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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.
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.
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...
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?
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.
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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.
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Two things:
First: Lawyers are expensive. Very expensive. Most working people can't afford them very well, much less research assistants or students.
Second: The average city isn't exactly crawling with competent Intellectual Property lawyers. I would say the typical lawyer would say "huh" and maybe get you some boilerplate legal templates to use, and not really help you much beyond that.
I say stand your ground if you have agreed to nothing so far. Losing you completely gains nothing for them, they will cave in. I've never found it hard to allow organizations or institutions to allow me to keep rights to my software, as long as they get to use it.
Love many, trust a few, do harm to none.
* 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.
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.
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.
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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?
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
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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?
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.
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.
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.
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.
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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.