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I am a software engineer in California. If I create a piece of software, in my own time, using my own equipment, do I own the copyright on that creation, or does my employer?

I see things such as "Google asserts copyright, even on work I do in my own time" (HN discussion). In the HN discussion, someone asserts,

California law is pretty clear, if you do it on your own time, on your own equipment, it's yours.

Sadly, he does not cite a source for this. The closest I'm able to find is in California's Labor Code §2870,

(a) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an invention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the employer’s equipment, supplies, facilities, or trade secret information except for those inventions that either:

  1. Relate at the time of conception or reduction to practice of the invention to the employer’s business, or actual or demonstrably anticipated research or development of the employer; or

  2. Result from any work performed by the employee for the employer.

(b) To the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded from being required to be assigned under subdivision (a), the provision is against the public policy of this state and is unenforceable.

However, this uses the text "rights in an invention"; does that cover copyright? (Is this the correct law?) Does "Relate … to the employer's business" cover the entirety of software engineering, or just the particular software engineering my employer does? Otherwise, what law is there that backs up the above claim, if any? Or does my employer own copyright on everything down to the love letters I write?

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  • If your love letters are intensely monetarizable, ... :)
    – paul garrett
    Sep 15, 2022 at 1:45

2 Answers 2

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However, this uses the text "rights in an invention"; does that cover copyright?

Yes.

(Is this the correct law?)

It certainly seems to be.

Does "Relate … to the employer's business" cover the entirety of software engineering, or just the particular software engineering my employer does?

Imagine that you work for a company that writes trading software. In your spare time, you develop a photo editing tool. Do you think a court would find that your project "related to the employer's business"? I do not.

Or does my employer own copyright on everything down to the love letters I write?

Google does not own everything their employees create; they only claim to. If someone challenged them on it, a court would decide, and probably not in their favor.

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  • If you are going to click the downvote button, please explain.
    – phoog
    Jul 29, 2015 at 16:06
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    The danger in the trading vs photo editing example is that these products may share common elements. For example security credential mechanism (log-in), payment processing, certain design elements, etc. If a person spends their day job creating these types of elements for their employer, and then goes home and "recreates" the things for their own product, an employer will have a colorable argument regarding ownership.
    – jqning
    Aug 28, 2015 at 22:05
  • @jqning login and payment processing are well defined problems with well defined solutions. Unless you copy and paste code from your employer, i don't see how you'd get in trouble. Certainly its not illegal for anyone to write login code, if what you claim were true we'd all have to license such code.
    – Andy
    Sep 12, 2015 at 15:32
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    @Andy you miss my point. I'm not talking about a code monkey. If my examples are obfuscating my point, fill in the blanks with code elements which are proprietary, written from scratch, but which could be used in an unrelated product.
    – jqning
    Sep 12, 2015 at 15:42
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    A copyright infringement case is completely different. The issue here is any work performed by the employee for the employer. ANY WORK. If the trading app you invent is the result of ANY WORK you did for you employer's photo app you don't get protection.
    – jqning
    Sep 12, 2015 at 17:33
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Does "Relate … to the employer's business" cover the entirety of software engineering, or just the particular software engineering my employer does?

Entirety? That's a very loaded word. Elements of software engineering go beyond the type of engineering. For example if you spent all your time at work developing an innovative workflow which allowed coding faster and more accurately, the employer owns the workflow. If you then utilized this workflow to support your off-the-clock software creation efforts (of a software product different from your employer's) you will find yourself in a gray area. (Of course that assumes that the workflow is protectable.)

It's not just time and equipment that create software.

As was stated, this sort of thing comes down to what your employer tries to assert and how hard they push, and then how hard you push back. This pushing is often motivated by the financial value of the work and you might be able to resolve the problem through licensing agreements.

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