Mine 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 recall, for example, Reggie Brown's lawsuit against two other Snapchat founders. In most cases, conflicts end with the departure of one of the founders from the project. The 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 a 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 functioning of the service, and the other wrote the source code of the program. In this material, we will tell several 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 will “see” themselves,

Two people met once (let's give them names - Vasily and Nikolai). Vasily belonged to the category of people who are often called “generators of ideas”, while he was able to choose exactly those ideas that can be “picked up” by the market. Nikolay is a talented programmer who owns the skills of not only development, but also web design. Vasily had the idea of ​​launching one web-service, which (he was sure of that!) Could bring a good income. He thought out the principles of the service and developed its algorithm. He shared his thoughts with Nikolai, who quickly seized on a new idea and offered services in writing the program. After a couple of weeks, the web service was ready for testing, and a month later it was officially launched, the first users appeared, and with them the first income, which the partners decided to divide in half.

It is no secret that many startups are born like this (of course, we have greatly simplified the situation). But, unfortunately, at first successful projects may result in one of the founders deciding to say goodbye to a partner and continue to conduct business on their own. His colleague at the same time can carry similar plans. As a result, instead of joint creative work - litigation and claims for compensation for multimillion losses, loss of control over the project and reputation costs.

The first story in which the developer decided to appropriate the project, but the author of the idea defended his right to participate in the startup


... So, our heroes - Vasily and Nikolai - launched the web service they created. All their joint activities were based on trusting relationships; they did not conclude a written contract with each other. Vasily registered the domain name for the site, but not only him, but also Nikolai had the access to the site management. Electronic wallets, where money was received from users of the service, were tied to Nikolai’s bank account (it turned out that Nikolay was registered as an IP, and he had an account open, which the partners decided to use for a common cause). For some time, Nikolai monthly transferred half of the income received from the operation of the service to Vasily’s account until he announced that he wanted to leave the business and suggested that Nikolai “buy” his share. Nikolay expressed his disagreement with such a proposal and its terms,

Vasily appealed to the court with a demand to recognize him as a co-author of a computer program, on the basis of which a web service functioned. If Vasily is recognized as a co-author of the program, he, as well as his recent partner, will be recognized with exclusive rights to it, including the right to receive part of the remuneration from its use (according to the rules of Articles 1229 and 1258 of the Civil Code of the Russian Federation). One of the main evidence presented to the court by Vasily was Skype correspondence with Nikolai at the stage of program development. From the analysis of correspondence, the court concluded that it was Vasily who formulated the idea of ​​a web service, developed an algorithm for its operation and clarified the meaning of the formulas.

Readers who are familiar with this topic may object: ideas are not protected by copyright. The defendant adhered to the same position. But, according to the Russian courts, ideas are not protected by law until they are embodied in a specific form. If the result of the idea is a specific work (in our example, a computer program), then the concept itself can also be considered as part of the creative work to create it. Without the initial plan of Vasily, the court said in the decision, Nikolai would not have written the corresponding computer program, and without the computer program written by Nikolai, Vasily’s idea would have remained unrealized and not embodied in material form. The court decided that the program was created by the joint creative work of Vasily and Nikolai. In addition, not only the idea belonged to Vasily, but also the development of service action algorithms,

We analyze errors


In this situation, Vasily had every chance of losing control of the project and being left with nothing. We can say that only a miracle in the form of a preserved correspondence in the messenger with a detailed description of the formulas, algorithm and principle of the service’s operation helped Vasily prove his copyright to the computer program. If it weren’t, proving something would be very problematic (but given the specific circumstances of the dispute, the courts are far from always able to accept 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 created program and to distribute the income from its use. Another risk factor was 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 recklessly trusted Nikolai: 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 secure his role in a joint startup.

The second story, in which the author of the idea was thrown “overboard” a startup


Another case is indicative, 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 operate it himself, without the participation of a partner. He placed the logo of his company on the splash screen of the web application, indicated it as the copyright holder, and himself as the author. In this form, he presented the next version of the program to Vasily. Vasily was indignant: he planned to act as the copyright holder himself when the service was launched. But Nikolay was ahead of him, taking advantage of the fact that the relations between the “partners” were trustful, as in the previous situation, and a written agreement on the development of the program was not concluded.

The continuation also resembles the previous situation: the case went to court. Only Vasily did not state the requirement for recognition as his co-author of the program. He asked the court to recognize his exclusive right to the program, since he assured that the program was developed by his order, which means that he as the customer should be considered its sole copyright holder in accordance with Art. 1296 of the Civil Code of the Russian Federation.

In the absence of a written contract between Vasily and Nikolai, prints of electronic letters were presented to the court as evidence of the existence of a contractual relationship. But Nicholas said that he did not receive any letters from Vasily (besides, Vasily himself could not provide Nikolai's answers). An analysis of the content of the letters (which Vasily loudly called in court “technical tasks”) showed that they only gave a description of the program’s functionality, its desired characteristics, but no more. The examination of "technical specifications" showed that they do not meet the requirements for technical specifications established by GOST, and are declarative in nature. As a result, the court rejected Vasily’s claims, admitting that the application was developed by Nikolai independently and independently of Vasily.

We analyze errors


Here the main mistake is the same as in the previous situation. You should not start a startup solely on a trusting basis, without concluding agreements that distribute responsibilities among project participants and secure the rights to the intellectual product being created. Especially if partners are people who previously did not know each other. In our example, Vasily, trusting Nikolai, 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 program developer finds himself “overboard”


“Generator of ideas” Vasily is the founder of the company (for example, Sigma LLC), its sole participant and director. On his instructions, Nikolai (who had not been in any relationship with Vasily or his company before) writes the source code of the program and receives a reward (probably again without signing the contract). Vasily understands that in the future it will be necessary to eliminate errors, add new modules, release updated versions, therefore, he decides to offer Nikolai a position in Sigma LLC with a solid name (for example, “IT Director”), his own office with a leather armchair and “salary according to staff list ”, comparable, as Vasily assures, with the amount of remuneration that Nikolay would receive as a co-author of the program.

Since the operation of the web service is planned to be carried out on behalf of Sigma LLC, Vasily makes a decision to register this computer program in Rospatent, indicating his company as the copyright holder, and himself and Nikolai as co-authors of the program. Nikolai signs the statement, agreeing to be indicated as a co-author. And only then, when the program was registered by Rospatent, someone explains to Nikolai that now he is “only” its co-author, but no longer the copyright holder (the Civil Code of the Russian Federation breeds these concepts, and the author and copyright holder are not always the same person ) Nikolai, for example, has the right to demand that all copies of the program indicate his name as a developer. In the same time,

Nikolai comes to the realization that his salary can be much less than half the company's profit (most likely, as income from operating the service grows, the profits of Vasily and his company will increase, and Nikolai’s salary may remain unchanged, or grow much slower than company revenue).

Nikolai decides to sue his employer, and at the same time demand to invalidate the registration of the computer program carried out in the name of Sigma LLC.

He claims that he developed this program before he was an employee of Sigma. Consequently, the program cannot be considered as an official work. Only he - the author - was originally and continues to be the sole owner of exclusive rights to it, which follows from Art. 1270 Civil Code of the Russian Federation. After all, he did not transfer his rights to the created program to Vasily or his company, and did not conclude any agreements (except for labor).

To Nikolai’s chagrin, the courts in such cases (and they are not isolated) usually take the side of the copyright holders in whose name the program is registered. The absence of an agreement on the alienation of exclusive rights to the program in favor of the company does not, in the opinion of the courts, indicate that there was no transfer of rights. When Nikolai signed the application to Rospatent, he could not help but see that it was not he who indicated the copyright holder in the application, but Sigma LLC. Consequently, by the time of signing, he had already decided who he considers as the owner of exclusive rights to the program he developed.

We analyze errors


It is unlikely that Nikolai, after a lost trial with the employer, will remain in a key position in the startup. Even if it remains for some time, it will no longer work as efficiently, because the project is now “not his”. The main mistake, as in previous situations, is the legal uncertainty of the future roles of partners, which should be removed before starting work on the project. The second risk factor remains - the “joint” business is really controlled by only one of the partners, who will always be in a better position with respect to the partner participating in the startup not as the owner of the business, but as an employee or, even worse, without any legal status whatsoever.

A large role in the analyzed situation was played by the fact of registering a computer program. Often in the professional community of developers you can hear the opinion that registering a program is just an opportunity to get a beautiful “piece of paper”, then to attach it to a diploma or dissertation, show it to mom, etc. Not at all. “Paper” in our situation played a decisive role: the court sided with the right holder indicated in it.

Some general recommendations


Is there a universal solution for securing a startup from such conflicts? The answer is no. Sometimes there are “recommendations” of various kinds of “legal gurus” such as “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 indeed be justified, in others they can only do much harm.

But nevertheless, a “universal law” exists: it is necessary to agree on everything “ashore”, before starting work on the project, and fix the agreement 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 would certainly constitute an agreement between the co-authors with 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 a lot of approaches here). It is important that each of the project participants initially understood how the rights associated with the use of the program they created would be distributed (if you noticed, in all three situations described, the source of the conflict was the discrepancy between the actions of the partners and expectations).

And, of course, when creating computer programs, it is strongly recommended to register them with Rospatent. The presence of a document in which the rightholders and authors are indicated serves as a good proof in court of the exclusive rights to the result of creative work (unless, of course, such a certificate was obtained fraudulently, for example, by indicating an unauthorized person as the author. The real author can challenge such registration in court and demand to recognize him as the author and copyright holder of the program).

Below are a few links to court decisions in cases whose plots are similar to the stories described above. There is no need to search for exact correspondence: we simplified some real stories by discarding details that were not of legal significance, similar stories were “merged” into one. The above links 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 recognized himself - we assure you, this is a pure coincidence.

References: Civil Code of the Russian Federation (Articles 1229, 1258, 1270, 1296)

Some judicial acts (for example): one , two , three , four

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