say you work in search engine technology for Microsoft, how are you going to earn a nice living elsewhere? Afterall your skill is searches and that's what people are willing to pay for. Well if your employer wants to prevent you from earning a decent living, it should pay for it!
I am sure that there is a flaw in that argument, and I understand Microsoft's position in the matter but in these circumstances doesn't it make the employee a virtual slave of the employer if he can't use his skills elswhere?
The Chinese government is the worst major government on Earth today. It's still a totalitarian government and an aggressive, would-be empire. It's amazing to me at times how much we are willing to do to build up their economy, only to have them eventually become a dominant military and trade empire in Asia, and possibly one day Europe as well.
When I think of how China treats the Tibetans and Uhigurs, I just can't believe that we let companies like Microsoft and Google trade with them. The scary part about this competition to build up their services in China is that regardless of which company wins, the Chinese government wins because its private and state-owned corporations get a much larger economy to profit from. That in turn goes into building up the military, which btw they are now making steady progress toward having a blue water navy in the pacific.
Click here or a puppy gets stomped!
- Does it work to the benefit of the employer?
- Then it's true.
Got it?This is why people should not work for companies like Microsoft. If you think they screw with their customers, imagine how they treat their own employees.
I'm of the opinion that what is in your head is yours, and makes you what you are. As no one can own you, in part or in whole, they can't own what's in your head. They can only share in it. Your life experiences are your own, and no one elses.
Trade secrets must be acknowledged as temporary artifices at best. As the pirates say, two men can keep a secret, if one of them is dead.
= 9J =
leaving pr0n on your machine! Oops!
Evil people don't think they're evil. - George Lucas, Making of Ep III
I was sued for exactly that reason (knowledge of information, like customer names, what they bought, pricing, etc). When it came time for my lawyers to present my side of the case, the judge said to them: "You don't really want to waste the court's time with this, do you?" and threw the case out. I thought that was pretty cool, since I didn't have the $5 million I was being sued for and needed the job.
Employees at will can quit or be fired at any time, and there are a lot of precedents (esp in CA tech industy cases) that say that what's in your head is yours, unless you signed it away via non-disclosure agreements or employment contracts.
However, you can't take physical stuff with you (like code listings or customer lists) and you can't conspire with cow-orkers to leave en masse. (I did the latter but the employer's lawyer was too incompetent to prove it - they never thought to ask). And patent laws, copyrights and trade secret laws still apply.
Am I the only one reminded of the bad guy from snow crash who wanted to control the information in his programmers brains?
(I can't remember the names right now)
In today's modern industrial society, corporations have the freedom to restructure their corporate operations unfettered by such obsolete, quaint notions as labor unions or national borders. But can today's lean, muscular engines of economic opportunity lay off workers with the assurance that their trade secrets will be protected? Will HR consultants be able to utilize the synergistic interplay between noncompete clauses and pink slips? Or will meddling nation-states intervene, citing old-fashioned notions of "justice"?
Daddy, evil google stole my scientist!
"It's too bad that stupidity isn't painful." - Anton LaVey
Lee's conduct threatens to disclose or Lee inevitably will disclose Microsoft's trade secrets to Google and/or others for his and/or Google's financial gain in the course of working to improve Google search products that compete with Microsoft, and in the course of establishing and building Google's presence in China to compete with Microsoft's efforts in China.
"Well then maybe you should've made him not want to leave."
I find it amusing that companies are allowed to fuck employees in the race for cheaper labor, but valuable employees [alledgedly] aren't allowed to fuck employers in the race for higher wages.
One of the reasons that California's tech sector is dominant, and that California has such a history of innovation, is that California law does not enforce non-compete contracts except in very narrow circumstances. IAAL, and as someone who has litigated these cases before, I suggest to any employee that they attempt to negotiate a California choice of law clause in their employment contracts, especially if they work in California or for a company based in California.
When will this work? The next time the job market becomes tight in tech.
"It's the height of ridiculousness to say for those 9 lines you get hundreds of millions."
No company can OWN any part of a person, and that includes their knowledge.
You hire people to make use of their knowledge and skills. If they improve these during their time with you, then you benefit. You pay them for this. Once they have stopped working for you, you own no part of them.
It comes down to trust here. He knew Microsoft trade secrets and upcoming plans ('Copy good ideas we see') as part of his job. He was paid to not disclose those plans outside Microsoft, and so far he has not, as far as I know. Until Microsoft can prove that he breached those plans, he is innocent and all this action is at best scare tactics, and at worst a massive notice to everyone out there to never ever accept a job with Microsoft because they will treat you as owned property, including your knowledge, making you no better than a slave that gets fed and houses (via wages). Feudal capitalism, what a nightmare.
He hasn't done it yet.
He may never do it.
But because he could possibly do it sometime in the unknowable future he's screwed now for life for working for any company other than the one he just left.
It's called: Trying to prove a negative.
"It's the height of ridiculousness to say for those 9 lines you get hundreds of millions."
Having the Google Toolbar installed on his Microsoft Internet Explorer.
"It's the height of ridiculousness to say for those 9 lines you get hundreds of millions."
Of course if you deal with M$ and look at their confidentiality/nondisclosure agreements, they specifically reserve residual rights -- so they're complaining about an ex-employee possibly doing what they explicitly say they're going to do to others.
Big surprise.
We've outsourced most of our manufacturing other countries, so now companies are going collectively insane trying to protect their brain share products whether it's music, movies, software or patentable ideas. This is just extending that protectionist mind set to the employees who think up the ideas.
It's insane. And I'm afraid we're going to wake up in the middle of an economic Pearl Harbor depending on sales of products with no substance.
That's our life, the big wheel of shit. - The Fat Man, Blue Tango Salvage
Wasn't it a short while ago that Microsoft, facing a lot of anti-trust litigation, was trying to argue its way out of a lot of legal problems with the DOJ, involving competition with smaller companies that it was steamrollering or strong-arming? Now that the shoe is on the other foot, it hardly seems balanced.
Recent preliminary glimpses into Microsoft's Start project and Google's entrace into the IM and desktop app scene show that they are starting to crowd into the same desktop search portal market.
I think the broad language of above claim demonstrates that Microsoft would seek to prevent Kai-Fu Lee from joining Google even if his R&D projects have nothing to do with those he managed in Redmond. Such an outcome would set a pretty poor example for the IT industry. There should not be a waiting period for starting a new facility if no direct tech transfer can be proven. I agree with the poster who noted that what's in researchers heads (and this includes rapport with a foreign market) really belongs to them.
The medical profession still maintains high wages in the US because of a perverse form of collective action: the medical guilds that prevent a bigger number of doctors to study at the universities (and the high cost of education too).
In the end, we are workers who sell their force of labor for a sallary. Dont come with the "innovation" argument because it's phony. We may dress like managers, not like the janitors; we may be called "middle class", we may work in offices instead of production lines; but the reality is that our place in the greater scheme of things is closer to the janitor and the workers than it is to the managers and big capitalists.
Historically, even with aaaall their flaws, unions and struggles (NOT elections!) have been the only way that workers have been able to defend their interests against the interests of the bosses.
But we techies believe that we are above that, we believe that we can solve everything individually. I have never in my life seen a group of developers demanding anything in the streets. This is just the beggining, they are already attacking us and we have our pants down.
Posting comments to a site is not an assembly. If you dont go out to the streets, anything that you do does not exist politically. That is if you are not one of the bosses or owners of the circus.
Our bosses are going to fuck us big (they have already started) and we have no way to defend ourselves.
Here, in front of the keyboard, we dont stand a chance; and that's exactly where we will stay as a group.
I don't care how much you may legally justify it, the guy is his own person and should have the right to do and think as he does, Unless he commits some sort of (illegal) violence, I don't think it's any of their business.
If it was such an important issue, they maybe sould not trust such informatin to mere mortals and just load it in to some VB script to keep the info safe.
Look, we are talking people here, the companies are not looking at that fact, only the potential effect it might have on thier stocks.
"Enjoy what you're doing! If it becomes drudgery, you're doing it wrong!" - Jim Butterfield
Looks like corporate management has found a new Fugitve Slave Law to ensure that the full power of the State and its courts enforce their ownership of their human property.
Sigh. Is it this bad in other countries, or is it just the nation formerly known as the United States of America?
Welcome to the Panopticon. Used to be a prison, now it's your home.
This happens all the time - you interview someplace and they, usually way out of site of the interviewee, find out about possible non-compete complications. If there are any, and I do mean any at all, there is no offer. Period.
Why would it work any other way? Is someone at Google just trying to spend thousands if not tens of thousands of dollars in legal fees to prove a point? Companies don't do this sort of thing unless there is a real reason behind it.
And no matter how good Lee is, he isn't worth this. There is another agenda here - and that is what the real story should be.
Or maybe tech companies could avoid this mess by treating employees like life-long investments, treating talented and intelligent people like an integral part of the company instead of an expense, instead of treating them as a resource to be drained and discarded, instead of outsourcing their jobs when they become inconvenient or too expensive, instead of making them sign restrictive employment contracts, instead of hiring them on in a temporary basis, instead of cutting back benefits. Maybe then employees wouldn't feel the need to leave and go to a competitor.
Oh, that's right. That would require companies to compete to retain employees. I forgot... they don't want to do that. They just want the money, no matter who gets walked on.
--Rick "If it isn't broken, take it apart and find out why."
Yeah, and if you manage to get in front of a judge, you have a very high chance ending up bankrupt.