The Miserable State of Intellectual Property Clauses in Developer Contracts
I should open by saying that the concept of intellectual property, the idea that an individual can own an arbitrary arrangement of data and employ the law-enforcing powers of government to place restrictions on its use, is a vast and horrible thing. It is a grand set of rent-seeking activities that threaten to drown everything that is good about this age of data and communication. Progress in technology stems from sharing data, as in the open source model of development and research, and anything that interferes is imposing a cost upon all of us. Progress will be slower. Cost of goods will be higher. Like so much of what is wrong with the modern world, the creeping corruption and harm caused by intellectual property stems at root from the power of government: an effective monopoly over the provision of law and violence always winds up in bad places. Absent the legion of men with guns and law-books, supported by taxes taken unwillingly from our pockets, there would be no intellectual property to speak of, and the world would a better place for it, as illustrated by the numerous dynamic, thriving industries with no intellectual property to speak of.
But the topic for today is the sorry state of affairs that the intellectual property behemoth has brought to contracts between developers (programmers, coders, pick your word of choice) and companies that hire developers. The standard legal boilerplate incorporated into every consulting, contract work, or full time hire paperwork I've seen in my years in the industry included one or more of the following declarations:
- All intellectual property I produce during the period of work belongs to the company, regardless of its nature, regardless of whether it has anything to do with the work I am performing for the company, and regardless of whether or not I produce it on my own time.
- All intellectual property I produce during a period of time (commonly some months) after the work ends belongs to the company.
- All intellectual property I have ever produced in my life belongs to the company, barring that which is listed in an appendix to the contract.
- I may not create intellectual property on my own time and be remunerated for it by anyone other than the company during the time I work for them.
- The onus is on me to prove that I own any of my own intellectual property.
I sent back every single one of these contracts with edits to remove the obnoxious and grasping provisions, replacing them with some variant clause to say that "what I produce for you while working for you on your software is yours, and everything else is mine." The reaction from the hiring manager is often some mix of "yes, that's bad, stupid lawyers" and "I can't believe I signed one of those myself," but, given that, why would a company that seeks to hire proactive and talented developers ever adopt the practice of issuing contracts of this nature in the first place? And make no mistake, they all do, so far as I can see. From startups to Big Consulting companies and everything in between I've had the chance to work with, every last standard issue contract set on the table in front of me tried to claim ownership over far more than it should.
Now it seems to me that the developers most in demand are those of demonstrated ability: developers who code up their own projects, who maintain useful and interesting programming blogs, and who often work for multiple groups at once. I help on and off with the web properties of a number of non-profits that I support, for example, in addition to whatever else I might be doing at any given time. I write this blog, I tinker with my own side-projects and voyages of discovery into unfamiliar programming languages, I write other materials as a patient advocate, and so on. It'd take a contractual appendix the size of a small novel to list all of the arrangements of data I've produced - the "intellectual property" if you like, though although I don't like to think of it that way, as most of it outside the bounds of contract work is issued to the public domain in one way or another. In short, I'm a creator and creators are in demand - in the hiring market people with this sort of footprint are clearly a cut above those without, and they are certainly the sort I try to hire first and foremost.
So why, oh why, do companies that expend great effort searching for people with this sort of character, who are both strongly pro-open-source and possess a halo of ongoing data-producing activities, but then present a draft contract that lays claim to everything that person does? It's a mystery to me, because it's certainly a strong positive signal in my eyes if you, the hiring manager, can manage to try to engage me as a developer without also trying to put one over on me along the way. Frankly, it's come to the stage where I feel somewhat insulted that such a contract would be the first offer: "Here, come work for us, and we'll steal everything you write, ever!"
To my eyes it seems like times are ripe for change in this matter of grasping intellectual property clauses. I've only ever signed altered contracts, with the outrageous clauses neutered to my liking, all the back to my first technology job right out of college, so there's nothing stopping the rest of you folk from taking a similar stand. The standard boilerplate in this industry is extremely hostile, and you lose nothing by pointing this out. Hiring contracts are very close to plain English rather than legalese, and hiring managers can recognize the overreach when it is pointed out to them. "Why would I sign something that destroys my ability to be the person you wanted to hire?" is an effective question in these circumstances.
All that it takes to effect change is for enough of the development community to start questioning the boilerplate rather than just sighing, signing, and hoping.