 Thanks everyone for being here. Welcome. I'm Chris Bavitz from the Berkman Client Center and I'm really delighted to welcome you to what I think is our first Tuesday lunch talk of the calendar year 2018. So happy new year and hope everyone had a restful winter break. A couple of just sort of administrative notes were being live-streamed and recorded for posterity. So when we get to Q&A, which we hope there will be a lot of, we've asked Professor LaBelle to save some time to get questions from all of you. Just be mindful of that fact. If you're interested in posting, tweeting about this online, we're using hashtag YouDon'tOwnMe, which is the title of Professor LaBelle's book that we're going to be talking about today. And I'm not going to spend a ton of time introducing Professor LaBelle because I want to jump into the conversation, but you may know that she is the author of Talent Wants to Be Free, Why We Should Learn to Love Leaks, Raids, and Free Riding Previously, and then most recently, and why we're here today. I don't have enough hands for this, but YouDon'tOwnMe, which is an amazing book that has been getting rave reviews as recently as yesterday in The New Yorker. People may have seen that Wall Street Journal elsewhere. So we're going to be hearing a lot about this story, I think, in the coming weeks and months. And it's a story that some of us who teach about copyright and other things know a bit about because the dispute about Barbie and Bratz and the IP involved in both of them is a long-running, very contentious dispute. And what we have in this book, I think, is a lot more of the story behind the story, the personal story of what led to this legal saga. Professor LaBelle's a professor at University of San Diego School of Law, an alumnus of this institution. And I think that's about it for administration. So we're going to go until 1 or 1.15, maybe. We'll save time for Q&A. And without further ado, I'm going to hand it over to Professor Orly LaBelle. Thank you. So it's such a pleasure to be here. Every time I come back to give a talk at Harvard Law School, I feel completely like a student again, which is wonderful because I think all of us who went into teaching, we feel like this is what we want to be lifelong students and lifelong learners. So it's great to be here. And really a lot of the thoughts that I started developing and the interest in these fields of intellectual property, of employment law and innovation policy started in some of my work here. Rebecca Tushnet has been awesome in initiating this talk. And so I'm really grateful for that. It's great that people are still coming in and I would totally sit on the floor here. So just come close to me if you don't find a chair. I also just want to mention that tomorrow I am doing an event at the Harvard Coop bookstore at 7 p.m. And it won't be the same as this talk. So this is, we'll focus a little bit more on the IP side and kind of the law courtroom battles. And I very much would love for everybody who can to come tomorrow and it'll be a little bit more on the kind of intimate personal side of the personalities of stories, why I decided to tell this whole saga. But I will actually talk about this a little bit today too. And you can ask me anything you want about it. The story really begins with an unlikely hero. So there is a designer at Mattel, the world's greatest toy maker, who is really charged like many of his co-workers to design every couple of months another dress for Barbie, change her color, the color of her dress, do some makeup. And Carter Bryant had other dreams when he was young. He dreamt of being a fashion designer. And really this is sort of the second best always for him. And he gets very disillusioned and I think frustrated from the corporate culture at Mattel, which leads him to take some time off to sketch all kinds of things during the weekends and nights, the term weekends and nights actually becomes a really important part of the litigation. Do we own? Do you own me? Do you own my weekends and nights? But he also actually takes time off for a few months and goes away, away from Southern California, away from Mattel, away from kind of the plastic life of serving Barbie. And he claims that there he comes up with an idea of a different kind of doll, a ratty doll, some thing that is more reflective of our contemporary realities, it's more empowering for girls, it's sassier, multi-ethnic, more realistic really than the very unrealistic images that Barbie has been conveying to girls, to women, to boys and men for five decades. And it creates really dominant, so dominant in the market that she, by the time Carter Barant is imagining rats in the beginning of the 21st century, she has 90% of the market share in the fashion doll industry, in the toy industry. So he sells the idea to a competitor and this is just the very beginning of the story and what happens next is really the decade long roller coaster of courtroom drama and market drama of how these companies really battle it out with the conglomerates that have most of the market share and then new entries and pretty much entrepreneurs, the company that develops, Bratz is a privately held company, MGA, and it started, it was started by a very colorful entrepreneur, Isaac Larian, also in Southern California, an immigrant and he really kind of thinks about it as a David versus Goliath story but what was amazing is that so many things come out in this, these two trials really that happened, which is part of what drew me to tell this story because it goes through one round of trial, basically months and months of testimonies and then on appeal it's remanded and then we get a different judge, a different team of attorneys on the two sides, a different jury and one of the things I think that also really emerges from the story is how much these different personalities and characters make a huge difference in the outcome and what comes out in the trial. It's also the case that there's a lot of counterclaims that are added at some point by MGA and so the story becomes not just about who owns Bratz but who owns a lot of different ideas and knowledge in the market and what is economic espionage and what can be done in fair competition, there's anti-trust issues, there are a lot of questions about corporate ethics and all of the while this is all about our culture, the culture we create. So I want to step back though and say something about why I became interested in this case to begin with and some of you know that I've been studying these questions of knowledge flows, competition, talent, mobility and the culture we create in a lot of different markets be it pharma or tech or the entertainment industry, how do we encourage innovation through the flow of minds and the engagement and the collaboration of the creative and inventive people that really are the experts in these industries and so as Chris mentioned I wrote a book about this a couple of years ago and I was arguing there that we argue a lot about intellectual property line drawing as we should. We argue about the right exact you know thresholds we should have in patent law and in copyright law and in trademark a little bit less so in trade secrets which I've been writing about a lot and is a little bit the stepchild of intellectual property but still now we have a federal Defend Trade Secret Act and we kind of see all of these really codes of law and we debate about how do we interpret them what are the right lines that we draw but I've been arguing that underneath the radar we have really something that I've called the new cognitive property beyond intellectual property that through contracts and through a lot of doctrines that come from elsewhere mostly employment law but also it's sort of an intersection of antitrust law and contract law and fiduciary duties. We've been expanding the types of knowledge and the types of behavior that can be controlled by corporations to control and fence ideas knowledge information and I've been doing a lot of work on non-compete agreements in particular before the book that was a little bit my focus and I sort of did it around the world and this is in the UN in Vienna where I collaborated with researchers from all over the world looking at the ability of employees to move the ability of entry and exit not only in industries but in regions and looking at a lot of correlations with between openness and growth economic growth and innovation and really showing that when we have kind of an over fencing we're subverting the very purposes that are very intuitive and intellectual property debates about promoting engagement exchanges and progress in arts and sciences and then very happily this happened last year or now it's a year and a half ago in the summer of 2016 I got a call from the White House I like saying I got a call from life but but it was it was great suddenly when I was writing my first book that when I was writing talent wants to be free I said nobody's talking about this it's as I said underneath the radar nobody's seeing how non-competes are shaping industries are shaping concentration of industries and preventing entrepreneurship and new entry and and exchanges and I was in California as as you know California does not enforce non-competes and and I was looking along with groups of other researchers from from not not necessarily from law school from economic departments a lot of them looking at empirical evidence that that shows that California has been really benefiting from from kind of a lower threshold or lower enforcement of these constraints and but I said nobody's talking about this and suddenly the the next couple of years actually there was a lot of interest and a lot of exposés and and kind of new policy engagement with these questions and so it was it was wonderful to give a talk at the White House in Washington I was changed all my flights I was in Berlin on my way to Tel Aviv I came there to Washington and it became part of a working group it was people from the Treasury Department from the President Obama's policy team from the Department of Labor for the Department of Justice and representatives of the state and and we we were part of a working group where in October 2016 so this is just before the change in the administration it all culminated into a president's call for action to the states to very much narrow the reach of non-competes in all the different states other than California that has always had an unenforceability of non-competes and what was very important to me and all of this conversation has always been important to me and now and you don't own me is that it wasn't just posited as this is an employee's right this is the labor versus business right kind of debate but really it's about innovation policy and it's about how regions grow how entrepreneurship contributes to the health of industries and and it's you know just like with IP we understand this as the way that we build upon the the shoulders giants and and we we progress so I mentioned you know Silicon Valley has been kind of the the prototype example of this of a lot of movement and a lot of startup culture but it's really been the case that it not only in the tech industry but I so I live and work in Southern California we call San Diego the biotech beach where pharma and medical devices and and the biotech industry are thriving again despite the fact that companies cannot sign their talent their insiders on non-competition clauses and I'll mention also that we had similar very innovative places like Israel who've been emulating not maybe going all the way to the California model but being very suspect of of non-compete again not as an employee issue but as an a way to encourage a startup culture and and competition but what I really began to start to see and this is true also in California perhaps even more so in California and my story you don't only happens in California is that the impulse of controlling what you already own be it ideas or people you know human capital or intellectual capital is is very strong and there are a lot of different ways even when they're not called non-competes kind of the the most blunt instrument of you just can't move to a competitor there are other ways to try to achieve similar things and so I started thinking about the greater map of how we have these two worlds IP that is the more visible one and as I said you know we talk about what is patentable the Supreme Court takes you know every year basically you know cases about you know can we patent this kind of technology or not a business model whatever the issue of the day is and and with copyright similarly can we you know copyright the a cheerleading outfit or whatever it is that that they're looking at but but then you know we have on this one side the active debate and then we have a lot of ways to expand the types of ideas and knowledge and information that we control through these other tools and so I started looking at the expanding language and empirically this is very strong and very intensely visible that employees are signing more and more NDAs and I'm already kind of planting maybe a question in your minds of how does this relate to the momentum of me too right now which NDAs play a different kind of role but actually not so different I I've been arguing that it's the same it's it's the same coin kind of different sides of the same coin of silencing speech and also chilling movement and invention so the language that exists in NDA is the language that exists in assignment clauses and in in our story in the MGA versus Mattel and Mattel versus MGA cases we we have Carter Bryant signing a very generic contract that many many of us sign and increasingly so in every single industry and because I've been doing the business for a while actually not only you know look at empirical evidence and they're great studies that are underway of counting these these rising numbers but I also just anecdotally get a lot of emails you know I just got a job with Google and here's my contract and Google will not negotiate at all this this contract but it says you know it has this very expansive language of what kinds of ideas I'm assigning in the contract and and this includes holdover clauses or trailer clauses which go into the future so saying that an employee promises to assign all of her his ideas or concepts or improvements or designs you know not using the the kind of specific legal language of of IP so it's a very broad language and and it's subject to a lot of interpretation there's the explicit clauses of and this existed in this case whether patentable or not patable whether copyrightable or non-copyrightable but it then it also often says and even in the year after you leave or the three years after you leave any patent that you file belongs to us or you know any idea so again you can think about it as creating de facto non-competes post employment that really make it very difficult to to look sideways whether you're founding your own company or moving to a competitor and so one of the things that is I think very clear and intellectual property and in sort of that the traditional pillars of intellectual property is that even though we're in the world of intangible asset we still have a spectrum of intangibility what do I mean by that so in patent law we have sort of very it's not that it's clear lines line drawing in the sense that we don't argue in the margins of you know how do we exactly draw these lines but we have very clear statements already in the act that we we can protect something that was reduced to practice but not something that's so abstract that is is is unpatentable and very similarly in copyright in the act it says we're protecting expressions but not ideas so we have that that line drawing we also have it in trade secrets in law traditionally and and and always and over the years although again we see this as very problematically challenged it by by actual cases we have that line drawing between general skills and know-how and what is really secret and special skills special knowledge that that can be deemed trade secret and we see that I'll just mention if you've been following the uber versus whimo case I've written a little thing about it recently in the Harvard Business Review the the judge just I think a few weeks ago said he was asking the the two sides you're not really suggesting that an employee who moves from one company to a competitor needs to undergo a lobotomy all right it's like that's right really isn't that the law well yes that's the law but that's not the way that sides often tend to argue about what employees can or cannot do and it's actually been a point of disappointment and argument with the defend trade secret act that was passed in 2016 that it was an opportunity actually to clarify that distinction because again trade secret law is yes it's a pillar of intellectual property but it's also very much an employment relationship moderator in in the sense that 90% actually of all cases in that actually involve trade secrets have a plaintiff and a defendant that are we're connected in some way usually in an employment relationship usually it's a former employee and an employer it's not what we think of as like you know the traditional spying of you know somebody taking a helicopter like the DuPont case and looking over a plant that's that those are the rare cases so so with the defend trade secret act I actually was part of a professor's letter of opposition to to Congress when there we were thinking about the language of the act to say that it was a moment that could clarify those distinctions or it could state them more clearly because they they are constantly kind of in question but that that was not done but what what all of these suggest is that in these all of these pillars of IP we have leakage and we have limits that are really a feature and not a bug in in these systems that's the bargain of intellectual property anybody who studies it's just like the basic that that we all know but we're forgetting this a lot of times when we see these these contract interpretation cases that that are very prominent so for example in Carter Bryant's contract there was language that said know-how which we know that that said you know all know-how belongs to Mattel which we know because I just said maybe you know when if you study trade secrets but it's that's not part of what you know trade secret without app in a contract would define as owned by a company it also the contract said that anything that was conceived while working at Mattel so kind of that there's that musing by the court so conceived can mean something that completely stays in your mind and hasn't come out to that reduced to practice or a concrete expression it's it's completely still abstract it's not in any kind of tangible form that's still required and I think one of the fascinating moments of this case is when it comes up to the Ninth Circuit Court of Appeals after there's a huge win an astonishing win for Mattel having argued that just because the seed of an idea of a very successful new dollar line and a new empire a billion dollar empire founded by or started by a smaller competitor after years of dominance and and no competitors as the court says knocks Barbie off the her pedestal and for the first time there's there's competition because that seed started in the mind of a former employee in the first round really the court says that the entire empire of the brass dollar line including you know all the copyright the the trademark the the word brass everything it belongs to Mattel and that the their brass or MGA has to stop any production of that of that dollar line and what becomes really interesting in when it goes up on appeal to the Ninth Circuit there's a lot of different things that you have to read the book to to understand the dynamics there's their their claims about racism in the among the jurors and and all kinds of questions about the kinds of information that or the kinds of aspect that were allowed to to be presented during the first trial but on these specific questions are in the most substantive you know important questions Judge Kaczynski you know former Judge Kaczynski sits and and you know there's a lot in in the book about Judge Kaczynski and you can ask me about this but but but I sat down with him a couple of times to ask him about his worldview on intellectual property on on speech and and and there's some anecdotes there but I think that you know his brilliance in intellectual property juris jurisprudence is really not contested and and he's he's been a very important voice there and but but what is really amazing there is that he says it's like there's two Judge Kaczynski's he says well when we're looking at the copyright issue if we're just talking about copyright that was owned by Mattel by virtue of the fact that Carter Bryant was work for hire so just kind of on the the pure copyright act stance or a law we have we have very strong limits on what copyright can get you and they say MGA or Judge Kaczynski says MGA was free to say oh an idea of a bratty doll that's great we'll just develop an idea that idea and he says it just like Stephanie Meyer was free to invent or to create the Twilight series even though you know sexy drag vampires existed in in all kinds of books you know Dracula is one of them he says it's just like the guy you know painted ballerinas but a lot of people a lot of artists after that can be free to say oh wonderful idea to paint to paint dancers and and only the concrete expression is protected but then there's that split he says then he sort of moves and it's not that he connects the two as it's me talking about the two Kaczynski's because then he sort of moves on and says okay now we're going to the contract and suddenly he says oh it's all about contract interpretation we have to figure out whether the word conceived meant that everything that's in his head and and you know that's that's possible whether when it says while you're working at Mattel it means also any time that you're away from a tell also even if you came with ideas before to Mattel and that's there's there's these really striking moments in the second trial where there's a very sophisticated and smart attorney that kind of shifts the discourse but she says to the CEO of Mattel so let's say I'm 18 and I have this great idea for a startup or invention or a design and I put it in the drawers of my parents bedroom or my parents house and then I you know 20 years later I'm now started a job with an employer I go back home during Christmas I take the the sketches out do you own the these sketches and Bob Eckerd says it's there and says very coldly yes very probably yes and that really kind of I think using that really extreme example shifts a lot of the dynamic with the jury and the perceptions of what we're talking about here but but judge because then he seems sort of not very he gets very worried about over controlling culture through intellectual properties repeatedly in all of his cases and he's not worried on on that contract side so I think I'll end very soon here but I'll just say two more things that we're talking about the cost again not just to these employees that can't move on but it's the cost to entrepreneurship and to a startup culture what we've seen in the empirical studies is that these kinds of controls don't only chill the likelihood of actually moving or actually developing something if you have these you know competitive ideas but it also patterns when people move if they actually move there's there's oppression of that mobility but when they actually move they are much more likely to move like in this case to another competitor that can indemnify them can protect them can represent them and really Carter Brian you have to read the story but he's like this pond this little bug that's sort of crushed by all sides and he his voice really kind of disappears he's I started out saying he's the hero of the story but he's just the beginning the hero and then it's sort of like a Greek tragedy where like the the father of brasses is written off has to die in order for for everything else to happen so he doesn't die a little early but he does get a no it's a sad story does get a heart attack in the middle of the trial he goes through these he goes away from the the the industries just there's a story there about individuals and corporations and concentration of competition so I will end there and say I would love to get your questions this is from the Financial Times and we can talk about everything from dolls consumer psychology and a lot of other things that are in the book thank you right it's well but that's every year you think that yes you said this got remanded and reversed what was why did that happen and what was different the second time around yeah so Kaczynski found and it was a unanimous decision by the the Ninth Circuit found several problems with the the the law court guidance to the jury and but but a lot of them were sort of you didn't understand that there were these lines to be understood so so you know I said before that he understood the contract to be subject to interpretation may said well let's let's see what the two sides intended when they said conceived can it also embody ideas and let's remand it on that let's say what let's see what the two sides intended when they said everything that you did while you were working did it also mean when you were at home with your partner at night or you know during the weekend so he sort of said well that the first court just that here's the contract he's a start he's a standard contract he was a former employee and didn't even go into these questions and he sort of complicates it by saying maybe the two sides didn't try to capture everything but again this is my critique there that I think he sort of almost guiding the next companies of writing an even more expansive contract on those fronts and then the the the other issue that he he saw as a mistake by the lower court was that it's it's all about unjust enrichment where he says even if it's true that MGA unlawfully took something that belonged to Mattel through that you know contract that they then had with with Carter Bryant the the lower court didn't even look at all their investment in the brass Empire and how can it be that even if there's you know something that belonged to Mattel the entire Empire now is is really transferred from one competitor to the next and again this is this will really be very important like the automated cars questions right now with my mom well you have to read the book but but yeah it's a huge reversal one one attorney that I interviewed for the book said that it was the biggest reversal of fortune that he's ever see he's the very prominent you know decades of litigation that he's ever seen because it's not I'll tell you that it's not only that the second judge and jury were you know completely unsold on all of the arguments that were presented by Mattel and different understanding of what Carter owned Mattel and how the contract confined him but also there were counterclaims that resulted in huge losses it's it for for counterclaims about economic espionage about anti-trust violations that it became like almost a mirror image of the first trial yeah hi I'm Kathy I found this talk so very interesting because of the content but also just personally interesting I spent a lot of my time in tech and then the government but also at side gigs on the side and constantly talking to our general counsel at different points of like is it's okay to work on and hoping I don't somehow end up in a situation like this I have a two-part question first part is your lobotomy example really strikes me and so at what point do you really know because companies have recruiters who source candidates from other companies right they you hire people because they know how the other company works and you bring them in and it's everything from oh inside Google they have free food and bean bags so now we're gonna copy free food and bean bags is that okay to this is how self-driving cars work and I wouldn't be right that over and so how do you really know to came that the related part is are there resources for or what are some of the good resources for people to look to just individual employees because going to the company's general counsel isn't really in your favor so what are reliable resources people can really look to to understand what's okay and what's not if you just don't have a bunch of all your friends or people to reach out right that's that's a terrific question because the sort of flip side of this question is when you don't know what do you do and when you don't know what you do is sort of over it become overly cautious right you either don't leave or you don't speak or you don't you don't even you know straddle those lines and and and you're right that most people don't have legal counsel it's it's been shown now with a bunch of empirical studies that even California where like non-competes that's a really hard line and that and I like that hard line because it doesn't make you try to figure out those much you know more difficult fine tuned lines but even then there's a lot of misinformation and and there's overreaching where even California companies ask employees to sign on competes and most of them don't even figure out that they can't that that it's not enforceable that it's void and even when they figure it out they are risk averse and and some of the things that you know we see in in the research and and I think in the in in this story it comes out to that even if you win eventually win in the courtroom you know eventually eventually eventually what happened one of the clear things that happened is that in this case it was six hundred million dollars of legal fees and in the aggregate so who can it sustain those I have I have a lot of stories in the book about these smaller artists that are doing things that they can do but it's only the few cases that are actually picked up by the ACLU or you know some some kind of cause litigation or by this bold competitor like MGA where Isaac Larian's personality was just like I'm gonna fight it I I almost think that it's dumb and my wife is telling me it's dumb but I'm gonna fight it till the end but to get back to your question of how do you draw the line kind of personally so I think there's probably some things that are really difficult and the you know exactly kind of in the middle but a lot of things are very obviously not not owned by a company so just like you mentioned you know that the the ideas about free food in a cafeteria and and you know having a nice design and you know comfortable living area and in in workplaces that certainly there's I just don't see any cause of action or any court that would accept that as being some kind of infringement upon the property the the the intellectual assets ideas of a company and that's why that's why I think that we should be more clear that what the lines that we've drawn in intellectual property that are so important of saying things that are general knowledge things that are don't you know just fall into the pattern copyright trade secret definitions should not be expanded by contract that that's and there's some you know there's some codes that try to do that but I think that they don't do it well enough there's a dozen states unlike the non-compete issue which it's only California 16600 that really very clearly voids non-compete we actually have a dozen states including California that have codes about how you the court has to void contracts that try to go into or to assign patterns usually is the the language of things that happens completely off the job or didn't use any trade secrets or materials of the employer but I think those those are sort of sleeping giants that need to be fleshed out more there's over here hi this is fascinating and even more so because I recently saw a Raj Chetty speaking at Brookings about the connection between creativity and inequality yeah so the idea that we're kind of really losing out because our creative you know possibilities are just being trumped on in so many different ways do you have any thoughts yeah so and I have thank you for that question because I have a lot of different thoughts that link up to that question of inequality and one thing is that I mentioned you know market concentration the toy industry is very representative it we're talking about basically a duopoly between Mattel and Hasbro for years and years that have shaped I think such important aspects of our lives so you know I chose to rate this book to show that I think we have more of these conversations about who controls different markets when we're talking about the financial markets maybe in New York Wall Street and then in Silicon Valley you know if you've seen the social network and kind of the invention of Facebook we have kind of a similar seed of the idea and in an employment relationship allegedly and and I wanted to bring it to the toy and entertainment industry because I think we should really take culture very seriously not just sort of the the products that are the tech that you know who who developed the iPhone and automated cars which is of course so important but also you know who controls images and and these are images these are iconic images of womanhood of childhood these are decisions that parents do or make all the time and Mattel has these astounding statistics about how every American girl owns on average nine Barbies and how it's just like you know a Barbie doll is bought every second and in the book I reveal how I was raised by a mother who's a psychologist and is a professor who studies gender development and and child development and I was sort of inadvertently an early critic of the toy industry because she filmed me playing with boy toys and girl toys and and showed it around the world and and there are a lot of lessons about how we're perceived by others and and so I started taking play really seriously from an early age so inequality also means that you know we have more choices and the images that are put out there the the play that we can have in the iconic you know characters that that exists and you know who controls the method who puts out you know the the the kind of connection between the retail industry and the manufacturing industry there there's a very interesting history in the book about Mattel's kind of one step forward two steps back with diversity in their dolls you know when did they introduce an African-American doll how do they market that they there's there's a lot of problems there and then kind of the bigger picture and this might might be the the part of the lecture that you just listen to was is that we have more and more studies that show that in more equal societies we actually have more innovation and and and more creativity and and that's not surprising at all to me when when you know I'm looking at how there's not just that chilling effect of employees being afraid of moving to what even when they're unhappy when they're discontent I have some experimental studies with with behavioral economists that we published a few years ago where we show that motivation and performance really goes down when you're stripped from your human capital and you can't actively use it and you can't imagine managing your career trajectory and and and you have to sort of stay where your your talent is not put to the best use and and it's not the best fit and and and the employer is not using carrots but rather than stick but rather they're using sticks to to keep you there that's that's a real cost there's also studies about how lack of mobility or depression of mobility leads to wage depression because there's less of a tournament you know over the best talent and you can't renegotiate your salary you can't improve your your position by by job hopping but beyond all of that just that openness just the the culture of being able to exchange to to to create and and to pursue your passions I think that is is clearly linked to a society that's you know that has more equality in it I'm gonna exercise the moderators prerogative and throw a question in and so and it picks up on maybe I think some things Kathy was talking about about the culture of people who do one job will always working on 11 things on the side and some of us here work in our tech clinic here at the law school now and a very common fact pattern for us that we see all the time from clients is the person who is a software development somewhere but is working on some public interest open source software project on the side and we're starting to see some recognition from companies that the provisions in these non-competes competes technically hinder that right these these people come and are ostensibly releasing their code into this open source software development project under the terms of some you know off the shelf open source license perhaps making reps and warranties they really aren't supposed to be making because it would violate this this non-compete and we're starting to see companies recognize that there are these contributor license agreement types of arrangements some of which require sign off by employers and I'm seeing some at least some of the employers recognize that this is something they have to do because I'm assuming for market reasons right they want this talent they want the kind of person who's going to work nine till five on their product and then go homework five till nine on their own product because these are the brilliant engineers but it's clunky it's not it's still not perfect but I'm wondering if there are lessons for other creative industries from software where again I think there's a culture of just coders code and they code for living and they go to their free time and they work on public interest projects and they work on for profit projects I don't know if you've seen yeah yeah no I think that that that is happening and I think that in general and in in every industry there are examples of the the most desirable and then because of that the employees that have the most bargaining power do have some level sophistication about how these contracts can sign them they can negotiate them and and the best I I always think the best industry leaders are actually open to that so we have examples including in Massachusetts you mentioned that Massachusetts every year has that bill on the table that at first wanted to completely emulate California and voiding non-compete and then sort of struck some bargain which still didn't pass about having you know strong limits on non-compete and and really requiring trade secrets to be behind them and things like that and and we'll see but but in Massachusetts there are I got several companies calling me up and saying you know what we want to show our employees as part of our recruitment process or as part of our brand our reputation that we will allow we want to keep them because they're happy we're going to incentivize them in the right ways and we actually think that we're benefiting from them having a lot of these side projects Richard Branson has that idea at Virgin that's sort of like corporate venture capitalism where he's like you know my best talent is not going to stay here I'm going to actually invest in your you know next stages and I'm going to let you you know play in your free time I mean Google has this idea of playing with the 20% but while owning it so that's that's been kind of problematic in various ways but it's it also shows an understanding that you know that's kind of independence that we need from creative mind there are other things at play so there you alluded to this that a lot of a lot of ways that we work these days is not that kind of idea of a full-time one employer lifetime security model and with that you know comes the question of what do we get in return and you know is it a new psychological contract a new legal contract where it actually means that we own more of our human capital and should have the right to to use that the network the experience that we gained elsewhere that you know it should actually mean more of that but of course we see the reverse we see because there's sort of more contingency and work there's a lot of a lot of different attempts and a rise of attempts of creative attempts to stop that but I think that there sometimes there are things that kind of challenge that so for example Uber and Lyft are an example where because they care about sort of another area of law which is employee classification driver classification independent contractors they've been very clear about in their contracts that you can totally go and work for Lyft while you're working for Uber they they're very explicit about it because just you know kind of in cost-benefit analysis they think this this is what they care about more it's sort of an infinite pool it's the reverse problem of an infinite pool of drivers almost that and so you you're signaling that you allow competition and one more thing about the the software culture yes a lot of people acknowledge that you know programmers want to do the open source and that's you know part of their persona and activity but I also have looked very closely at the Sergei Alenikov case if you know this and again the Goldman Sachs programmer that the day he leaves Goldman Sachs is not only you know accused of taking some code that he had had programmed so this is not a civil this is not like you don't owe me a you know civil litigation he's actually arrested by the FBI and sentenced to eight years of prison and during the trial his attorney takes these two just like two sets of code side-by-side and shows it to the jury here's Goldman Sachs here's the one that's from the open source they're identical except the one from Goldman Sachs has confidential property of Goldman Sachs and that didn't help him much and you know Michael Lewis did a big expose on the Alenikov case in flash boys and I think you know a lot of experts in high-frequency trading industry understand that that code was exactly what you describe sort of like open source and and still this is again it's not even just about money it's about your liberties and and and sentencing and and trade secrecy has really moved a step up with a lot of prosecutorial activities I wrote an article about this with my co-author Rochelle Dreyfuss who's at NYU and we really kind of mind through this so you know there's there's examples on both sides but when somebody hears about that case they get very very worried about what they can do yeah that's we're gonna save a couple minutes again because this is a book talk we actually have books so we'll save a few minutes at the end for that hi so if if so many of the problems in this area are coming essentially from private law from these assignment agreements or NDAs or something where where do we look for to see the solution is it in court's interpretation of the agreements you know avoiding them for unconstructional stability something like that or is it going to take either federal or state legislative action right yeah that's that's a great question I don't think it's a choice you have to make a choice between the two so I think as long as we have the laws that we have right now there are ways through court interpretation this again why I think that this case is so fascinating that you can see the same exact facts the same exact contract and going completely different ways with a better judge you know better guidance from from the court of appeals on you know how to instruct the jury and you get different just a different line drawing but I still think that and it goes back to your question of you know how do you know when when it's really fuzzy I still think that things like the the non-compete avoidance that you know the business code that we have in California is really important and that's why I said with regards to trade secrets it would have been good to have that in the defense trade secret act you know clear just get distinctions and clear language about how the knowledge and general skills that employees have are not we have it in the uniform trade secret act we have it sort of in the restatements but it would have been better to educate judges on this in clearer ways and and I think that they're in in all of these other pillars that would be good to have these kinds of amendments and statutes and and and so one example is right now there are there's a bill before Congress that is called the me to bill and and at least three states I think New York Pennsylvania and California have similar bills that would void secrecy in NDA causes when it has to do with harassment again that's that's an area where it's already we have ways in the law and in the in the doctrines to already get to a lot of that result without passing these laws but I think statutes have you know a stronger effect in educated employees educating judges and employers