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throwawayb104b0 | 6 years ago | on: Apple is making corporate ‘BYOD’ programs less invasive to user privacy

> And in Germany, at least as far as I am aware, these broad regulations some US employers try to force on their employees have been thrown out by court decisions. But not sure on that.

Would be interested to hear about specific court decisions!

In general, this topic is not quite so clear, even in Germany. For a contrary argumentation, have a look at: https://www.lieb-online.com/files/luxe/publikationen/Urheber... (covers both Urheberrecht and Patentrecht, 15 pages, argues seemingly mostly in favour of the employer, but that does not mean they are wrong)

Keywords to search for, if you don't have the time now to read it as a whole:

- Freizeitwerk / freiwilliges Werk (it's a difference! but just because you do something in your freetime it is not necessarily a Freizeitwerk, in case your job is to produce such works and it could be of use to your employer, this is arguably not the case)

- Beweislast (just because you say or mean it to be unrelated to work, does not automatically mean it is -- side note: the bigger your employer, the less you can know about what is in their interest or not)

- Anbietungspflicht (describes the case using work ressources / work time)

- Pflicht zur Anbietung (for the free time stuff which is not "totally unrelated to the interests of your employer" -- so "automatic transition of usage rights via contract" is indeed suspicious and likely to be undermined in court, but they have a say if they want it)

Sounds somewhat like slavery indeed. ;)

throwawayb104b0 | 6 years ago | on: Ask HN: How can I work towards building a company while employed?

[Part 2]

But same kind of work (programming), and company can possibly use it for their business (you don't know, even if you think you do) or using even similar code snippets in both programs (and that happens, even only in non-business logic parts of the code doing unimportant stuff) would unfortunately lead to a situation with possibility of conflict. After all, they pay you, to program "things that can be useful to them", so that's your job. Does that mean you can sell them this specific program, just because they haven't yet ordered you to write it in your work time? What do you want to do if they order you at work to write something like you have written in your free time? Being sulky? Writing a "totally different" program from your free time program just because you want to waste their time and money? Bringing your home-grown program which violates all company quality standards to work? You cannot win either way. As said before, the time when you did it, does not matter. (Except of course: before the start and after the end of the employment, you are free (from this employer), but as long as you are emloyed, it does not matter if it weekend.) It is all complicated, because it is not just some stupid and easy to follow rules. Law is not what one side thinks is right, but often times a reconciliation of interests, and it gets messy.

Ask yourself: could a reasonable third party, without knowing your or your employers intentions or even technical details, draw a clear line between your free time work and the stuff you are paid to work on, only by looking at your free time project and the kind of work you and your colleages do in the office? If the only product of your employer is monitoring software and you write the stereotypical Tetris clone: yeah, that case might be easy. Real companies and useful free time projects? Not so much.

Also to train you to think like a reasonable third party: think of a bricklayer laying bricks in his "free time". (Sounds a bit odd, doesn't it?) When would this be acceptable, when wouldn't it? Not so easy. Of course you have to give something up for getting paid.

I would suggest not being a salary slave, but that would be hypocritical of me, because I am.

Get paid enough, save enough, make a clean cut, start project later.

Have other hobbies, go out in the sun, meet some friends, life is too short.

As others wrote: the programming is the easy part of a business, you can easily solve that after you lost your chains.

The line I draw: if it is only for my amusement and noone else can access the work, I will do it for myself. (Strictly speaking, this may also be a relevant work, but that's the line I draw. Some may say: daring, some may say: cowardly. Probably right. Both of them.)

Getting an exception for works within your area of work, for which you do not have to to transfer rights into contract supplement, should be possible at reasonable employers, but check before you start creating the work, don't let them think your work as employee will suffer, and if is commercial, a side-business or similar: that's another independent problem to take care of (no competition, maximum work time as required by law may be applicable, and so on). (Contract supplements are done all the time for more trivial stuff, no big deal. The world changes, and so do contracts.) A small employer might even say: if your work is not in this and this business field, we don't care. For bigger ones it will be the other way around: you will have to be specific on what you want to do and some legal department will check business interests, IP problems, if it is far enough away from your departments work, and so on. This might as well limit the work you can do in the company, so check your career plans.

Check if you need to program at all. The ready solution might be available as open source already. These days many employers also have open source policies, giving you some additional free space for your programming projects while employed, see if you can use that to your advantage. If you are good at project management / people skills: let others do the work.

So let's all stop bitching about the lawyers (a lawyer would have written a more understandable and concise text, but would have charged you more) and the law: the world is complicated and full of conflicting interests, don't expect the business world to work like your hobby projects with your friends. Don't be sad, grow up.

throwawayb104b0 | 6 years ago | on: Ask HN: How can I work towards building a company while employed?

[Part 1]

Sadly, it sucks even more than some people imagine. So while I'm also not a lawyer, I will gladly play the Devil's advocate here.

If you have a salary, you are actually paid for the work product of the whole month. (As opposed to a wage for time worked.) Well, actually you are paid for honestly trying, but your contract transfers usage rights related to your work, so this has nothing to do with hours worked. They would also have to pay your salary, if they say you can stay at home and do nothing, because nothing to do.

Having your work time limited to 40h a week has nothing to do with transfer of rights, as it is a different realm of law. This is just to protect you (or your employer) from you being overworked. (Cynics might say: this was invented by politicians/unions to get votes, or by employers that don't want their human resources damaged.) Anyway: this has nothing to do with your pay and the rights you sell. It might even work against you, as you have to use your "free time", to get fit for work again. (Yes, yes!) While secondary employment is not generally forbidden in Germany (and contract clauses which say so don't last in court), except for competition, your employer of course needs to know, because he also has a say in whether or not your other activities are against their legitimate interest: e.g. if it is indeed to be deemed competion or you are overworking yourself this way and having this drain your energy away from your employers work might be a valid reason to stop it. (Of course: in the end, the court may decide if one side sues, hopefully in a commensurate way.) But you may say: but this is like overtime (it is not: you did it voluntarily and overtime is ordered), and overtime has to be paid even for salaried employees in certain cases (again: different laws, has nothing to with the rights you sell as part of your employment and only with protection from overworking and your compensation for time because of the imbalance between stipulatory and accomplished hours -- hint: if your employer or a labour court thinks your employer owes you (as a salaried employee) overtime compensation, it is because you are still way below a decent salary ... but this is getting off topic).

So while it is true you cannot transfer your Urheberrecht in Germany, as pizzapill wrote, (because it is connected to you as a person, with one exception: it is transfered to your heirs after your dead, but if you're dead, you rights are very limited anyway) you transfer the Nutzungsrechte (usage rights) as part of your contract. And here the employers try to get as much as possible. Not only because of greed (but we would not rule that out, would we?), but simply for legal safety: you cannot easily disentangle one work from another if it is basically the same in the law (like "computer program" -- if the creation of these type of work is your job). Sure you and I can easily see, this program has nothing to do with your dayjob, but can your employer? In a tiny shop, maybe. In a big corporation: not so much. A big software company has so many fields of business, products and services, your manager and their manager and their manager cannot possibly know if your free time project goes against the business interest of the company if you do it independently of the company, so the contracts generally assume it does. (And it probably actually does: given a big enough company you will most certainly have teams in other divisions building similar things as you do in your free time, even if it is only in some tiny research departement on the other side of the world. And I mean plural "teams": they often don't know from each other. Think your boring business software employer does not do cool IoT stuff in some unknown lab? Think again, you haven't networked enough and don't know your company.) And for the work time + work equipment / free time + private equipment argument: yeah, I would also say so, I am paid for this, but not for that ... but this is a very weak argument. Not only for the obvious reason that it would be very problematic if some employee chooses to do the work for this employer in his free time on his equipment and thus trying to circumvent the usage rights transfer, but also (and maybe more importantly) because this is all in your head and how do you prove it, that e.g. your private work and employer ordered work did not influence earch other. And what about employer-relevant work you were not ordered to do? Say e.g. something you think could be useful at work: this could easily go against your employers interest (if you try to sell it to them or the competition or even if you wrote it and they don't get it), which is at odds with your duty of loyality.

That being said, I doubt contract clauses which automatically transfer exclusive usage rights of your free time works to your employer without extra compensation are enforcable to the full extent in Germany for "everything copyrightable you might create regardless what". (Speaking of contracts, I don't think I have seen it in this form yet, the sane companies write it more like this: if you create some work out of your area of duty, you have to offer exclusive rights to us, like you do for on-duty work, except if it is obvious, we cannot use this in the company.)

So with a dayjob as programmer and writing poems / painting pictures in the evening, you can savely say: this has nothing to do with each other and therefore it is not the business of my employer.

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