My buddy Harold recently landed a new job at a great technology company. It came at a perfect time for him, having just been laid off from the corporate behemoth where he’d toiled away as an anonymous cog for 19 years. But the day before he was to start, the new company’s HR folks sent him some last-minute documents to sign. One was a broad and vaguely worded non-compete agreement which essentially said he was barred from working in any related industry for a year after leaving the company.
Harold was tempted not to sign, but eventually relented because one needs to put food on the table. Thankfully he’s now thriving at the new company, but his experience got me thinking about all the complications hackers face with the day jobs that so many of us need to maintain. Non-competes and non-disclosures are bad enough, but there’s one agreement that can really foul things up for a hacker: the Intellectual Property Agreement.
If you work for a company that’s any bigger than a few employees, chances are pretty good that you’ve signed some sort of Intellectual Property Agreement (IPA) as a condition of employment. Such was the case for reader John D., who tipped us off to an overly broad IPA he was asked to sign before starting a temporary assignment at a tech firm. The IPA stipulated that any intellectual property he comes up with during his employment must be turned over to the company. That’s pretty standard; you don’t want your employees patenting the software you’re paying them to write, only to have them license it back to you for a fee.
But where John’s IPA seemed to go over the line was in disclosure. It required him to disclose every method, process, invention, idea or thought he had while working for the company, even if he didn’t think it was protectable or assignable. And the fact that it was dreamed up after hours made no difference — if he creates it, it has to be disclosed.
Let’s Not Get Too Creative
Now, as evil and as likely unenforceable as such agreements are, we can see where the company — or more accurately, the lawyers paid to protect the company — are coming from. As this longish but excellent article points out, were a company not to require you to disclose your every creative act, any blog post or Tweet or even a novel that you wrote on your own time could become a lightning rod to attract litigation. Like Willie Sutton quipping that he robbed banks because, “That’s where the money is,” lawyers will ignore your likely empty wallet in favor of a big payday from an evil corporation. They could argue that as your employer, EvilCo should have known that your egregious and reckless extracurricular activities could potentially offend someone, and could have prevented the mental anguish suffered by the poor client if they merely had exerted some control over their employees.
These overly broad IPAs seem to be a way for companies to exert that control without overtly saying that you can’t do anything creative that’s not for the company’s benefit. These agreements, when read and understood by the new hire, have the effect of dampening after-hours creativity. From the lawyer’s point of view, it’s the perfect endpoint — the company gets the new hire, the new employee is constrained from doing anything that might make waves, and the company is protected.
But is it really good for the company? As John D. points out, he got his current gig in part based on experience that he gained thanks to his extra-curricular hacking activities. Indeed, it’s pretty common these days for tech firm hiring managers to expect to see exactly what kind of projects you’re working on in your spare time as an implicit statement that you’re living the hacking lifestyle. But IPAs that lay claim to your every thought and idea curtail the very activities that made you an attractive candidate in the first place. If you don’t feel free to explore your creative urges because someone else has a prior claim on any potential profit from them, are you really bringing value to a company that likely lives and dies by the very ideas they are asking you in no uncertain terms to suppress?
IANAL, But I Know One
If you’re looking for an answer on whether to sign an agreement that lays claim to your every Arduino project, code snippet, Hackaday comment or vivid dream, I’m afraid I don’t have one. I am not a lawyer, but in my buddy Harold’s case, he actually turned to one, who advised him basically that it’s a case of “their game, their rules.” I said the same thing and it didn’t cost him an hour of billable time, but it was money well spent as the lawyer told him it only covered voluntary separations and termination for cause. But whatever the terms, the company has you over a barrel when you need a job. Sign the papers or move on.
That said, if you are prepared to sign but still feel uncomfortable about it, ask. Nothing bad should come from talking to your contacts at the company about what you’re signing (and if it does, that’s a huge red flag). Sure, it’s unlikely that they can substantively alter the paperwork that all new hires are asked to sign. But you may learn a lot about your soon-to-be colleagues by the way they approach the conversation. You can’t expect anything to change if no one ever brings it up.
Now it’s your turn: have you run into these kinds of aggressive IPAs before? Is your day job trying to lay claim to your creativity with any kind of overreaching conditions to employment? Have you consulted with a lawyer before meekly signing? Or did you try to protect yourself somehow by modifying the agreement prior to signing? And most importantly, how do you feel about the chilling effect these IPAs are likely to have on your hacking pursuits and other extracurricular creative endeavors? Sound off in the comments below.