I remember PG saying NYC had clearly overtaken Boston as #2 startup up in the US, partly because Boston investors were more risk averse and focused on the late stages. Then he asked whether NYC could rival the Bay Area for #1.
I don't think he made a definitive conclusion one way or another. I even remember him saying the unstoppable force of the startup revolution would hit the immovable object - that NYC is already known as many other hubs (finance in particular).
The one concept that stood out was his argument that "chance encounters" with people who can help your startup are crucial. Good luck sometimes hits when you least expect it, but NYC at the time didn't have all the ingredients in place the way the Bay Area had. A month later he wrote this down more formally in "Why Startup Hubs Work"
I know multiple people, directly and indirectly, who have been caught by this. Knowledge of this problem contributed to my desire to move from New York to California. Most of the stories of squashed startups will never be heard because they never got anywhere. But it limits how dynamic New York's startup ecosystem can become.
This is not to say that there won't be successful startups. Just fewer than they would have been. And people who you'd want to be able to start them, are shut out.
That leaves the federal default in place of "creator keeps the copyright when there is no explicit assignment unless it qualifies as a work for hire." Only work done within the scope of employment would be employer-owned by default, not unrelated spare time projects.
However, indeed NY's legal silence on this point allows contracts to explicitly assign the category of work you describe to the employer, if they include wording to that effect, subject only to any case law that might seem something excessive (not sure what NY courts have said on this topic).
The difference with California in this regard is that they actually prohibit and refuse to enforce contractual assignment of unrelated spare-time projects to the employer. Far stronger than a default.
The attitude to post-employment non-competes is also very different: aside from a very narrow M&A exception, California flat out bans those. NY disfavors them and courts often limit or discard them as unreasonable upon examination, but they're not categorically banned. That has a significant chilling effect.
Note I'm not a lawyer, just a law-geek former law student layman. Pay for qualified legal advice with appropriate licensure if you need that (I do that too despite my legal interests).
Telling whether I was a professional employee was simple. The three categories are contractor or hourly. If you don't know yourself to be a contractor, and you don't punch a clock, then you are a professional employee. Most software developers in New York are either contractors or professional employees.
New York law could have changed since then. This is not legal advice, and I am not a lawyer. However it is my understanding of legal advice that I actually received.
As you note, California law is much stronger. The one catch is that your employer can claim ownership of anything related to what they do. Not what you do for them, but what they do. If your employer has their fingers in a lot of pies, like Google and Amazon do, you may not realize that what you're doing is related to something that they do.
I can believe that work done by professional employees outside of work hours related to their employment might sometimes be works for hire, since they're not hiring professional employees. But that just covers work related to the employment, not everything the employer might do.
If you're an accountant for Bloomberg NY who somehow avoided any contract provisions affecting this question (itself an unlikely scenario), they wouldn't own any spare-time Kubernetes hacking you do, since that's not part of an accountant's job.
In California, a contract might be able to make the employer own the Bloomberg accountant's spare time Kubernetes hacking only if the courts decide that it's related to other parts of Bloomberg's business, which is hard to predict; indeed, parts of Bloomberg do deploy and hack on Kubernetes and use it to run important stuff for their business, but of course their main business line is financial news and not container tech.
The difference with New York is that sufficiently inclusive contract wording would be able to assign that to the employer even if Kubernetes were not related in any way to Bloomberg's business, unless NY courts would it unreasonable to apply that wording.
(For example, I doubt NY courts would find it reasonable to assign any employers copyright over an employee's written grocery shopping list, aside from household nanny/errand-runner situations.)
The work-for-hire rules are actually federal: anything covered by them is employer-owned by default in all of the US including California, not dependent on a contractual provision which California could choose not to enforce, with the employer being treated as the actual author for copyright purposes rather than just an assignee.
So the only relevant difference between the states would apply in cases where federal law doesn't automatically do that, where people incorrectly assume it doesn't do that, or where a contract or other agreement by the employer explicitly overrides the work-for-hire rule (if this is legal) or reassigns or disclaims the employer's interest in certain created works.
I'd be interested in a citation to either a court ruling, a statute, a regulation, or similar to clarify this as applied to software workers.
The state difference emerges because the "for hire" bit depends on local labor laws. And yes, the type of work matters. If a programmer writes a novel, or an accountant writes software, the employer likely doesn't have a case. But if a programmer writes software, then in New York it doesn't matter whether the software relates to your job or what your employer does. In California the content does matter.
For-hire status is different since the employing corporation is actually deemed the author, which affects things like duration of copyright. Maybe it depends on whether a state-law employment relationship was in place or what the state says your job functions are. I'm unsure about that point but I don't think either of us is claiming meaningful differences between California and New York on that point.
In either state, if you do something within the scope of your employment (i.e. programmers writing software for their employer's use or in-house accountants writing notes to a financial report for their employer), the employer owns it as author regardless of contract, unless the employer explicitly assigns it in writing to the employee.
Also in both states, nothing the employee does in their spare time outside of the scope of employment is owned by the employer by default, in the absence of a contract saying otherwise.
The only difference in this regard between California and New York is that a California statute restricts what the contract can assign. New York has no such statute.
But your example about a programmer writing a novel is interesting: if the content of the novel relates to the actual or demonstrably anticipated business or research of the employer, or uses the employer's confidential information / resources / time, an assignment provision covering it would be enforced in California. Same if an accountant writes software useful for the Kubernetes hackers at their employer.
Neither of these examples would be a work for hire or assigned by default, but both California and New York would allow that to be assigned by employment contract language (with the individual and not the corporation as author for copyright law purposes).
In both states, if a professional employee figured out how to solve a work problem at 6 AM in the shower, that is clearly part of the scope of the employment. The difference is that if a programmer sits down to write some code at 8 PM, that is more likely to fall within the scope of employment in New York than in California.
This difference is on top of what the contract is allowed to say.
It is worth noting that awareness of this issue is why the FSF explicitly requires copyright assignment and a disclaimer of any work-for-hire ownership claims by the programmer's employer. Because employees often do not realize that their employer could have a copyright claim, and the FSF is very careful. See https://www.gnu.org/licenses/why-assign.en.html for verification.
(Side note: Eric Weiner wrote a Malcolm-Gladwell-like book "The Geography of Genius" on a similar topic; for a funny but insightful review see this review [2] where the reviewer terms this genre "American-Folksy")
These effects do shift, e.g. as mentioned in the article, Florence was the place to be for art during the Renaissance, but not so much today. NY is a big city that's constantly reinventing itself, and the gravity of tech importance has been moving toward NYC for a while now.
But as of right now, SV is still dominant.
[1] http://www.paulgraham.com/cities.html
[2] https://www.amazon.com/gp/customer-reviews/R3KMN29SZX9ZKS/re...
Like this snippet:
> How many times have you read about startup founders who continued to live inexpensively as their companies took off? Who continued to dress in jeans and t-shirts, to drive the old car they had in grad school, and so on?
Maybe it was doable in 2008, but the idea living "inexpensively" anywhere near SV just is laughable. Nobody is going to save more on clothing and cars than you will lose on rent. Even living in Brooklyn would get you significant savings over most places equally close to SFO.
Another interesting factoid he called out also has me wondering about the long-term implications of SV becoming the main magnet for startups:
> The power of an important new technology does eventually convert to money. So by caring more about money and less about power than Silicon Valley, New York is recognizing the same thing, but slower. And in fact it has been losing to Silicon Valley at its own game: the ratio of New York to California residents in the Forbes 400 has decreased from 1.45 (81:56) when the list was first published in 1982 to .83 (73:88) in 2007.
Seems to me like the trend of the extremely wealthy concentrating in California may not necessarily be a positive thing for creating an environment that can sustain ambitious people who need a place they can live cheaply while building things. Though I would be very curious to see what those numbers are looking at today.
All that said, his analysis of why he liked SV seems like it made sense at the time. It just clearly couldn't scale.
This does make me more confident about my decision to move back to Raleigh though. The "eavesdropping" thing he mentions is actually pretty great there, Durham and Raleigh have a very diverse and well-educated populace. People who don't think there are ambitious people around those parts must not run in the same circles as I do. I know more people building their own companies or side projects or just learning and building things for fun there than I could find in Seattle. It's hard to get funding there for sure - not so many super rich people around to hit up and perhaps outsiders misinterpret the more practical aims of local ambition as lack of ambition altogether. But while SV and NY and LA may send the strongest messages about power, money, and fame, I feel better than ever about being in the "Esse Quam Videri"[1] corner of the world instead.
[1] State motto of NC, translates to "To be, rather than to seem".
Raleigh has plenty enough talent, from far more diverse backgrounds than Seattle, and just keeps growing. I don't need 10,000 engineers for a startup - I just need 10 really good ones and a pipeline for more. I've already got that network and I know the culture is better for me to find more, so I'm ready to go for it. It's a risk in some ways, but I gave Seattle a real try - it just isn't as uniquely conducive to building new things as people would like to believe.
One thing I noticed though was the relative lack of cultural diversity and city feel (the entire RDU area feels suburban and comfortable, and lacks "struggle" as it were), but I don't know if this adversely affects startup viability, so it probably doesn't matter. I decided it wasn't a place where I would feel comfortable settling in, being a city-person, but for many people who are turned off big cities, I could see RDU being a good middle ground.
>A friend who moved to Silicon Valley in the late 90s said the worst thing about living there was the low quality of the eavesdropping. At the time I thought she was being deliberately eccentric. Sure, it can be interesting to eavesdrop on people, but is good quality eavesdropping so important that it would affect where you chose to live? Now I understand what she meant. The conversations you overhear tell you what sort of people you're among.
IIRC, he went so far as to say that NYC would never be able to offer the community and serendipity of being surrounded by so many fellow entrepreneurs. And that NYC was too tainted by its banking culture and the drive to make money.
Of course, everyone is entitled to their opinion. NYC has come a long way!
Doesn't this imply fairly clearly that he believes the Bay Area is not plagued by these two things?