One way I interpret this, is code of conduct. I worked for a bank for a long time. You were always expected to abide by the code of conduct outside of standard hours. Generally the bank's code basically said be a good member of society. So, in the IBM context it's possible there is an agreement or code where it says they can work on software projects, but they need to identify themselves as IBM employees at all times. I'm just speculating here.
Also possible that they literally may have an agreement forbidding them from participating in software projects, or that IBM has the rights to all IP that they might think up on their own time while on salary.
I remember one agreement many years ago when I worked in IT, that said the company had the rights to whatever I thought up while working for them and it didn't specify that it had to be directly related to their area of business. So if I wrote a sequel to Gone with the Wind, they would have had the rights to it.
(Context - I've worked for IBM on two non-consecutive occasions, do not currently, speak only for myself etc)
It may also vary by geography.
Between 2005-2012ish, IBM UK and IBM Australia didn't claim ownership of IP created on your own time, and I wouldn't have wanted to sign up if they had, but they did require you to consult them and seek permission before becoming heavily involved in FOSS and contributing to public OSS projects. This was for several reasons, IIRC -
- To make sure you weren't competing with their business
- To make sure you weren't leaking IBM IP
- To make sure you weren't bringing IP into IBM that might cause issues (think SCO)
This all seems pretty reasonable. OTOH the one time I did want to make a contribution to the linux kernel (board support for an ARM NAS), IBM delayed giving me any answer at all until the moment had passed and the project was no longer interesting. I very quietly helped a couple of other people get their boxes running too, as I hadn't been explicitly forbidden from sharing the work, but I didn't feel confident trying to submit it to the maintainers in case it got picked up by my employer and they kicked up a fuss.
> So if I wrote a sequel to Gone with the Wind, they would have had the rights to it.
Edit - I should have asked for clarification, do you mean when you are on the clock or off the clock? I interpreted your comment as the latter and wrote my comment below with that in mind.
Is the practice of companies owning the rights to software you make on your own time commonplace?!?! I am a student and I really want to go into the field of computer science, however whenever I read stuff like this it is incredibly disheartening.
Also the semi-recent Nginx ownership rights issue comes to mind.
Honestly, depends on the company and the state you're working in. It's all anecdotal, so take the following with a grain of salt.
I've worked for startups in Washington and California. In Washington, there was an invention clause in my contracts, but in practice it was a) practically unenforceable and b) as long as you divorced your work identity from your personal identity, nobody cared. This meant not having a way of tracing an anonymous handle or email to you working for the company. In California, I've never seen an invention clause in my contracts, but they were also much better at divorcing your work and personal identity systematically (forcing you to use a github account specific to the company, not mentioning this handle on your personal account, etc.).
In any case, keeping your work and personal work completely separate (no competition between work and individual ideas, no shared hardware) is a good idea and won't raise as many eyebrows. Some companies will be more aggressive about owning what you do, so if it matters to you then ask about the clause before signing the contract.
> In California, I've never seen an invention clause in my contracts, but they were also much better at divorcing your work and personal identity systematically (forcing you to use a github account specific to the company, not mentioning this handle on your personal account, etc.).
California has a state law that covers this. Any work you do on your own time, with your own resources (so, not your company laptop or photocopier) is your own and the company cannot force you to assign it - so long as the work is not connected to your employers current or reasonably anticipated business.
In practice, though, even in CA, I would suggest employees always get something from their company, in writing, disclaiming any ownership of any project they decide to start or work on (in any large capacity), especially if it's a software project and they work for a software company.
Even if you truly believe what you're working on has nothing to do with your employer's line of business, they may disagree, and even if they're wrong, they can make your life difficult and expensive while you try to prove them wrong.
It makes me sad that this is a thing I feel I need to suggest, but I think it's the prudent move, and many companies will even have a fairly painless, well-defined process for doing this.
That's a great call-out, and one that's particularly relevant when you work at bigger companies. For instance, what can you confidently say isn't part of Apple's reasonably anticipated future business?
as a young developer in California Silicon Valley area, I saw companies try to create 24-7 blanket enforcement of IP rights, solely to increase control and profits; I also saw coders definitely steal company IP and try to start new companies. That State law you are referring to was passed long after this battle was underway, and I can tell you that companies definitely denied that the law existed, said it was unfair, and also paid lawyers to write contracts that tried to take employee IP anyway, and use sales tactics on new employees to accept it.
> whenever I read stuff like this it is incredibly disheartening
Its not something to worry about most of the time. At least here in Australia the below situation would be very unenforceable
> if I wrote a sequel to Gone with the Wind, they would have had the rights to it.
A company buys your time and the IP in and around the industry your job is in. Like you can't steal customers, you can't steal IP. If you're paid to come up with a new product/idea you can't just resign and become a competitor you'll get sued for that.
But if your a programmer and write a sequel to Gone with the Wind even if your contract states that the company owns your ideas it won't stand up in a court if the company tries to take ownership. So long as you didn't use company hardware or information which can only be gotten at that company.
> At least here in Australia the below situation would be very unenforceable
Even in Australia those clauses make it into contracts. It might be unenforceable, but that doesn't stop employers from putting it into their contracts, and it might not stop them from trying to enforce it anyway and making your life difficult.
I don't know how many people challenge it, but I've struck it out of several contracts over the years. Each time it's been met with surprise that I might object to it.
I'll agree to more narrowly targeted clauses for IP assignment (limited to work performed on company time and/or with company resources).
But I've also seen things utterly dumb non-compete clauses which would attempt to prevent me from doing any IT work for sometimes years. Also struck. Also likely unenforceable.
> Each time it's been met with surprise that I might object to it.
I’ve never run across a situation where someone wanted to remove a clause from an employment agreement and the company was not utterly shocked that someone would not find the terms acceptable.
I generally think it’s a tactic to get the individual to accept the contract wholesale.
If you have signed a contract that states that "all intellectual property you produce during your employment belongs to $COMPANY", it would be a harder argument, I think.
I have had contracts changed to carve out the "on my time, on my kit" exception (and, yes, I am quite antsy having to involve any of my own equipment in anything work-related).
Just because it probably wouldn’t stand up in court doesn’t mean they won’t have to experience years of stress, legal battles, etc. to the point where you just give up.
I guarantee if your GWTW sequel hits a large payday, then that company will have extra incentive to come after you. In the long run it probably won’t work. But they will grief you along the way.
> Is the practice of companies owning the rights to software you make on your own time commonplace?!?! I am a student and I really want to go into the field of computer science, however whenever I read stuff like this it is incredibly disheartening.
my buddy who works at Amazon can't do game jams or even mess around with any personal game or web development at all without getting HR to explicitly sign off on it.
And it is very possible that the university you are currently at owns some rights to your current work (it's a complex legal topic, but a lot of schools do have a copyright transfer in their rules).
Are you sure about the comment about students? I am not aware of the rules in the US but everywhere else I have worked at students (unlike academic employees) own their own IP. In many countries this is actually not just because of school rules, but because of legal rules: the universities can't take something from you without compensating you, but you are paying the university.
That said, rules for graduate or PhD students on a scholarship/stipend are a bid more complex.
It's not copyright transfer, which actually isn't a thing here, but in the Czech Republic, there is actually a specific clause pertaining to work done by a student to fulfil his study obligations (i.e. a bachelor thesis). The school has the right to get a licence to use that work and to demand compensation if the student monetizes it. I haven't heard of it ever being explicitly used, so it's probably uncommon (who wouldn't give their school a licence to use their thesis?).
Don't worry, in most civilized countries such clauses are illegal. In the U.S. some states allow them but many companies either don't have them or don't enforce them.
Remember that in the software engineering industry, the (competent) engineer is the hot commodity. If your employer turns out a bad apple, just leave to a different one. That's what keeps the nonsense in check -- not regulations, but competition for the best employees. For employees this is a great situation to be in. Unlike in other industries.
Off the clock. I can't speak for commonplace, this specific agreement was from 1999 and was probably not enforceable then (but who knows) as I believe no one can reasonably be expected to turn over original creations and impoverish themselves, if there is no connection to the company's area of business. Things vary depending on the year and the country.
You can negotiate your agreements if you see something objectionable in them. (Read them!)
I work for a company you've heard of, and that's their policy.
_However_, if I had a side project I wanted to work on, I can get clearance to pursue it, so long as it doesn't compete with any of the company's ventures. It's a straightforward process, not a big deal at all.
They're just trying to get ahead of/avoid potential ambiguous IP ownership situations.
Even outside the US it is not that unusual for employers to have rights under certain circumstances, and those circumstances quite often center on whether what you do outside of hours strays close enough to what you do at work.
For someone to continue to work on the very same piece of software that they have worked on on the clock and expect their employer to accept they have no rights to it would seem dicey in a lot of jurisdictions without having some explicit agreement in place.
> So, in the IBM context it's possible there is an agreement or code where it says they can work on software projects, but they need to identify themselves as IBM employees at all times.
I thought that too, but the last sentence:
> I grant you a 1 time exception on contributions to VNIC to make this change.
... sounds to me like Pan isn't allowed to work on it in his spare time even using his IBM email address. He made the email-removal change using his IBM email address, so I don't think it can be interpreted as a one-time exception to use his personal email address to do that removal. It sounds like a one-time exception to submit any kind of change at all.
One way I interpret this, is code of conduct. I worked for a bank for a long time. You were always expected to abide by the code of conduct outside of standard hours. Generally the bank's code basically said be a good member of society. So, in the IBM context it's possible there is an agreement or code where it says they can work on software projects, but they need to identify themselves as IBM employees at all times. I'm just speculating here.
Also possible that they literally may have an agreement forbidding them from participating in software projects, or that IBM has the rights to all IP that they might think up on their own time while on salary.
I remember one agreement many years ago when I worked in IT, that said the company had the rights to whatever I thought up while working for them and it didn't specify that it had to be directly related to their area of business. So if I wrote a sequel to Gone with the Wind, they would have had the rights to it.