• Is It “Spare Time” if Your Employer Owns Your Work?

    by  • July 25, 2010 • copyright

    Microsoft is getting some press for announcing that it is giving its 93,000 employees Windows 7 phones.  An email announcing the plan to the employees was posted on TechFlash:

    I am thrilled to announce that a new Windows Phone 7 will be made available to every Microsoft employee as we launch in each market around the world.

    There is also a lot you can do while we are heading to launch even before you get your phone including:

    Develop! With the help of the developer division, we just shipped the Final Beta of the Windows Phone Developer Tools. They absolutely rock…. The package includes everything you need to start building apps. In addition, we’ve introduced a new employee developer program which makes it much easier for you to develop apps for Marketplace in your spare time. …

    Ah, “in your spare time.”  My last post was on Mattel v. MGA Entertainment, a $100 million case that explores whether a Mattel employee’s design of the Bratz doll, even though it was done on his own time, was nevertheless owned by Mattel by virtue of an employment agreement. While copyright law gives the employer ownership of copyrightable material created by an employee only “in the scope of his or her employment,” employers may also create agreements that are more expansive. So if Microsoft employees are creating apps in their “spare time,” who will own them?

    Below is a portion of a 1998 Microsoft employment agreement, available here from a University of Washington, Department of Computer Science and Engineering website.  I’m not suggesting this is what Microsoft is currently using, but simply using it as an example:

    (click for larger image)

    The agreement says that employees will assign to Microsoft all rights to “copyrightable material” produced “during my employment with MICROSOFT.”  This suffers from the same problem as the Mattel assignment, that is, is spare time considered one’s “employment”?  The paragraph continues, though, by describing what would NOT be assigned, suggesting that anything else will be assigned.  The exclusion is quite narrow, and Windows 7 app work probably would not fall within it even if it was done during an employee’s “spare time”: while the phone may not be “equipment” of Microsoft or the development kit the “supplies” or “services” of Microsoft, any app would certainly “relate directly to the business of Microsoft.”

    Any more clues on who might own the employee-created apps?  One comment (to an unrelated article, go to Wednesday, July 07, 2010 5:07:00 PM) says that Microsoft has told its employees that their apps will be Microsoft’s property:

    – Your employee agreement … anything you create that is related … thus you have no right to build an app or game that profits from those inventions.
    – If you want, you can get a license from Microsoft for your intellectual property to be used in WP7 apps and games
    – The goal of the program is for you to have fun
    – It is NOT a goal of this program to enable Microsoft employees to get rich, launch startups, or compete with Microsoft.

    So you get the phone, and can develop apps “in your spare time,” but you’re not going to be retiring on the income from them. 

    Personally, it’s not so much the free phone – are they picking up the data plan too?

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