Researchers' Right To Open Source Research

bstadil writes: "There is an interesting debate over at SiliconValley.com about the right of researchers funded by Universities to make their IP Open Source. It's not at all simple. On one side Universities claiming their derive 5% of their Budget from IP licenses and it's vital for continued high level of 'Output,' on the other hand researcher who claim the public is billed twice by licensing the output."

where'd the funding come from?

in my mind, the eventual disposition of the IP rights depend on where the funding for the research came from. in public institutions, like state schools, this should be clear: they're public institutions, funded by public money, so the public should get the benefits. that's simply an evolution of the original concept of public educations: we give money to educational institutions so society as a whole can benefit. in private institutions, it's less clear, since the public money (almost all private universities still get lots of public money) is usually a minority. but lots of big companies help fund research in public schools and still expect to get the results, and that doesn't make sense.

choice

I don't think either of the situations described in the article make sense: either a researcher is forced by her university to keep the source private, or she's forced (through the proposed laws agains "billing the public twice") to open it. I don't think either one needs to be the case, and I think what we have now is actually pretty sensible.

And what is the situation now? Basically, researchers are employed by the university. You can ask your employer (as you could working anywhere) to open a project's source, but in the end it's a management decision. I mean, there are probably some guys at Microsoft who'd like to open the IIS source to get rid of some bugs, but it just doesn't make sense given the business model in use. Researchers are always free to look for employment elsewhere, just like everyone else.

The public is not being billed twice

They can't honestly expect me to agree with them when they state that since taxpayers fund the university, they shouldn't have to pay for products the university develops. Taxpayers pay for a lot of things, include government research grants, but no-one who pays their taxes believes that they somehow 'own' a share of that research! Taxes are just taxes, nothing more.

Well, who'd have though of that?

A School actually passing on knowledge for the education of others.

Who'd of thunk it?

The law?

The movement also runs counter to U.S. laws that permit publicly funded schools to enter into exclusive licensing agreements with private companies

Just because something is legal, doesn't mean that not doing that something is bad.
The law permits me to do lots of things that I choose not - I am not behaving counter to the law.

This is brought up again later,

``I think the Bayh-Dole Act is one of the great economic success stories in the nation,'' said Terry Young, executive director of the Texas A&M Technology Licensing Office. He says the law should remain untouched.

Again, irrelevent. The law lets universities do things. If some people don't want to enter into exclusive agreements, then the status of the law is unchanged.

Reduces the stature of science?

But he says the money isn't the issue -- it's respect. Open source publishing devalues what they do, he said....
"I don't think computer programmers should be treated any differently than other scientists,'' Green said. "It sort of diminishes the stature of the science."

And I'm sure that the private funding to get the desired results out of research (i.e. tobbaco harm studies funded by RJ Reynolds) doesn't diminsh the stature of real science. They seem to diminsh science more than the people who publish their findings. Take any of the great scienctists: Einstein, Curie, Borh...they all published and shared their studies for the sake of bettering science and making a name for themsleves. What happened over the last century to make researches into money-grabbers?

Paid twice; screwed once

Research funded by grants and government funding should be open. I'm all for capitalism, but if the public is going to "invest" in these schools and consistantly get nothing in return, we're getting fleeced.

As the article states, very few of these properties are lucrative and it's like the administrators are holding on to a free lottery ticket. I won't pay for my own gambling, let alone someone elses.

The answer is obvious...

...only to Bill Gates or Richard Stallman.

Bill Gates thinks that all the software in the world should be licensed, (and he should hold the license).

Richard Stallman on the other hand, thinks that all the software in the world should be licensed, (and he should write the license).

To everyone else, I think it depends what you are trying to achieve with your software.

Would the IP protocol be here today if it hadn't been open source? Would Linux? Would Doom? [Doom: It's free, then it isn't!, then it's open source!]

I think it depends what you think is more important: great software or great profits

Personally I like both- and Doom shows one way to get the best of both worlds; but there's plenty of other ways through this particular maze.

It's not just employees...

I'm a graduate student at Oxford University, and in the University's statutes they claim ownership of any code I write while I'm here. I am negotiating with them to try to get permission to release some of my work -- right now I'm working on network protocols, and a protocol isn't much use if nobody uses it -- and they haven't been entirely unreasonable, but after two months I still haven't got anything in writing.

It is one thing for a university to claim ownership of work produced by their employees; it is quite another for a university to claim ownership of work produced by people who are paying to be there.

Of course it's vital...

Universities claim that everything is vital to everything they do -- that's just their nature.

For decades campus computing was largely ignored, but now that there's real money in it, the unblinking gaze of the bean counters is focused upon it (being the dinosaurs that they are, it will take a few years for the nerve impulses of the dotcom die off to reach such the central administrative nerve center).

The true meaning of this attention, while originally flattering, has begun to sink into the mind of the researchers, and predictably they have discovered the faustian nature of their bargain.

A division of income sources

The article doesn't address a pretty fundamental issue here.

Where and how is public funding being used? Where and how is private funding being used? Where are the overlaps in this case?

One could, of course, argue that since the research is being held within buildings paid for by public funds, using utilities paid for by public funds, that certainly the public holds an interest in all cases where such research is being carried out.

Private interests have an interest in seeing the work completed and the institutions themselves have an interest in licensing fees coming back to them as well.

This is a confusing problem. It's certainly not black and white now is it? If I were judge, however, I would rule in the public's interest. I view public funding as a moral obligation to return something to the public after accepting money from it. If private interests are allowed to influence where the results of research goes, then the private institution should be billed for the amount of public funds used during the course of the research.

As for the institution itself charging license fees... wow... that's an interesting one isn't it. To that I would answer, YES! Charge license fees all you want, but only to private interests and not to public ones.

Hrm... I'd say that was a fair assessment of this situation. If I were judge over this matter, I would rule in this way.

HOWEVER... we know that's not what is likely to happen is it?

Corporation A and B's lawyers will argue that public interests are served by providing a quality product for sale resulting from all of this research... :) Hyeah... get something for free and sell it back to us... yet that argument is made all the time and it makes sense to some judges in these cases. Bah!

Question of Ownership

But universities -- and some programmers -- oppose the open source movement, fearful valuable trade secrets could be lost.

All things exist, in space and time, they are merely ours to discover. Stanford, I can understand as it's a private school, but UC Berkeley hasn't a leg to stand on. Perform a service, do some research for IBM or such, sure, but it occurs to me that if a public institution claims ownership then it should be public. No secrets, no problem. Probably something else behind this is schools competing for prestige. UCB and Stanford both have a large number of Nobel prize winners, each. But that's no excuse for double charging the public, taxes, tuition, etc. + license fees.

Why can't they do both?

I would think in many situations, universities could play both sides of the fence: make systems available as open source, but charge money to license code to companies that want to package it without source, in proprietary products (the SleepyCat approach [winterspeak.com] that was discussed here recently).

This approach has a better chance of working for universities than it does for ordinary commercial enterprises, for at least two reasons:

1. The sort of software universities produce is more likely to be the kind of code that will be integrated into other systems, which lends itself to a dual licensing approach. Universities aren't selling shrinkwrapped software to consumers: they're selling more basic technology to companies that want to exploit it commercially. This could be perfectly suited to a dual licensing approach. Legitimate businesses, for the most part, are unlikely to try to base products on software that they don't have rights to.
2. Universities don't rely on software licensing for their entire livelihood, so if an open source strategy happens to result in somewhat lower revenues, they can handle it. However, open source may be one of the best and cheapest ways of "advertising" a university's software products, so these factors could balance out.

Besides, this is exactly the sort of issue on which we should look to universities to lead the way. Open source is an important form of cooperation, and its heritage is the very academic freedom and open sharing of information pioneered by universities. There are benefits to this cooperation that may not be completely in conflict with the profit motive; however, the truth of that claim can only be verified by those with sufficient vision to look beyond the next quarter's results. Universities are one of the few organizations which have both the vision and financial ability to do that. MIT's recent decision [mit.edu] to make its course material freely available over the web is an example of this.

Funding.

``If taxpayer money is used to create the software, then it should be publicly available for free,'' said Harry Mangalam, of tacg Informatics in Irvine, Calif. ``The public is being billed twice right now.''

Notice, please that he said "IF". Damn straight, if by extension "I/we" are funding these projects we should have the right to see what we are getting for our money. Taxes, tuition and student fees in addition to private funding, everyone has a claim, right? Everyone has rights to the code and the results.

Of course the opening paragraph was very telling:
Before computer whiz Steven E. Brenner accepted his tenure-track research post at the University of California-Berkeley last year, he demanded that the school's intellectual property police leave him alone.


Amen. It seems like the "good of mankind" feeling is winning over the "for the good of corporation kind"... now that code is free speech (for the moment) maybe he should have his own DeCSS like mirror for his code?

And let me get this straight:
The school in question is both publically and privatly funded, correct? IP disputes occur and are won by whoever has the most money, correct?

This, to me at least, sounds like a warped verions of prostitution, and in prostitution STD's are the result of...ahem..."Passing the *uck, around"...so the idea that IP ~= STD is forming in my mind.

What I am driving at is that Intellectual Property is a "Socially Transmitted Disease".

If the issue is one of public funding...

The the license should clearly be public domain.

If the researcher doesn't like that, then he's not talking about open source, but some other motive.

Misinterpretation of the Profit Motive

The vast majority of buisnessmen, universities, and companies want to throw licences around like they are candy. However they don't seem to realise that the profit motive is irrelevant when you are licensing things that are not, in and of themselves, profitable.

Those that are guilty of this stupidity at the highest levels are only shooting themselves in the foot when it comes to producing things that are good for licensing. Simply, licensing something you need to make a new product that is either broken or inefficent, hiding it from developers, and then using it to build a new product results in a product that may or may not be broken or inefficent. When the building part is unprofitable, it is simply arrogance and stupidity that results in the failure of that which it helps to create.

Computer Science should grow up.

Computer science is a young field. We can produce papers and show one result without having to back them up with anything other than our word. _SOME_ computer scientists have the courage to put out their source, but now it sounds like the universities are pressuring them not to.

Biology has a culture such that if you produce a new mutant line and write a paper about your discovery, ANYONE can ask you for your line. If you don't produce it, you will loose any respect you might have built up over the years. How do universities handle this?

Let's just imagine if computer science was this way. If you produce a paper, you had to be willing to give the code. If someone took your code and found it wanton or you were unwilling to give up your code, it would be assumed that you faked it. Ouch! That would suck. It would certainly slow down our field, but I think at some point this should be the case.

It should be the researcher's decision

I think that research work done while taking money from the NSF and other public agencies should be freely available to the public. In general this means that the research is published in public refereed journals that anyone can buy and read. In some sense the "intellectual property" of the research is being given away to the public, since anyone can read it. In another sense, the researcher and the university "own" the idea since no-one else can claim credit for it. But products and patentable ideas get a bit murkier.

I think everyone agrees that it is immoral for someone to do research while accepting public money and then keep the research secret and proprietary (except in extraordinary circumstances). There is also something fishy about a company being granted exclusive rights for an idea that was developed using public funds. The universities would like to patent everything themselves, but in practice it is often the decision of the researcher whether an idea should or should not be patented.

If I am on a project and write code, I ask whoever is in charge if I may release the code to the public. If they say no, I would want a pretty convincing explanation of why not. I don't think public research should have any secrets.

It's more than an open source issue...

This article is just the tip of the iceberg. I did my PhD and post-doc at a large research university. The dirty secret that they never tell you is that the claim ownership to everything you think or do. I do mean everything ... if you are a particle physicist and come up with a better way to start seedlings for the home garden in your basement completely outside of the work environment, they own it. Of course they claim that it's in the inventor's best interest that they own it because they have the backing to market things... for a small 90% commision of course. The IP grab is on and it's not just in the business world. The dirtiest part of this is that I've never seen any acedemic environment where they tell you this up front.
The IP agreement for my last job attempted to be just about as greedy. I made them add a clause saying that anything I invent on my own time that's not directly related to their business is entirely mine and that have no claim on said material.
The current position is still being hashed out ... it's a somewhat acadmeic position. When I interviewed I asked explicitly about IP policy and was told that IP for things outside of work was not covered. It turns out that after you accept the position and can get into the doc's on the internal network they are claiming complete ownership of everything too. Good thing I filed for patent on a few things during the previous gig and didn't wait.

In other News...

Melvin Kelvin, descendant of the esteemed Lord Kelvin credited with the discovery of absolute zero has begun suing world thermometer makers for patent infringement...

It's just as silly, evil, and wrong to patent algorithms as to patent math or basic science discoveries... what if Leibnitz and Newton patented calculus? Boy, I'd love to have a patent on pi...

Patents don't protect inventors anyway... just look at how RCA held up Philo Farnsworth's Television patent in court until it expired and he couldn't get any money for it.

Kansas universities

The Kansas board of regents tried to make a rule similar to Whatever you do, it is ours (even on your own time). Suffice to say, the faculties, students, and just about everyone else was pissed. It was shot down, and a new rule was passed. Basically, anything anyone does is theirs, unless it was specifically funded by the University/KBOR (as in a grant, or hired for a specific job). If say I were hired to write an interface to a library computer system, KBOR/University would own it. If however, I did the same thing on my own time, I would own it.

This is one of the better approaches to IP (at least the current one is) I have seen, because unless you are hired to x, x is your property.

Public/Private, and SBIRs; U's and Dual Lic's

Two comments:

A large number of people have mentioned "public funded, therefore public property. However, there are many companies who scratch a living from SBIR's from NSF and/or NIH (small business innovative research grants). Public money, but not public use.

Is it reasonable?

Second, some university IP places will consider dual licenses as a good thing; a public OS license, and a second closed license (costing $$) for those interested in closed-source use. However, it depends on the investigator (after all, sales of software or libraries usually require some (limited) form of support, which isn't what most of us want to provide).

I'm speaking as a prof at a Uni, and am dual-employed (joint position) at a second non-profit research institution, which DOESN'T have the same flexibility as my Uni position (the latter "own everything...", though I'm looking at changing this at some point, at least for my own work). It makes life interesting, some times...

Note that it's why I like the GPL - using GPL'd licensed software restricts the licenses that the university can use -- it's my research, and if I am supposed to distribute the results, then there is only one approach that can be taken. W/o the GPL, the university has much more control over the license (though by the same token, they could restrict redistribution, that being the only alternative :-(.)

Commercially-oriented research is often crap

A lot of what passes for commercial research is crap. For example, the stomach-ulcer drug "Zantac" was one of the biggest-selling drugs of all-time with billions of dollars in revenue. A perfect example of the commercial research model. Unfortunately the drug was complete crap, because all it did was treat the symptoms of stomach ulcers and not the cause, so you had to take it forever while the ulcers would silently get worse, requiring increasing doses. Of course, this is a great revenue generator -- the drug seems to work in trials, because it relieves the pain but somehow those patients just need to keep coming back for more. There was ONE guy in the world, a pathologist from New Zealand, who actually found out the real cause of many stomach ulcers -- a simple bacterial infection of the stomach that could be cured with cheap generic antibiotics. He spent twenty years trying to get the medical community to listen to him, but was completely ignored! After all he couldn't be right because Zantac was so successful! Standard treatment for ulcers today is testing for the bacteria (H.Pylori) and antibiotics.

Commercial research maximises profits, not progress. People who make real breakthroughs won't be accepted in a commercial research model, because they don't conform to the norm -- after all if a researcher finds out that a billion-dollar drug is useless that is not going to look good for the university -- people have been killed for less. Any university which goes down that road is going to guarantee it ends up producing mediocre incremental advances. We don't need any more zantacs, we need smart people with intellectual freedom -- if we can't collectively afford that then we are doomed.

Capitalism and Public Knowledge

To answer this question, just ask: why have Universities in a capitalist society?

The idea behind capitalism is that, if something is of public benefit, someone will do it and sell it for a profit.

For some "things" though, this doesn't work, because it's not possible to control the spread of the benefit so that the provider can make a profit. Economists call these "positive externalities". Education and basic research are classic examples. Ford may derive benefit from having a educated populace, but it won't pay for people's educations, because other firms would derive the benefit, too.

I think the answer to the question is clear: Universities should "open" all research results. If research has a containable economic benefit, it can be done by a private firm, and the public shouldn't be subsidizing it in the form of salaries, grants, facilities, etc.

When public universities pursue IP revenue, they are succombing to the natural desire of any organization to grow -- but that urge needs to be kept in check by government looking out for the taxpayers bottom line. If increasingly more can be done for society by the private sector, then the public sector needs to be able to shrink. (And if not, then not.)

Needed changes in the IP laws

IP laws today are "cannot" based. As in you cannot use unless you have approval, etc.

This practice needs to change to "Can" based laws. As in you can use but if you receive monies for doing so, you must direct a percentage back to the IP holder.

Though this doesn't directly address the public vs. private investment direction, I believe it would cause such a change in IP application perspective that would be far more beneficial to all involved. And that is what the overall objective is of IP laws - to benefit humanity to the greatest potential possible.

There has been several articles this past month or so on slashdot that go into the benefits and differences of private and public IP holdings. Now the hing to do is to merge the benefits of both into laws that everyone can better live with. IP "CAN" based laws.

Bioinformatics software distribution

The Silicon Valley article is a bit misleading, and doesn't accurately reflect the range of distribution alternatives being used for Bioinformatics software. It is certainly true that many Universities claim ownership of computer software copyrights, but it is important to appreciate that there many levels at which the implementation of these policies is decided. For example, both the WU-BLAST and the HMMer packages were developed by researchers at Washington U. in St. Louis. WU-BLAST [wustl.edu]binaries are available to academics after an appropriate license is signed, and licensed commercially. HMMer i is available under the GPL but a commercial license is also available. [wustl.edu]

Likewise, the FASTA [virginia.edu] package, can be freely downloaded by both academic and commerical users, but must be licensed from the U. of Virginia to be redistributed. This has allowed the software to be widely used by researchers and also incorporated into commerical packages.

As a Bioinformatics researcher and software author, my goal is to have my research and software be used as widely as possible. This improves my ability to obtain future external funding, to get my papers cited, etc. etc. Even at universities like Wisconsin and Stanford, which derive enormous sums from IP licensing, these funds are less than 10% the value of NIH and other external funding. Thus, it is not hard to argue that software licensing policies should maximize the likelihood of external funding, and the widest possible distribution (though not necessarily GPL) is likely to have the greatest impact and long term benefit. (Moreover, once software becomes widely used, it is much more valuable commercially.)

Thus, while a university's Vice-President for Research may be interest in IP licensing, a Dept. Chairman may be more interested in faculty success in obtaining external funding, and a broader software distribution.

Disturbing Trend

This is just part of the trend to distribute risk among the public while privatizing profit. Welcome to America.

Federal research should yield fully open results

I receive 100% of my salary via federally funded research grants. I find it hard to believe that this issue is anything but clear-cut. The public are paying researchers such as me to find out about the Universe (in this case, about our star, the Sun); if I withheld research results, data, or tools that came from that research, I would be stealing from... you. If universities withhold software, data, or other knowledge developed using federal research money, they are stealing from... you and me both.

By the way, thanks! Last year, about $0.10 of your tax bill (on average) went to solar physics research.

Comments

I am the researcher mentioned at the beginning of the article, and I hope to address some of the questions that have arisen here. Please note that while the quotes in the article are accurate, the views ascribed to me are sometimes misleading

What exactly is the agreement I have with the University?
Briefly, my agreement with the University allows me, as well as members of my group, to produce open source software so long as:
(1) all authors agree for the software to be open source,
(2) the funding source agrees with the code being open source, and
(3) no laws are broken (including aspects of patent law embodied in the Bayh-Dole act).

Note that while this agreement permits my group to produce open source software, it does not require that we produce open source software. This is a blanket agreement covering all of my software written at the University.

Who funded this research?
The agreement covers all of my software development, regardless of source (though, as noted above, each source must be consulted). It was drawn up before I had any funding, as part of my employment agreement. Since then, my research has been funded from public sources (NIH, NSF, DOE, LBNL, and the University of California), and from a private charity (a Searle Scholarship).

Some clarifications of my views, where the article was imprecise

1. I believe it is desirable for authors to be allowed to produce open source software. At this point, I think it would be inappropriate for it to be required, as others have proposed. I currently have no problem with other scientists who readily distribute their software but not use open source licenses.
   
2. I believe that prospective authors of open source should approach their Universities with a standard contract similar to mine. I do not presently support a movement to "force universities to allow 'open source' publishing," as the article states.
   
3. I am not opposed to the Novartis/Syngenta agreement at Berkeley, as the article suggests. In fact, I have not studied that agreement carefully, and so I have no considered view of it. My impression is that much being said here about the agreement is incorrect.
   
4. I feel that fixing bugs is only one of many benefits of open source, and probably not the primary benefit (as the article suggests)
   
5. My agreement does not run counter to laws that allow the University to enter exclusive licensing agreements. The primary law governing such agreements is Bayh-Dole, which covers patents. My agreement only covers copyright. Moreover, my agreement has as a prerequisite permission from the funding source.
   
6. I agree with Phil Green that many individuals have greater respect for software that they've paid for. No problem: have both an Open Source and a commercial license for the code (as is the case for important programs like HMMER [wustl.edu]).

Some closing notes...

1. The University's default licensing agreement allows anyone to use the source code for non-commercial, research purposes. It's not nearly as bad as most posters here suggest. See it here [google.com] (note: the original site is down; this is the google cache).
   
2. It is instructive to actually read the U.S. patent code as modified by the Bayh-Dole act. As I understand it, the main point of this act is encourage intellectual property from federal funding to be developed, rather than left to sit on in the dust on a shelf.
   
3. The University of California, Berkeley was quite helpful in arranging my open source agreement. I understand why their default license is different, and I appreciate their assistance in modifying their standard terms to accommodate my scientific goals. I was very happy with the University's response, and I think the agreement is eminently reasonable.

I welcome follow-up postings here and will try to answer further questions that arise.

Steven E. Brenner
http://compbio.berkeley.edu [berkeley.edu]

Open Informatics

Although the Silicon Valley article didn't mention it directly, one of the focuses of the article was the petition Harry Mangalam, Jiaye Zhou, and I started a few months back at Open Informatics [openinformatics.org].

None of the views of the petition go against any law, Bayh-Dole or other, that's just yellow journalism on the part of Silicon Valley. In fact all NSF and NIH program directors that we've discussed the petition with are all in favor of Open Source. They just feel that because of Bayh-Dole, the can't require that software be released Open Source.

Also, if you want to read the in-depth discussion that we had with Phil Green, take a look at the mailing list archive here [geocrawler.com], instead of the tiny piece that silicon valley completely misquoted.

it's about credit for research

What everybody is ignoring is the these are software guys supporting biological research in biological science. For all of their work they are probably getting zip for credit.
The hot-shot prof directing the grunts in the lab is getting the credit, and doleing it out as he sees fit.

Maybe just maybe the Comp Sci people get mentioned somewhere in the article. We have no idea how many different fields the analysis could be applied to nor do we know if the software research might actualy be much greater than the bio research its supporting. Very probably the software is much more important the the data it analyses, or even the original research, and could represent many years of effort.

A different perspective..

Here in Sweden, the results of research and other IP:s are -personal- property of the researchers.

The university has no claim to it. This, of course has led to a lot of university professors starting their own businesses on the side, to capitalize from their research.

Of course, the universities here want a system more like the US.