balupton
commented
5 years ago I picked up on this too. The v2 proposal seems to do better on this, however it is yet to land and remains just a PR.
I think the title of this issue that it is hypocritical could just be "Lack of clear conflict resolution protections provide company favour".
What the Company owns. The Company owns any IP ("Company IP") that you create, or help create as its employee or contractor, but only if it meets one or more of these additional conditions: The IP was (i) related to an existing or prospective Company product or service at the time you developed, invented, or created it, (ii) developed for use by the Company, or (iii) developed or promoted with existing Company IP or with the Company's endorsement. You hereby grant and assign, and will grant and assign, to the Company all rights and interests in all Company IP.
Contribution of your IP to Company projects. If you include your own IP ā such as IP you created prior to working for the Company ā into a Company product or service, it's still yours, of course, but you grant the Company a non-exclusive, irrevocable, fully paid-up, royalty-free, perpetual, sublicensable, transferable, worldwide license to use it without restriction in any way or implementation, in modified form, or as is, by itself, or incorporated into another product or service ("License"). If you include your name in any project over which the Company would have rights under this Agreement, such as in a copyright notice or a comment in code or documentation, then the License covers the rights associated with that use of your name as well.
As it currently stands, those two above parts, seem like a company could claim license to any IP for something they planned or that they entered into, while stealing IP from me.
For example, what happens if I have already been developing an product idea on my own time, then the company plans to enter into that space themselves. It seems like this gives them direct license to the IP. The Model Company Employee Agreement Creation and Ownership of Intellectual Property by @VanL is a lot clearer here on such conflicts of interest.
However, I suspect that the as its employee or contractor and the you include parts are the defence against this, that unless I include my own IP myself, then they cannot claim it.
In several threads on this forum, people have stated the lack of conflict resolution in this. Which Van's contract does a much better job on. GitHub's response seems to be that the BEIPA does not forbid exclusions, and that employers and employees should on their own accord get exclusions where necessary.
However, part of the problem of omitting such conflict resolution procedure is that its omission makes it less likely companies and employees will feel comfortable negotiating omissions as there is no formal procedure defined. As such, I think Van's contract is better on this front.
The other aspect to BEIPA that is concerning on this front is that it seems to heavily rely on state specific laws to constrain itself.
This is unfortunate as it means employees outside of states that have protections are significantly disadvantaged.
It would be a lot nicer if Californa's stance on innovations and the EU's stance of ideas not being copyrightable was expressed in this contract, such that those protections apply to all, not just states that have them. Such that employees are as most protected as they can be, unless there is a state specific exception that blacklists a protection.
As otherwise it seems BEIPA is designed to exploit, where possible, the lack of state specific protections, defaulting to taking advantage of employees whose states do not offer them such protections.
Van's contract does better on this front too.
mlinksva
How is that different in any practical terms from
Everything that the company is honestly interested in is related to a prospective Company product. So at best, this might protect you from bad faith, ie., the company claiming your IP to be theirs despite not actually interested in developing it into one of its products. But try to prove that.
How is that different in any practical terms from 7 ("IP protection")?
If you switch from employee A to employee B and develop a product for B, this allows A to file a patent on that product, claiming you developed the core idea during your old contract. 7 forces you to support that claim. In particular, it isn't possible for you to claim that the patent is invalid. This is, in disguise, exactly one of those "non-compete" terms criticized by "The New Cognitive Property".
All in all, this is a hypocritical agreement. It it guilty of exactly those sins which it criticizes.