The primary function of a legal department is to provide advice that prevents legally actionable mistakes.<p>This advice does not have to be sane, or efficient, or indeed have any consideration towards the interests of the company other than "prevents legally actionable mistakes". A few days ago HN saw an article about setting goals and perverse incentives. This is a simple example.<p>Hypothetically, someone was reviewing the Sony USA employment contract and saw that there were, perhaps, non-video-game related developments which might be valuable. Then they asked the legal department "Please supply contract terms that give us as much as possible." And after an hour or two of research, they did.<p>The surprising thing to me is that they tried to change language for existing employees out of cycle. If they did it during a regular review cycle, even fewer people would have noticed.
California has a nice law that says that the employee owns IP created on his own time, unrelated to work, etc. This is a reason I moved to CA: the state I was in lacked such a law, and all the tech companies had contracts that failed the sex tape test. I suspect that for a place to flourish like Silicon Valley, it needs a law that protects self bootstrapping startups.
I've brought this up as the "child porn" clause, and had brought it up in an employment contract once many years ago. Basic language was "we own anything you create". I said "I don't really think you want that - if I create some child porn, you're the owners". I seem to remember I had some less restrictive language placed in my contract vs that one, but I don't think it made a change to anyone else's contracts.<p>Yes, it felt a bit 'nuclear' dropping such a charged statement like that, and even when I bring it up as an example in conversation, some people cringe - a 'sex tape' analogy might be less offensive to some, but the basic premise still stands. Any company that wants to claim ownership of every piece of content or code I 'create' needs to understand what that <i>really</i> entails. It might actually give some people license to work on legally questionable stuff (not child porn so much as, say, banned crypto), knowing that they don't really 'own' it and thinking someone else might be responsible for the consequences.
I think that any funny clauses in the contracts should be abolished and the worker/employer relations should only be regulated by law.<p>This makes me pro-regulation and anti-market, but unfortunately I see exactly zero ways in which market can make contracts better. What are you expected to do in this situation - quit?
IP assignment is the only thing I really negotiate when I take on a new position. I had one company back-pedal as they were trying to change their terms from <i>nothing</i> to <i>we own anything you make, any time</i>. I had the CEO/CTO of another company write in plain English that anything done in my free time and without using company-owned facilities/hardware was my own IP (their legal bla-bla was unclear).<p>In the first case, the corrected terms got applied to everybody in the company but in the second, I believe I'm the only one who is protected thank to that written note.<p>I always use the analogy of an English teacher writing a book on his spare time. How he would actually be encouraged to do so, weighting how this would reflect nicely on the school he works at etc..
In case anyone is in a position to hire programmers and cares about treating creative people fairly, we have an open source Hacker Employment Contract: <a href="https://www.docracy.com/hackercontract" rel="nofollow">https://www.docracy.com/hackercontract</a> that tries to fairly handle stuff like IP created after hours.
While I was working at Earthlink in 1999, they had a similar clause and I had a similar thought.<p>Although not around a sex tape, I though about a computer virus released from my Earthlink corporate email account. If I sent it out the virus technically belonged to Earthlink and not me. However, after talking to a lawyer about it years later, he explained there is ways the corporation could get out of the clause.
Every time I've gotten one of these documents I've amended it to "any IP for aspect foo of business bar." Example: video training software, or freemium mobile games. My employers have not objected, and it's a restriction I cane live with.<p>Honest employers want to keep you from competing with them while on the payroll, and want to avoid any claims that company IP belongs to you. Amend the document to address that and they may agree.
IANAL, but I have heard of something called the Reasonable Person Standard. Since the US is based on Common Law, I believe this standard could be used if this were really tested in court:<p>``The reasonable person (historically reasonable man) is one of many tools for explaining the law to a jury.[1] The "reasonable person" is an emergent concept of common law.[2] While there is (loose) consensus in black letter law, there is no universally accepted, technical definition. As a legal fiction,[2] the "reasonable person" is not an average person or a typical person. Instead, the "reasonable person" is a composite of a relevant community's judgment as to how a typical member of said community should behave in situations that might pose a threat of harm (through action or inaction) to the public.[3]
The standard also holds that each person owes a duty to behave as a reasonable person would under the same or similar circumstances.[4][5] While the specific circumstances of each case will require varying kinds of conduct and degrees of care, the reasonable person standard undergoes no variation itself.[6][7]
The "reasonable person" construct can be found applied in many areas of the law. The standard performs a crucial role in determining negligence in both criminal law—that is, criminal negligence—and tort law.
The standard also has a presence in contract law, though its use there is substantially different.[8] It is used to determine contractual intent, or if a breach of the standard of care has occurred, provided a duty of care can be proven. The intent of a party can be determined by examining the understanding of a reasonable person, after consideration is given to all relevant circumstances of the case including the negotiations, any practices the parties have established between themselves, usages and any subsequent conduct of the parties.[9]"
Note. The contract, as described , would not hold for California employees.<p>See <a href="http://www.leginfo.ca.gov/cgi-bin/displaycode?section=lab&group=02001-03000&file=2870-2872" rel="nofollow">http://www.leginfo.ca.gov/cgi-bin/displaycode?section=lab...</a> if you don't know what I'm talking about.<p>(That said, Sony probably does enough different things that the difference does not matter much to most people.)
(tl;dr: in California, such agreements are unenforceable)<p>I don't know what state the author was in when he was working for Sony, but California State law prohibits such arrangements in employer agreements (Labor code section 2870):<p><a href="http://www.leginfo.ca.gov/cgi-bin/displaycode?section=lab&group=02001-03000&file=2870-2872" rel="nofollow">http://www.leginfo.ca.gov/cgi-bin/displaycode?section=lab...</a><p>2870. (a) 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.
(b) To the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded from being required to be assigned under subdivision (a), the provision is against the public policy of this state and is unenforceable.
The interesting thing to me is how is this even enforceable? Most of my friends keep a tight lid on all their freelance work - how would they even know someone had broken this contract?
My current employment contract says that even IP /related/ to my employer's business, as long as it is done on my own equipment and my own time, is mine.<p>It's an enlightened place.<p>I expect to have to prove it, to some extent, if it ever came up. Which is one of the reasons I have a private github account; commit logs on machines not controlled by me might be useful.
I think my Sony (Sony Europe not SCE) contract said "in the course of employment" which I went back to HR for clarification that it meant things related to or done for work. The in/during difference being very key. I seem to recall that I got the necessary clarifications and I've left now so no need to worry.
I'd love to know of any instances of this (work done in personal time being legally given to the company person worked for at the time) going to court.<p>Sounds like a non-compete clause to me; ie. basically unenforceable.
This story is missing the best part, which is where the compliance officer bluescreens after being asked about whether the sex tape would be owned by Sony.