--- On Wed, 7/9/08, shag <shag at cleandraws.com> wrote:
> From: shag <shag at cleandraws.com>
> Subject: Re: [lbo-talk] legal dwama
> To: lbo-talk at lbo-talk.org
> Date: Wednesday, July 9, 2008, 8:11 PM
> At 08:02 PM 7/9/2008, andie nachgeborenen wrote:
> > >
> > > blah blah. try telling them that they are already
> bound by
> > > this kind of
> > > thing because of the fact that they are
> employees.
> > >
> > > i mean, an attorney can correct me, but when
> you're an
> > > employee, if you
> > > build a widget that helps you get your job done,
> then
> > > widget belongs to
> > > company. no ifs ands or buts about it.
> >
> >No, not per se. It depends on the contract, if any, and
> the background
> >default law. An intelligent IT company will have a
> contract with its
> >employees that says, we own anything you invent on
> company time, and a
> >nondisclosure agreement and a noncompete agreement too.
> But good tekkies
> >and even good entrepreneurs are often clueless about
> the law. If there is
> >no agreement, there may be background law, case law,
> statutes, in the
> >jurisdiction that assigns rights to the parties. That
> is generally matter
> >of state law. Or there may not, In which instance
> everyone can hire a
> >lawyer and sue each other and we can go to court and
> have a merry old time
> >of it. We bloodsucking leeches need to eat too, you
> know.
>
>
> ahh. what's mucking up the works is this other clause
> they have that makes
> it sound like anything you made before employment counts.
> but this is how
> it counts, from my reading:
>
> if i make widgetX and patented and trademarked it or write
> an article that
> i own the copyright on, and if i repurpose widgetX or
> article in any way
> while in the employ of the company, then widgetX and
> article are now owned
> by company.
I can only guess what is meant by "repurpose," use again in any way? Now surely it has to be "in some way connected with the employee's work for the money." I don't think, for example, that if I wrote a paper or a line of code before signing on, then reuse (some of it) it on my own time, not using any company facilities, and not in any way connected to my job, that they could make it stick that they owned it. But I'd be damn careful that I didn't use the company laptop!
> we have to provide a list of everything we think we owned
> prior to
> employment, as well as any "inventions" etc that
> we've since made but are
> not something we made on company time. and people are like,
> why? why do
> they care?
I wonder about whether the company could make it stick that the employee has waived ownership rights to anything not included on such a list if the employee even thinks about it while in the company's employ. I mean. if I were an evil company lawyer (as I've been) I might include such a clause in the contract, and some judges might uphold it, but others might not.
>
> which doesn't seem to be a big deal to me. they are
> giving warning: don't
> give us your repurposed shit and then expect you own it
> later. we
> do.
That's what I'd say. But actually it is sort of dumb of them. Suppose I had X idea before began my employ. I forgot to include it on the list. While in the employ of the company problem Y arises. X would be the perfect fix. If I am rational, am I going to use X? I am not. I might reverse engineer a kludge to get around it so that the company would not own X, but then the company is the loser. It is denying itself the initiative of its employees, who, instead of trying to solve the company's problems, are instead thinking about how to protect their own property.
Of course the company may bet, or know, that most tekkies are not rational and will not do what I just described, but will just use X, thus handing it over to the company.
don't try to sue us if we end up making money on
> that repurposed
> article. we own it and any claim you might have had,
> you're giving away and
> transferring ownership, patent, trademark, and copyright to
> us. thanks!
>
> message: never give em repurposed stuff you think you own.
> if you want them
> to have it, don't repurpose on their time. off to sell
> it to them!
A it's a wise tekkie that know her own employer and can read a contract.
>
> the non-compete is pretty straightforward: don't try to
> get hired or help
> anyone else get hired by one of our competitors for 1 year
> after termination.
>
> this is a problem because company is constantly buying out
> other small
> companies. they own stuff people never heard of. i could be
> trying to get
> hired by someone they consider a competitor, simply because
> i have no idea
> they own some company that's sort of languishing. i
> could discover say,
> that i suspect most of their business is about everything
> to do with
> washing dishes, and never know that they have some little
> rinky dink thing
> that is all about vacuuming rugs. i go to work for a
> competitor of the
> vacuuming rugs subsidiary and i'm in breach of
> contract. and, of course, i
> have to pay all attorney fees.
The usual rule is a noncompete's gotta be reasonable. If you are not on notice that the new employer is a competitor, you might have a case that it's not reasonable. Also it's often limited to the scope of employment, so if the new job is doing something totally different from the job governed by the noncompete, it's arguably not barred even if subsidiary of the original employer happens do do this different thing.
>
> do you think that one thing they could do is hire an
> attorney, at their
> expense (our choice), to collectively tell us what's up
> with it? it would
> go a long way toward keeping a little peace at work, cause
> the fact is, a
> lot of people are horked off about this, because they
> don't understand it
> and have all kinds of wild ideas. e.g., they think that, if
> they have a
> company on the side that's about web and graphic
> design, then the employer
> will sue them down the road.
Well, if they want to avoid lawsuits and discord they certainly should explain to you as clearly as possible what the contractual rights of the parties are.
There are ethical problems with the employees paying for a lawyer representing the company to tell them employees what the company thinks the contract means. I certainly would not accept that job. It looks to me like a conflict of interest. The company should have its own lawyers, paid for by the company, do this. The employees might well hire their own lawyers, representing them, the em ployees, to read the contract for them ands tell them what they think it means and how enforceable it is,
>
> the other thing that scares them is the remedies section
> that if you do or
> they get wind that you might do something to breach
> contract, then they
> cannot possibly put a price tag on the damage it will cause
> and, therefore,
> they can put a restraining order on you without warning.
Yes. Normally breach or threatened breach
of a noncompete or a nondisclosure agreement will warrant injunctive relief (even though all the company stands to lose is money), I know it sounds stupid, that is pretty much the law in almost all jurisdictions of which I am aware.
>
> obviously, they want to be able to slap a restraining order
> on your freedom
> of speech immediately without having to show a judge that
> you are harming
> them financially in order to get said restraining order.
Not exactly. To get injunctive relief in general, the company has to show that it will suffer damages that no specific amount of money will compensate for. If they could ballpark how much they were hurt, they would fail to satisfy the requirements for injunctive relief, irreparable injury and no remedy at law, which means money won't make them whole. Of course money would make them whole, but the courts in general pretend not.
> and, as i
> understand it, it's pretty hard to get such a thing if
> it limits someone's
> ability to make a living. hence the eager desire to get you
> to give it all
> up now!
Yes. In general if a noncompete essentially bars you from employment in your field and prevents you from working as tekkie doing X, it will not be considered reasonable. However the company may be able to enforce an agreement reasonable limited in time and space, and it can certainly enforce a nondisclosure agreement.
>
>
> and its slaying me because of the conversation -- snarky
> and derogatory --
> about how the company is such a loser for always going open
> source! the
> irony. they are going open source with the supposedly
> crappy open source
> products and slapping all these ip agreements together.
>
> why i am not at all convinced open source will change
> thing. and even more
> convinced when you think how many people are reading the
> scary all caps
> about limiting their freedom of speech and are upset by the
> restraining
> order thing and they're not really getting why its
> scary. i mean: the real
> ramifications, the real facts of the world they are living
> in.
>
> oh a whole 'nother conversation, that.
>
>
>
>
>
>
> >
> >___________________________________
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>
> http://cleandraws.com
> Wear Clean Draws
> ('coz there's 5 million ways to kill a CEO)
>
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