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This article comes from the official account of Wechat: ID:chuappgame, author: etc.

"if we can't hire you, no one else can."

Philip Voitowitz is a former software engineer in Nvidia's hardware architecture team. His daily work includes debugging graphics cards, testing games and so on. One day, he suddenly wanted to make video games, but he had to face a problem: games and technology companies often do not allow employees to engage in part-time projects that have nothing to do with work.

In the United States, only a few states, such as California and North Dakota, consider non-compete contracts illegal, but in January this year, the Federal Trade Commission (FTC) announced a new proposal to prohibit US employers from using non-compete clauses (also known as non-compete clauses, peer competition clauses, etc.) in contracts with employees.

The competition clause has been in the workplace for a long time. To put it simply, companies generally use this clause to restrict employees from working for competitors or divulging trade secrets, and it is difficult for some practitioners who are restricted by the terms to change jobs. or can't look for a job in the industry for a few 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 gain full ownership of these works.

Some lawyers say that even if employees do sideline jobs in their spare time, the company is unlikely to take real legal action. But the competition clause itself is a deterrent and can frighten employees.

According to a survey by FTC, there are about 30 million workers in the United States who are subject to competition restrictions. If there is a nationwide ban on competition restrictions, it may narrow the wage gap between employees of different races and genders by 3.6% or 9.1%. As Voitowitz is not famous in the game industry, he believes that he is very unlikely to be affected by the competition terms. So he secretly produced and released his own game "The Growth Project". It wasn't until December 2016, when gaming site Rock Paper Shotgun introduced him in an article, that Voitowitz explained the situation to the company.

He had several rounds of e-mail communications with Nvidia's personnel and legal departments, trying to persuade them to allow them to release the game, but the response 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 could have stayed there, released the game under my real name, and would never be sued. Because that is likely to cause a public relations crisis for the company, and the company does not want to do so." "however, when the legal department said'no'to me, I found it very annoying, so I resigned," Voytowitz said. "

In the gaming and technology industries, many practitioners have a similar experience. In the 1990s, Chicago gaming company High Voltage Software Zeng Mingwen stipulated that employees were not allowed to work anywhere else within 50 miles of the company, according to one developer. However, he and his colleagues ignored that policy.

The Growth Project is a relaxing pinball Mini Game with gardening and Zen elements. "I've never seen any company enforce such a policy." "but I think they do create a chilling effect," said Joel Burgess, director of Capybara Games Studios and a former employee of Yubi and Bethesda.

Scott Hartzman, a veteran online game developer and former technical director and producer of endless tasks, said: "Game companies should take advantage of excellent culture, projects and opportunities to work with talented people to retain employees. You can't make them feel like hostages."

At the beginning of Harzman's career, the competition clause made him miserable. Years ago, after graduating from high school, he joined a RPG game developer and stayed there for about four years before resigning because of exhaustion. Harzman recalled that he was a bankrupt college student at the time, and every penny earned from his job was used to pay tuition, rent or food. It wasn't long before he joined a friend's company, but just a week later, he received a notice from his former employer ordering him to stop working in the new company.

"the former employer warned that I directly violated the competition terms signed with them. Although all I do is help my friends manage the player community of poker and chess games. If I don't stop the work at hand immediately, I will be sued. My friend is not rich, and I am so poor that it is impossible for me to file a lawsuit. I begged the other side to lift the competition clause and asked them if they understood that it did not apply to my case, but the response was:'if we can't hire you, then no one else can. Remember, you agreed in the first place.'"

A Sony engineer revealed that he had accepted an invitation from a team to participate in the development of an independent game that had not yet been made public. However, he did not ask Sony if he agreed to do so, because the recruitment process has made it clear that the company does not allow employees to take private jobs.

"one company even told its employees, 'you can't help your friends make games, you can't even take a test.' this is so rude." "there are also some very stringent competition rules that prohibit you from having other jobs, even if not in the gaming industry," said one game producer. In fact, they often pay employees so low that they have to need another job. " The producer also mentioned that in the gaming industry, it is still common for companies to restrict former employees from looking for jobs through competition clauses, which greatly suppresses job mobility.

Another developer who works at Sony revealed that they cannot engage in any sideline because the company explicitly forbids them.

In 2011, the Boston Globe reported a representative case. Logan Benson, a tester who used to work for rock band developer Harmonix Music Systems, signed a non-compete agreement with the company: if he leaves Harmonix, he will not be able to work for any of his competitors for at least a year. When Benson was fired at the end of 2009, when he tried to join another music game developer, Harmonix enforced the competition clause. Benson was forced to turn down the job and left the gaming industry altogether.

"there is no doubt that many companies require new employees to sign competition terms and use them as part of their entry documents." David Hope, a lawyer at Gamma Law, a San Francisco law firm, said, "however, the competition clause may be illegal in the area where some companies are located, or it may be beyond the scope of permission. Some employers may not know the law, or they may just want to scare their employees."

In 2021, an engineer who lost his job in Microsoft's recent "mass layoffs" in Epic Games's declining Harmonix said he hired a lawyer to scrutinize Microsoft's severance agreement to make sure there were no competition provisions. Fortunately, the lawyer did not find anything about it.

With the rise of trade unions in the game industry, many people begin to wonder whether the company's control over its employees has gone too far.

"I think companies should allow employees to retain ownership of anything they make on their own devices in their own time." "Amateur programs should be encouraged, but many companies don't think so," said Zakary Strybeck, a lawyer who specializes in games. "

Strybeck points out that it is common for employees to devote their spare time to personal projects, and game companies can impose appropriate restrictions on employees by adding confidentiality agreements to their contracts. "there is another possibility that if a project completed by an individual developer becomes popular overnight, the company will often try to get a piece of the pie."

Many game companies often organize internal Game Jam, and 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 make a strict distinction between personal projects and work, clearly telling the company which part-time projects they are working on or plan to do in the future. To do this, developers need to write down their ideas, prove that these projects neither take up working time nor cost any of the company's money, and ask the company to keep a document.

Joel Burgess revealed that while he was working for Ubisoft, Ubisoft approved him to work on personal projects. "my description of the project is very broad, and a team at Ubisoft headquarters is responsible for reviewing it."... it's not that difficult for me. After all, I just want to make a desktop card game that allows players to take turns dating characters, which obviously doesn't conflict with my work. "

At least at Ubisoft, companies tend to ignore their employees' part-time projects-unless they generate significant income that reaches or exceeds a certain percentage of their total income. Of course, there are developers who are reluctant to report part-time projects in writing. Some companies claim that it is better to report, which will ensure a clear distinction between public and private, responsibilities and rights, so that both sides are protected by law, but many developers feel that their position is too passive.

"I am a paranoid and untrusting person. If I want to make a part-time project, I will write down the ideas in my head in a notebook, not in a computer, and I can't even use a personal computer." A shooter developer said, "these rules make me very frustrated and make me feel that I have to restrain my creativity during the term of the contract. I don't think all my ideas are great, but at work, the company's restrictions make me feel scared and sad."

"there is a studio that allows me to do a sideline, as long as it doesn't affect my work," said one developer. Another large studio considered allowing me to take a part-time job, but I didn't agree, but I did it anyway. " To avoid legal disputes, developers often use pseudonyms on the list of producers of part-time projects until they confirm that there is no danger or that the employer will not take any legal action, he said.

Compared with other companies, Ubisoft and Microsoft seem to be more relaxed about starting a sideline. Another developer tells the story of a wonderful experience. He had already found a new job a few years ago, when his former employer came to him to help solve a problem he was very familiar with. However, in his contract with his new employer, there are very clear terms of competition. "in an email, my former employer asked me if I could come to the company at the weekend to help them solve the problem before the deadline. I'm not very good at rejecting people, but I don't want to break the rules either." In the end, he agreed to help his former employer, but he had mixed feelings: "I feel guilty, I feel irresponsible, but I am appreciated."

Another developer who works for a famous game company revealed that they have a film department, so employees are not allowed to have access to any part-time projects related to the film. "but I did it in private and didn't tell anyone. If I strictly abide by the rules, then the competition terms do prevent me from getting extra jobs."

For the sake of others, regardless of whether the restrictions on employees are loose or not, the vast majority of game companies do not comment on the terms of competition.

Most developers say they want more freedom from employers, but others say they can understand why companies don't allow employees to take private jobs.

"I had an unfortunate experience working with a lot of people who worked part-time for my former employer. These colleagues sat next to me and I found that they were too tired to do their job well." "it's not common, but it's been seen too much," said one animator who is involved in the development of a much-anticipated open-world game. "so they can understand the company's position-they don't want employees to feel tired before they start the day's work. Making games is very dependent on the team, and if there are too many members of 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 employees' part-time projects because it is difficult for the company to enforce the relevant terms and conditions, but it is easy for employees to avoid. As game-making tools become more and more easy to use, driven by interest and curiosity, many people will try to start a personal project. No absurd legal policy can bind developers-if game companies want their employees to be more focused on work, they need to provide a better environment and higher pay for their employees.

"since the rise of home-based work in the last three years, the competition for talent among game companies has been so fierce that employees no longer want to listen to any nonsense. As long as you have a skill, if the developer doesn't like his current job, then job-hopping is too easy."

This article is compiled from: https://www.vice.com/ en / article / g5va43 / noncompete-contracts-video-game-industry

Original title: "How Restrictive Contracts Stifle and Control Creativity in the Video Game Industry"

Original author: Patrick Klepek

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