My is an idea, yours is a program, or three real stories about how the author of the idea and the developer shared a startup in court.
Disputes between the founders of startups about the ownership of intellectual rights to the created product are not uncommon. I remember, for example, Reggie Brown's lawsuit against the other two founders of Snapchat. In most cases, conflicts end with the departure of one of the founders of the project. Russian judicial practice also knows many examples when the creators of services and applications argue about the rights to them (and about the right to control the startup as a whole). Most often conflicts occur in projects where one of the founders came up with the idea of ​​a startup and an algorithm for the operation of the service, while another wrote the source code of the program. In this article we will tell some non-fictional stories about how such disputes are resolved in Russia, and try to understand the legal causes of conflict situations. Perhaps someone in these stories "sees" himself, and someone our post will help not to repeat the mistakes of his characters.
Once upon a time two people met (let's give them the names - Vasily and Nikolai). Vasily belonged to the category of people, who are often called “generators of ideas,” while he knew how to choose precisely those ideas that could be “picked up” by the market. Nikolay is a talented programmer, possessing skills not only of development, but also of web-design. Vasily was carrying out the idea of ​​launching one web service, which (he was sure of it!) Could bring in a good income. He thought out the principles of the service and developed its algorithm. He shared his thoughts with Nikolay, who quickly seized upon a new idea and offered services in writing the program. After a couple of weeks, the web-service was ready for testing, and after a month its official launch took place, the first users appeared, and with them the first income that the partners decided to split in half. Vasily took over the promotion of the project, and Nikolai became responsible for the technical part ...
It is no secret that many startups are born like this (of course, we have extremely simplified the situation). But, unfortunately, at first successful projects can end with one of the founders deciding to say goodbye to a partner and continue doing business on their own. His colleague at the same time can harbor similar plans. As a result, instead of joint creative work - litigation and claims for compensation for multimillion-dollar losses, loss of control over the project and reputational costs.
... So, our heroes - Vasily and Nikolai - launched a web service created by them. All their joint activities were based on a trusting relationship, they did not sign a written contract between themselves. Vasily registered the domain name for the site on himself, but passwords for access to site management were not only his, but also Nikolay's. Electronic wallets, where money came from service users, were tied to Nikolay's bank account (it turned out that Nikolay was registered as an IP, and he had an account, which the partners decided to use for the common cause). For a while, Nikolay transferred half of the income received from operating the service to Vasily’s account on a monthly basis, until he announced that he wanted to leave the business and offered Nikolay to “buy” his share. Nikolay expressed his disagreement with such a proposal and its terms, after which he renamed the web-service, changed the passwords for accessing the site and the hosting control panel, stopped transferring money to his companion and stopped communicating with him.
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Vasily appealed to the court with the requirement to recognize him as the co-author of the computer program on the basis of which the web-service functioned. If Vasily is recognized as a co-author of the program, exclusive rights to it will be recognized, as well as his recent partner, including the right to receive part of the remuneration from its use (according to the rules of Art. 1229 and 1258 of the Civil Code of the Russian Federation). As one of the main evidence presented to the court by Vasily, there was Skype-correspondence with Nikolai at the stage of program development. From the analysis of the correspondence, the court concluded that it was Vasily who formulated the idea of ​​the web-service, developed an algorithm for its work and clarified the meaning of the formulas.
Readers who are familiar with this topic may argue: ideas are not protected by copyright. The respondent adhered to the same position. But, in the opinion of Russian courts, ideas are not protected by law until they are embodied in a specific form. If the result of an idea is a specific work (in our example, a computer program), then the idea itself can also be considered as part of the creative work of creating it. Without Vasily’s original intention, the court indicated in the decision, Nikolai would not have written the appropriate computer program, and without the computer program written by Nikolai, Basil’s idea would have remained unfulfilled and not embodied in a material form. The court decided that the program was created by the joint creative work of Vasily and Nikolai. In addition, Vasily owned not only the idea, but also the development of service action algorithms, guided by which Nikolai wrote the source code of the program.
In this situation, Vasily had every chance of losing control over the project and being left with nothing. We can say that only a miracle in the form of preserved correspondence in the messenger with a detailed description of the formulas, algorithm and principle of the service helped Vasily to prove his right of authorship to the computer program. Without it, it would be very problematic to prove something (but given the specific circumstances of the dispute, the courts are far from always accepting electronic correspondence as “iron” evidence).
But the reason is not only that the partners at one time did not agree in writing how they intend to dispose of their exclusive right to the program created and to distribute income from its use. Another risk factor was in the organization of the business itself: from a legal point of view, a startup was the business of only one of the partners (Nikolai), while the other did not have legally fixed rights to participate in it.
Thus, Vasily very imprudently trusted Nicholas: in fact, “giving” him an idea, he did not take the necessary measures either to secure his rights to the created software product, or to legally consolidate his role in a joint startup.
Indicative is another case, the beginning of which is similar to the situation described above. Nikolay, who developed the web-service on the instructions of Vasily (and, according to the latter, for his money), at some point realized that he could exploit him himself, without the participation of a partner. He placed on the screen saver of a web application the logo of his firm, indicated it as the copyright holder, and himself - as the author. In this form, presented another version of the program and Vasily. Vasily was indignant: he planned to act as the legal owner himself when the service was launched. But Nikolai overtook him, taking advantage of the fact that the relations between the “partners” were, as in the previous situation, trustworthy, and a written contract for the development of the program was not concluded. Vasily only gave Nikolai tasks by e-mail and pointed out the need for improvements, and also transferred him money for work done from time to time.
The continuation also resembles the previous situation: it came to court. Only Vasily did not declare the requirement to recognize him as the co-author of the program. He asked the court to recognize his exclusive right to the program, since this program, he assured, was developed on his request, which means that he, as the customer, should be considered its sole holder in accordance with art. 1296 of the Civil Code of the Russian Federation.
In the absence of a written contract between Vasily and Nikolay, printouts of e-mails were presented to the court as evidence of the existence of contractual relations. But Nikolay stated that he had not received any letters from Vasily (besides, Vasily himself could not provide the answers of Nikolay). An analysis of the contents of the letters (which Vasily loudly called in court “technical tasks”) showed that they contained only a description of the program’s functionality, its desired characteristics, but no more. An examination of the “technical assignments” showed that they do not meet the requirements for technical specifications set by GOST, and are declarative in nature. As a result, the court rejected the demands of Vasily, recognizing that the application was developed by Nikolai independently and independently of Vasily.
Here the main mistake is the same as in the previous situation. You should not start a startup solely on a trusting relationship, without concluding contracts that distribute responsibilities between the project participants and secure the rights to the intellectual product being created. Especially if the partners are people who previously did not know each other. In our example, Vasily, having entrusted Nicholas, did not take into account the fact that Nikolai could take advantage of Vasily's ideas and neglect the original agreements that were not documented.
Idea Generator Vasily is the founder of the company (for example, Sigma LLC), its sole participant and director. On his instructions, Nicholas (who was not in any relationship with Vasily or with his company before) writes the source code of the program and receives a reward (probably again without a contract). Vasily understands that in the future, it will be necessary to eliminate errors, add new modules, issue updated versions, so he decides to offer Nikolay a position in Sigma LLC with a solid name (for example, “IT Director”), his own office with a leather chair and “a salary according to to the staff list ”, comparable, as Vasily assures, with the amount of remuneration that Nikolai would receive as co-author of the program.
Since the operation of the web service is planned to be carried out on behalf of Sigma LLC, Vasily decides to register this computer program with Rospatent, indicating his company as the copyright holder, and Nikolay himself as co-authors of the program. Nikolay signs the statement, giving his consent to designate him as a coauthor. And only later, when the program is registered by Rospatent, someone explains to Nicholas that now he is “only” her co-author, but no longer the copyright holder (the Civil Code of the Russian Federation divorces these concepts, and the author and the copyright holder are not always the same person ). Nikolai has, for example, the right to demand that his name as a developer be indicated on all copies of the program. At the same time, the exclusive right to authorize or prohibit the use of the program and receive remuneration from its use is now owned by the copyright holder, which is Sigma LLC - a company owned by Vasily, and in which Nikolay is no more than an employee.
Nicholas also comes to realize that his salary may turn out to be much less than half the company's profit (most likely, as income from operating the service grows, the profit of Vasily and his company will increase, and Nikolai’s salary may remain unchanged or grow at a much lower rate than the income of the company).
Nikolay decides to plead with his employer, and at the same time demand to invalidate the registration of the computer program carried out in the name of Sigma LLC.
Claims that he developed this program not yet an employee of Sigma. Consequently, the program can not be considered as a service work. Only he - the author - was originally and continues to be the sole owner of exclusive rights to it, which follows from Art. 1270 of the Civil Code of the Russian Federation. After all, neither Basil nor his company, he did not transfer his rights to the program created, did not enter into any contracts (except for labor contracts).
To Nikolai’s chagrin, the courts in such cases (and they are not isolated) usually side with the right holders in whose name the program is registered. In itself, the absence of an agreement on the alienation of exclusive rights to the program in favor of the firm does not yet say, in the courts' opinion, that there was no transfer of rights. When Nikolay signed in the statement to Rospatent, he could not see that it was not he who was indicated by the right holder, but Sigma LLC. Consequently, by the time of signing, he had already decided on who he sees as the owner of the exclusive rights to the program he developed.
It is unlikely that Nikolai, after a lost trial with an employer, will remain at a key position in a startup. Even if it remains for some time - it will no longer work as efficiently, because the project is no longer his. The main mistake, as in previous situations, is the legal uncertainty of the future roles of the partners, which should be removed even before starting the project. The second risk factor is also preserved - a “joint” business is actually controlled only by one of the partners, who will always be in a better position with respect to a partner who participates in a startup not as a business owner, but as an employee or, even worse, without any legal status at all.
A large role in the analyzed situation was played by the fact of registration of the computer program. Often, in the professional community of developers, you can hear the opinion that registering a program is only an opportunity to get a beautiful piece of paper, then attach it to a diploma or dissertation, show mom, etc. By no means. “Paper” in our situation played a decisive role: the court sided with the right holder indicated in it.
Is there a universal solution, how to protect a startup from such conflicts? The answer is no. Sometimes there are “recommendations” of various kinds of “legal gurus” like “create a limited liability company with an equal distribution of shares” or “register a computer program in the name of all founders”, etc. In some cases, such decisions can really be justified, in others they can only do harm.
But still, a “universal law” exists: it is necessary to agree on everything “ashore”, prior to the commencement of work on a project, and to fix agreements in a legal form. It is not at all necessary that the contract between the author of the idea and the developer of the program necessarily represents an agreement between the coauthors, fixing an equal distribution of income. This may be, for example, a contract for the provision of services for the development of a program in which the transfer of exclusive rights to the program to the customer will be fixed. This may be some other form (there are quite a lot of approaches here). It is important that each of the project participants initially understand how the rights associated with the use of the program created by them will be distributed (if they noticed that in all three situations described, the source of the conflict was a mismatch between the partners' actions and expectations). The same applies to the participation of the founders in the business.
And, of course, when creating computer programs, it is strongly recommended to register them with Rospatent. The presence of the document, which specifies the right holders and authors, serves in court as a good proof of ownership of exclusive rights to the result of creative work (if, of course, such evidence was not obtained by fraud, for example, when designating an outsider as the author. The real author will be able to dispute such registration in court and demand to recognize him as the author and copyright holder of the program).
Below are a few references to court decisions in cases whose plots are similar to the stories described above. We don’t need to look for an exact match: we have simplified some real stories by discarding details that have no legal significance, similar stories are “merged” into one. The references given here are only isolated examples from among similar situations (but in general such situations are solved in a similar way). If someone in the described stories found out himself - we assure, this is pure coincidence.
Links: Civil Code of the Russian Federation (Art. 1229, 1258, 1270, 1296)
Some judicial acts (for example): one , two , three , four
Once upon a time two people met (let's give them the names - Vasily and Nikolai). Vasily belonged to the category of people, who are often called “generators of ideas,” while he knew how to choose precisely those ideas that could be “picked up” by the market. Nikolay is a talented programmer, possessing skills not only of development, but also of web-design. Vasily was carrying out the idea of ​​launching one web service, which (he was sure of it!) Could bring in a good income. He thought out the principles of the service and developed its algorithm. He shared his thoughts with Nikolay, who quickly seized upon a new idea and offered services in writing the program. After a couple of weeks, the web-service was ready for testing, and after a month its official launch took place, the first users appeared, and with them the first income that the partners decided to split in half. Vasily took over the promotion of the project, and Nikolai became responsible for the technical part ...
It is no secret that many startups are born like this (of course, we have extremely simplified the situation). But, unfortunately, at first successful projects can end with one of the founders deciding to say goodbye to a partner and continue doing business on their own. His colleague at the same time can harbor similar plans. As a result, instead of joint creative work - litigation and claims for compensation for multimillion-dollar losses, loss of control over the project and reputational costs.
The first story in which the developer decided to assign the project, but the author of the idea defended his right to participate in a startup
... So, our heroes - Vasily and Nikolai - launched a web service created by them. All their joint activities were based on a trusting relationship, they did not sign a written contract between themselves. Vasily registered the domain name for the site on himself, but passwords for access to site management were not only his, but also Nikolay's. Electronic wallets, where money came from service users, were tied to Nikolay's bank account (it turned out that Nikolay was registered as an IP, and he had an account, which the partners decided to use for the common cause). For a while, Nikolay transferred half of the income received from operating the service to Vasily’s account on a monthly basis, until he announced that he wanted to leave the business and offered Nikolay to “buy” his share. Nikolay expressed his disagreement with such a proposal and its terms, after which he renamed the web-service, changed the passwords for accessing the site and the hosting control panel, stopped transferring money to his companion and stopped communicating with him.
')
Vasily appealed to the court with the requirement to recognize him as the co-author of the computer program on the basis of which the web-service functioned. If Vasily is recognized as a co-author of the program, exclusive rights to it will be recognized, as well as his recent partner, including the right to receive part of the remuneration from its use (according to the rules of Art. 1229 and 1258 of the Civil Code of the Russian Federation). As one of the main evidence presented to the court by Vasily, there was Skype-correspondence with Nikolai at the stage of program development. From the analysis of the correspondence, the court concluded that it was Vasily who formulated the idea of ​​the web-service, developed an algorithm for its work and clarified the meaning of the formulas.
Readers who are familiar with this topic may argue: ideas are not protected by copyright. The respondent adhered to the same position. But, in the opinion of Russian courts, ideas are not protected by law until they are embodied in a specific form. If the result of an idea is a specific work (in our example, a computer program), then the idea itself can also be considered as part of the creative work of creating it. Without Vasily’s original intention, the court indicated in the decision, Nikolai would not have written the appropriate computer program, and without the computer program written by Nikolai, Basil’s idea would have remained unfulfilled and not embodied in a material form. The court decided that the program was created by the joint creative work of Vasily and Nikolai. In addition, Vasily owned not only the idea, but also the development of service action algorithms, guided by which Nikolai wrote the source code of the program.
Analyzing errors
In this situation, Vasily had every chance of losing control over the project and being left with nothing. We can say that only a miracle in the form of preserved correspondence in the messenger with a detailed description of the formulas, algorithm and principle of the service helped Vasily to prove his right of authorship to the computer program. Without it, it would be very problematic to prove something (but given the specific circumstances of the dispute, the courts are far from always accepting electronic correspondence as “iron” evidence).
But the reason is not only that the partners at one time did not agree in writing how they intend to dispose of their exclusive right to the program created and to distribute income from its use. Another risk factor was in the organization of the business itself: from a legal point of view, a startup was the business of only one of the partners (Nikolai), while the other did not have legally fixed rights to participate in it.
Thus, Vasily very imprudently trusted Nicholas: in fact, “giving” him an idea, he did not take the necessary measures either to secure his rights to the created software product, or to legally consolidate his role in a joint startup.
The second story, in which the author of the idea was thrown "overboard" startup
Indicative is another case, the beginning of which is similar to the situation described above. Nikolay, who developed the web-service on the instructions of Vasily (and, according to the latter, for his money), at some point realized that he could exploit him himself, without the participation of a partner. He placed on the screen saver of a web application the logo of his firm, indicated it as the copyright holder, and himself - as the author. In this form, presented another version of the program and Vasily. Vasily was indignant: he planned to act as the legal owner himself when the service was launched. But Nikolai overtook him, taking advantage of the fact that the relations between the “partners” were, as in the previous situation, trustworthy, and a written contract for the development of the program was not concluded. Vasily only gave Nikolai tasks by e-mail and pointed out the need for improvements, and also transferred him money for work done from time to time.
The continuation also resembles the previous situation: it came to court. Only Vasily did not declare the requirement to recognize him as the co-author of the program. He asked the court to recognize his exclusive right to the program, since this program, he assured, was developed on his request, which means that he, as the customer, should be considered its sole holder in accordance with art. 1296 of the Civil Code of the Russian Federation.
In the absence of a written contract between Vasily and Nikolay, printouts of e-mails were presented to the court as evidence of the existence of contractual relations. But Nikolay stated that he had not received any letters from Vasily (besides, Vasily himself could not provide the answers of Nikolay). An analysis of the contents of the letters (which Vasily loudly called in court “technical tasks”) showed that they contained only a description of the program’s functionality, its desired characteristics, but no more. An examination of the “technical assignments” showed that they do not meet the requirements for technical specifications set by GOST, and are declarative in nature. As a result, the court rejected the demands of Vasily, recognizing that the application was developed by Nikolai independently and independently of Vasily.
Analyzing errors
Here the main mistake is the same as in the previous situation. You should not start a startup solely on a trusting relationship, without concluding contracts that distribute responsibilities between the project participants and secure the rights to the intellectual product being created. Especially if the partners are people who previously did not know each other. In our example, Vasily, having entrusted Nicholas, did not take into account the fact that Nikolai could take advantage of Vasily's ideas and neglect the original agreements that were not documented.
The third story, in which the developer of the program turns out to be "overboard"
Idea Generator Vasily is the founder of the company (for example, Sigma LLC), its sole participant and director. On his instructions, Nicholas (who was not in any relationship with Vasily or with his company before) writes the source code of the program and receives a reward (probably again without a contract). Vasily understands that in the future, it will be necessary to eliminate errors, add new modules, issue updated versions, so he decides to offer Nikolay a position in Sigma LLC with a solid name (for example, “IT Director”), his own office with a leather chair and “a salary according to to the staff list ”, comparable, as Vasily assures, with the amount of remuneration that Nikolai would receive as co-author of the program.
Since the operation of the web service is planned to be carried out on behalf of Sigma LLC, Vasily decides to register this computer program with Rospatent, indicating his company as the copyright holder, and Nikolay himself as co-authors of the program. Nikolay signs the statement, giving his consent to designate him as a coauthor. And only later, when the program is registered by Rospatent, someone explains to Nicholas that now he is “only” her co-author, but no longer the copyright holder (the Civil Code of the Russian Federation divorces these concepts, and the author and the copyright holder are not always the same person ). Nikolai has, for example, the right to demand that his name as a developer be indicated on all copies of the program. At the same time, the exclusive right to authorize or prohibit the use of the program and receive remuneration from its use is now owned by the copyright holder, which is Sigma LLC - a company owned by Vasily, and in which Nikolay is no more than an employee.
Nicholas also comes to realize that his salary may turn out to be much less than half the company's profit (most likely, as income from operating the service grows, the profit of Vasily and his company will increase, and Nikolai’s salary may remain unchanged or grow at a much lower rate than the income of the company).
Nikolay decides to plead with his employer, and at the same time demand to invalidate the registration of the computer program carried out in the name of Sigma LLC.
Claims that he developed this program not yet an employee of Sigma. Consequently, the program can not be considered as a service work. Only he - the author - was originally and continues to be the sole owner of exclusive rights to it, which follows from Art. 1270 of the Civil Code of the Russian Federation. After all, neither Basil nor his company, he did not transfer his rights to the program created, did not enter into any contracts (except for labor contracts).
To Nikolai’s chagrin, the courts in such cases (and they are not isolated) usually side with the right holders in whose name the program is registered. In itself, the absence of an agreement on the alienation of exclusive rights to the program in favor of the firm does not yet say, in the courts' opinion, that there was no transfer of rights. When Nikolay signed in the statement to Rospatent, he could not see that it was not he who was indicated by the right holder, but Sigma LLC. Consequently, by the time of signing, he had already decided on who he sees as the owner of the exclusive rights to the program he developed.
Analyzing errors
It is unlikely that Nikolai, after a lost trial with an employer, will remain at a key position in a startup. Even if it remains for some time - it will no longer work as efficiently, because the project is no longer his. The main mistake, as in previous situations, is the legal uncertainty of the future roles of the partners, which should be removed even before starting the project. The second risk factor is also preserved - a “joint” business is actually controlled only by one of the partners, who will always be in a better position with respect to a partner who participates in a startup not as a business owner, but as an employee or, even worse, without any legal status at all.
A large role in the analyzed situation was played by the fact of registration of the computer program. Often, in the professional community of developers, you can hear the opinion that registering a program is only an opportunity to get a beautiful piece of paper, then attach it to a diploma or dissertation, show mom, etc. By no means. “Paper” in our situation played a decisive role: the court sided with the right holder indicated in it.
Some general guidelines
Is there a universal solution, how to protect a startup from such conflicts? The answer is no. Sometimes there are “recommendations” of various kinds of “legal gurus” like “create a limited liability company with an equal distribution of shares” or “register a computer program in the name of all founders”, etc. In some cases, such decisions can really be justified, in others they can only do harm.
But still, a “universal law” exists: it is necessary to agree on everything “ashore”, prior to the commencement of work on a project, and to fix agreements in a legal form. It is not at all necessary that the contract between the author of the idea and the developer of the program necessarily represents an agreement between the coauthors, fixing an equal distribution of income. This may be, for example, a contract for the provision of services for the development of a program in which the transfer of exclusive rights to the program to the customer will be fixed. This may be some other form (there are quite a lot of approaches here). It is important that each of the project participants initially understand how the rights associated with the use of the program created by them will be distributed (if they noticed that in all three situations described, the source of the conflict was a mismatch between the partners' actions and expectations). The same applies to the participation of the founders in the business.
And, of course, when creating computer programs, it is strongly recommended to register them with Rospatent. The presence of the document, which specifies the right holders and authors, serves in court as a good proof of ownership of exclusive rights to the result of creative work (if, of course, such evidence was not obtained by fraud, for example, when designating an outsider as the author. The real author will be able to dispute such registration in court and demand to recognize him as the author and copyright holder of the program).
Below are a few references to court decisions in cases whose plots are similar to the stories described above. We don’t need to look for an exact match: we have simplified some real stories by discarding details that have no legal significance, similar stories are “merged” into one. The references given here are only isolated examples from among similar situations (but in general such situations are solved in a similar way). If someone in the described stories found out himself - we assure, this is pure coincidence.
Links: Civil Code of the Russian Federation (Art. 1229, 1258, 1270, 1296)
Some judicial acts (for example): one , two , three , four
Source: https://habr.com/ru/post/322016/
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