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The Sex Tape Litmus Test

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Re: The Sex Tape Litmus Test

#21

Post by mgkimsal »

jiggy2011 wrote: post #17
mgkimsal wrote: post #10

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. Yes,…

IANAL , but I believe in this case the offence would be in the creation and distribution of this content not necessarily in owning the IP. Otherwise you could technically make the same argument about instagram for example.

nothing said about distributing it, although I see your point on the creation of it. But I'm not sure I'd be able to make that distinction about anything else valuable - "well, company x, you might 'own' this, but I created it and can do whatever I want with it". They want the benefits without any risks - ain't gonna happen.

Well... I say that, but I think everyone might have their price. I've got mine, and yes, sure, would I sign away all my IP created during employment for $x? yes, but no one has yet come close to that $x in job offers I get.

Re: The Sex Tape Litmus Test

#22

Post by jiggy2011 »

pretoriusB wrote: post #18
jiggy2011 wrote: post #13

Earlier quoted context omitted.

How? Pass a law forbidding anybody from talking about what they did at work that day including to their family or friends? The majority of jobs don't really require any real secrecy thus one size fits all fails.

> Pass a law forbidding anybody from talking about what they did at work that day including to their family or friends? Yes. Pass a law forbidding anybody from talking about what they did at work, including to their family or friends, if they are warned by the company that their work is confidential. Then let a jury decide if they violated that. If you work at a McDonalds, they need not tell you to keep confidential…

So presumably your employer decides which parts of your work are and are not confidential. They then provide this information to you in writing and the implication is that by working for them you agree to abide by these rules.

In other words basically the definition of a contract.

The only difference I can see in this case is that your approach would actually make it a criminal offence (presumably involving a possible prison sentence) to violate your employers terms.

Re: The Sex Tape Litmus Test

#23

Post by jiggy2011 »

mgkimsal wrote: post #21
jiggy2011 wrote: post #17

Earlier quoted context omitted.

IANAL , but I believe in this case the offence would be in the creation and distribution of this content not necessarily in owning the IP. Otherwise you could technically make the same argument about instagram for example.

nothing said about distributing it, although I see your point on the creation of it. But I'm not sure I'd be able to make that distinction about anything else valuable - "well, company x, you might 'own' this, but I created it and can do whatever I want with it". They want the benefits without any risks - ain't gonna happen. Well... I say that, but I think everyone might have their price. I've got mine, and yes, sure…

Employment contracts are almost always written to supply as many benefits to the employer and mitigate as many risks as possible.

The worst case scenario for them is that they find out that certain clauses are not enforceable. In reality I imagine it is often known that some may be unenforceable but they are added anyway on the basis that the employee doesn't know this.

Re: The Sex Tape Litmus Test

#24

Post by mgkimsal »

jiggy2011 wrote: post #23
mgkimsal wrote: post #21

Earlier quoted context omitted.

nothing said about distributing it, although I see your point on the creation of it. But I'm not sure I'd be able to make that distinction about anything else valuable - "well, company x, you might 'own' this, but I created it and can do whatever I want with it". They want the benefits without any risks - ain't gonna happen. Well... I say that, but I think everyone might have their price. I've got mine, and yes, sure…

Employment contracts are almost always written to supply as many benefits to the employer and mitigate as many risks as possible. The worst case scenario for them is that they find out that certain clauses are not enforceable. In reality I imagine it is often known that some may be unenforceable but they are added anyway on the basis that the employee doesn't know this.

One of the few things I've learned over the last 10 years or so is to be much bolder in work/job relationships. If I see something in a contract that is too one-sided, I strike it out and bring it up and say "I'm not agreeing to that". Will I sign a contract with, say, a 5 year non-compete (even assuming the non-compete is enforceable)? Generally no, unless there's a huge compensation package tied to make up for the time when I can't use my knowledge in the market. Would I sign one with a 3-6 month non-compete? Probably.

15 years ago I'd sign anything. Today, not so much.

Re: The Sex Tape Litmus Test

#25

Post by gabemart »

mistercow wrote: post #11
wyuenho wrote: post #4

Earlier quoted context omitted.

Collective bargaining rights was developed to counter exactly this power imbalance with minimum government involvement. Unfortunately I'm not aware of any programmer unions.

What's odd to me is that in many cases people who purport to be "pro free market" are also anti-union. As far as I can see, unions are the free market.

While it's not a position I hold myself, I imagine such people would argue that unions are not the free market because of the legal protections and privileges they enjoy.

I'm no expert, but I know that in at least some jurisdictions a union-endorsed strike carries protections against worker dismissal.

Re: The Sex Tape Litmus Test

#26

Post by jiggy2011 »

mgkimsal wrote: post #16
mistercow wrote: post #11

Earlier quoted context omitted.

What's odd to me is that in many cases people who purport to be "pro free market" are also anti-union. As far as I can see, unions are the free market.

I've thought that too. The difference seems to be that in general, an entire workforce in a company is either 'union' or 'non-union'. In places I've worked in that had unions, you didn't have a choice as to whether you wanted to join or not - you want the job, you join the union. At the macro-level, perhaps 'the market' for labor has said "union", but the choice is not there for the individual to join or not. I took…

I guess the problem here is that from a purely selfish point of view it is better to not join the union (thus saving dues money) and let other people pay the union to negotiate on your behalf.

Perhaps it would be possible for an employer to offer separate union and non-union contracts with different pay rates (employers can already sort of do this by outsourcing) but the issue here is that not all union issues are about contracts.

For example , a union might negotiate for a factory to provide extra safety measures at the employers cost. All employees union or not would get the advantages provided by this unless the employer provided separate more dangerous machines for the non union workers to use.

Re: The Sex Tape Litmus Test

#27

Post by colanderman »

nakkiel wrote: post #15

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 nothing to we own anything you make, any time . 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). In the first case,…

> 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..

I think limiting IP ownership to right of first refusal is important for the same reasons. If I'm guaranteed that either the company will use the IP I developed, and I will (presumably) be rewarded for it or at least be able to include it on my resumé, or that I can own the IP myself, it is worthwhile to me to work on projects in my spare time.

However, without that guarantee, it's entirely likely that works I produce which are significant to me but not to my company will end up gathering dust on a shelf. Hence I'm disincentivized to work on such (potentially enriching) spare-time projects.

Re: The Sex Tape Litmus Test

#28

Post by redcircle »

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.

Re: The Sex Tape Litmus Test

#29

Post by Symmetry »

pretoriusB wrote: post #12
sskates wrote: post #6

Earlier quoted context omitted.

Yes, you can quit and work somewhere else. Also you can read about what Sony does on Hacker News and decide not to apply there for a job in the first place. I really hope you are not actually against customized employment contracts- there are a lot of cases where they can be useful. What might be better is prohibiting instances of terms you find offensive. For example, California's moonlighting law, which effectively…

> Yes, you can quit and work somewhere else. As if people always have that luxury. What if most companies in your field (e.g computer games) follow similar practices? "Go work at another field"? Why fell prey and bow down, looking for work elsewhere, and not try to change the system instead? If a company didn't allow black or gay employees would that be acceptable, and people be told to just "work somewhere else"? I…

Not every company in your field is going to have contracts like that, I can pretty much guarantee that if you are willing to work for a smaller company you can negotiate something. And I did quit my job because we were bought by a larger company with a contract I didn't like just this summer. It's quite possible I'd be making more money if I hadn't restricted myself in this way, but, well, integrity is worth something. Also, what do you mean that being a programmer isn't a seller's market. Unemployment in our industry is just 2.5 percent!

Re: The Sex Tape Litmus Test

#30

Post by jiggy2011 »

mgkimsal wrote: post #24
jiggy2011 wrote: post #23

Earlier quoted context omitted.

Employment contracts are almost always written to supply as many benefits to the employer and mitigate as many risks as possible. The worst case scenario for them is that they find out that certain clauses are not enforceable. In reality I imagine it is often known that some may be unenforceable but they are added anyway on the basis that the employee doesn't know this.

One of the few things I've learned over the last 10 years or so is to be much bolder in work/job relationships. If I see something in a contract that is too one-sided, I strike it out and bring it up and say "I'm not agreeing to that". Will I sign a contract with, say, a 5 year non-compete (even assuming the non-compete is enforceable)? Generally no, unless there's a huge compensation package tied to make up for the…

This is true, many people don't realise that contract terms are technically negotiable in the same way that salary and things are.
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