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Rights Wronged
Claim optimizations gone extreme
There is a tendency that contracts in terms of copyrights and patent rights become more extreme. This is such an example resulting in plain idiocy.

Imagine you do work for party B. However, you are hired by party A and they "lend" you to party B. This is called secondment. You stay employed at party A, with which you have an employment contract, but perform work at party B.

I recently moved and thought it was a good idea to get back to do some work through secondment via Maandag. But was I surprised when I read the contract. Most things went fine in the beginning and I was offered a 6 month project very quickly. Then, when I got the contract, it had some rather interesting clauses. The most egregious clause was (translated from Dutch):
Intellectual property
Maandag® is the exclusive owner of all intellectual property rights, including patent rights and copyrights, of everything you alone or together with others have conceived, developed and made during your employment. Think of inventions, devised names, rules, methodologies, models and software in writing or digital form, but also all works within the meaning of the Copyright Act.
...[obligation to transfer rights to Maandag omitted here]...

Lets see what this means... Remember, you are not actually doing work for Maandag, but are employed by them. You do work for a completely different party B.

This clause in the contract effectively disqualifies any person who signs it from working at party B because everything you do is to become owned by Maandag. That is what the contract states. It defines the transfer of any and all rights must be done as long as you are employed by Maandag.

If I were party B, then I would never accept work from a person who was bound by a contract with above clause because that person would be obligated, by contract, to steal the work for Maandag performed for party B.

Note that there are no limitations in the clause or elsewhere in the contract. It does never mention that work for party B is owned by party B. It merely states that everything you do is owned by Maandag. To make things worse, the contract follows with a fines clause, where every infraction is fined with €1000,- per infraction and an additional €1000,- per day for as long as the infraction continues. That means that I can choose to be sued by party B for stealing their intellectual property when I adhere to my contract or I will be fined by my employer Maandag for not adhering to my contract. Such contract clause is obviously invalid and I declined to sign the contract(note).

The clause would never survive a challenge if it would go to court. However, there is a clear pattern seen in contracts and the terms en conditions on the internet as a whole. More and more are using aggressive terms to maximize ownership claims of rights, regardless how they are achieved or whom they actually belong to. I already wrote over a decade ago about the problems of a TOS. We see an immense amount of boilerplate lock things up and effectively steal from the community and society as a whole. The strategy is to try to get the absolute most and hope nobody looks and nobody challenges it. I find this path very abusive and offensive.

I actually told Maandag that I found the clause offensive. The reaction was just as offensive as the clause itself. The reaction was bewilderment and denial and they found my analyses and extrapolated effects of this and other clauses, as basis for my rejection of the contract, "troubling" and an expression of "lack of trust". Not troubling because of the contract, but effectively because I had the guts to say no!. Needless to say that I will never ever do any work for or with Maandag, not even when pigs fly.

As a proponent of copyleft and F(L)OSS in general, it amazes me the lengths people/firms go to lock things up. The openness and sharing of ideas and implementations that created the very basis of our modern ability to communicate digitally and, as a result, faster, has instigated a counter movement to try to lock things up more, regardless of the costs, morality and legality. It is a shame.


Original Dutch version:
Intellectueel eigendom
Op alles wat jij tijdens je dienstverband zelf of samen met anderen hebt bedacht, ontwikkeld en gemaakt heeft Maandag® de exclusieve intellectuele eigendomsrechten, dus ook octrooi- en auteursrechten. Denk aan uitvindingen, bedachte namen, regels en methodieken, modellen of software die op schrift of digitaal zijn vastgelegd, maar ook aan werken in de zin van de Auteurswet. Als je een resultaat geboekt hebt dat eigendom hoort te worden van Maandag®, meld je dit direct bij Maandag®. Je bent steeds verplicht mee te werken om ervoor te zorgen dat Maandag® die rechten verkrijgt, erover mag beschikken én dat dit zo blijft. Mocht jij recht hebben op een vergoeding vanwege een octrooirecht dan zal Maandag® dit uitkeren. Natuurlijk respecteerd Maandag® de jouw toegekende persoonlijkheidsrechten die wettelijk zijn vastgelegd.
There were other clauses in the contract equally troubling. One clause would bind the signer not to do any paid or unpaid work without written permission from Maandag. The contract was only part-time, but the clause, again, had no limitations. This particular clause would also prevent one from doing any volunteer work without written permission from Maandag, regardless where and when. Strictly seen it would even prevent me from writing a program for family, friends or anybody else or putting stuff on this webserver.

Posted: 2023-01-07
Updated: 2023-01-07

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