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Software Your Rights Online

Losing My Software Rights? 440

Posted by kdawson
from the work-for-hire-but-not-for-you dept.
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?"
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Losing My Software Rights?

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  • Negotiate. (Score:5, Insightful)

    by bluefoxlucid (723572) on Tuesday December 02, 2008 @11:25PM (#25970711) Journal
    All you can do is negotiate. What you sign away is law.
  • Whatever you do (Score:4, Insightful)

    by SirLurksAlot (1169039) on Tuesday December 02, 2008 @11:27PM (#25970729)

    get it in writing.

  • Guess what... (Score:4, Insightful)

    by Creepy Crawler (680178) on Tuesday December 02, 2008 @11:30PM (#25970763)

    Talk to a fucking lawyer.
    Or back down.

    • by arete (170676) <.areteslashdot2. .at. .xig.net.> on Tuesday December 02, 2008 @11:47PM (#25971007) Homepage

      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.

      • by mandelbr0t (1015855) on Wednesday December 03, 2008 @02:04AM (#25972095) Journal

        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.

        • Re: (Score:3, Insightful)

          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

    • Re:Guess what... (Score:5, Insightful)

      by DustyShadow (691635) on Tuesday December 02, 2008 @11:54PM (#25971101) Homepage
      Not many "research students" have enough money to pay an attorney $250-350/hour to look over their employment contracts.
      • Re:Guess what... (Score:5, Insightful)

        by sumdumass (711423) on Wednesday December 03, 2008 @12:28AM (#25971453) Journal

        then he needs to take a job where you don't need a lawyer to look it over. Live within your means.

        That being said, seeing how this is a university, there are law students and law professors who can look it over and make personal recommendations without acting as your lawyer. Of course you get what you pay for too. On the other hand, he can specifically state that he won't work under those conditions and he wants at least some control over his software if it is done as part of his as secondary to it. Namely, he wants all publishing rights for a period of time (5-10 years) and a cut of any proceeds if they attempt to market his software. On the other hand, he can offer to give that in exchange for keeping his own copyrights.

        There are probably two main reasons why they want to keep the copyright. One is so you don't take what they are hiring you for and turn it into another enterprise and the other is so that you can't take your ball and go home. Giving them a perpetual right to use it and limited control over it's use will probably satisfy their needs unless this is some quasi business ordeal where they are planning on making money from your work.

        • Re: (Score:3, Insightful)

          by Gerzel (240421)

          Some people want more means than is provided by a fryalator.

          A major injustice today is the requirement for professional legal help, at great personal expense to the individual, for every-day legal interactions. This means that while the individual might have rights on paper if they don't have the money to enforce those rights through legal recourse then they don't have those rights in effect.

          • Re:Guess what... (Score:4, Informative)

            by sumdumass (711423) on Wednesday December 03, 2008 @02:29AM (#25972259) Journal

            There are plenty of good paying jobs that don't require a legal degree or the loss of copyrights. This is something that you need to think about before you get there or at the time when you realize it is needed. Of course learning about it yourself is always an option. I watched a 46 year old construction worker who started off working for someone else and ended up working for himself, and is now dealing with millions a month in contracts put himself through college to study contract law in his spare time just so he could better understand what he was getting into. He is now a fully licensed lawyer but still used other lawyers.

            You don't need to become a lawyer but you should know enough to pro se on common things. Of course that won't be enough when shit hits the fan but it should lessen the need to get a lawyer. Know enough to know what your getting into and know enough to know when you need help. It is really just like knowing how to change a flat tire or put gas in your car if your going to be driving. Those of us who won't be in the position don't need to know, those that will do need to know or they need to be able to pay someone else that does.

      • Re:Guess what... (Score:4, Insightful)

        by dougmc (70836) <dougmc+slashdot@frenzied.us> on Wednesday December 03, 2008 @01:59AM (#25972055) Homepage

        ... but can you afford to NOT have a lawyer look over your employment contract?

        $350 spent now may save many many thousands later ...

        • Re:Guess what... (Score:5, Informative)

          by Lumpy (12016) on Wednesday December 03, 2008 @08:05AM (#25973697) Homepage

          Yes I can. Read the contract, strike out with pen the parts you disagree to and initial next to them.

          sign it and give it back after you make a copy.

          All done, if they sign it, they agreed to the changes you made by removing parts in striking them out. I do it at every job I have been hired into, the contract is never 100% acceptable to me. Only a fool believes you have to agree to a contract as-is. even bigger fools believe you have to use a lawyer to do such things.

          Grab a pen, start removing parts you dont like. It's quite fun.

  • OPEN SOURCE (Score:3, Informative)

    by kieblerh (1414625) on Tuesday December 02, 2008 @11:30PM (#25970769)
    Do what all the other cool grad students who are changing the world are doing and open source it!
    • Re: (Score:3, Informative)

      by EvanED (569694)

      You do realize that if you don't own the rights because you signed them over to the university, you can't open source it, right?

      • Re:OPEN SOURCE (Score:5, Insightful)

        by liquidpele (663430) on Wednesday December 03, 2008 @12:39AM (#25971527) Journal
        I always start with a GPL project for things like this.
        Even if I have to rewrite 95% of it, being a derivative means it's GPL whether I technically own it or not.
        • Re:OPEN SOURCE (Score:4, Insightful)

          by Aapje (237149) on Wednesday December 03, 2008 @05:17AM (#25972959) Journal

          being a derivative means it's GPL whether I technically own it or not.

          No, it's not. You can freely combine GPL and proprietary code as long as you do not distribute the software. So the university can always choose to rewrite that 5% and license the code under whatever license they choose. If you release the software illegally, to try and bind the university to the GPL obligation to provide the source, you are guilty of illegal distribution of copyrighted material and the university is under no obligation to honor the GPL. In that case you could be sued by the university for illegal distribution of copyrighted material and by the people you gave the software to, for failing to uphold the GPL license (since you do not have the right to distribute the source, as you are obliged to). If they find this post of yours or similar statements made by you, they can also sue you for fraud, since you effectively tried to make them give their rights away, by using deception.

          It is an interesting case what happens when you use deceptive practices to make the university release the software with GPL components. In many ways, it's like slipping drugs into the bag of a traveler without them knowing. They are completely innocent of any willful crime, but in practice courts tend to sentence them hashly, even when their arguments are reasonable, unless there is a confession by the person who planted the drugs (or other hard evidence). However, courts tend to be far more lenient to organisations than to individuals, so they can probably get out of trouble by simply no longer distributing the software.

          PS. IANAL, so this could all be wrong ;)
          PS2. By trying to abuse the GPL to violate the law, you are not doing the Free Software movement any favors. If someone tries to follow your scheme, gets into a conflict with the organization they work for and the resulting mess gets highly publicized, organizations will start equating the GPL with loss of IP, theft and fraud. Is that what you want?

  • by LrdDimwit (1133419) on Tuesday December 02, 2008 @11:31PM (#25970787)
    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.
    • Re: (Score:2, Insightful)

      by LostCluster (625375) *

      He talked to one who works for his university. The lawyer told him the answer he didn't want to hear. He's coming to Slashdot for a pity party.

      • Haha...when you get sued do you ask the attorney who sued you what you should do? Good luck.
      • Re: (Score:3, Insightful)

        by QuantumRiff (120817)

        Of course, the lawyer doesn't work for his best interest, the lawyer works for the colleges best interest, they are paying him. And come on, the GP, telling a COLLEGE STUDENT to go talk to a lawyer.... How can they afford one? Maybe if their school has a legal department, they can have some students or faculty help them out..

    • by dubl-u (51156) * <2523987012NO@SPAMpota.to> on Wednesday December 03, 2008 @12:11AM (#25971339)

      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.

  • by Panaflex (13191) <convivialdingo@ y a h oo.com> on Tuesday December 02, 2008 @11:32PM (#25970799)

    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).

    • by conlaw (983784)

      If they say you have to, but you really don't want to, don't take the job.

      You can speak to your employer about what you want out of the deal and see if there's any possibility.

      While it's a /. tradition not to RTFA, you should at least RTFS. He's already taken the job and produced the software--and it appears that he has already discussed this with corporate counsel. That discussion was not wrong per se, but it may well have led to in-house counsel having set their minds on the view they espoused during that discussion.

      As several people have already said, "Do not discuss this anymore with University personnel" (this includes the legal department, the IT folks and the professo

  • Seriously? (Score:5, Insightful)

    by p14-lda (517504) on Tuesday December 02, 2008 @11:32PM (#25970807) Homepage
    Ok, we all pass this cross roads as developers. You are hired for a purpose, and if your job is to produce software for that company then they own the software.

    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.

    • Re:Seriously? (Score:5, Insightful)

      by williamhb (758070) on Tuesday December 02, 2008 @11:56PM (#25971117) Journal

      Ok, we all pass this cross roads as developers. You are hired for a purpose, and if your job is to produce software for that company then they own the software.

      Actually, it's rather different for university researchers, such as the original poster. We are employed to research. If we are in computing, then part of that research might involve writing some code, but many of us are not simply employed "to produce software". (Though some are.) As academics, there is a much greater expectation of being able to continue our research at another institution (universities are not in product competition, but are expected to cooperate -- it's mostly public funding after all). A history researcher can reasonably expect to continue his history research if he moves post or goes on sabbatical. As can a social scientist. For a computing researcher (or for microbiologists), however, the IP of the written code becomes a complicating factor. If one university claims copyright, but the only researcher involved moves to another university, it could completely stymie any research progress. So, for instance, Cambridge University does not usually claim copyright over software its researchers produce -- this isn't so much a matter of commercialisation rights as of academic freedom. It's no wonder then that the GPL, BSD licence, and Creative Commons all came out of university environments, not the commercial sector.

      Something the original poster has not mentioned is why this decision "must be made soon". Is it because he is signing a new contract (it would be unusual for an employment contract with a university to claim ownership of code predating the contract), or because he's at loggerheads with the IP department?

       

  • Why? (Score:2, Insightful)

    by Quasar1999 (520073)

    Why do people as Slashdot these questions... GET A LAWYER!

    • "Why do people as Slashdot these questions..."

      Because it's easier than interacting with 'real' people.
    • They were hoping to get a huge outrage and getting them to back down from huge public support... For Free... Lawyers cost money.

    • Re: (Score:3, Insightful)

      by at_slashdot (674436)

      It's a kind of trolling. Ask a hot-button issue on slashdot to make waves. Don't know what's the pleasure, the 15 minute of Internet fame?

    • Re:Why? (Score:5, Insightful)

      by PhotoGuy (189467) on Tuesday December 02, 2008 @11:50PM (#25971045) Homepage

      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.

  • Normal (Score:5, Informative)

    by BountyX (1227176) on Tuesday December 02, 2008 @11:33PM (#25970821)
    According to NSERC no (NSERC Grant Award IP Policy) [nserc.ca] 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.
    • Re:Normal (Score:5, Informative)

      by eggnoglatte (1047660) on Wednesday December 03, 2008 @12:13AM (#25971347)

      Just to add to that: NSERC specifically allows for universities to retain copyright of materials produced under NSERC grants. So yeah, if you take their money, the university can take your rights.

      Even more than that, if the guy did any of his work under direct supervision of a faculty member or staff, the very fact that the supervisor was paid by the university while contributing time towards the project, allows the university to also claim at least part of the ownership.

  • by markdavis (642305) on Tuesday December 02, 2008 @11:33PM (#25970823)

    > 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...

  • don't do it (Score:5, Informative)

    by sdxxx (471771) on Tuesday December 02, 2008 @11:35PM (#25970839)

    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!

    • He can only get it GPL'd if it is A) his to begin with, or B) he gets a lawful agent of the university to authorize him to do so. If he, acting alone, merely applies a GPL label to it, this will do nothing, because he is not acting with legal capacity to surrender the rights in the first place. Just FYI.

    • by CatOne (655161)

      This assumes, of course, that he didn't sign something in the first place. After signing an agreement/employment contract and later writing all the code, is NOT the time to "negotiate" this.

  • Legal services (Score:5, Informative)

    by Dzimas (547818) on Tuesday December 02, 2008 @11:39PM (#25970885)
    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?
  • Yep. they can. (Score:4, Interesting)

    by jwiegley (520444) on Tuesday December 02, 2008 @11:41PM (#25970917)

    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.

  • Universities get given grants and researchers get hired by the university using that grant.

    Your case may be different, but I doubt it.

    Just rewrite it.. they don't own the ideas.

  • First, universities always treat faculty differently. You're just a student researcher. Don't expect faculty rights. It's crappy that's the way the world works, but it does.

    Most places consider software written while being paid for by them labor for hire. As such, they own what you create. In this case, the intellectual property rights to the software. This isn't that different from a construction worker building a building - he doesn't get to take what he made when he leaves. The difference is that

    • by jellomizer (103300) on Tuesday December 02, 2008 @11:50PM (#25971049)

      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.

  • That cannot take your own intellectual property that is in your head. All the lessons you have learned making the project is still in your head. Nothing is stopping you from making some derivative work based on what you learned. I have worked in Consulting for a decade and all my work I do at work belongs to the customer not me. So I am not about to get a sympathetic on your situation. There is a lot of code that I cannot reuse. However with my lessons learned with each project I tend to reuse my ideas a

  • The default assumptions are that if you're paid as an employee (IRS form W-2 sent to you at the start of a new year) or using their resources such as computers and office space then you are writing a work-for-hire and they own the copyright.

    If you are being paid as a contractor (IRS form 1099) and using your own equipment and place to generate the software, then you own the copyright and are licensing a copy to them.

    Of course, this can be changed by a specific agreement.

    Bottom line: If you plan on keeping a

  • by gillbates (106458) on Tuesday December 02, 2008 @11:46PM (#25970999) Homepage Journal

    Of course, this is slashdot, and IANAL. But having a little experience, this is my take on things:

    • The bad news: you probably cannot afford a legal battle with the University, especially if they're your sole source of income. Think about the worth of what you created: does it have a commercial application? Would a business sue for the rights? If not, even if you win a court case, you'll end up spending your lawyer's fees to retain the rights you already possessed in the first place.
    • The good news: you might be able to convince the University to release your code under a GPL or BSD style license, especially if it has little or no commercial value.
    • If you created the code on your own time, with your own equipment, for your own purposes, and have not signed any agreements to the contrary, you likely own the rights. However,
    • If the code you created had a purpose specifically related to the work you were performing for the University, or
    • If you relied on their equipment to produce the code, and/or
    • If you produced the code during established working hours -
    • then the University probably has a good legal claim to it.

    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.

  • Are you a grad student? Even if you coded it, and even if you believe it to be "your" work, you probably can't claim complete ownership, since there was likely some input from your advisor and perhaps other people in the group.

    My students regularly write code, but my input is almost certainly present in the choice of problem, and usually in algorithm choice, design, debugging and verification. But the student would write close to 100% of the code.

    In practice, very few codes written for academic purposes ca

  • by mi (197448) <slashdot-2012@virtual-estates.net> on Tuesday December 02, 2008 @11:56PM (#25971125) Homepage

    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.

  • If you've worked at a university for any length of time, you'd know that the reason faculty retain some (or all) rights to the products of their research is because they specifically negotiated that as part of their initial hiring agreement.

    Otherwise, as others have mentioned, this is simply "work for hire" - and you don't have the rights to what you've produced, because they're paying you to do this.

  • First and foremost, like all the other posts here, I'll tell you that you should not pursue legal advice from blogs like Slashdot. Even if people here claim to be lawyers, they likely are not, and even if they actually are, you are NOT being given legal advice (in the best case, you're getting their hasty first impressions).

    Second: Such ownership rights are usually solidified upon employment by means of signing some kind of contract that agrees on who will own what. Without that, there may still be prece

    • First and foremost, like all the other posts here, I'll tell you that you should not pursue legal advice from blogs like Slashdot. Even if people here claim to be lawyers, they likely are not, and even if they actually are, you are NOT being given legal advice (in the best case, you're getting their hasty first impressions).

      This should be modded up, best advice yet!

  • whee (Score:5, Funny)

    by dissy (172727) on Tuesday December 02, 2008 @11:59PM (#25971181)

    * 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...

  • by Vamman (1156411) on Wednesday December 03, 2008 @12:02AM (#25971215)
    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.
  • Most companies (and I work contract) will have you sign something that, in effect, does the same thing, no matter if the intellectual property is software programming, technical writing or whatever. They may also, as a permanent employee, have you sign a non-compete clause to keep you from jumping over to a rival and transfer your current knowledge of the competitor for x number of years. You can either sign and get the job, try to negotiate and then choose or don't sign and walk. If you're really torn, it

  • by CatOne (655161) on Wednesday December 03, 2008 @12:04AM (#25971251)

    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.

  • My sister 100% owns the copyright to the depressing poetry that she wrote in high school. Big deal.

    Your association with the university may inherently make your software more valuable. If I were you, I'd hold back on some key features, pimp your software as much as possible, then leave the university and write the good stuff.

  • Simply have stated in the contract areas of development or interest which will not be covered under the contract. Any time I have to sign something like this for work I exclude everything I can think of that might be of value to me personally. Since I assume you are not being hired primarily as a developer this should not be a problem. If you are being hired as a developer you have a lot less wiggle room.
  • by stephanruby (542433) on Wednesday December 03, 2008 @12:06AM (#25971283)

    The legal department stated that if I was paid by the University to produce the software, the University would own all rights to it.

    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.

  • Silly (Score:4, Insightful)

    by BlueBoxSW.com (745855) on Wednesday December 03, 2008 @12:17AM (#25971377) Homepage

    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.

  • C A N A D A , eh? (Score:5, Informative)

    by redelm (54142) on Wednesday December 03, 2008 @12:18AM (#25971379) Homepage
    NSERC sounds like a Canadian grant. It is beyond stupid to ask about law without mentioning jurisdiction, especially since most of the posters here are or at least will assume the United States. Most canuks are bright enough to point it out.

    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.

  • by codepunk (167897) on Wednesday December 03, 2008 @12:38AM (#25971517)

    I paid for that code you wrote it should actually belong to
    the public not you or the university.

  • by prof_bart (637876) on Wednesday December 03, 2008 @01:16AM (#25971783)

    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

  • Work for Hire?? (Score:3, Insightful)

    by scherrey (13000) on Wednesday December 03, 2008 @01:22AM (#25971825) Homepage

    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.

  • by Jekler (626699) on Wednesday December 03, 2008 @02:12AM (#25972163)

    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.

  • by ewhac (5844) on Wednesday December 03, 2008 @02:59AM (#25972417) Homepage Journal
    Once upon a time, there was this brilliant guy named Stephen Wolfram. While working in the physics department of Caltech, he developed a program called SMP -- Symbolic Manipulation Program. Prior to that point, it was culturally understood that university research, and stuff developed pursuant to such research, belonged to the University, or to the public domain, so that it could be used by others to further the pursuit of knowledge.

    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

  • by leastsquares (39359) on Wednesday December 03, 2008 @06:24AM (#25973205) Homepage

    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.

  • by gnasher719 (869701) on Wednesday December 03, 2008 @07:42AM (#25973579)
    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).
  • work for hire (Score:4, Insightful)

    by drteknikal (67280) on Wednesday December 03, 2008 @08:22AM (#25973773) Homepage

    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.

  • by moxley (895517) on Wednesday December 03, 2008 @09:27AM (#25974107)

    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.

  • by DaveV1.0 (203135) on Wednesday December 03, 2008 @09:43AM (#25974237) Journal

    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.

  • by ODBOL (197239) on Wednesday December 03, 2008 @03:21PM (#25978607) Homepage
    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.

It seems that more and more mathematicians are using a new, high level language named "research student".

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