Photo by Jonathan Simcoe

Re: Developers’ Side Projects

Or rather — IP Questions to Ask Before Accepting a Job Offer

Joel Spolsky recently published ‘Developers’ Side Projects’, a short essay providing explanation and advice on a very common clause (or set of clauses) of software engineering employment contracts, “proprietary invention agreement”.

The explanation is fine. The advice diverges significantly from my own experience, and I think others may benefit from understanding those experiences and applying some lessons that I’ve drawn from them.

In defense of the essay in question, it’s short. Short has merit. Short gets readers and encourages people to think about the topic in question. Short doesn’t have time to cover everything. Joel, being the legend that he is, likely knows everything I could say on this topic and a hell of a lot more.

IP Assignment — IP Waiver

If a company employs software engineers, they should have an IP assignment clause. Joel covered this, don’t work for a company without one. It’s only a signal, but it’s a strong one.

If the company is beyond 20 engineers and has IP assignment, they should also have two additional things:

A way for you to declare IP you own prior to starting employment — This is a standard part of cookie cutter contracts and is very unlikely to be missing. IP waiver — A process for waiving their IP assignment.

The second part is what, for me, is strangely missing from Joel’s post. Having signed a contract containing an IP assignment clause, the company now legally owns anything you create during your tenure. An IP waiver is a legal document which waives that right for a specific idea. An employee typically files such a waiver prior to beginning work in earnest on a side project.

The way it works (where I’ve seen it) is that one uses whatever HR document system the company uses at the time, finds the IP waiver, prints it off, fills in details and hands it to someone in management.

I’ve never worked for a company that didn’t have one (or wasn’t willing to create one upon my first request). I typically use them three to six times a year for side projects and at this point I ask about them during the offer phase of job interviews.

IP waivers are a critical part of my life as an employed-but-does-side-projects software engineer.

Perhaps the most troubling part of Joel’s post is where he examines the ambiguity surrounding exactly how an employer may choose to enforce it’s right to own IP that one creates.

It may vary depending on whom you talk to, who is in power at any particular time, and whether or not you’re sleeping with the boss. You’re on your own, basically — the only way to gain independence is to be independent.

These concerns should not exist.

Any concern that arises from how a company might choose to enforce it’s rights, vanishes when a proper waiver of those rights is in place.

Other stuff to look out for

Another clause that I’ve seen cropping up in employment contracts is something along the lines of “Outside Business Dealings”. It’s always worded differently but it essentially boils down to “While employed by [Company], you agree that you will not engage in other employment, consulting or business activity without consent of [Company].”

If this exists in your contract, there should be a process around waiving it for specific projects. I’ve only seen it in contracts for larger companies and they sometimes have a due-diligence department responsible for checking potential conflicts of interest.

Sometimes side projects are designed to make money (waow!) so make sure to look out for such stipulations. Often those side projects don’t make enough money to occlude full-time employment. Be sure to begin this part of the conversation early in the offer phase, due-diligence can add a week or more to negotiations.

Periodic reminder — You’re in control

Are you a software developer, tester, designer or product manager?

You’re in control.

Look, we won the lottery. We went into a field during its heyday. Not only is it software engineering’s heyday (high demand) but we got double lucky, we’re also in low supply.

Ask questions about the legal stuff in your contract. Push. Don’t take crappy jobs from crappy employers.