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I work for Institute X, an academic institution looking to expand its commercialization opportunities. I want to develop with them a hybrid-open-source strategy for the code written by me and my team. The basic idea is that general-purpose platform code be released as open-source, whereas more-specific and more-innovative application code (built on the platform) should remain protected. My question is about the open-source part, and for that I'm proposing the following:

  • Release the code under an open source license. Part of our reason for doing this is the same as our reason for publishing scientific findings: we want other scientists to use our work, take it further, improve the world (and along the way, improve our reputation and fundability). Partly it's also because we will benefit from the project's active usage by a broad community, which should provide the feedback that will help us maintain it. We want it to perform robustly, and its documentation to make sense, for our future employees, and we're happy to let the rest of the world be our proving ground for that. Internal-only projects in academic institutions tend to end up shakily duct-taped together and poorly documented, and hence not reusable—by exposing our code to a broader public we want to tie ourselves to the mast with the aim of avoiding that.

  • Use the GPL. Partly because that's a way of ensuring that, to the extent we have made the code free, it remains so. Partly it's also the because the GPL is restrictive: the strings it attaches provide a disincentive to many commercial use-cases, which in turn provides an incentive for some users to contact us about other licensing options.

  • Remain (explicitly) open to parallel licensing: if users want to remove the GPL strings, work out some mutually beneficial licensing agreement with them. Thus, the code still has potential value to us as copyright-protected IP.

I'm unaware of the best practices for this, but the first step in the GPL How-To seems to be to get the company/institute to disclaim copyright interest entirely and assign it to the author. The copyright statement in the release would then read "(c) 2018 [Employee's Name]". However this advice seems to be written under the assumption that open-sourcing is equivalent to the institution having zero interest in the IP. That's not the case—given the parallel-licensing strategy it would actually make sense for Institute X to retain the copyright, while permitting parallel release under GPL.

So under the assumption that X retains copyright, let's consider the project's future. Say I leave Institute X. Afterwards, I might still be best-placed to improve/maintain the project, and of course nothing would stop me forking it. But I would not be the copyright holder so I would be bound by the GPL just like anybody else. To my mind that's good for me, but less so for X: it means (a) I couldn't transfer the copyright for my improvements back to X, and (b) I'd have no incentive to do so. So to me it seems to make sense to write an agreement now that would grant me both that right and that incentive (a cut of any licensing fees).

I'm asking whether this makes sense, and what precedents there might be for this kind of strategy—does it have a name? More specifically, what precedent is there for this kind of agreement between coder and employer? Are there template agreements out there? Or would Institute X have to work out the details from scratch? The latter might discourage them from adopting this route at all.

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  • Use the GPL. Partly because that's a way of ensuring that the code we make free remains free, just like the FSF say. -- Do you understand what "free" means in this context? – Robert Harvey Aug 27 '18 at 21:34
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    Conventionally, it seems, the first step in using the GPL is for the company/institute to disclaim copyright interest entirely. -- No. You don't ever have to relinquish copyright to license your work to others, though you might want contributors to assign copyright to you (this is what Xamarin does). – Robert Harvey Aug 27 '18 at 21:42
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    Sounds like you need to consult a lawyer. – Robert Harvey Aug 27 '18 at 21:42
  • @RobertHarvey Okay, I've tweaked the phraseology of the question. Yes, I believe I understand what "free" means but I don't have an ethical problem with parallel licensing. By "the company/institute disclaim[ing] copyright interest entirely" I mean no more and no less than what appears to be happening in the "Yoyodyne, Inc" example in the GPL howto (now linked). – jez Aug 27 '18 at 22:59
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    This might be a great question for the OpenSource SE. – RubberDuck Aug 28 '18 at 0:12
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The GPL howto that you link to seems to assume that the readers want to release some private project that was done without involvement of the employer under the GPL. This clearly does not apply to you. In your case, rather than asking for a copyright disclaimer, you should get permission to release the code under the GPL with the copyright belonging to the institution. Then use the name of the institution in the copyright notices.

The "parallel licensing" that you mention is more commonly known as Multi-Licensing and is a fairly common practice for businesses that offer a free community edition and a paid for edition if you don't want to be tied to the GPL.
This idea of multi-licensing goes hand in hand with Contributor License Agreements (CLA). A CLA is a contract between an external contributor and a legal entity (business, institution, foundation) to spell out who owns the copyright on the contribution, how the receiving entity can use the contribution (for example, can they use it also in their commercial offering) and what compensation the contributor gets (if any). Without a CLA, contribution to a GPL project must be assumed to be under the GPL as well, which means that those contributions couldn't be used in a commercial variant of a multi-licensed project.

As an employee of your institution and doing the work on their behalf, the copyright on the work you do automatically belongs to the institution. If you decide to leave the institution, but you still want to contribute to this project, you should sign a CLA.
A CLA should also be requested if someone outside the institution comes up with a good improvement before accepting their contribution.

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It doesnt make sense to me.

The only reason to go open source would be to get programmers to work for free on the product or to promote some assocaited hardware.

But, while X retains a comercial interest, or holds back the 'special bits', other developers will be disincentivised from working on the project rather than their own version.

Furthermore X has employeed a team of programmers. Do they need any more contributors to the project anyway?

Lastly, no, it doesnt make sense to cut you a special deal, what makes you any different from some other programmer if the thing is written and documented correctly? It makes it seem like you are trying to trick them.

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    [shrug] Open-source companies frequently keep a "crown jewel" version for commercial sale. – Robert Harvey Aug 27 '18 at 21:44
  • Sure, but they tend to have a reason to be open source. Its not magical way to gain market share you can just tack on to anything – Ewan Aug 27 '18 at 21:56
  • Thanks for this answer. We're an academic institution, some of whose work is publicly funded. So the public good is our major; making money from licensing would be our minor, and we're only tentatively figuring the latter out. So, far from trawling for free outsourced labor being "the only reason to go open source", many of our reasons for open sourcing are identical to our reasons for publishing scientific papers (disseminate our knowledge; hope that other scientists will be able to build on it and build a better tomorrow; along the way, increase our reputation and fundability). – jez Aug 27 '18 at 23:11
  • @jez 'the public good' is just too vague unless your institution has already bought into the idea. You need to show a concrete reason, maybe you are collaborating with other insititutions? – Ewan Aug 28 '18 at 7:45

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