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Disclaimers: The opinions expressed in this entry are those of the author, William H. Hsu, only. The factual statements cited in this article are verifiable through the mainstream IT media. Relevant articles, both factual and editorial, are linked where feasible.

Some of you know that KFL, the former Microsoft exec who left for Google and whom MS immediately sued to keep him from starting Google Labs Asia, is my uncle (my mom's younger brother). I've been sitting on my hands somewhat regarding the controversy surrounding the case, owing to the probable perception of partiality that would color any comments I made. Recently, however, I've come across some misconceptions that I thought I would correct here. I also found some relevant articles:

  • CNet (Ed Frauenheim, 26 Aug 2005): `Buried in Microsoft's lawsuit against its former executive Kai-Fu Lee and Google is a legal doctrine that could make tech professionals shiver... in court filings, the software giant has also mentioned the theory of "inevitable disclosure," which holds that in some circumstances people can't avoid sharing or relying on trade secrets from their former employer when moving to a competitor.

    Thanks to this increasingly popular legal argument, techies and other employees could be in for a surprise when they try to switch companies. In states that accept the inevitable disclosure concept, employers can sue defectors even if they've signed only a confidentiality agreement--or even if they haven't signed an employment agreement at all, said Robin Meadow, an attorney with the firm Greines Martin Stein & Richland.'

  • Slashdot (28 Aug 2005): In a discussion thread on Frauenheim's article, readers compare the ramifications of the suit to a new species of feudalism and preemptive lawsuits in Jennifer Government (the inspiration for NationStates). Arguments range from "never sign a noncompete agreement" (patient: "it hurts when I do this"; doctor: "then don't do that") to "the employer should pay if it expects blanket coverage from a noncompete". A couple of cogent points were made several times: that most IT professionals have most or all the liabilities of a noncompete (not being able to work for a competitor on a broadly-defined or undefined set of R&D topics) and few or none of the benefits (the new company being willing to pay you for a year without your being able to work on what you were hired to do). Thus the potential downside if the court compels KFL not to start is that IT professionals may find it harder and harder to move to a new company.

I have a few points to add to these.

First, as some readers pointed out, the precedent that the case would set, enabling companies to chain down employees using non-disclosure agreements (NDAs) alone, amounts to a kind of indentured servitude, which is illegal when it comes down to it.

Of course he didn't have to sign it (not unless he wanted the job back in Redmond when he came back from MSR Asia). Of course he read it. Of course in 2000 the groups he had responsibility for were somewhat different than the ones he had in 2005. Think of it as effectively thus: a company hires an exec, sends him to his ancestral country to start a lab, brings him back, and has him sign a non-compete agreement then. Five years later, the company (purportedly) divulges info on beating competitor X to its senior management, including the now-promoted exec. Exec now has privy information. Some of the hundreds of people in this exec's groups are working on the X-Killer app. Exec now has privy information and is "in charge of X"; oh, noes! Now exec goes to X. Is he automatically in violation of what he signed?

Substitute your top company in your favorite niche market for X. Sony and PlayStation, Skype and VOIP, et cetera ad infinitum et ad nauseam. Eventually, you might see that non-compete agreements are more nebulous things than those who live by them would have it, and the breadth of interpretation enters very much into it. Only a Sith deals in absolutes, as they say.

Second, a lot of people are painting a thick line between NDAs, which don't say "I won't go work for your competitor", and non-compete agreements (NCAs), which explicitly do. "You signed on the dotted line and got paid for it." The reality of the matter is that:

  • 1. In the general case, NDAs have thus far been actionable only if already violated.

  • 2. Companies generally don't go after NCAs unless an employee is poached for specific knowledge, technology, or unique skills covered by the contract.

  • 3. In this case, as Frauenheim reported from the court filings in his August 2nd article, the crux of the debate is whether what KFL would do at Google, and in founding the facility in Beijing, China, actually overlaps enough with what he did at MS to count as an impending NCA violation.

Put these three together and you can see what's going on. It's a legal dragnet for MS: first, they claim it does overlap enough; if that doesn't fly (which it actually doesn't), they have the safety net of "inevitable disclosure" with which to muddy the waters. So, something that should concern you if you are a CS researcher, or indeed an IT professional of any kind, is that companies such as MS are willing to set up legal precedents that could mean NDA == NCA, just in case the things on your personal no-fly list aren't enough to keep you out of the enemy's camp.

Third, a lot of people don't seem to fully grasp that like any competition, hiring away R&D people is itself a legal contest between the old and new company where the NCAs are the playing field. The new hire's job description are the pieces. The old company inflates the job description as much as it can convince the court to accept and has to demonstrate that this violates the NCA, and the new company defends against these allegations. Both sides can offer claims about what the defector will actually do. Because it's essentially trying to prove a negative, noncompetes are not gone after often; sometimes they are upheld, though, because the terms are of limited duration.

Fourth, some people who aren't reading the news (or history) carefully enough keep saying things like:

  • "He went to work for the identical department at the competitor." Um, no. This is called believing everything you read. KFL had several groups under him, speech rec being his primary area and his primary responsibility. Google's claim is that the actual responsibilities and technical knowlege of MS's search technology that KFL had were of tangential relevance to its search strategy. The bar is pretty high on what consitutes the same technology.
    Being a machine learning researcher, I'm aware of the relationship that ASR and NLP in general, have to search. Nobody's claiming they are disjoint. But "exactly the same"? Learn about the technology and judge for yourself.

  • "Oh, it'd be {hard | easy} for KFL to find another job." KFL wants to work for Google, and Google wants him. Nobody has ever denied that, to my knowledge! Much as I'd like the comments implying that Google scooped him up after he went out the door to be true, KFL did leave MS to go to Google.

  • "He's privy to MS's confidential strategy!" Repeat after me: knowing something confidential doesn't violate NDAs; disclosing it does. Similarly, one has to disclose or act on privy knowledge to violate an NCA. The reason NCAs are actually broader in some sense, and say you just can't go work for the competitor if you're going to be doing the same thing, is precisely because the presumption is that in that case, you're going to use that privy information, advertently or inadvertently. So, the court provides for a "reasonable waiting period" for the old company to revise its strategy, or (more likely and more effectively in the internet search industry) for the highly dated insider information to expire.

  • "So he takes a vacation for a year - so what?" Yes, Google's willing to pay him anyway. No, my cousins won't go hungry. So what? As I started to explain above: A year is a very long time in search. The problem is that KFL wasn't just in charge of search, he wasn't the only one in charge of search, and most important, he wasn't mainly doing search. So Google's argument is that holding him for this waiting period isn't reasonable because managerial and administrative tasks such as hiring for the new lab are going to go without KFL's leadership in the meantime.

  • "Who could possibly be worth all this legal hassle?" You'll permit me a bit of family pride: KFL is. Objectively speaking, as a CS researcher, I can tell you that his reputation and his track record are really that strong.

There you have it: my $0.03 worth.

Thanks for reading, and please feel free to post relevant links here, respond with your opinions or questions, and forward this link wherever you like.



( 46 comments — Leave a comment )
Sep. 2nd, 2005 02:54 pm (UTC)
I very much agree with your concerns. We don't have the IT professional agreement from the movie Paycheck. We can't. So prior training and experience *might* inform future actions. Well, that's part of having human employees. So sorry some companies don't think that employees should have any life that doesn't support them directly. Yes, Mr. Gates, there is life after Microsoft.
Sep. 3rd, 2005 09:26 pm (UTC)
Editorials, Microsoft's business model, and Porter's Five Forces
I am trying to get some editorials out: the NY Times, LA Times, and Chicago Tribune seem likely venues, but BusinessWeek seems to take only things from Gates himself and the like. (Thanks for suggesting Wired, Scientific American, and Mother Jones.)

I actually don't dislike Gates as a person, and I honestly do admire and respect him for his philanthropy (it may be the only reasonable thing to do given his wealth, but there are plenty of multibillionaires who are far less reasonable). I can't say the same positive things about Microsoft's other senior execs, nor the company's whole approach to this. Feudalism is just too far outmoded to even consider as a business model.

I will research things as time permits. I don't think most IT people realize the broader ramfications yet. It's not business as usual; it's actually broadening the ability of major corporations to put a fence around the pasture. IT has never had "lifers", so it makes no sense to try to force them to do it within the confines of one company for their whole lives. That some companies are starting to test the waters in this area is a very unfortunate trend. Not only is it bad for the field (consumers and professionals); it's actually bad for the companies as well, given that there is just enough anti-trust legislation to make doing so very short-sighted.

As you noted, the legislation has to be enforced and properly interpreted on behalf of the industry and the consumer.
Thanks for the critique about the five forces.

Sep. 2nd, 2005 03:58 pm (UTC)
So where can I get this new "X-Killer" app? Sounds pretty sweet...
Sep. 3rd, 2005 09:28 pm (UTC)
Microsoft's Start, a rival to Google
Haven't you heard of Start.com?

There's a beta here.

Sep. 3rd, 2005 10:00 pm (UTC)
Re: Microsoft's Start, a rival to Google
Bha, that's just a search engine! I want X-Killer!
Sep. 4th, 2005 03:37 pm (UTC)
Here you go.

Now! Do you know what he's a code name for?

Sep. 4th, 2005 07:32 pm (UTC)
Re: X-Killer
Windows PoserMobile 5.0
Sep. 5th, 2005 08:59 am (UTC)
Windows Mobile 5.0
There you go!
CE 5. It's going to $&*($*$^!*$*^$ kill RIM Blackberry, don't you know? And XBox 360 is going to #$*$(#$& those &%(*#%@&s at Sony right up, because Sony's not a real company, it's a Jenga tower!

Sep. 4th, 2005 11:57 am (UTC)
Re: Microsoft's Start, a rival to Google
All of Microsofts web apps with their flashy flash, and their little windows in windows thing really annoy me. MyWallop.com never really did catch on like Friendster or Myspace because it took forever to load and was just really annoying to use. Start seems to be going down that same road.

Hi, I am here from some community where you linked back to this entry.
Sep. 4th, 2005 04:47 pm (UTC)
OS Features and the Web Search Engine-Enabled Desktop
I'm by no means an early adopter when it comes to grid technologies, but I've been there since the beginnings of search and portals on the desktop in the late 1990s. By fits and spurts, my functionality grows, with growing pains you can read about every other Saturday in this LJ. ;-)

I think that the Google Desktop is going to be a significant threat to MS by sheer dint of interesting functionality, quality, and the head start that they have. The converse is also true, because MS has ideas of its own and because most users are lazy and take the functionality they get by default. Hence, in a sense:
IE 6 / WinXP : Firefox :: Start / Windows Vista : Desktop apps under Windows

The quetsions are a) whether the desktop portal is so important that it will start to dominate window management and the phenomena that have kept MS on top:

  • app frameworks, especially .NET

  • networking (even spam and security, which could be done a lot better, but which people tolerate because they have already invested pain and effort)

  • abundance of apps that work well

  • abundance of feature-bloated, proprietary-format apps that work poorly but produce the flashiest content for the least effort (Powerpoint, Word, even Visio; Macromedia; some Adobe products)

  • the subsumption effect (as long as there is a Java, an Eclipse, etc. for Windows, market share will be strictly dominated)

You'll notice that all of these relate to the Windows OS, but none of them, save aspects of networking, are kernel features per se.

Welcome, BTW - I've added you back. I notice you're from the town where I grew up (Millersville, MD). Did you go to SPHS or Severn? (I was at SPMS and Severn.)

Sep. 4th, 2005 05:01 pm (UTC)
Re: OS Features and the Web Search Engine-Enabled Desktop
I am a Millersville transplant. I have lived here a couple of months. Up until now, there have been 5 major moves in my life with various minor ones within a single region. I am out here for a job, but I am somewhat homesick for Colorado.
Sep. 4th, 2005 08:59 pm (UTC)
Millersville, MD
Ah, well, I do understand. In many ways I still get homesick for Millersville. It's a lovely place, and it rather grows on one. YMMV, but being close to Baltimore and Annapolis also has its advantages.

Are you commuting to a larger city, if I may ask? Or working in Millersville (or Severna Park)?

Sep. 4th, 2005 09:13 pm (UTC)
Re: Millersville, MD
I work in Severna Park.
Sep. 2nd, 2005 04:02 pm (UTC)
Interestingly, an implication that I see from this "inevitable disclosure" is that once a company feels that they've got their hooks deep enough into an employee that he/she can never leave, then they never have to ever pay him more money. They have no incentive to try to keep him because he/she CAN'T LEAVE

Sep. 3rd, 2005 09:50 pm (UTC)
Employee rights
Hypothetically speaking, an individual inability to leave would not instantaneously and totally deprive an employee of bargaining rights. There would be the remedy of the courts, and collective bargaining would still be effective even if a particular employee was a "lifer".

Otherwise, wouldn't union membership be useless once an employee was part of a disenfranchised group, such as those past mandatory retirement age?

Sep. 3rd, 2005 10:02 pm (UTC)
Re: Employee rights
Are you telling me that upper-level management at Microsoft is unionized?
Sep. 3rd, 2005 10:09 pm (UTC)
Potential galvanizing effects of the Microsoft-Google suit
Dude, don't you remember NationStates?
There was an issue about white-collar unions!

Seriously, if you look at the July Slashdot thread above, you'll see that a lot of people believe their should be unionization in IT.

Your question brings up an interesting point: the ramifications of the case are really much farther-reaching than just upper-level management at MS. There were about 100 people that Google hired away from Microsoft before my uncle left and was sued; he was just the highest-ranking exec to go over, and thus an expedient target to "make an example" with. The problem is, if the electrified fence goes up, it doesn't discriminate between upper-echelon execs and programming grunts. In theory, at least; in application I'm sure MS would care more about an R&D manager than a run-of-the-mill developer. However, I don't think it's "execs only". Anyone who knows something critical would be a target, whether the new job has anything to do with the old one or not.

Thus, I think the case has dual potential. On the one hand, it threatens to curtail employee freedoms. Inasmuch as people recognize this, it could be a galvanizing force for IT professionals to push for some more bargaining rights.

Sep. 4th, 2005 06:30 am (UTC)
Re: Potential galvanizing effects of the Microsoft-Google suit
Perhaps, but management rarely unionizes under any circumstances
Sep. 4th, 2005 03:36 pm (UTC)
Unionization of IT Professionals
R&D people in IT don't unionize all that much, either, unless you count professional societies such as the Association for Computing Machinery (ACM), the Institute of Electrical and Electronics Engineers (IEEE), or the American Society for Artificial Intelligence (AAAI).

There are lots of trade unions of basic techs: electricians, med techs, etc., but research professionals don't tend to do it as much anyway. It's partly due to the tension between management (which white-collar employees tend to be) and labor.

Sep. 2nd, 2005 05:33 pm (UTC)
Very interesting.

I have to admit, I usually skip your posts, because I don't have time to read them in-depth, and it's impossible to skim them. But I stopped to have a closer look at this one.

Forgive me for translating (I'm a bit slow on the corporate legalese being thrown around - one more reason why I'll never make management) but what seems to have happened is that a man left one company for another whose business is in the same generic area, and the old company is trying to stop him from working at the new company under a 'noncompete' agreement.

A noncompete agreement is essentially a clause by which a company can say that once an employee has profferred their skills and knowledge in a specific area, the employee cannot go and work for a similarly based company using the experience, knowledge, and skills he may have gained from the old company.

Is this approximately what's happening?
Sep. 3rd, 2005 09:53 pm (UTC)
Essentially, yes
Hi, thanks for reading.
Your summary seems about right.

I would say "the experience, knowledge, and skills he may have gained at, or contracted to, the old company". Some of the claimed skills in noncompete agreements are just "things you can't take to the competitor" and there's no claim that they are things the ex-employee developed at the old company.

BTW, I'm curious as to your opinions on the matter.

Sep. 3rd, 2005 10:09 pm (UTC)
Re: Essentially, yes
As someone whose work relies on developing skills from customer to customer (albeit at the lowest level of IT: programming, which is pretty much just a matter of code - and there's no company in the world that can say "Okay, we're going to claim the right to use IF-ELSE statements, now and forevermore, and if you use this code with our competitors [or anyone really] then we will shoot down yo' programming ass, bitch!" without getting themselves into all kinds of hot water with other companies [to say nothing of software and IT contracting service companies]), I would most politely say that a 'noncompete' agreement sounds like a bunch of bullshit.

Granted, I don't know how closely things overlap at higher, managerial levels, but I imagine it's a fine line to walk. However, to say that someone can't take skillz A, B, and C to another company is almost like saying: "Well, you can work for us, but the instant you leave, we retain the right to chop off your left foot and keep it, because you might use that left foot against our business and we can't have that. Never mind that it's your foot."

Hm. Maybe a better description is how warriors, once taken as slaves by their enemies, were mutilated - divested of their index finger and their big toe so they could neither wield a sword, draw a bow, nor run. Effective as hell in preventing them from turning against their captors, just rather barbaric.

What is that saying about "the more things change...?"
(Deleted comment)
Sep. 5th, 2005 12:02 am (UTC)
"The same thing"
What you say about the duration of noncompete agreements is true enough, but it omits a key detail, that they also tend to be technically specific in their definition of "the same thing".

I happen to know something about several of Dr. Lee's research areas, particularly intelligent user interfaces and automatic speech recognition (ASR), and about search technology. My own research group deals with machine learning with applications to information extraction (IE). I don't claim any knowledge of Google's specific R&D directions in China, but if you have any facts with which to back up an assertion that KFL's work there would constitute the same thing he was doing at MS, feel free to post them.

(Deleted comment)
Sep. 5th, 2005 01:00 am (UTC)
sugar daddy...
Sep. 5th, 2005 09:40 am (UTC)
Anticipation and preparation are no indictment
I've also responded in-thread to your comments in infojunkies.

As I haven't spoken to the people I know inside MS (MSR and other departments) for their opinions about how involved Dr. Lee was in Search, I'll just go by the court filings and some things that were posted by MS folks. Not surprisingly, there is some discrepancy between the MS and Google accounts of how involved KFL actually was in Search. More important, IMO, is what he would be allowed to work on within the strictures of the NCA if and when he goes. I understand that speech rec per se is off limits, and I highly doubt Google would try to encroach directly on KFL's old department through him even if they stood to gain entrance into an ASR market that way. (If you took some things written in Redmond at face value, he wasn't even "all that involved" in ASR! I took that one with a grain of salt.)

Of course execs have more inside information. If every NDA or NCA meant that an exec who moved companies incurred a year's sequestration each time he or she stepped into a board meeting, not only would fewer people be signing them; people would be consulting attorneys about what it was OK to read or even listen to. Again, it really does come down to how one acts on the information, from the R&D lab to the marketplace, and FWIW, I don't buy the "inevitable disclosure" principle as stated, simply because it's not a decidable property.

You seem to be laboring under a misapprehension that I'm just out to garner sympathy for my uncle. Whatever personal stress he may be under, I may sympathize with, but I don't expect anyone reading this to; it comes with the territory. I can tell you that, while Dr. Lee is attentive to and concerned about Google's investment and vote of confidence in him, I've hardly seen him lament his legal difficulties or shrug it off on the principle that Google is paying all the bills.

Certainly, I would like to see Google get a fair and positive decision. For me, though, this is also about getting the word out about broader ramifications of the lawsuit and the precedent that this case may set for IT people in general, not just higher management.

As you've probably read from the news, as early as the week after the suit, Chairman Gates did warn Dr. Lee the day he resigned about getting sued, and Google was anticipating it. "You were warned about getting sued and you did it anyway" is a double-edged sword: on the one hand, you can argue that the preparation acknowledges an awareness of actionability; on the other, saying "Steve has been waiting to sue somebody" indicates that it may not be about the terms of a particular NCA. (More on this later.)

For the record, I'd like to point out that anticipating legal action isn't inherent evidence of culpability, or being accused and being prepared would translate into guilt. Plus, you can "expect the worst", that you're going to be sued, and still "hope for the best", an amicable parting. I'll let the proceedings speak on that matter, as I wasn't there in Mr. Gates' office on the 18th of July, or in Mr. Ballmer's the week before.

(Deleted comment)
Sep. 6th, 2005 01:15 am (UTC)
Re: Anticipation and preparation are no indictment
Regardless of his personal frustrations, it is also hard to be too sympathetic to a man who will be paid by his new employer millioins to do nothing for a year if necessary when the rest of us just work to pay our mortgages on time and to put our kids through school. People like to pretend there is no class consciousness in America but it isn't true and sympathy for the top 1% is hard to muster.

Let me see if I get this right - a man who worked hard to get where he is, who paid his dues and is damned good at what he does - is deserving of less sympathy than someone who hasn't struggled up the ladder? Uh.. huh?
(Deleted comment)
Sep. 6th, 2005 01:29 am (UTC)
Re: Anticipation and preparation are no indictment
Those who do not have the drive and desire tend to have little sympathy - no, they tend to resent - those who do.

Dues have been paid - you're looking at what is and not what has been. Unless you know Mr. Lee personally and know where he has been and what he has come from, you really have no place griping because you aren't making your way up through the ranks.

(Deleted comment)
Sep. 6th, 2005 02:27 am (UTC)
Re: Anticipation and preparation are no indictment
Sounds like you have a pretty shitty job.
(Deleted comment)
Sep. 6th, 2005 02:33 am (UTC)
Concerning "rich people"
Kai-Fu Lee is hardly an example of hereditary wealth. When I or friends such as masteralida or I assert that he's paid his dues, it's because we know he came up through graduate school on a $7000 a year stipend like everyone else.

Your attitude towards earned wealth seems a bit defeatist coming from a Microsoft employee and self-professed wage slave.

I visited my uncle when he was a Ph.D. student living on Forbes Ave. in Pittsburgh, and he and his wife lived on the same budget I did as a grad student. Graduating summa cum laude from Columbia University and having a breakthrough dissertation at CMU were things he did on his own, with no benefit of rank or privilege. As one of the first few young people to be inspired by Dr. Lee to earn a doctorate in CS, I'm proud to recount his achievements.

No, he isn't "stopping global warming", but neither is Mr. Gates, whose wealth eclipses Dr. Lee's by a factor of a few thousand. And yes, I know quite a bit about Mr. Gates' laudable philanthrophy, particularly from zurich31, whose father was Secretary of State in India and more recently a medical director of the UN Development Program, which is primary beneficiary of his infant immunization donations. So, just out of curiosity, what do you think of your top bosses? (This is entirely optional, and feel free to respond privately if you prefer. I assure you I'm just curious and won't be repeating it to anybody at MS in any case. ;-))

Sep. 6th, 2005 02:08 am (UTC)
Having the right and being right, part 1 of 2
We are indeed coming from two different places, but you're wrong if you suppose that just because he's my uncle, I proceed from the premise that MS has no case. Of course MS has the right to file for the injunction and the one-year stay. What I'm saying is that whether that stay ought to be granted comes down to what he is actually doing.

If you read the Seattle Times article and the actual filings of MS, Google, and KFL (as I did, in their entirety), you'll see that it requires just a little reflection to see the discrepancy. MS sees its rapport and KFL's established business relationships in China to be things that KFL built up and exercised on its behalf. KFL argues that he hasn't been there since 2000 (a move I remember well). MS makes much of the "Making it in China" document that KFL points out he sanitized, and of other documents it claims were confidential that Google notes were public; etc. It may be for lawyers to argue over, but there's a sound factual basis and a sequence of logical reasoning steps that will lead to the proper conclusion.

I think you and I both agree that companies are entitled to defend their rights. Where we differ, as it happens, is where MS and Google differ: on what MS is entitled to claim as its contractual due. There are unarguably things listed in the NCA that were in no wise disclosed to Dr. Lee during his time there, nor that he "developed on the job" as it were. When your average Slashdotter says "what is in people's heads is theirs, not the companies", that may be a knee-jerk reaction, because yes, sometimes confidential and proprietary info makes it into people's heads. I've done private sector consulting before and I know what an NDA says. But when Google asserts that business rapport from 5 years back, which hasn't been exercised by the exec in question, is beyond the scope of an NCA, I personally agree, and objectively speaking, I think the court will concur. The argument, at any rate, is that MS's definition of "same area" is overbroad, reaching far beyond the technical into generic strategic ideas. I'm not a lawyer, but I see merit in the position that the precedents MS is citing (sale of a business) are sometimes tangential and in any case a long stretch.

So it comes down to things such as "we're going to recruit as hard as we can from the math, science, tech, and engineering PhDs of universities X, Y, and Z in Beijing". Well, that's about as generic a strategy as you can spell out, and if it's in violation of an NCA, then you bet it affects IT professionals all over.

Sep. 6th, 2005 02:09 am (UTC)
Having the right and being right, part 2 of 2
I noted that it's a free country and anyone is free to have or not to have sympathy for Dr. Lee as he or she sees fit. By this I meant that sympathy or lack thereof shouldn't enter into it. I might feel sorry for my uncle even if I thought his case held no water, but then I wouldn't be up here on this soapbox. I do see why my uncle's leaving is a loss for MS, why it would want to retain him, and barring that, why it would need to do some damage control. Certainly I would, if I were in Mr. Gates' or Mr. Ballmer's shoes. What is telling, though, is that, according to KFL's filing, nobody so much as discussed with him what terms of employment might be acceptable to MS. "Well, of course," you might say, if you're of the opinion that just going to Google steps on the NCA and think there's no such thing. As you said, there's a threshhold of what's worth suing over that MS evidently thought my uncle was over. It still underscores the point that MS was not interested in individual damage control, it was interested in suing to stop Google from getting more people.

Now, a logical inference that MS might not like people to draw from this is that the possibility that Dr. Lee and other defectors might entice more people to leave was the key issue, not trade secrets that Google could get from Dr. Lee. And that's actually the case. I have yet to see any semblance of a convincing argument that anticipates that Dr. Lee has or will disclose anything useful to Google, or damaging to Microsoft. The bottom line, IMO, is that Google didn't hire Dr. Lee for any such secrets. His name and his draw towards new Chinese PhDs are worth a lot, lot more. That's the long and short of it.

Yes, you bet Dr. Lee had legal counsel, including that provided by Google. Good intentions? I'll assume you're not just asking about himself, his family, etc., but people whom his move affects: people (say) under him and people who he can now work with. And I really don't know. Of course I believe that he thought, and thinks, of his friends, acquaintances, and colleages; however, I can only speak objectively from an academic researcher's POV. And in that respect I do think this move is better for open competition, less restrictive of progress, than staying at MS and trying to mitigate what KFL's filing seems to reveal as severe stagnation in the management of MSRA. IMO, "freedom to innovate" isn't just words on a page; it's a concept, a preference that we can evaluate comparatively here.

And now we come to a point I think it's very important for me to make. The disclosure says Dr. Lee will get over $4M up front even if he can't go to Google, $10M after the first four years, etc. People can admire or resent this, and far be it from me to imply that Dr. Lee cares nothing for financial remuneration but only for science, but know this. He's fighting right now so that Google can make progress in China; so that China can make progress through growth of its IT R&D; and so that American users and the IT industry can propser from the partnership. There's no other reason he needs to go for a year. After all, there's no near-term financial impact on him personally, right?

"So? Google deserves to get its money's worth," one might say. Surely it does, but that's the crux of it: having a Chinese lab, built by 2006 and not by 2007, gives Google its money's worth and a competitive edge - not insider information it can glean from KFL's mind.

Sep. 5th, 2005 06:39 am (UTC)
Re: Essentially, yes
But in the IT industry where things move so fast, a year to 18 months out of that area of business is more or less a life sentence.
Sep. 5th, 2005 09:06 am (UTC)
Not all years are created equal
Quite so. Google's case, filed in the Superior Court of King County, WA, specifically notes that this will deprive Google of Dr. Lee's presence in one university hiring round. Considering the dozens of top-notch PhDs out of Beijing, Tsinghua, and USTC that he was able to choose for MSR Asia when he was last over in Beijing, this is a big deal in and of itself.

Based on this article, I predict that the rest of this case, whatever the outcome, isn't going to earn Microsoft any bonus points with Chinese or American "working-class" developers. It's a fine balance, whether you're talking about programmers or "higher-up" R&D people.

Sep. 5th, 2005 08:55 am (UTC)
NCAs and the CodeWarrior
As cadmus acknowledges over in the infojunkies thread, NCAs are gone after when companies reach a threshhold of ROI: i.e., when it becomes "worth while" to sue. One thing I've learned from our university attorney is that typically, for an individual, it never becomes worth while: the time and money invested is almost always less than the recovery, however well-heeled the targets of the lawsuit (in this case, the new company and the employee) are. What makes it potentially worth while for Microsoft is that there is an example to be made. More important, the very outcome of ensuring that nobody's going to be following my uncle from Microsoft to Google (any time soon however you look at it, or literally following him by being recruited away) is worth something to Microsoft.

I see your point about hobbling, but perhaps a more apt analogy is quarantining a defector as a POW for the duration of a war. The old country locks up the defector for fear that he will take up arms against it - and then cites a "principle of inevitable invasion" because the citizenship requirements of the new country mandate a pledge of allegiance that conflicts with the old one. If the position of those who defend the "inevitable disclosure" principle were faced with this situation, they would not have any qualms about sequestering a defector for the duration of the war, even if the defector were not a military commander, because they could give succor to the enemy, and they could end up participating in an invasion of the old country.

I pose the hypothetical situation that the defector is non-military because Microsoft's "inevitable disclosure" argument is not based on any specific knowledge or claim about what my uncle will be doing at Google, but a) just that he's there and b) that he had privy strategic information. This rests as much on NDAs as NCAs, and on his being high enough on the org chart to matter.

What is that saying about "the more things change...?"
Well, as I wrote on Slashdot, we (Chinese) have a saying about learning that I think applies here: like a boat in the stream, not advancing means being swept back. Some progress is needed here just to keep NCAs from being applied overbroadly if and when companies start to set a lower bar on which are worth pursuing.

Sep. 3rd, 2005 08:42 pm (UTC)
I hope everything works out well for your uncle. It must be a bit strange to find yourself in the middle of a potentially precendent-setting legal battle.

Is Microsoft seeking to not have your uncle work for a whole year?
Sep. 3rd, 2005 10:01 pm (UTC)

Strange is an understatement: I've never actually been sued, but as you know, I've been through inquisitions by lawyers ("friendlies" and "non-friendlies") , and any kind of audit can be nerve-wracking.

MS is seeking to have my uncle barred from joining Google for up to one year, and as I understand it, they have a list of specific things they are seeking to have him barred from working on during that period even if he does go. A couple of those things are actually things he was working on at MS; some are not, and some are not even close, according to Google.

Sep. 3rd, 2005 10:21 pm (UTC)
Re: Precedent-setting
It's reasonable for one company to request that their former employee not work on the exact same things at the new, rival company; however, it's unreasonable to add things that he did not work on for the old company.

For instance, I'm not sure how hiring new people to work on Google searching, or whatever they plan on doing in China, is going to reveal all the deep trade secrets of Microsoft's. It'll be interesting to see how this all unfolds.

Again, good luck to your family. (^_^)
Sep. 3rd, 2005 10:44 pm (UTC)
KFL's MS and Google duties
Well, a few weeks before KFL left MS, according to one of the above articles, Gates supposedly had a board meeting about "The Google Challenge" where they talked about the MS anti-Google strategy, and how to leverage things like Start into a Google-killer.

You're right: hiring people to work on anything new is hard to prove as far as violating a non-competition agreement goes. It would be one thing if he built a speech recognition group right off the bat, because that was his main department over at MS. But there were plenty of other people with responsibilities for search, and my uncle wasn't even head of the Start group, so the claim that his starting Google's Chinese lab violates the NCA just doesn't follow.

Thanks again!

Sep. 4th, 2005 01:19 am (UTC)
Out of curiosity, are there any others in your family that do CS-type stuff? In my family, I'm the only one, except for my aunt, who has done a wee bit of bioinformatics (she's a genetics prof by trade).
Sep. 4th, 2005 03:30 pm (UTC)
The Lee Family and Hsu Family
Just him and me, really, but here's the breakdown:

Lee Family

Grandfather: originally a politician (elected representative of Sichuan province in China), later a professor of political history
Grandmother: physical education teacher
Eldest aunt: banking, son in MIS, daughter in MIS (she's a bit of a techie)
Elder uncle: biochemist, son in medicine
Second aunt: banking & HR (IIRC), sons in finance, medicine, film & TV
My mom (nee Kai-Rue Lee): med tech (hematologist), son in CS
Fourth aunt: office administration (admin assistant at banks and docs' offices), daughter with MBA, son in chemical engineering
Fifth aunt: social worker, daughter in business management, daughter in HS with aspirations to her mom's occupation the last I heard
Younger uncle: major CS R&D head, daughter in junior high, daughter in elementary

Hsu Family

Grandfather: civil service (an executive secretary of the Nationalist Party in Taiwan)
Grandmother: homemaker, became a pretty good watercolor artist at age 70
Dad (Kuei-Yen Hsu): PhD in chemical engineering, son in CS
Younger uncle: PhD in physics, daughter in finance (I think; she's a fundraising director of some kind), daughter with MS in biology

Sep. 4th, 2005 04:27 pm (UTC)
Re: The Lee Family and Hsu Family
That's a very scientific-type family. I feel like a bit of a black sheep in my family, since my parents and grandparents all have arts degrees (English, Psychology, Philosophy, etc).
Sep. 5th, 2005 08:30 am (UTC)
Science and Humanities
Ours is probably closer to being the other way around.

My fifth aunt, who read the above comment, pointed out a couple of errors in my reporting: my first aunt and second aunt are in secretarial and personnel management. Also, since leaving the VA hosptial, my fifth aunt has moved more into her university lecturership in social work and into consulting with social welfare agencies and private practices.

I'm curious: how is it that your family considers scientists the black sheep? I'm not claiming that either is inherently superior, but as far as degrees, salaries, and prestige go, scientists usually don't come out short on the bargain.

Sep. 5th, 2005 07:54 pm (UTC)
Re: Science and Humanities
They generally don't. The only time I really felt like it was when I told my parents I'd be doing Computer Science instead of English, to which I received an, "Oh. Are you sure?"

My mother really, really wanted me to also become an English professor. ;)
(Deleted comment)
Sep. 4th, 2005 08:37 pm (UTC)
Possessiveness of properties, intellectual and otherwise
I see your point, though to be honest, I don't think possession of new technologies is any different from possession of any other property, intellectual or otherwise. Money is at stake; "them that has, gets"; and the team with the deepest pockets has the upper hand. The only difference is that when it comes to "explaining old things", laws such as copyrights and patents are specifically crafted to time out, so the only thing that applies is (say) your being allowed to cite new sources on caricature, including your own. Academia, generally speaking, has no stake in not letting you do so, any more than K-State would try to keep me from using my own code or that produced by my students if I went to another uni.

As for deep pockets: in this case, both teams have hired a large retinue of good attorneys, and the exec in question has a good defense.

Please do feel free to repost the above discussion wherever you like, BTW. Thanks for commenting!

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