Hacker News Reader

Comment by staticassertion | Hacker News Reader

Non competes are illegal in California. But while you are employed by a company I believe that most contracts require that even outside of work the company owns your IP unless otherwise stated - that's why there's a bit in your contract where you can specify prior inventions and whatnot, I believe.

Every company I've worked for has had it this way.

View on HN

> most contracts require that even outside of work the company owns your IP unless otherwise stated

Assuming the outside work was performed on the employee's own time/equipment and doesn't compete with the employer's business, such contracts would be unenforceable in California. See section 2870 of the California Labor Code: https://leginfo.legislature.ca.gov/faces/codes_displaySectio...

> Assuming the outside work was performed on the employee's own time/equipment and doesn't compete with the employer's business

The rule actually encompasses more than simple competition, but in any case work on OS components for an alternative (and therefore competing) OS for the employer’s hardware for which they also sell proprietary OS software does compete with the employer’s business, so... (The particular thing the employee was denied permission to work on seems to be VNIC for IBM Power)

Yeah, this is the loophole in the law: if you work for a big company, there are very few areas that meet the criteria specified in the law.

> 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 ...

I am not a lawyer, but I think it would not be unreasonable to believe that work on the kernel would be related to IBM's business (like RedHat).

Its not just that it doesn't compete with the employer's business but if it is related to the employer's business.

Furthermore, while the own time/equipment is there, there is also trade secret information mentioned beyond the time and equipment constraint.

Here it's not just work on the kernel, but work on the kernel on a driver for IBM hardware that two other IBM employees maintain, and that the employee in question was -also- previously a contributor to during work hours.

Yep, that "employer's business" part is relevant here. The person in question is writing a kernel driver for an IBM hardware while being an IBM employee. IANAL but I'm pretty sure that means "Employer fully owns employee's work" even in California.

Doesn’t own the work but they can be terminated and even charged with a crime if they were misappropriating trade secrets.

Oh yeah, true true. You'll want to avoid using any company time, equipment (including the network), code, etc. and that should cover you, i think, but only so long as your work doesn't "compete" with your employers iirc.

I work for a small (barely 2 digit people) open source shop and we don't have it that way, but that's probably because we're so small...

Funnily enough I release some of my work under BSD-style licenses while company stuff is all GPL :D

[2 sidenotes though: 1) I'm in the EU, and 2) a previous job, working on the very exact same open source project, had a clause like that.]

Reply on news.ycombinator.com