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Losing My Software Rights?
vintagepc writes "Having written a piece of software as part of my research employment, I now face (and will later face again, with other software I've developed), the issue of intellectual property rights. The legal department stated that if I was paid by the University to produce the software, the University would own all rights to it. This is supposedly black and white, not a gray area. However, I was hired as a research student, not directly by the University, and also via a research award (NSERC). Furthermore, it turns out that faculty members here, in fact, retain their intellectual rights to any software they write. At this point, I can still back out, since I have not explicitly agreed to the conditions, but this decision must be made soon. So, I turn to the Slashdot community to ask: Are they allowed to completely strip my rights to the software? If anyone has had any similar experiences, then what was the outcome? Additionally, is this a normal action, or do I have some maneuvering room?"
All you can do is negotiate. What you sign away is law.
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get it in writing.
God, schmod. I want my monkey man!
Talk to a fucking lawyer.
Or back down.
Do what all the other cool grad students who are changing the world are doing and open source it!
These are all very good questions, but you should not be asking Slashdot, you should be asking your attorney. Not having one is no excuse. For something like this, with the ramifications being as big (and permanent) as they are, you need to get one.
Well, it's all pretty black and white there... is the university paying you? Does the check say "Harvard University" or does it say "HRUMPTHING Project, LLC?"
I mean it's not like your playing football where you win a T-Shirt and the university takes home 100's of millions in TV revenue! You can speak to your employer about what you want out of the deal and see if there's any possibility.
But just like football - chances are you're going to get squat for this - and hope for glorious rewards in the after-life (aka.. the real world).
I said no... but I missed and it came out yes.
If you produce it in your free time and it isn't related to your work, then the company is unfairly trying to take your work.
If you are simply doing what they ask you to you are doing your job.
The question here is, did the University get the grant or did you? Would you have been able to get the grant if you weren't at the university because of the credentials of the institution? Were you hired as a research associate into an existing area that is managed by someone else?
If so, put your ego aside and accept that you are growing as a professional.
Now if you have the credo to be a principal researcher then find an institution that will provide you the room you want to have more ownership of your IP.
Too often we think we are the only ones who can do what we do when in reality there are many talented developers out there.
We have to accept as a profession that we are driven by business needs at some point.
Why do people as Slashdot these questions... GET A LAWYER!
---
Programming is like sex... Make one mistake and support it the rest of your life.
According to NSERC no (NSERC Grant Award IP Policy) Specifically, "The Agencies do not retain or claim any ownership of, or exploitation rights to, intellectual property or copyright developed with grant funds. These rights are owned by the Institution and/or by the inventor." You need to check with policies you have in place with your institution. Many universities do claim IP and it is usually addressed in the student handbook, or somewhere in university policy. Look at stanford they own google's page rank patend.
Trying to install linux on my microwave, but keep getting a kernel panic...
> Are they allowed to completely strip my rights to the software?
Um, they are allowed to ask for anything they want (that is not illegal) in a contract, and you are allowed to either sign it or not. If you are paid by them and write the software on their time and sign a contract saying they own it, you don't HAVE any rights for them to "strip".
You are also allowed to negotiate, although I wouldn't hold my breath...
Yes they can take away all your rights to the software, but no you shouldn't allow them to do it.
First, I've been a grad student at one university and a professor at another, and I've always avoided signing these agreements. It turns out that if you just avoid signing them and aren't too confrontational about it, you can easily slip through the cracks.
Second, you should talk to your professors and see if they will allow you to develop software publicly under some irrevocable license like the GPL or BSD. With revision control software like git, it's pretty easy just to throw the repository on your home page and make everything you do available to the world (including yourself) on a royalty-free basis. Import some GPL-ed third-party code into your project for extra protection.
Finally, sometimes professors do try to exploit grad students for the purposes of launching their startup companies, etc. If you feel that you are going to be in a position where your research is compromised (for instance because your results are no longer reproducible by the community), then you should find another research group to work with!
You're in Canada, right? There's a reasonable chance that your university has a law department. Visit and find someone there who can answer your question based on their expertise in IP and contract law. After all, you wouldn't ask Slashdotters about excising intramedullary spinal cord tumors, because most of us don't have a firm background in neurology. What makes you think we're any more qualified to provide a meaningful legal opinion in your jurisdiction?
As a research student you are "hired" by the university. End of discussion. Your tuition and stipend are paid to you from research grant money that is owned by the university/professor.
Faculty members at some universities may retain their intellectual property rights. This is because there is a separate contract negotiation that takes place between faculty and universities. You [the student] are not part of this agreement.
At every PhD institution I know of, Teaching Assistants and Research Assistants are employees. In fact, third-rate employees. You get no health benefits, you get no retirement benefits and you get no intellectual property benefits. Basically, you get no benefit other than an effective scholarship.
You're screwed. They own your software. It is black and white.
I will never live for sake of another man, nor ask another man to live for mine.
What he does with it is completely different to whether he has rights or not.
Engineering is the art of compromise.
Of course, this is slashdot, and IANAL. But having a little experience, this is my take on things:
If your creative duties were supervised by the University - that is, they told you what program to write, and how to write it, and your duties included writing code - your chances of winning a court case in your favor are very small.
Teachers and professors are in a different category because, generally speaking, they are not producing a "work for hire" - but are instead hired for their role as a teacher or lecturer. The University does not retain creative control over their work; does not proscribe what is produced; and does not require them to produce code as part of their duties. That is, the code is incidental to their work. Thus, they can often retain copyright of the code they produce.
From your description, this does not sound like the case at all. Instead, from your terse description, I, and a court, could reasonably conclude that you were hired to write code (among other duties), and hence, your employer owns the rights to it.
Unless you have a well-documented case to the contrary, it would be safest to assume your University's legal department is correct.
The society for a thought-free internet welcomes you.
several posts say talk to an attorney, in detail, when they can READ your contract, and they're right. IANAL. However, since this is the Internet, I want to take this opportunity to point out several substantial flaws in your submission.
0. Posting here and not getting an attorney. Fail.
1. A purely ownership and non-personal right like this, it's very unlikely there's any prohibition against you signing it away. (Unlike, e.g. some noncompetes which are SOMETIMES unenforceable.) Fail.
2. If you sign this when you obviously (and demonstrably - you posted it here!) thought they intended it to mean you had no ownership, the courts will not look kindly on you turning around and saying you don't believe that. That's called 'bad faith'. Even if the contract WAS weak, if it's clear that both parties understood the same intent, usually that's what happens.
And there's a good reason for that. Knowingly signing that when you clearly believe they mean that if you don't intend to carry it through makes you a liar.
Fail.
3. That the faculty, who have a totally different contract, get to keep their work has no bearing on your contract. Fail.
4. The faculty don't even meet the standard you set out - which is 'if you're paid TO develop software' - which they aren't. They're paid to uphold the educational mission of the institution and do their research. The actual software is (at least contractually) secondary.
I'm not telling you not to take the job -
I only see two glimmers of hope here:
- If the UNIVERSITY's contract with NSERC specifies something different, you count point that out to them.
- I don't know if this is in your goalset, but depending on the U, if you WANTED to open source your project (whatever license) the U may allow that - and you MIGHT be able to get them to approve allowing that BEFORE hiring you. YOU will still own none of it. They'll own all the rights to sell a closed source version, etc., and they could un-open-source their future versions. (Which, if you were GPL, no one ELSE could legally do) But they can't exactly 'unlicense' the code they agreed to release.
Looking for freelance Actionscript (Flash/Flex) or ColdFusion work and/or freelance developers. Email me, put Slashdot
Universities are non-profits
You seriously believe that? They only get taxed like that but for some reason they make a lot of "Excess-Revenue". Which will go to a new football field or a building. Then they will still think that after paying 30k in tuition that you owe them and you should donate money to them.
If something is so important that you feel the need to post it on the internet... It probably isn't that important.
Do you believe in imaginary property or something? Information wants to be free, you know... New York County Lawyer will be helping your University (or whoever else gets a hold of your code) to dodge any and all legal challenges you may pursue — you wouldn't even know, who they are, because the University will bravely refuse your subpoenas against John (and Jane) Does.
In Soviet Washington the swamp drains you.
* Dissy puts on the lawyers hat
As your attorney, I advise you to rent a very fast car with no top. And you'll need the cocaine. Tape recorder for special music. Acapulco shirts. Get the hell out of L.A. for at least 48 hours.
* Dissy takes off the lawyer hat
* Dissy puts on his robe and wizards hat
Er wait...
I just went through the NSERC process for a PGS-D (PhD) scholarship and I was made aware of the different types of NSERC applications. First of all are you undergraduate or graduate? Do you work with a company as well? Was this developed as part of a thesis? Were you funded through some other source?
If you are a graduate with a typical NSERC then you are entitled to the rights of your software. However, the University can publish and distribute the software (not usually code) as they see fit. If you have another funding source (internal? dept? faculty? provincial?) then you may loose the right but not because of nserc. Some jokers say get a lawyer etc.... ya right easier said than done considering you are likely a poor sap. You are better off contacting your student union and getting your graduate student association involved. Get someone with a big mouth that will threaten to go on TV about it. Also go to the heads of department and talk about it. What does your supervisor say? Are you in a lab? It is odd that you post this in the end of the first semester if you were undergrad so I'd say you are graduate. Good luck.
You must have signed something when you started the job... either for the University or for the company/agency you're working for that is under contract to the university. You should read it... as it's quite likely binding. If it states that they own the rights to whatever you produce while employed by them... it's _quite_ likely to hold up should it come to that.
This is somewhat like asking "Can I tell my wife to take a hike and give her nothing?" after you've been married for 45 years. The answer is more than likely "no." You should have known what you were getting into at the outset... after doing all the work subject to an employment contract isn't the best time to ask what your rights are or try to negotiate or open-source something. You can ask, but if they say no, that's pretty much the end of it. Unless you decide to say "screw it" and then steal or open-source the code... which could open you to criminal and civil liabilities.
Never trust the legal advice from counsel representing the opposite side. You should probably consult your *own* IP lawyer. If you haven't signed anything yet, you might still have some negotiation leverage (supposedly).
Also, if the only right you want to keep is the right to keep working on your own software (after that research is over), try to find a lawyer who is for open source, and see if open source could still get you that grant money -- but protect you -- if for some reason -- the University decided to take that entire project away from you. Open source is a great protection mechanism for core developers. I know it was for me (when I was working for a private company). The worst part might be that you lose the name of your project, but if that happens and even if you relaunch a rival project elsewhere, all the community and all the potential clients will simply follow whoever the original developers were to the new project.
That being said, do consult a lawyer to make him look at your specific situation. And talk to the actual faculty sponsoring the research, if they're high enough on the totem pole, they might be able to successfully pressure their legal department to give you a specific written exemption.
These are all very good questions, but you should not be asking Slashdot, you should be asking your attorney. Not having one is no excuse. For something like this, with the ramifications being as big (and permanent) as they are, you need to get one.
He should get an attorney, but there's nothing wrong with asking Slashdot first. A good lawyer will happily charge you $250 an hour or more to teach you about very basic stuff, but that's a waste of money and time.
If somebody's charging you $4 a minute, it makes sense go in prepared. And how do you get prepared? Reading about the fundamentals, getting advice from people with similar experiences, making lists of questions to ask, figuring out what to tell the lawyer, and talking about your concerns with peers. And where can he do all of that? Right here. And as a bonus, a bunch of people who will be able to use the knowledge one day will get it for free.
Can anyone name any other occupation where people have such an exaggerated feeling of ownership over what they produce?
Even if you think you own this software, if it's a good idea, people will copy it, or steal the design, and never pay you a dime.
Do it. Do a great job. When the time is right, move on to the next great thing.
Canadian law is very different from US, particularly around work-for-hire and you really need to talk with a local legal-aid office or lawyer.
You can sign or not sign anything. If you don't like what it says then don't sign it.
Even if it turns out to be unenforceable it would still be your burden to convince a judge of that if they decide to sue you.
DISCLAIMER: By reading this post you agree to Great Grandparent post.
A bullet may have your name on it but splash damage is addressed "To whom it may concern."
Similar situation, my solution:
1. Wrote a non-trivial GPLed library of functions that would be useful to the SSHRC project, but not specifically for it, nor paid by the university for it.
2. Based research-related code based on the library, with full knowledge of the PI.
3. Profit.
Also #25970817 is wise, as this is an issue in Canada.
I paid for that code you wrote it should actually belong to
the public not you or the university.
Got Code?
Comment removed based on user account deletion
The word "fail" is not punctuation. Let's at least pretend to be adults here, please. Your otherwise valid points lose credibility with that kind of juvenile banter.
NSERC's web USRA web page says:
Who owns the rights to intellectual property from research?
NSERC does not retain or claim any ownership of, or exploitation rights to, the intellectual property resulting from your NSERC funding. However, since NSERC's role includes promoting the use of knowledge to build a strong national economy and improving the quality of life of Canadians, every effort should be made to have the results of NSERC-funded research exploited in Canada, for the benefit of Canadians. You are encouraged to discuss intellectual property rights with all parties and organizations involved in the research.
My read: if the University decides to keep the IP, they can. In fact elsewhere, the Industrial USRA documentation explicitly gives the employing company the IP.
From what you said, I understand that your University's policy depends on if you were acting as an employee or as a student. So, what were you? Did they/will they pay you as a T4 (withheld tax) or a T4A (no withholding). If they payed you with a T4A, they were claiming you were a student, not an employee.
fwiw, I hire my USRAs as T4A
Get a lawyer. I AM a lawyer, and as such, I can confidently say that only a lawyer is qualified to answer your question. At that, not just any lawyer: either one who has dealt with similar issues before, or one who can and will devote the time to read your employment contract (and other relevant documents) and research the statutes and regulations (and possibly case law) pertinent to your issue.
Since you're a student (and thus, probably poor), your best bets are your local Bar chapter and your local law school copyright professor. Local Bar organizations tend to have a program in which the Bar matches up potential clients with willing attorneys. You might get lucky and find someone (competent - make sure they have a more than passing familiarity with the Copyright Code) who is willing to work for you on the cheap. Alternatively, you might get lucky and find a law professor who finds your question interesting.
If you can't find a lawyer who will spend the time to answer your question, you'll want to read the law, i.e. the Copyright Code, 17 United States Code. Start with sections 101 and 201, definitions and ownership, respectively. But your question also requires an understanding of whether you are an employee, whose employee you are, the law and regulations surrounding your grant, the university's own policies, your "employment" contract, and whatever contractual papers relate to your grant (whether signed by you or the university). We, the Slashdot polity, CAN NOT make an informed decision regarding your question, because we do not have access to several of these sets of documents. Get a lawyer, or be prepared to guess. You are not qualified to read your contract because lawyers use words you know to mean things that you (1) do not expect and (2) would be unlikely to understand without some education in the law.
If you ARE the university's employee, and none of the related contracts, laws, regulations, etc., supercede copyright law on this question, then the university's lawyers are probably right. But please don't take my word for it, or the word of anyone else on this forum. Get a lawyer!
IANAL but I've certainly paid a lot of money to a few of them so I have some experience in this area. You don't say explicitly but I'm going to assume you are in the USA.
Unless you have an explicit contract that states who owns the rights to any code you produce than the whole issue comes down to a determination as to whether the effort falls under "Work for Hire". By default the author owns all copy rights to any work produced. The exception (when there is not an explicit contract for rights in place), in the USA, occurs when a) you are a W-2 employee (1099 and contractors don't count) and b) the work falls directly under the efforts that you are being paid as part of your employment.
The odds are, if you were being paid as an employee under a W-2 where the employer withholds taxes, that your efforts are considered a work for hire since it appears that the code in question was developed to support the research that is the purpose of your employment.
If you are not a W2 employee (doesn't matter if its the Uni or another agency paying you - its the W2 that counts as another agency owning the rights probably assigns them to the Uni as part of their contract) then you own the rights unless there is a contract with you that states otherwise.
Now - you may find yourself rapidly unemployed (as I have been) once you point this fact out to the Uni who will then make continuation of your relationship with them dependent on you signing away said rights. In my case it was actually explicitly excluded from my employment when I signed on because it was based on my prior work so I declined to sign away my rights. You may not be in a position to do so...
Good luck.
IANAL, but IAALS
Here it sounds like you are the employee, and the University is your employer. (You are not a faculty member; they have different rights to their work product.)
You said you 'weren't hired directly'... I doubt this means what you hope. I'd guess that the NESRC paid the University, who in turn paid you. Look at your checks: if they are issued by the University, you're their employee.
It sounds as if you've been working on University grounds, using University equipment and resources, and getting paid by the University to write software, and you've finished the task. Writing the software was your main duty as an employee.
From what you've said, I believe you will NOT be able to properly claim IP rights to this software.
well, obviously they can't claim rights to code that they didn't fund the development of. that doesn't seem like what the University's policy is.
the lesson here isn't to not sign anything you don't agree with (that's just common sense), but rather don't do public research if you're not comfortable with doing public research.
the NSERC seems to be a government institution, so all research that they fund is by definition public research. naturally, academic research is going to remain in the control of the academic institution where it was conducted. this is done in order to keep publicly funded research free and open to everyone in the spirit of academic openness and to facilitate scientific collaboration. you can't accept government funding and then turn around and decide you don't want anyone else to have access to your research. it's not fair to taxpayers for them to foot the bill for proprietary research that is not made available to the public.
in the context of software development, i would expect the university to release the source code under some kind of open source license. if it's a BSD license then the developer who wrote the code should still be able to commercialize his software if he wants to. he has every right to make money off of his code. he just doesn't have the right to accept research funding from taxpayers and then renege on the agreement to make the research/source code public. besides, it would really hinder scientific/technological progress if all public/academic research were tied down with patents and copyrights. waiting 15-20 years after a scientific breakthrough is made before another researcher can build upon it is just impractical.
it's really no different from being paid to do software development for a commercial company. if your employer pays you to develop the software, you can't expect to retain the rights to the code you just sold to them. i mean, what are they paying you for?
Personally, in this situation, I'd actually grab a copy of any contract, call NYCL's office, explain the situation, and ask for a quote. His contributions on here have shown me that he probably knows enough to give you the *right* answer, and in a very minimal amount of time. You might even get the Slashdot referral bonus.
....But that's just me, and this is Slashdot.
Boot Windows, Linux, and ESX over the network for free.
Would you have written that software without being employed in your current situation? Have you used University software? Have you gotten help from professors and other students?
My point is this: Often students think that they have done something completely by themselves, but the university is paying you and providing you with a creative environment to develop. Most companies will not do that... and they will still take your software you write at home on their laptop.
You are wrong about this. In most states in the United States,
Copyright is a matter of federal law and federal jurisdiction, not state law.
"Copyright" is based on one of the specific powers reserved by the constitution for the federal government.
It's not just some states in the US, it's all states in the US.
If an employer hires you to create a work in exchange for something of value, you complete the work, and receive the thing of value, then the employer is legally considered the author.
The relevant law is the US Copyright act of 1976. Specifically, one way a work can be considered a work for hire, is if it is:
a work prepared by an employee within the scope of his or her employment.
Unless you are not an employee, the work wasn't prepared at the time of employment, was outside the scope (I.E. not of or part of a work you were employed to create), then by default, the employer owns it, absent an explicit written agreement to the contrary.
I've run into a number of bad contracts and have been unable to afford a lawyer, and was willing to accept pretty much anything just to get working again. All of the flaws you mention are things that have come back to bite me in the ass (well, except for the asking slashdot part).
I've learned that keeping any rights to commercially developed software is unlikely unless you have some kind of weight in the business community. Learning what that really means sucks hard, and that's why I believe that Free Software is ultimately better -- it's not produced in software sweatshops, where the true genius will never get compensated, either in ego, or in money for the full value of their work. Of course, that's why I no longer work in IT. There's plenty of money someplace else, and you'll be treated like a person and not some code creating machine.
"Please describe the scientific nature of the 'whammy'" - Agent Scully
Your rights and the licensing options of the software you write are valid concerns. However, these concerns should be addressed before you write even a single line of code. It's just a bad strategy to write the code and then try to sort out who it belongs to.
I realize this doesn't help the current situation, but that situation may or may not be salvageable. It's a better plan to go forward resolving to solidify your stance and awareness of who your work belongs to before you do the work.
I think The Simpsons episode covered this when the kids collectively bought Radioactive Man.
If you're in the Stallman camp then stop reading now, because your rights (and your freedom) are more important than anything. If you've read this far, then you're asking the wrong question. If you've written software as part of some university research project, then you need to ask the question: is making a fuss about this worth my time and effort? Unless you're working on the next Google, the answer is probably going to be "no". If you're a pragmatist, you're probably net better of writing it off as a learning experience and moving onto something else. University research projects almost always amount to nothing.
Wolfram, however, had other ideas.
There was a protracted, expensive legal battle, in which Wolfram argued that -- despite the overt cultural backdrop of sharing knowledge -- since he didn't expressly sign his rights away, it was all his, and Caltech could go pound salt. It ended up with Wolfram resigning from the physics department and taking all his intellectual "property" rights with him.
And that's why, to this day, it costs $2500 to buy a copy of Mathematica. And also why that clause is in your contract with the University.
Schwab
Editor, A1-AAA AmeriCaptions
It sounds like adults are required to use language rigidly, express no emotion, and generally not have very much fun.
How about we pretend to be rational instead?
Things can get complicated.
I know nothing of how it works in the US, but in Norway it all depends on the contract.
If your job descrition includes programming and development, employer has every right to the IP.
On the other hand, if your job description does not involve programming or development you most likey have the IP rights on your side.
Same goes for researchers. If a researcher discovers something it is IP of the employer, because that's what you are hired to do. Should the cleaning personell happen to develop a clever way to clean the floors the employer does not automagically retain IP rights.
The researcher is paid to research new IP. That is their job. Therefore any new research belongs to the employer. The cleaner is employed to clean. That is their job. Therefore any new research belongs to them.
Not that difficult to understand.
Many university IP contracts specifically allow researchers to release their software under free-software licenses. If his does, and if that were his intent, then it wouldn't be necessary to resolve the question of whether they can claim any rights, since the free-software license would be valid either way.
If, on the other hand, his intent is to make a proprietary commercial software product out of it, and avoid them getting a cut of the royalties, then he would be more interested in the specifics of IP ownership.
10 PRINT CHR$(205.5+RND(1)); : GOTO 10
Something that worked well for me in similar situations was this:
Request that the software is released under an open license (in my case, the BSD license), a request that an academic organisation is unlikely to refuse. There is no need to actually give anyone else a copy of the source. When you leave the university, you have full rights as bestowed by the license even if the copyright on the source belongs to "Regents of the University of California", or whoever. Problem solved.
Having said that, if your software is anything like typical academic software (my own included) then the source code will be dreadful and worth next to nothing. It is the ideas encoded in the code that are valuable - and the ownership of those is a whole other argument.
The university may or may not have certain rights. Whether you agree or not doesn't matter, they have whatever rights they have and they don't have whatever rights they don't have. There is no way they can force you to sign over any rights. Either they have these rights, then they don't need you to sign them over. Or they don't have the rights, then you are under no obligation to sign them over. (BTW I was told that in US law, you can't sign over copyrights that don't exist yet. Like the copyright for a book that you are going to write, or the copyright that you are going to develop. For the simple reason that the copyright doesn't exist. The signing over must happen when the copyright actually exists).
If this SW has commercial potential, then enter into a joint participation(Joint Venture or JV Agreement) agreement with the University(U) so that each get 50% of the commercial revenue. This might entail the U making a deal with a SW corp in that area and you providing source and notes to allow them to maintain the product. Usually the home College will get a site licence, and the SW corp will want to sell the product to industry and might give site licences to other colleges to breed a bunch of users who will create industrial demand. As for release as a free product under a BSD that would probably reduce the apparent value of the product to the SW corp, so take that into account. The legal dept at the U will be under a broad mandate to profit the U and not you, so they may give you biased advice. One way, as said by others, is to get a law prof to get some of his students to take it on as a project, for free, as a training exercise if you cannot really afford a lawyer on your meager stipend
Having been through this, there are three likely outcomes in decreasing probability.
Assuming the latter greatness, in my experience the likelihood of the university patenting your algorithm is vanishingly small. But if they do, great! You are a young researcher with a patent. Chances are the Univeristy will profit share ( in theory at least. At one institution the patent office made just enough money to, you guessed it, fund the patent office ). If they don't, you are a young researcher with a patent. Sounds like graduate school gave your career a boost. Ten years down the line I'd rather have a patent under my name than the software I wrote.
In either case, publish. Publishing is the GPL of the academic community. I have had greater success making my source code GPL when I talked to my principal investigator about supplementary materials for publications than at any other time. If this fails at least you'll know whether the algorithm is patented before publication, if it isn't, you will be able to use the algorithm in the future free and clear. If it is, I'll repeat myself: you are a young researcher with a patent AND a publication.
Why are so many /. readers so frightened of work-for-hire arrangements? Copyright is not a birthright. You do not automatically own the rights to things you create.
You are quite right to recognize and debate the issue. But you start from a point of assuming you should retain those rights. Welcome to employment. Usually, you don't retain the rights to things you're paid to create. That the rules are different for professors is irrelevant.
You have the basic equation right -- the deal is what you agree to -- but you seem to be overlooking WHY people are paid to create software. People pay you to create software because (by doing so) the value accrues to them.
Work-for-hire is neither bad nor unfair.
http://drteknikal.blogspot.com/
You said from experience, slashdot is the perfect place to get misinformation on legal matters.
Please detail your experience. What information did you come to slashdot for, and what advice did you get, and how did it burn you?
Correct Horse Battery Staple: 72 bits of entropy. Enter "Correct H" into google. When it generates the phrase, that's
the NSERC seems to be a government institution, so all research that they fund is by definition public research. naturally, academic research is going to remain in the control of the academic institution where it was conducted. this is done in order to keep publicly funded research free and open to everyone in the spirit of academic openness and to facilitate scientific collaboration. you can't accept government funding and then turn around and decide you don't want anyone else to have access to your research. it's not fair to taxpayers for them to foot the bill for proprietary research that is not made available to the public.
I'm pretty sure that's completely untrue.
See, e.g., the Bayh-Dole Act. There was also a recent hearing in the House aimed at overturning the NIH's open-access stipulation for publications. Just because something is publicly funded does not mean that it is freely and publicly accessible by any stretch of the imagination, regardless of how much that should be the case.
But maybe I'm completely misunderstanding things...
"Anyone who [rips a CD] is probably engaging in copyright infringement." - David O. Carson
There's no get outs, or wiggles there.
However, you may well find that to be negotiable - it's often a standard term in a contract, as a 'catch all' for 'anything you make as part of your job, is ours'. It's far easier to put that in the contract on day one, than to have to fight in court.
I had a similar term in mine at a previous employer - I was being hired to sysadmin, and there was a term covering intellectual property of stuff produced.
Turns out they didn't actually care that much, because my job _wasn't_ to produce code, and so we agreed to delete that from my contract, and replace it with... well, I can't remember the exact wording, but approximately anything I was specifically asked to write by my employer (and thus was paid for) was theirs, and anything derivative I could release provided I didn't profit from it. Or something like that, anyway. But as my interest was being able to post snippets on websites, and occasionally publish the odd test script, or maybe work on GPL software, that was fine.
My university owns code I wrote for some projects, which is why I got it written into the grant application that any code developed on those projects would be released under a BSD license. This means that it doesn't really matter who owns it - I can use it in any project I want to in the future.
I am TheRaven on Soylent News
I have worked on both industry and academic projects. If they really want to own and "close source" the code I write, then they have to pay a hell of a lot more than if they just want to open source it. Academia never pays that much, so I always:
1) negotiate for personal ownership or charte blanche open source.
Usually the contract negotiator has no clue and agrees.
If that is not possible then
2) make very liberal use of gpl code in my project after clearing with group leader.
The latter approach is usually very appealing to lower management, i.e. group leaders, since it brings higher productivity and faster results that will be easier to maintain in the future.
I think the first post states the case pretty clearly regarding negotiation - but inherent within that point there are some things to consider:
FIrst off, do you have significant leverage to negotiate? if you back out, how hard would it be for them to replace you and get what they want? Would it set the project back? If you are easily replaceable, then you don't have a lot of leverage to negotiate...
Also, how would leaving the project affect you in other ways? Would you lose valuable experience and contacts? would it make it difficult or impossible for you to do other work for this institution or others (EG would it give you a reputation as being difficult to work with)?
There are more things to consider than there appear to be on the surface.
Also, do you think that if you did do this work and didn't have the rights to it, could it really affect you down the road practically, or is it more of "I don't want to sign rights to my work away because it's my work and that's not right." (which I can totally empathize with, but which you may want to reconsider).....
Finally, is there anybody there who you cabn approach and discuss your concerns with? Maybe you can get rights to use the parts of your work that don't directly compete with or infringe on the compelted project and could get an agreement like that.
Lesson 2: you're already into this deal, too late to renegotiate. If you move on to "professor" status, you'll have justification for why you want rights to all software you develop - then.
Try actually reading the law instead of asking a biased bunch of people on a web site. And, if you don't like the conditions, don't take the position.
There is no "-1 offended" or "-1 you don't agree with me" mod options for a reason.
I've learned that keeping any rights to commercially developed software is unlikely unless you have some kind of weight in the business community.
If you're being paid to develop that software, then that seems fair enough to me.
The trouble is when employers go beyond that. In employment relationships, and only IME of course, a lot of employers' lawyers default to inserting clauses into the employment contract that say the company owns everything you do. Often, there is nothing limiting this to things you do as part of your job, so it includes the blockbuster movie script and novel you wrote in your spare time as well, and certainly programming-related things like any work you'd like to contribute to an OSS project. Obviously this covers the employer unambiguously in the event of any dispute, but screws the employee.
The interesting thing is that, again IME, many employers will accept that this isn't a fair deal and will be willing to adjust the wording to something more balanced, if you challenge the deal before signing. A few won't change their standard contract, but there is such a strong correlation between those I would/wouldn't be comfortable working for and those who are/aren't willing to make such a change that this is now one of my two "acid tests" when interviewing for a programming job. (The other, if anyone is curious, is whether they are willing to show me their code and that code looks respectable. Again, places that decline to do this or where the existing code quality is poor tend to have other weaknesses as well.)
But in any case, that may or may not apply here, and I strongly agree with those who say that if this is in doubt and may become relevant then the OP should get a real lawyer to look at the exact contract being offerred.
If you disagree, post your argument. (-1, Overrated) isn't your personal censorship tool for views you don't like.
The researcher is employed to do a specific job. The results of that job belong to the employer, and nothing else. If a company pays you to write a piece of code, or engage in some kind of development, they usually have a bunch of dudes in suits and the god aweful ms-project tracking that everything you do is germain to the task at hand. If you engage in ancillary work that you might think might be helpful, but is not on the plan, you get the shaft.
To bring us back to a higher level. You pay a cleaner to clean your bathroom. If you aren't paying him to clean your garage, you don't the obligation for him or her to do so. If you pay a scientist to go and cure cancer, and, on his own time and dime, that scientist cures aids, so long as the scientist is delivering research per the project plan that you have set out for the cancer, and uses his own time and resources to cure aids, then you don't get that research.
Employment pays for jobs to get done and is not indentured servitude.
This is my sig.
It's work for hire. By ordinary copyright law it's not yours. It's your employer's, unless you negotiate other arrangements. If you're working on the software for money it pretty clearly isn't yours any more than if you design and build a car at a factory. The manufacturer would probably object if you started driving cars off the lot or sold the engineering designs to other companies, right?
The only details that will matter is who you are negotiating with for better terms: the researcher, the university, someone else (e.g., granting agency), or all three. More than likely, it's the researcher, depending upon the contract they have with the university. You *must* find out what that arrangement is. That arrangement sometimes includes automatic perpetual licensing agreements with the university or sharing of royalties for patented inventions, and a variety of other complications even if the researcher "owns the IP" in a general sense. Generally, commercial == greater complication. It depends upon the university. Fortunately, NSERC isn't an issue. They don't lay claim to work done with the research funds.
Most researchers are going to be open to alternatives and will try to facilitate them for students, as long as they get to continue using the software they've paid to have developed. As other's have suggested, getting an agreement to a GPL, BSD, or similar license might be a way to ensure you can continue to do what you want with the code after your work finishes. But you've got to make sure that a researcher has the ability to allow that kind of licensing via their arrangement with the university.
Whatever you do, don't start the negotiations with an indignant attitude about the situation. Get this clear in your head: the rights you say have been stripped you probably did not have in the first place, if you were being paid for the job. You were operating with a misconception if you thought otherwise.
I looked around, and found this bit of information from McMaster University that might help. It describes a number of situations that can apply at a university (e.g., the difference between work for hire and work that students do in courses). It is likely there are many differences across the country, but it should give you some ideas about the usual situation.
Welcome to the harsh world of gainful employment, young researcher!
Let me clarify this a little for you:
NSERC in Canada is the "National Science and Engineering Research Council".
Basically, they fund professors and students to foster research work and the like and improve the overall state of the art. They do not claim ownership of the work you do under that funding -- I myself worked in university for a prof who had an NSERC grant. I was paid out of his budget, and while he might have had some measure of accountability to them, they didn't really dictate terms to him or demand that they get the research work as their own.
The university does NOT own the work that professors and students do under an NSERC grant. A professor who published papers or creates software (etc) under this program is the owner, NSERC is the funding agency. The University is just the place where the work was done -- it's my understanding that unless the professor signed something that says the university owns it all (and, no prof would) that they have no claim to it. The professor is motivated to research and publish for his own ends and if he moves on, carries his research work with him.
In short, based on my experience with NSERC, the university has no claim if he is being funded under NSERC and working with a professor who retains rights to his own works.
Unless things have changed (and, granted, university was a long time ago) there is nothing in an NSERC funding that stipulates that the research is the property of the funding agency.
Cheers
Lost at C:>. Found at C.
While I agree with the majority of you post...you have me completely baffled at your taxpayer comment. What tax system would you propose we use that doesn't 'hurt ourselves'? And with Obama coming into office...I don't think the system in place will be very friendly to "the rich"..who already pay a disproportionate amount of the US tax.
Anyway, please elaborate...
Light travels faster than sound. This is why some people appear bright until you hear them speak.........
Sometimes it does, and sometimes it doesn't.
Consider what the "B" in BSD stands for. And BSD-derived OSs are almost the most liberally licensed software in the universe. U Cal Berkeley retains copyright on most of it, and yet haven't commercialized it to any significant extent that I can see.
Welcome to the Panopticon. Used to be a prison, now it's your home.
You cannot contract in any way that violates the law, however you SURE AS SHIT can sign away your rights. How do you expect people in the military to ever sign contracts? They remove the right for themselves to go as they please, to live where they wish, and to disobey orders without criminal prosecution for such. You can sign away your rights on many things.
You mean that a single word, standing by itself cannot be used to denote punctuation? Bullshit.
Take a look at the recent Forbes magazine. They did a story on "regular" families (all of whom make in the neighborhood of $250,000 - $500,000 a year or more - very not "regular" frankly) hit by the economic crisis.
In that article there is a chart of who pays what portion of the tax burden. The largest group, who pays a healthy 11-13% (can't remember the specifics) are people making around or below $50,000 a year.
The group paying the largest portion of the taxes (and the most as a percentage of their income) is those guys in the 250K - 500K range. Now, that's a problem I'd like to have - just to get that out of the way.
Next up is the millionaires, the guys making multiple millions a year - they are paying a smaller share of the tax burden than the guys making only a quarter of a million, and are paying a smaller amount as a percentage of both what they make, and how much wealth they control.
That is an unfair system - mostly unfair to the knuckle heads in the 250K-500K range, who are paying for the millionaires' Bentleys and 13th houses.
Why knuckleheads? Because those same guys love to talk about wealthfare moms and public school kids, and how unfair it is that they have to pay for all those "social programs". Cry me a river.
Maybe those knuckleheads should be pisses to hell, that the millionaires - the guys getting the most benefit out of a society that they 250K crowd are mostly paying for - that they don't pay their fair share, and leave the struggling alone, or maybe even, help them out.
To finally answer the question about what tax system doesn't "hurt us" - one that taxes the very wealthy and helps get our public services paid for, to stop them from crumbling - making things like public schools work, a college system that educates, and bridges that don't fall down. FDR style taxes on only the rich, and some relief for the rest of us - economic enabling relief for the people who have a desire - a need - to innovate and get stuff done, but who currently lack the resources to do any of it.
How's that for a tax system that doesn't hurt _us_.
http://www.unfocus.com/
While I agree with the majority of you post...you have me completely baffled at your taxpayer comment. What tax system would you propose we use that doesn't 'hurt ourselves'?
He's saying that the lower and middle class vote for and generally support tax reforms that would only benefit them if they were considerably richer than they currently are, and actually hurt them at their current income level.
Ask any blue collar democrat or bible-belt small town republican or white-collar pointy-haired-middle-manager middle-class joe average whether he thinks we should scrap progressive tax and switch to a flat tax. The number that think this would be a good idea is shocking, given than it will only reduce the tax load on people wealthier than them, and shift that load onto them.
Either these people are categorically bad at math (which is probably true), have delusions about how wealthy they actually are (everybody thinks they are "upper middle class"), or have unrealistic expecations about how wealthy they will be in the near future).
In truth its probably all of the above.
And with Obama coming into office...I don't think the system in place will be very friendly to "the rich"..who already pay a disproportionate amount of the US tax.
The vote for Obama vs McCain was a lot more than simply picking a tax plan, so we can't and shouldn't really equate voting for Obama with understanding how tax reforms will affect them.
Years ago, I helped write part of the copyright/patent policy (I try to avoid the phrase "Intellectual Property," which as far as I know is not recognized in law) for my university, served on the faculty committee making recommendations for disputes, and guided one colleague through a patent owned by the university. You can easily figure out which university I'm at, but it's not really relevant, this was years ago, I think they threw out the part that I wrote (and I don't care), ... Nonetheless, I can make some observations that might help you figure things out.
1. The status of work at a university is very weird, and it's hard to find two people who understand it the same way. The law's concept of work for hire seems clear, but universities accept the notion that they haven't hired all of your work, not even all that you perform during normal working hours (which are never normal at the U). I heard very high administrators say that faculty are faculty all the time, 24x365.25. But we also pretend that our salary only covers 9 months, and we are allowed to take summer jobs in which we make contracts providing our work to other institutions. Point: it's totally unclear.
2. Almost all work under a US government grant is done as a university employee. The feds grant the money to the university. Under the terms of the grant, a principal investigator (PI) has wide authority to tell the university how to spend the money (and almost no accountability for doing it wrong---universities get dinged for statistical estimates of the amount of mistakes made by PIs). Anyone working on the grant is a university employee, paid from "restricted funds."
3. The feds have never to my knowledge claimed ownership of work performed under research grants. In the past, they have explicitly encouraged universities and other corporations to own and exploit patents and copyrights obtained with grant funds. There is a trend toward requiring open sharing of some grant results, but I haven't studied this. It may only apply to data so far, and it probably varies between funding agencies.
4. Universities have good grounds for claiming that work done with their money (a very ambiguous category, as I mentioned in #1) is work for hire, patents and copyrights due to them. They routinely give back the copyrights to creators, on the excuse that these copyrights have to do with publication of research. That's often true, but it is also applied to rather cynically produced textbooks, that appear to be written mainly for plunder (which very few of them actually capture).
5. Universities have a mission to publish research, and they get financially valuable prestige from research associated with them. They tend to avoid obstacles on research publication. I recommend associating software as closely as possible with research articles and reports. Maybe the source code is an appendix. Maybe the journal won't print it, but they'll give the URL reference. Years ago, I think I established a policy that my U would never stand in the way of software being released to the public (GPL, BSD, implicit full license---incorrectly referred to as "public domain"). I don't think this policy was ever violated, I don't think it ever will be, but a lot of people don't have confidence in it.
6. Toothpaste comes out of tubes more easily than it goes back in. Anything posted on SourceForge, released with an explicit statement of GPL or other irrevocable open license, is unlikely to be closed down successfully in the future, especially by an organization as clumsy and partly benign as a university.
Gotta go to class. I'll add observations as a self-reply later. I'm not very interested in arguing any of this---just sharing my experience.
Mike O'Donnell http://people.cs.uchicago.edu/~odonnell/