Of course at least one and possibly more of those three things are not true for the OP, so that may be a different situation.
Whenever this topic comes up on HN, all these armchair lawyers come out of the woodwork and start making blanket statements about what they are "pretty sure" is allowed, but this issue is dependent on what's in your contract, and what your national and/or local laws allow companies to claim. "Talk to a lawyer" is the best answer to something like this.
So even if the legal opinion is that you don't have a leg to stand on, you could still get everything you want if your employer agrees to it. I would try to negotiate from that stance, instead of a legal one. So "yes, boss, I understand that contractually the IP is yours, but the community is mine, and the goodwill is mine, and the IP is worth nothing without those, because the community will just fork the code. So let's talk about how this is going to work..."
Agreed. That's probably the best advice for any non-trivial legal issue or question. I hope no one read my answer as contradicting that.
That said, is there _any_ example, in _any_ jurisdiction where a court has upheld an employer's right to IP that meets those three criteria (employee's own time, own equipment and unrelated to the employers business)? I would hate to be in position where I'd need to find out, but I'm curious if this has _ever_ been tested in court. It just seems like a ridiculously over-reaching claim.
It was a long time ago, so I may be slightly misremembering the exact details, but in a nutshell the example given was someone who did have to hand something over because a court decided that being a salaried programmer using a certain programming language at work meant something they programmed in that same language at home was related to their employment. The software itself was in a totally different field to what they did for work, so their assumption had been that it wouldn't be covered, but the court didn't see it that way. I'm in England and was talking to an English lawyer about English employment, so I assume that was also the location of the case mentioned, but I'm afraid I don't know anything more specific to provide a proper citation.
I was also warned that this is a bigger problem for employees of huge companies with many divisions, because in that case the employer could have interests in a wide variety of different fields that would be relevant for contractual purposes. Even though any given employee might have no knowledge that something they're doing out-of-hours could be affected, because it's nothing to do with what they do themselves and what happens in their own part of the business, it can still be relevant from the employer's point of view and so trigger the contractual transfer of IP rights.
Yes. There are places where either by statute or by the employment contract, anything the employee creates belongs to the employer. The underlying concept is that the employer created an environment where the employee was able to learn and be inspired.
I know personally of a situation where a university exercised this right, although I don't know if they did it through statutes, common law, or an explicit agreement.
