No, but it sounds like he knows about this stuff all too well. His final scenario is essentially what happened to my father:

"We are kinda indifferent. If you piss us off, we will look for ways to make you miserable. If you leave and start a competitive company or even a half-competitive company, we will use this contract to bring you to tears. BUT, if you don’t piss us off, and serve us loyally, we’ll look the other way when your iPhone app starts making $40,000 a month."

FYI - my father's situation happened about 20 years ago in the late 90's.

I had just typed a reply to correct you that the late 90s were not, in fact, 20 years ago. Then I did the math.

I am now very sad.

I used to respect him, but that post is so wrong on so many counts regarding US IP law and "work for hire" stipulations that I couldn't get myself to finish reading even half of it.

"be careful before taking legal advice from the Internet." - Indeed, Joel. Indeed.

Your critique would be much more useful if you explained what he's wrong about. As someone who has done a small amount of contract work in my career, his summary broadly matches my personal understanding.

Fair point.

I will point a couple:

- He says that contractors "by default" own the IP of the work they do for their employers. This is actually exactly the opposite: "work for hire" means that the employer owns the IP by default: http://contently.net/2013/07/09/find-work/work-made-for-hire...

- He glosses over / minimizes the fact that most of these "invention assignment" clauses are doomed in a court of law more often than not (even ignoring the states that outright prohibit them) if they do not fall within the scope of employment (sorry, I don't have a reference here, but I have heard of many such cases being thrown out in court)

As a business owner, he comes across as having a very clear agenda which is at odds with the reality of the law and the actual outcomes of these cases in court.

That link and Joel seem to agree. By default the contractor owns the IP, unless the contract contains the legal phrase "work made for hire." Maybe you should have kept reading?

I think you misunderstand: all work done by an independent contractor is by default "work made for hire" unless explicitly stated otherwise.

Not according to the Copyright Act of 1976:

https://www.copyright.gov/title17/92chap1.html

A “work made for hire” is— (1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.

Well, I'll be damned: it looks like you're right.

I think I was probably misremembering my experience as a software contractor, in that I don't think I ever signed a single contract that did not include the "work for hire" stipulation.

Ironically, it seems far from clear that "work for hire" even applies to software: http://www.lexology.com/library/detail.aspx?g=59a4a8c4-c446-...

Yes, and what is a "work for hire" besides a work made under a contract saying it's a work for hire?

Am I misunderstanding or are you implying that Joel would disapprove of side projects?

If you read is blog post I think it's pretty clear he thinks its fair to own all employee's side projects.

My takeaway from the post was it isn't so much that he thinks it's fair but a legal necessity to protect the company. More of a criticism towards how current IP law is structured.

> he thinks it's [...] a legal necessity to protect the company

Exactly, which is why his post is totally self-serving propaganda.

Though he tries to present the post as "here's a totally objective explanation of how side projects interplay with employment law", ultimately his point comes down to Business owners have all these complicated issues to deal with, so just accept the fact that they're going to screw you over, while they make millions of dollars

There's no credibility given to the fact that companies have choices here and there are other options that don't screw over the employees - those options are too hard, and they might introduce legal risk to the company, or (!gasp!) scare away investors.

It's just accepted as given that business owners must do whatever it takes to protect their company's interests and employees should shut up and deal with it. Employees carry the legal and financial risk because it would be inconvenient for the company to do so.

The company is simply acting in its own self-interest and it's not actually trying to screw you (probably), that's just an irrelevant side-effect that they might take advantage of in the future when they do want to screw you. Now that know that you understand that, you're totally cool with it right? It's just business.

I don't think Joel is intentionally trying to be manipulative. I think he honestly believes all of that. As a business owner he's dealing with all those issues and he thinks he's making appropriate choices and has no particular intention to screw over his employees. The purpose of the post is so that everyone can see that he, and business owners like him, are not a bad guys - they're just acting rationally and you only thought you were getting a bad deal because you didn't understand the choices they're making.

He also mythologises his example: making a video game is a moment of inspiration. No slog, no rewrites, no iteration. Just 'inventions'. I'm guessing that his example company wasn't paying the contractor a full year's salary just to sit around and wait for four 'inventions' to just pop into her mind.

"What are you doing sitting there just cruising the web, Ms Contractor" > "Oh, I'm just waiting for this quarter's invention to pop into my head. Thanks for the payslip!"

This is a good point. IANAL, but I imagine there definitely are routes to take when drafting various legal documents (e.g. employment contracts) that would allow employees to pursue personal projects. Its likely just easier (and as you say in the company's best interest) to avoid figuring out how to word such clauses.

He doesn't advocate for or against either position. He's stating the current (awful) facts about side projects when you've signed a contract, and telling people to be careful.