Introducing a Little Known Nerd: the Hackathoner
If you don’t live in the tech world, a hackathon is a formal gathering of caffeine-laden software programmers that go into extreme-coding hyper drive for a short period of time. Their goal: to crush a particular coding or operational problem.
Originally, hackathons drew a bunch of friends or strangers together to improve open-source software, build a new product, work on a fun coding project, or just let their creativity and inventive juices flow. (No, hackathoners did not recently steal your credit card information from Target or Neiman Marcus‘s servers.) Some companies now use “hackfests” or “hack day” as a way to allow development teams to work on chosen company projects. So it’s not all free love and coding, like it was in the old days. But hackathoners are still cool…
Free Coding Does Not Mean Free Intellectual Property
But here’s the problem: hackathons can mess-up your company’s intellectual property (IP) and cause a lot of headaches down the road. If you want to copyright the code, you have to chase down all the coders and beg them to assign their rights to your company. Good luck with that. Unless it’s a company hack day, they aren’t employees, so the company can’t reasonably argue their coding is a “work made for hire” and the company automatically owns their code under the copyright laws. They aren’t contractors, so there’s no contractor agreement that explicitly assigns all of their rights to any IP they create. (Note: your company’s employee and contractor agreements must have an IP assignment provision.) That means there are 40 people running around the globe with authorship rights in a product your company thinks is valuable. Do you want to sell it, assign or license it, or creative derivative programs? If it was born in a hackathon, you’re probably out of luck.
The problems don’t end there—patentable stuff may be developed during a hackathon. Under the U.S. patent laws the “inventors” own the patent rights and corporations aren’t inventors. This is different than copyright law, which makes the employer the author of an employee’s work though the work-made-for-hire doctrine. So inventor hackathoners must be listed on and sign the patent documents. This is required even if they pre-assigned their rights to a company. Did anyone keep that sign-in sheet from your last hackathon?
On a sweeter note, I know that hackathons can be a great way to collaborate, innovate, and give back to community-built projects. And given the hackathoner’s open-sharing spirit, its unlikely that they will be suing companies over their IP rights. But that doesn’t mean the company can take those rights as its’ own. (That’s called fraud.) As long as everyone understands that the results aren’t going to become a core company IP asset, go ahead and set up that next hackathon!