It is, but in practice I don't think it's as straightforward as that, because:
1. There can be a presumption that the contract will be fairly written. Some of my recruiting employers have behaved as though they have your best interests at heart, which could lull you into a false sense of security. [A]
2. As you mention, it can seem that the decision is strictly yes/no. Corporate EULAs fall into this category - you either agree to abide to the terms of huge piles of legalese, or you don't use the software. I admit that I just agree to all of these. Even if I did read them and find a clause that I wanted to negotiate, I don't know how I'd even begin to broach the subject with an Apple, Microsoft, Adobe etc. And a similar situation exists in employment contracts, where someone who is desperate to accept a job offer (e.g. at a big uni or company), and they may not know that the terms are negotiable.
3. People just may not be aware that there are really long term consequences, such as the non-compete clause in the OP. I certainly didn't know about these sorts of issues before I worked in the Bay Area.
4. Some of the more restrictive legal clauses may be quite innocuously or confusingly written, and therefore require a lawyer with relevant experience to spot. So even if a layperson is being diligent, they may still fall afoul of something dodgy.
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[A] Quick aside. One startup CEO gave me such a contract, and when I verbally raised some issues, he just laughed them off and said they were typical boiler-plate legal language, and said that none of this would ever affect me. I was on friendly terms with the CEO and was therefore ready to accept those assurances, but my wife wouldn't have any of it, and she urged me to make some modifications.
I just looked up the email thread where my wife and I discussed one particular startup employment contract. It featured a section on intellectual property rights, where if you didn't complete an additional "Exhibit A", you were at risk of giving the company free licensing rights to anything you'd worked on in the past.
Wife: "It should be okay to sign, but not without completing Exhibit A."
Me: "I think it'll be fine, they're nice people, I'll just go ahead and sign it."
Wife: "Wrong answer."
I spent hours working on the Exhibit A, and took it to the CEO the next day. When he read it, he saw red and stormed off out of the office to talk to his legal counsel. The legal counsel came back and said yeah, my wife was right, and agreed to do the changes.
When I joined the company, it turned out I was the only technical person who had filled out that Exhibit. Would this have affected any of them? Who knows, but there was certainly a quantifiable risk involved. I'm certainly glad that I had my back covered by it when the shit hit the fan. The others were smart people who just didn't understand the legal consequences of not filling in that Exhibit.
I had a very similar experience to you. In an employment contract, I asked for--and got--an amendment to an IP provision to remove wording suggesting that I was performing an IP transfer to any personal work prior to employment not listed in Exhibit A. The employer even told me that the wording I suggested might be better wording to use in their standard contract.
It is, but in practice I don't think it's as straightforward as that, because:
1. There can be a presumption that the contract will be fairly written. Some of my recruiting employers have behaved as though they have your best interests at heart, which could lull you into a false sense of security. [A]
2. As you mention, it can seem that the decision is strictly yes/no. Corporate EULAs fall into this category - you either agree to abide to the terms of huge piles of legalese, or you don't use the software. I admit that I just agree to all of these. Even if I did read them and find a clause that I wanted to negotiate, I don't know how I'd even begin to broach the subject with an Apple, Microsoft, Adobe etc. And a similar situation exists in employment contracts, where someone who is desperate to accept a job offer (e.g. at a big uni or company), and they may not know that the terms are negotiable.
3. People just may not be aware that there are really long term consequences, such as the non-compete clause in the OP. I certainly didn't know about these sorts of issues before I worked in the Bay Area.
4. Some of the more restrictive legal clauses may be quite innocuously or confusingly written, and therefore require a lawyer with relevant experience to spot. So even if a layperson is being diligent, they may still fall afoul of something dodgy.
========
[A] Quick aside. One startup CEO gave me such a contract, and when I verbally raised some issues, he just laughed them off and said they were typical boiler-plate legal language, and said that none of this would ever affect me. I was on friendly terms with the CEO and was therefore ready to accept those assurances, but my wife wouldn't have any of it, and she urged me to make some modifications.
I just looked up the email thread where my wife and I discussed one particular startup employment contract. It featured a section on intellectual property rights, where if you didn't complete an additional "Exhibit A", you were at risk of giving the company free licensing rights to anything you'd worked on in the past.
Wife: "It should be okay to sign, but not without completing Exhibit A."
Me: "I think it'll be fine, they're nice people, I'll just go ahead and sign it."
Wife: "Wrong answer."
I spent hours working on the Exhibit A, and took it to the CEO the next day. When he read it, he saw red and stormed off out of the office to talk to his legal counsel. The legal counsel came back and said yeah, my wife was right, and agreed to do the changes.
When I joined the company, it turned out I was the only technical person who had filled out that Exhibit. Would this have affected any of them? Who knows, but there was certainly a quantifiable risk involved. I'm certainly glad that I had my back covered by it when the shit hit the fan. The others were smart people who just didn't understand the legal consequences of not filling in that Exhibit.