Philip Voytowitz is a former software engineer in the hardware architecture team of NVIDIA. His daily work includes debugging video cards, testing games, etc. One day, he had a sudden impulse to make video games, but he had to face a problem: game and technology companies often do not allow employees to engage in part-time projects unrelated to work.
In the United States, only a few states, such as California and North Dakota, currently regard non-compete contracts as illegal. However, in January this year, the Federal Trade Commission (FTC) announced a new proposal to prohibit U.S. employers from using non-compete clauses (also known as non-compete clauses, peer competition clauses, etc.) in contracts signed with employees.
The competition clause has a long history in the workplace. In short, enterprises generally use this clause to restrict employees from working for competitors or disclosing trade secrets. Some practitioners who are restricted by the clause are difficult to change jobs, or cannot find jobs in the same industry for several years. In fact, many game companies apply this clause more widely, often using the term “conflict of interest” to prevent employees from creating personal works or trying to obtain full ownership of these works.
Some lawyers said that even if employees use their spare time to engage in sidelines, the company is unlikely to take legal action. However, the competition clause itself is a deterrent and can make employees feel scared.
According to the FTC survey, there are about 30 million employees in the United States who are subject to competition restriction. If competition restriction is prohibited nationwide, it may reduce the wage gap between employees of different races and genders by 3.6% to 9.1%
Since Voytowitz has no reputation in the game industry, he believes that he is unlikely to be affected by the competition terms, so he secretly produced and released his game The Growth Project. It was not until December 2016 that the game website Rock Paper Shotgun introduced him in an article, and Woytowitz explained the situation to the company.
He had several rounds of email communication with the personnel and legal departments of Nvidia, trying to persuade them to allow themselves to release the game, but the reply was always “no”. At that time, a colleague proposed to launch the game through NVIDIA’s own platform, but the proposal was still rejected.
“In fact, I can still stay there and sign my real name to release the game, and I will never be prosecuted. Because that may cause a public relations crisis for the company, and the company does not want to do so.” Voitowitz said, “However, when the legal department said ‘no’ to me, I felt particularly disgusted, so I resigned.”
In the game and technology industry, many practitioners have similar experiences. A developer revealed that in the 1990s, Chicago game company High Voltage Software explicitly stipulated that employees should not work anywhere within 50 miles of the company. However, he and his colleagues ignored that policy.
The Growth Project is a small pinball game that can make people relax fully. It combines gardening elements and is full of Zen
“I have never seen any company enforce such policies,” said Joel Burgess, director of the studio of Capybara Games and former director of Ubisoft and Bethesda. “But I think they do create a cold cicada effect.”
Scott Hartman, a senior online game developer and former technical director and producer of “Endless Tasks”, said: “Game companies should use excellent culture, projects and opportunities to work with outstanding talents to retain employees, rather than make them feel like human beings.”
At the beginning of his career, the competition clause made him miserable. Many years ago, he joined an RPG game developer after graduating from high school. He stayed there for about 4 years, and then resigned because of exhaustion. Hazman recalled that he was a bankrupt college student at that time, and every penny he earned from his work was used to pay tuition, pay rent or buy food. Before long, he joined a friend’s company. However, just a week later, he received a notice from his former employer ordering him to stop working in the new company.
“The former owner warned that I had directly violated the terms of competition signed with them… although what I did was to help my friend manage the poker and chess game player community. If I didn’t immediately stop my work, I would be prosecuted. My friend is not rich, and I am a poor man, and it is impossible to take a lawsuit. I begged the other party to cancel the terms of competition, and asked them whether they understood that this term does not apply to me The response is: ‘If we can’t hire you, then no one else can. Remember, you agreed. ‘”
An engineer from Sony revealed that he had accepted the invitation of a team and was participating in the development of an undisclosed independent game. However, he did not ask whether Sony agreed with him to do so, because it has been clearly stated in the recruitment process that the company does not allow employees to take private jobs.
“A company even told employees: ‘You can’t help your friends make games, even take part in tests.’ This is too rude.” A game producer said, “There are also some very strict competition clauses that explicitly prohibit you from having other jobs, even if it is not in the game industry. In fact, the salary they pay employees is often very low, so that they have to need another job.” The producer also mentioned that in the game industry, the phenomenon that companies restrict former employees to find jobs through competition clauses is still widespread, which greatly inhibits the mobility of employment.
Another developer working at Sony revealed that they could not engage in any sideline business because the company explicitly prohibited these activities
In 2011, the Boston Globe reported a representative case. Rogen Benson is a tester who once worked for Harmonix Music Systems, the developer of “Rock Band”, and signed a non-competition agreement with the company: if he left from Harmonix, he could not work for any of his competitors for at least one year… At the end of 2009, Benson was dismissed. When he tried to join another music game developer, Harmonix implemented the non-competition clause. Benson was forced to refuse the job and then left the game industry completely.
“There is no doubt that many companies require new employees to sign competition clauses and take them as part of the induction documents
In 2021, the decline of Epic Games in the pocket of Harmonix
An engineer who lost his job during Microsoft’s “layoffs of ten thousand people” said that he hired a lawyer to carefully examine Microsoft’s severance agreement to ensure that there was no competition clause in it. Fortunately, the lawyer did not find any relevant content.
Distinguish between public and private
With the rise of trade unions in the game industry, many people began to think whether the company’s control over employees was excessive?
“I think that companies should allow employees to retain the ownership of anything they make on their own devices using their own time.” Zakari Strebeck, a lawyer specializing in the field of games, said, “amateur projects should be encouraged, but many companies do not think so.”
Strebeck pointed out that it is very common for employees to devote themselves to personal projects in their spare time. Game companies can properly restrict employees by adding confidentiality agreements and other ways in the contract. “There is another possibility. If a project completed by a developer is successful overnight, the company will often try to take a share of it.”
Many game companies often organize internal Game Jam. Developers generally believe that the games they produce in such activities are likely to belong to the company, and it is not convenient to raise objections
In the game industry, developers have another option called “Carve Out”. The so-called “cutting” means that developers strictly distinguish individual projects from work and clearly tell the company what amateur projects they are doing or plan to do in the future. To this end, developers need to write down their own ideas, prove that these projects will neither occupy working time nor consume any funds of the company, and let the company keep a file.
Joel Burgess revealed that during his work for Ubisoft, Ubisoft had approved him to engage in personal projects. “My description of the project is very broad, and a team at Ubisoft’s headquarters is responsible for the review… This is not difficult for me. After all, I just want to make a tabletop card game that allows players to take turns dating with characters, which obviously does not conflict with my work.”
At least in Ubisoft, the company tends to ignore the part-time projects of employees – unless it can generate considerable income, which reaches or exceeds a certain proportion of the total income of employees. Of course, some developers are unwilling to report amateur projects in written form. Some companies claim that it is better to report. This can ensure that the public and private sectors are clear, responsibilities and rights are clear, and both parties are protected by law. However, many developers feel that their position is too passive.
“I am suspicious and lack of trust. If I want to make amateur projects, I will write the ideas in my mind on a notebook instead of a computer, and even my personal computer will not be used.” said a shooting game developer, “These rules make me very depressed and make me feel that during the contract period, I have to restrain my creativity. I don’t think all my ideas are great, but at work, the company’s restrictions make me feel scared and sad.”
A developer said: “One studio agreed to allow me to engage in sideline work on the premise that it would not affect my work. Another large studio considered allowing me to do part-time work, but later did not agree, but I did so.” According to him, in order to avoid legal disputes, developers often use pseudonyms in the production personnel list of part-time projects until it is confirmed that there is no danger or the employer will not take any legal action, Then change the pseudonym to the real name.
Compared with other companies, Ubisoft and Microsoft seem to have a more relaxed attitude towards sideline business
Another developer told about a wonderful experience. A few years ago, he had found a new job. At this time, the former employer came to him to help solve a problem he was very familiar with. However, in the contract he signed with his new owner, there are very clear competitive terms. “In an email, the former employer asked me if I could go to the company at the weekend to help them solve problems before the deadline… I’m not good at rejecting others, but I don’t want to break the rules.” Finally, he agreed to help the former employer, but his heart was full of feelings: “I feel guilty, I feel irresponsible, but grateful.”
Another developer who works for a famous game company revealed that they have a film department, so employees are not allowed to contact any part-time projects related to films. “But I did it privately and didn’t tell anyone. If I strictly abide by the rules, then the competition clause can really prevent me from getting extra work.”
Whether the restrictions on employees are relaxed or not, most game companies do not comment on the issue of competition terms.
Most developers claim that they want more freedom from their employers, but some developers say they can understand why the company does not allow employees to take private jobs.
“I had an unfortunate experience working with many part-time workers for former employers. These colleagues sat next to me and I found that they were too tired to do their jobs well.” An animator who was involved in the development of a much-anticipated open world game said, “This is not a common phenomenon, but we have seen too much, so we can understand the company’s position – they don’t want employees to feel tired before starting a day’s work. Making games depends on teams very much. If there are too many members in a team in this state, it is difficult to complete the task.”
However, the animator also mentioned that it is difficult for game companies to take ownership of their employees’ amateur projects, because it is difficult for companies to implement relevant provisions, but it is easy for employees to avoid them. As game production tools become more and more easy to use, driven by interest and curiosity, many people will try to start a personal project. No ridiculous legal policy can restrain developers – if the game company wants to make employees more focused on work, it needs to provide better environment and higher remuneration for employees.
“Since the rise of home office in the last three years, the competition for talent in game companies has been very fierce, and employees no longer want to listen to any nonsense. As long as they have a skill, if developers do not like the current job, it is too easy to change jobs.”