Hi,

I'm not sure if any of you have heard the latest news but apparently Zenimax is suing Oculus over that fact that some of the "Intellectual property" John Carmack created for the Oculus Rift was done while he was still working for Zenimax.

http://www.businessinsider.com/zenimax-oculus-rift-claims-2014-5

This got me thinking, Is it legally (and morally) correct for a company to own work you create outside of working hours? I'm pretty sure that John Carmack must have spent a lot of his spare time writing software for this device and also put a lot of his own resources into it.

I just don't think it's right that a company can effectively 'own' you for the entire time you are with that company, there is something about this that makes me feel my human rights are being violated, especially if the work you create is completely unrelated to the buisness at hand and the tools, practices and methods used in development are yours and yours alone.

The reason I'm posting this is because I was thinkng about pursuing a goal of developing a small application in my spare time and making some money off of it but in the (very slight) possibility that I make a lot of money from it would it be in my employers rights to take all of the money I earn?

Also, If I bake a cake and sell it at a charity bake sale could my employer sue the charity trust? because In my opinion it's effectively the same thing.

Has anyone here had any experiences with this and could you share some advice?

Thanks.

I tend to agree that its a moral violation for a company to claim work that is: done outside of working hours, done without company equipment or facilities, done without company code or technology otherwise inaccessible to the general public, and unrelated to the nature of your work for the company.

Legally, it depends on the employment agreement and your state. Some states say that, essentially, any salaried employee owes his work to his employer regardless of where the work was created, some states place strict limitations on what your employer can claim. Most fall somewhere in the middle. Regardless of state law, companies usually use the same employment contracts all over, with a simple provision that contract terms are void where they are prohibited by state law -- honestly, I think this itself is fairly scummy, as this often obscures the rights that an employee has from said employee, who are left to think certain clauses apply even when they may not. The supposed benefit of these rules is that it prevents an employee from claiming to have had that "Eureka!" moment outside of working hours, and then holding it ransom to his employer or spinning off his own company or IP venture.

The rule of law is fairly clear from state to state, but enforcement is another matter. You don't hear about such things often, so it stands to reason that employers go after employees for outside, unrelated work, only rarely. I think in practice, the bad juju of going after an employee's work that is clearly outside the scope of his duties at work aren't worth a simple cash grab. To be known as a company that would do such a thing makes it even more difficult to attract or retain top talent. The risk of alienating the talent they need is probably seen as costing more than what a quick score would bring in.

Here at Microsoft we have a 'moonlighting policy' which is essentially a set of agreements we hold as employees, that if a brief review from the legal department finds that we have upheld those agreements, that we are protected from Microsoft ever making a subsequent claim.

Also, keep in mind that any employment contract is exactly that -- its alterable just like any other contract. Businesses will be extremely reticent to modify it, but in all likelihood if they've made you a job offer they are willing to make reasonable exemptions at your request if you are firm about it (however, they could decide to simply not employ you too). It can be as simple as striking out a clause or writing a new one in, and having all parties initial the change, or adding a rider.

This got me thinking, Is it legally (and morally) correct for a company to own work you create outside of working hours?

In which country? In some countries employers can do virtually anything they want, in some countries employees have nearly all the rights!

Is it legally (and morally) correct for a company to own work you create outside of working hours?

Legal? yes, usually. Moral? It depends, but usually yes as well.

Let's throw out a very common hypothetical question.

Lets say you are employed and you have been stuck on how to solve a tricky problem in the design at work. Your brilliant solution occurs not during working hours, but while you are at home relaxing.

What happens next? Do you go to your boss and tell him, "I found a solution to the problem, but I found it after hours. I'll sell you the solution for $5000."? Does the company have a legitimate claim (either morally or legally) to that brilliant solution?

Employers often have some right to limit what you do and to take ownership of certain things outside of work hours when they directly relate to your job or the ability to perform your job.

For example, a game studio can legally require as terms of your employment that you do not create or sell any games, either on your own or for another group, without their written permission. You can take up a 'moonlight' job doing something that doesn't compete, or that is unrelated to games, but the closer it comes to matching your day job the increased risk you face. That kind of off-duty job can be not only cause for termination, but can also be cause for a wide range of civil lawsuits. They might include tortious interference, breach of contract, unlawful competition, theft / misappropriation of trade secrets, and anything else lawyers could think of.

Employers can also restrict other off-duty actions indirectly, such as by requiring drug tests.

The reason I'm posting this is because I was thinkng about pursuing a goal of developing a small application in my spare time and making some money off of it but in the (very slight) possibility that I make a lot of money from it would it be in my employers rights to take all of the money I earn?

Talk to a lawyer about it. They can explain the level of risk you are facing. It depends on many factors, including the nature of your work and the nature of the employers work.

You probably only have to worry about losing your job, although if it is close to anything that your day employer does, you have the potential to face lawsuits. The lawsuits don't happen frequently, but they do happen occasionally. They are more likely to happen when a group of workers on a title create their own similar title after-hours, and then quit en-masse while releasing a competitor.

staticVoid2, on 01 May 2014 - 11:57 AM, said:
The reason I'm posting this is because I was thinkng about pursuing a goal of developing a small application in my spare time and making some money off of it but in the (very slight) possibility that I make a lot of money from it would it be in my employers rights to take all of the money I earn?

Talk to a lawyer about it. They can explain the level of risk you are facing. It depends on many factors, including the nature of your work and the nature of the employers work.

It also depends on what your employment contract says.

I was generally thinking this whole idea of a company owning what you make in your spare time a basic infringement of human rights.

I mean, it's the same as saying to a chef that anything you cook outside of work belongs to the restaurant you work for. If I was to make a small app in my spare time and my company stole (definately the correct word) the profit I might aswell give up on the entire legal system.

If I make an application before or after my time of employment (or if it somehow overlaps) can the company have legal ownership rights to that aswell? It just seems ridiculous what companies can get away with these days, I should have became a lawyer :(

Employers often have some right to limit what you do and to take ownership of certain things outside of work hours when they directly relate to your job or the ability to perform your job.

This is similar to section 39 of the patents act 1977. The main point here is that the work does not relate at all. The article above is quite contradictory; The reason John Carmack left ID Software / Zenimax was because the company was not at all interested in VR / Oculus Rift technology (highly suggesting that the work he done was completely unrelated to any buisness interest) but as soon as facebook purchased Oculus the company filed a lawsuit.

I was generally thinking this whole idea of a company owning what you make in your spare time a basic infringement of human rights.

I mean, it's the same as saying to a chef that anything you cook outside of work belongs to the restaurant you work for. If I was to make a small app in my spare time and my company stole (definately the correct word) the profit I might aswell give up on the entire legal system.

"stole" is only the right word depending on the context. If a company invests $30,000 to improve your skills through additional education (apart from your annual wages), and pays you an hourly wage for doing research during work hours, perhaps you are "stealing" if you leveraged the skills that they payed for, and the research they paid for, to make a competing product behind their backs instead of using that knowledge to improve their products.

We're talking about John Carmack who, along with some coworkers, founded id Software while working for another game company by physically stealing that company's computers every night, bringing them home to code on, and then returning the computers to work in the morning.

What is ZeniMax's real complaint here? John Carmack was in their employ, doing video game programming and game-related technology research-and-development. What he's always done. Further, we know John Carmack was working on VR technology separate from any Oculus Rift tech.
Later, Carmack while still working for ZeniMax, asked for some Occulus Rift tech, and supposedly (in ZeniMax's version of events) enhanced the Oculus Rift by applying the Carmack-developed ZeniMax-owned VR technology to the Rift, blending the two VR techs. ZeniMax claims that the current version of the Rift makes use of the Carmack-developed ZeniMax-owned technology. This likely occurred on company time, with company resources, using company research and tech.

Let's not jump to conclusions too fast here, ZeniMax may have a real cause for concern. We can't just nerd-rage assume that Carmack is innocent and ZeniMax is evil, just because most people happen to like Carmack and think the Oculus Rift is cool.

From ZeniMax's perspective, Oculus didn't just poach ZeniMax's star celebrity programmer/engineer, but they also stole the tech that the engineer was working on. ZeniMax claims that they were in talks with Oculus before the Facebook buyout, and claims that Oculus was offering a portion of Oculus stock ownership to ZeniMax before the buyout occurred. If that is true, which we don't yet know, why would Oculus offer such a deal, unless they knew there was at least some validity behind the claim?

This is from Wikipedia:

Coincidentally, John Carmack had been doing his own research and happened upon [the Occulus Rift] developments. After sampling an early unit, Carmack favored [Oculus'] prototype and just before the 2012 Electronic Entertainment Expo, Id Software announced that their future updated version of Doom 3, which would be known as BFG Edition, would be compatible with head-mounted display units. During the convention, Carmack introduced a duct taped head-mounted display based on Palmer's Oculus Rift prototype, which ran Carmack's own software.

My speculation is that Carmack's "own research" and Carmack's "own software" was likely owned by ZeniMax, since it was likely developed on ZeniMax's computers, in ZeniMax's offices, on ZeniMax's time while Carmack was known to be employed in research and development of game-related tech. This occurred before Oculus hired Carmack.

It seems pretty standard these days for games development contracts to state that you need the company's permission to work on side-projects.

It seems reasonable enough for companies to want to protect themselves against the possibility of having to compete with their own employees output, and to want to claim ownership of employees ideas/inventions that relate to their day job, after all, why would they want to expose themselves to a legal challenge based on whether you had an idea at 4:55pm or 5:05pm.

I think morally, when you approach your company and ask for permission, they shouldn't say no unless there's a very specific reason. If you're developing for a different audience on a different genre then there's no conflict of interest IMO. The problem is though that in larger companies common sense doesn't always prevail.

I've had to turn down a job offer because they wouldn't let me release my side-project indie game, Rapture - World Conquest. I just wasn't willing to give up on something I'd worked on for so long. I am very glad that I sought the permission before I let the job offer proceed further though, I'd have been a pretty unhappy chappy if I'd have proceeded on the vague assurances I'd received up until that point and was then blocked from releasing my game after having committed to a new position.

I mean, it's the same as saying to a chef that anything you cook outside of work belongs to the restaurant you work for.

That's stretching it much too far. You would literally die if you couldn't cook for yourself outside of a restaurant job, but there is no physical threat to life if you can't make video games outside of a video game job.

If it is in your contract then usually it is legal. I have seen various forms of this at games companies over the years the usually say something along the lines that if you do anything related to the companies main buisness then it is thier property.

I have also worked at one company that had something along the lines of "You can work on your own projects but if it makes money then it is ours". This was at a games company and they did actually try claiming the ad revenue of an employee who wrote a popular cat meme website.

Also one of my friends used to be a big contributer to the open source ogre rendering engine and the middleware company he worked at tried to stake a claim on his contributions.
Nowadays with easy access to steam or the app store it has become a lot easier to avoid all this crap. Employers actualy want to employ people who have their own games or apps available for sale so putting a no compete clause in the contract is a little redundant.
If I go for a job nowadays I usually go through the interview process and wait till they send me the contract then say "hang on you need to remove this or I'm not signing". It actually costs a lot to recruit staff and in software development the market is currently in the employees favour so they are wiilling to negotiate.

In the case of John Carmack he was probably paid a very hefty salary so not that easy for him to hae standard stuff like this removed.