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Dealing With an Overly-Restrictive Intellectual Property Policy?
An anonymous reader writes "I am very happy with my current job, but there have always been a few ideas for things I've wanted to develop on the side. Ideally I'd keep my day job, reserving mornings, evenings and weekends to see if the side-projects could become viable. The problem is: my employer has an IP policy that states that anything I do while under their employ is theirs, even when I'm off the clock. Does anyone have suggestions about workarounds, magic loopholes, false identity for the side projects? Anything?"
What I did at my current (academic) job is to keep copyright with my employer, but have them license it back to me under GPL. This means that if I move jobs or start my own business I can keep working on these projects. You can sell it to them as showing how they (ie, you) contribute to the community etc, and that they keep all IP so there is no danger of you suing them and they can always relicense.
Downside is of course that your future business model would have to build around an OSS core, but there are various options (OSS backend with proprietary frontend, web business / software as a service (no distribution = no requirement to give source code), proprietary modules that actually make it work (but make sure that the proprietary part cannot be construed as a derived work), etc etc.
When the company has a blanket policy that takes the employee's inventions, it can come to bite them in the ass.
When I was illegally fired by Microsystems, Inc. ("MSI") they took possession of work I did on my own time using my own tools. However, on the workers comp. claim their denial was based on the claim the tendinitis was caused in part by my work at home. Either MSI fraudulently denied the workers comp. claim, or committed fraud by asserting and taking possession of the work I did on my own time.
By having a blanket policy of owning everything you do, the employer could be on the hook for everything you do.
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Or... and I know this is going to sound insane... ask your boss if it'd be okay before going all agro on them.
That way you could keep your job even if they wouldn't mind you doing stuff on the side.
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I found myself in exactly the same position about a year ago. Here's the thought process I went through:
1) If it's a marketable idea, one that could make bucketloads of money, the employer is going to pursue it. They'll even want you to spend work hours on it. Or they'll apply other company resources ($$$) to it.
2) If it's something you think is super cool, but isn't marketable, the employer isn't going to care about whether you do it on your own free time.
3) If it's an idea you think is awesome, your employer doesn't agree, and you turn out to be right (it becomes successful), this is the only place where there's a rub. One option (if it's some sort of internet site) is to run it through a proxy (person)--get a friend/neighbor to set up the service but give you all the necessary access to develop/administer it. Another is to fully develop the idea, but hold off on implementing until you're out of the employ of your current employer. A third option is to talk to legal and/or your boss and see if you can carve out an exemption from your contract for work not related to your employer's business.
For my current employer (who has a policy quite similar to yours), they were very open about the reason for such a policy. Simply put, they're hiring you for your mind, and if you've got a great idea, like it or not you'll be thinking about it during work hours. If you feel your current employer isn't compensating you sufficiently for all of the products of your mind, then you probably need to either A) talk to your employer about it, B) find a new job, or C) reassess how valuable your work really is. No offense is intended, but since you haven't mentioned how well you're paid, or even what industry you're working in, I have to leave it as a possibility.
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Next time don't even sign it.
The last W2 job I ever worked tried to force something like this on me as well. My response was a lengthy legal agreement in which it spelled out all IP that I currently owned, was involved in creating, limited the scope of the IP they wanted to control to their specific business domains, etc.
They never signed mine, and I never signed theirs. Received a couple of threats from HR, stood my ground, and it just quietly went away. Worked at that company for 3 more years without the signed contract.
You actually run the risk, even asking the question, of implying you have an idea for a product on your current companies time...
This is one of the reasons I don't think corporations should be able to hold copyright or patents. While the company may have helped fund creation of an idea/project, it was a person, or at most a group of people that actually came up with the idea. I do think that the company should be able to stipulate generous licensing terms, or even be exempt from paying royalties (they already pay the inventor a salary after all), but ownership resides in the inventor. This also gives the corporation incentive to treat their employees well, so they will stay and continue to license the ideas to said corp.
Of course the downside is that things can become a bit more complicated when a group of people invent something, but any lawyer worth their salt should be able to figure out a succession plan. In fact that is all the corporate ownership really is, a complicated, one sided succession plan....
If your side projects are in an area that overlaps with your employer's business, then they have a legitimate right to refuse.
You bring up a very valid point. On first impression, overly restrictive intellectual property smacks of intellectual slavery, but then there's always the risk of an employer's ideas, know-how and internal processes being used against them by ambitious yet unimaginative and unscrupulous employees.
It's a classic scenario, isn't it? The manager of a X business quits and opens a copycat store, sometimes even right across the street, and a working relationship has turned into a rivalry, with the new business having privileged information about how his former employer does what he/she does.
Then, the new business could sell tacos, sandwiches, salads, pitas, gyros, ANYTHING, but inevitably it's also gotta be burgers, right? WHY does it have to be the exact same fucking thing?
True story: An office/school supply store was doing pretty good business, until some misguided imbecile tried to duplicate lightning in a bottle and opened another supply store next door. Now there's two businesses sharing the same number of customers in the same block, both struggling to make ends meet now, a toil and chore just to stay afloat.
Another one: For ages, there were no Spanish cuisine restaurants in my town. One finally opens up, and it's a resounding success. Within a year, there were five Spanish restaurants. Within another year, all had closed down, not enough customers to go around. Meanwhile, during all that time, no Thai or Vietnamese, no Peruvian or Brazilian, no Greek or Turkish, not even a place to get a decent baked potato with toppings. BRILLIANT!!!
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I am in my 50s, and when I was in my 20s things were different. Back then it was customary that one's inventions were one's own unless they were created during the work day as part of one's job.
What has changed is that corporate lawyers have instituted employee agreements that are much more severe - absurdly so.
One should not be willing to sign an agreement that gives an employer rights to anything you think of during the term of your employment. Your job is not your whole life. Employment is not indentured servitude.
I myself never sign such an agreement. It often becomes a difficult issue, but I just don't sign, and I have never been fired because of it. One thing I have often done is modify the agreement, crossing out the phrase "in the course of" and replacing it with "pursuant to" where they specify that they own IP that is created "in the course of" my work. These two phrases mean very different things.
Nowadays, I usually do my work as 1099 for this reason, since expectations with respect to IP are different. Employers think that they "own" anyone who is a W-2.
What other industries have stipulations like this. If I'm a home modeller and I remodel my own house can my employer claim that my house is now theirs?
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Not just profs, etc...
My daughter works in the dining hall at UCSB, and she got a "Patent Amendment" that she had to sign.
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