I presume you're referring to Smule suing Shred, which I think has gotten so much attention (deservedly) because it's so rare. Off the top of my head I can't think of another such example, but I can think of scores of side projects turned into companies, including my own, without employer interference.

You should take precautions of course--read inventions agreements very carefully--but I wouldn't at all go so far as to only do contracting. Especially if you live in California, as others have noted. Half the companies in SV were started by people working at Google or Facebook.

You're right, there are plenty of examples where that didn't happen. However, I've seen enough examples where it has. Enough that I think it's a bad idea to do side projects while you have full time employment. Unless those projects are strictly volunteer efforts for which you have no intention of turning into a commercial business.

> A scenario I've seen play out multiple times:

The salient details your scenario omits:

1. A lot of employees create side projects related to their employer's business and/or R&D activities. These are not subject to 2870's protections.

2. A lot of employees make the mistake of working on the side project during work hours or using their employer's equipment. Most employees who get caught up in these types of disputes claim they didn't work on the side project during work hours or using the employer's equipment but far fewer can make it through discovery with such a claim intact. There really is no wiggle room on this and one slip up can spell doom.

> We saw this just the other day on HN.

Assuming you're referring to Shred, no, we didn't. The matter there does not relate to a side project, although you can be sure that Smule will use discovery to look for evidence that its former employees were working on their idea before they left its employ.

You can read the actual claims at http://webaccess.sftc.org/Scripts/Magic94/mgrqispi94.dll?APP....

> Best thing to do: no side projects.

This is the best advice as far as side projects with commercial ambition or potential are concerned.

The primary point of my post was that the law doesn't actually matter in practice. Regardless of if your points 1 and 2 are demonstrably false (thus the person is protected by 2870), someone trying to commercialize a side project (or a project started immediately after quitting a full time job like Shred) may very well see it die because of an aggressive previous employer.

Thus my closer: when you are a full time employee, don't do side projects that you have ambitions to commercialize.

The law absolutely matters in practice. Playing by the rules never guarantees that you won't be sued by a former employer, but contrary to what a lot of people here seem to believe, most employers don't make a habit of suing former employees for no reason when they have no evidence.

As I wrote, a lot of former employees who get caught up in these types of disputes make claims that they can't sustain through the discovery process because let's be honest: when you're working on a commercial side project that you're excited about, it's difficult to at some point not do some work (however minor) on it during working hours or using the resources of your employer.

Finally, if you take the time to read Smule's complaint against the Shred folks, you'll see that this isn't the case of an "aggressive" former employer. Smule presents a different version of events and appears to have some legitimate questions.

Same thing happened to psd.js. But then twitpic died, so psd.js was reborn.