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I'm in negotiations for a position with a large corporation and I'm reading their employment terms. In their IP/copyright section they state that anything that I do outside of work that is "similar" to what I perform on the job is also theirs. I understand that it's intentionally very vague to protect them, but I'm also a little nervous that it could be abused. The way I read it, anything I produce outside of work could be claimed as well, because it would fall under "programming".

Is this relatively standard? Could I negotiate more specific terms (I have asked if I could get clarification)? Should I be worried that they could abuse this? I just don't want to be caught in a situation where come up with a (potentially) great idea outside of work and they swoop down and lay claim to it.

EDIT:

To help a bit, here is the parts in question: "In the event any 'work' is held not to be a work for hire, I hereby assign and irrevocably agree to assign all right, title, and interest in and to such 'work' to 'company'"

Where work is code, deliverables, designs, patents, etc. The next section does say:

"if in the judgment of the 'company', any such 'work' does not relate to the business efforts or research and development efforts in which, during the period of my employment, the 'company' actually is engaged or reasonably would be expected to become engaged, this Agreement does not obligate me to assign such items."

which basically says that I can keep the rights to software that I don't create for them at their discretion. I'm basically looking to see if this is a fairly standard contract and if this is a sort of thing that could be used to bite me in the tail in the future.

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It all depends on were you live. Some places as ruled very broadly eg. anything using a computer is similar - others rule very loosely, eg. you have to directly compete with the same customers. – Martin Beckett Nov 20 '11 at 17:58
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That's definitely open-ended and strongly favors the company. If you have current projects that you're worried about, I'd get them excluded. – Bill the Lizard Nov 20 '11 at 21:54

4 Answers

up vote 8 down vote accepted

  1. Don't sign anything you don't understand.

  2. If you don't understand something you need to sign, ask a lawyer to review it for you.

  3. Online fora and Q&A sites really aren't a good way to learn anything meaningful about your own legal situation. Participants mostly aren't lawyers, and even if they are, you're not paying them to protect your interests (of which we may not even have a full understanding).

  4. In this particular case, you haven't even provided the specific language, so there's not much that anyone could do to help you understand the terms of your agreement.

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I'm honestly not looking for specific legal advice here, just an idea of these kinds of forms. What's standard, what isn't, and what kind of gotchas I should look out for. I do agree with all your points, though. – JosephRT Nov 20 '11 at 20:24
As addendum : Everything is negotiable. I often had clauses removed or altered from such agreement before I agree to it. Do seek legal counsel though. – Newtopian Nov 21 '11 at 5:47
Try and get the clauses removed. If you can't then the first line to take when you do something outside the business is to inform your supervisor. If they give you the OK, then keep going. If they don't then you were warned in the contract and you might be sailing to close to the wind. – quickly_now Nov 21 '11 at 5:59
up vote 4 down vote

I've seen words like this in contracts before, and just asked for them to be removed. In every single case, the employer has agreed.

This is quite easily to negotiate. If they ask why you want the contract changed, just make the following points:

  • As an active software professional, I'm engaged in my own and/or open source software development projects in my own time
  • I would expect to be able to continue this activity if employed by you
  • Please change the wording of the contract to make sure that these are clearly excluded

If they are a reasonable employer, they should be fine with this. I've even had executives tell me that they respect me for negotiating firmly :-)

I generally asked for a statement something along the lines of:

"Employer recognises that Employee is engaged in software development activities as an individual outside working hours that are unrelated to this employment contract, including but not limited to participation in open source projects and Specific Project X. Nothing in this contract shall grant employer any rights whatsoever to intellectual property created by employee as part of such projects."

I'm of the opinion that don't need to pay a lawyer for this - the intent is clear.

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up vote 2 down vote

That is pretty standard in many industries, but you shouldn't feel hesitant to ask for more specific terms if you feel like anything you do under the umbrella of "programming" could be included. Just get them to state that anything you do in their industry belongs to them, and anything else (specify exactly what if you already have some side projects going) belongs to you.

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Trouble is that it comes down to what a court decides is in 'their industry' - does a judge understand that your webserver work is different to their sqlserver work? – Martin Beckett Nov 20 '11 at 17:56
@MartinBeckett All the more reason to explicitly spell it out in the contract. – Bill the Lizard Nov 20 '11 at 18:07
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it helps but ultimately a contract means what the court decides it means. And there are overriding laws - my US contract includes stuff that would be thrown out in europe for example. A big problem in IT has been that it's hard to make clear to a judge (and jury) what is different about the stuff you do at home - so it's especially important – Martin Beckett Nov 20 '11 at 18:21
@MartinBeckett That's exactly what I'm talking about. I understand they need to protect themselves and I respect that. But it's admittedly going to be tough to explicitly spell out everything. It's something I'm going to try to do, though. – JosephRT Nov 20 '11 at 20:26
up vote 0 down vote

I wouldn't worry about it. They probably will not want to negotiate and you would might need to hire a lawyer to do it. I think that would cost at least $400, and as much as $1,000.

Besides that, they are not likely to sue you. How would they ever know that you did "similar" work? The only case I can think of is if you create some software and build a successful business that sells it. I don't think they would know about your business and they would have to prove that you worked on it while employed with the company. It's pretty unlikely.

If you are in a position to negotiate then it is better to have it removed. But I suspect that they are not going to be very open to the idea.

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Sorry - not good advice. Wilfully ignoring something like this can make it far worse if you do get caught. – quickly_now Nov 21 '11 at 5:58

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