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Free software and the employment contract

Wed 21 June 2017

No employment contract

Many free software advocates are hoping to find an employer that pays them for developing free software. I was hoping to get employed to develop free software for an EU-funded project as a research assistant.

Note that in Germany, “property rights” of software developed as part of an employment relationship are automatically transferred from the employee to the employer. The actual author loses the right to decide redistribution and licensing of their software. I wanted a guarantee that the software will be released in a libre manner (at least as one among other licenses, see for instance [1] for an explanation of why a guarantee is necessary). So I demanded an agreement for “backlicensing” the software to me that should look somewhat like this:

  1. <Other Party> hereby agrees that, whenever software created as part of an employment relationship between <Employer> and <Employee> of which <Employee> is one of the authors is distributed to third parties and/or published, <Other Party> will give <Employee> a copy of that software under the terms of the GNU General Public License Version 3 and <Other Party> agrees to allow <Employee> to further redistribute to anyone and/or publish that copy under the terms of any newer version of the GNU General Public License. The license of any such copy shall not only convey the right to use the software but shall also convey any other rights granted in the respective version of the GNU General Public License.
  2. <Other Party> additionally agrees not to knowingly obligate <Employee> to work on creating, extending, changing or improving software which cannot be licensed by <Other Party> to <Employee> under the terms of the GNU General Public License Version 3 in accord with section 1) without invalidating requirements of the GNU General Public License Version 3.
  3. <Other Party> and <Employee> may together agree on exceptions to the obligations described in section 1) and in section 2).
  4. <Other Party> and <Employee> hereby agree that interfaces to code of the Omnet++ project constitute an exception in accord with section 3).

The <Other Party> here would have been the human resources department of the university. Of course the obligatory remark that I have no legal education is appropriate here.

Well… The staff member responsible for “law in technology transfer”, who is responsible for licensing, together with the chief of the human resources department, did not make any definitive statements, but did make very clear to me that, if such an agreement were formally requested, it would be denied. They did not even read my above text. This settled this employment opportunity for me. (Nobody else whom I talked to was against releasing the software as free software, but the opinion of the responsible staff is what matters.)

Why?

I believe the reason for the quasi-denial is a perception that it were absurd to believe the university could have an advantage from releasing something as free software when the university does not have to. I disagree: I believe the university profits more from cooperating with others and also that the university profits more from the software existing at all. This did not convince them however and they claimed I were trying to blackmail the university.

I consider this to be the wrong decision. Just like teaching is not directly profitable but leads to gains in the long term, developing free software would have led to gains for the university and above all for the public.

Another possible reason for their decision could be that not publishing as free software is the safer decision: Nobody will complain to the administration after it denied the publication, but if someone later concluded that free software that has been published could instead have been licensed exclusively, they may blame the administration for doing what they believe to less profitable and thus not in the university’s interest.

In my opinion, this case shows clearly that our German universities are driven by a commercial interest and are not, as many people claim, non-commercial institutions. Even if the profit is intended to help the state-funded university, the goal is maximum profit and not just covering costs, for the university and not for the public.

[1] https://www.gnu.org/licenses/gpl-faq.html#WhatIfSchool

Tags:free softwarejobs