CALIFORNIA CODES, LABOR CODE SECTION 2870-2872

"

2870 (a) Any provision in an employment agreement stating that an employee should assign any of his rights in an invention to his employer shall not apply to an invention which the employee develops totally on his time without using the employer's equipment, supplies, facilities, or trade secret information except for the inventions which:

2871 Relate at the time of conception or reduction to practice of the invention to the employer's business, or actual or anticipated research or development of the employer

2872 Result from any work done by the employee for the employer.

"

In the state of California clauses assigning _all_ IP to the employer in an employment contract are not legal, and hence unenforceable.

> 2871 Relate at the time of conception or reduction to practice of the invention to the employer's business, or actual or anticipated research or development of the employer

I don't know where this guy is based, but his IBM email address is @linux.ibm.com, so arguably his work on the Linux kernel may be conceived as "relating to the employer's business."

And further, here is the relevant legislation in other states;

Delaware 19 Del.C. s 805

Illinois 765 I.L.C.S. 1060/2

Kansas K.S.A. 44-130

Minnesota M.S.A. 181.78

North Carolina G.S. s 66-57.1

Washington RCWA 49.44.140, 150

Utah UT ST s 34-39-1, 2, 3

That doesn't apply here because the work in question is on an IBM driver, so the exceptions clearly apply.

> 2871 Relate at the time of conception or reduction to practice of the invention to the employer's business, or actual or anticipated research or development of the employer

IMO this is the gray area. Could IBM make a reasonable case that this kernel work is related to / close to / similar to what IBM is doing? Could they have learned something, even just a rejected -- but proprietary -- approach from an internal project... that kinda ends up on the kernel?

I agree with the consensus that IBM is in the wrong here... but lawyers might be able to prove otherwise.

Okay 49 other states?

All the ones I have signed only claim IP directly related to the company's business model.

Obviously that gets trickier if the company is like, Microsoft which at least has tried to make every kind of software imaginable. But most companies do pretty much one thing, and I am free to develop whatever else besides that on my own time. It seems reasonable.

This is completely legal in many states, such as NY.

The statement goes far beyond any contractual obligation. But I agree, it is a mistake to sign away all intellectual property rights and such a contract is legally binding. It isn't clear that such a contract exists here.

I always search for these paragraphs and mark them out, and let them know that I marked out the sections. They're free to redraft them or leave the marked up version. Otherwise it's time to hit the road.

What kind of a dummy would work for a company that makes you sign that.

The kind of dummy who enjoys having things like rent, food and healthcare.

I'm reminded of a Berkeley CA bumper sticker:

Visualize Rent

But not doing enough research to learn that there are a ton of other jobs out there that may as much or more than the dishonest scammer job pays.

If they offer a high salary and you have no plans to self-develop hobby projects on the side, then that may not be a breaking factor.

In any case, these laws are hard to enforce unless you are working on company hardware. And people who really care may sign off existing projects to get around this.

Have you checked how many employees IBM has ?