Software, Scribe, Universities and Copyright

[Michael.Shamos@CMU-CS-A]

   I'm not usually a reader of the Franz mailing list, but I was perusing
the Franz-Lisp BBOARD at CMU and was amazed to find a recent extensive
discussion of software, universities and copyrights.  I was even more
amazed to see my name mentioned in connection with Scribe at CMU.
   I know I am fated to tell and re-tell this story for the rest of my
life, but here goes again:  No lawsuit of any kind concerning the rights
to Scribe was ever filed.  A dispute arose that was settled after extensive
discussions between Unilogic and CMU.  The result was that CMU quite
properly acknowledged in writing that Unilogic owns all rights in Scribe.
Before CMU could acknowledge this, it needed to conduct a factual
investigation into the circumstances of Scribe development, which partially
accounted for the protracted talks.  
   Let me emphasize that the reason Brian Reid owned Scribe and was able
to transfer the rights to Unilogic is that the CMU Patent Policy specifically
provides that graduate students own their patents and copyrights, even if
they create works using substantial university resources.  The situation
is not the same at other universities.  It is true that I stated on many
occasions that CMU ``had no leg to stand on'' and I always believed so,
because Brian was a graduate student at all relevant times and the policy
provision that applied to him was clear.
   Everyone who says that the issue of rights to software is complex is
correct.  As an intellectual property attorney with academic connections,
I am regularly surprised at my intelligent colleagues who are unable to
distinguish between what the law is and what they feel the law ought to be.
When the U.S. Government funds university research or development, it is
usual for it to grant back intellectual property rights to the institution
involved, reserving certain rights for itself, normally government-wide
royalty-free use.  The Government is NOT the same as the Public.  Just
because the White House is supported with public funds does not mean that
I can spend the night there just because I want to.  Funded
research does NOT automatically become Public Domain.  Nor does a
statement by the Principal Investigator that he would like it to be Public
Domain cause that to happen, either, since the PI is not the owner of the
technology and can't give away what he doesn't own.
   It is possible for there to exist a contract between the university and
its faculty members providing that they own all or a portion of the
research they do under certain circumstances.  In this case, a Government
grant-back to the institution would flow back again to the individual.
Thus people (and companies) can end up owning technology whose development
was supported with Government funds.  I know that many people are repelled
by such a concept, but that doesn't make it false.  You may write to your
Congressmen to get the statutes changed, but it is believed as a matter of
Government doctrine that business will not invest capital in technology
to which it cannot obtain proprietary rights.
   Incidentally, ``Public Domain'' means ``free of proprietary restrictins
and available for unrestricted use by anyone.''  In the absence of a
declaration by the owner that a work is Public Domain, it is difficult
under the present statute for the work to become so.  Contrary to a statement
that I saw here earlier, works created with Government funding or support
are not a fuzzy area at all.  The Copyright Law (17 U.S.C. 105) states that
``Copyright protection . . . is not available for any work of the United
States Government.''  Because works produced under research contracts are
not owned by the Government, they are not works for hire of the Government
and thus do not fall under the above clause.
   It is not the case that Government funding requires an institution to
give technology away to all who insist on a copy.  Some institutions do
this because they feel it is a good policy to implement, but no one is
obliged to do it.
   Of course, this whole discussion should be moved to the INFO-LAW mailing
list.  Nobody has sent a message to it in about a year and a half.
                                           Mike Shamos
                                           President, Unilogic, Ltd.