Penn State’s Protection Racket, 13: Condition or Consideration?

The Penn State IP policy makes signing the current IP Agreement a “condition of employment.” But the IP Agreement itself asserts that the agreement is “in consideration” of “employment/ appointment/association.” Somehow things are reversed. In a normal employment relationship, payment is consideration for work. That’s the fundamental deal–if you work, I will pay you. The pay is consideration that makes a contract, so that if you do work, then I will be required to pay you. But here, rather than making clear that work includes delivery of IP rights in work products, instead we are told that the agreement to “abide by” the IP policy is “in consideration” of “employment”: “we pay you to work for us, and you pay us to work for us, too.” Deeply strange.

Perhaps “in consideration” does not mean “as compensation offered to my employer for employing me.” Maybe it merely means “Taking into account my employment” or “In thinking about my employment” or something oddly contemplative, considering thing like that. But such a reading makes little sense. One may as well write “I agree to the IP policy.” That would be direct, though not a drafting style preferred by university administrators, especially ones that have adopted a clueless bombast style.

Even “I agree to the IP policy” is strange. The university does not require people to sign off on each and every section of university policy. The policy, generally, establishes university structure, delegates authority, and specifies practices to be followed. Whether an employee expressly agrees to the university’s policies is beside the point. If the employee acting for the university does not follow a policy, then the university can take action within its authority against the employee–discipline or termination or a writ of mandamus or whatever.

The relationship between the employer and employee is shaped by the employment agreement, not by the university’s policies about employment. That is, the particular interpretation of policy combined with waivers or exceptions or special circumstances shape the actual agreement with any individual employee. What have the employer and this employee agreed to? That’s what matters.

The Penn State IP Agreement expands the relationship beyond employment–without explanation–“employment/appointment/association.” The IP policy authorizes requiring the IP agreement only for employment. The 1992 IP Agreement repeats the policy requirement. But the current IP agreement asserts “appointment/association” as well. The current IP agreement makes claims outside the authority of the IP policy. One might think that such claims are unenforceable, though no doubt administrators might try. Consider then the drafting strategy: include any number of requirements that are unenforceable, but which one may induce an employee (or appointee, or associatee) to agree to anyway and later, the burden will be on the employee to explain how it comes about that he (or she) has agreed to something and now wants to break that promise, given that the university has come to rely on that promise, even though it isn’t in policy. You see how it works–put in terms that can’t be enforced, and then make it expensive for the employee to show that an unenforceable term is not enforceable once it has been agreed to. One might think a good provision of university policy would be to prohibit such drafting strategy as an administrative abuse. Of course, the worser thing is that a university hires people who lack the competence or integrity to avoid using such strategies in the first place. A university that needs to forbid such nastiness in policy is already doomed.

There are many things wrong with the current Penn State IP Agreement. I can’t address them all, any more than a pest inspector can give a personal name to each cockroach in an infestation (“And that one there, that’s Ralph”). If you get it that the Penn State policy is hopelessly infested, then skip on. It’s instructive, however, to see how the policy comes to have its infestation and what might be done about it.

In consideration — ambiguous as to meaning and backasswards in the relationship. Legal weaseling to make it appear that there’s something binding. In employment contracts where an employer makes a change, the consideration in the new offer and acceptance of the change may be continued employment. That is, if I change the employment deal with you–say I demand a non-compete clause–then what makes that non-compete clause binding is that you don’t quit–you continue to receive pay, continue to be employed. Continued employment then is the consideration. In the context of university faculty, this ploy amounts to the claim that any change in IP policy can break the obligations of tenure. If you don’t like our changes to the IP policy, then we can fire you.

employment/appointment/association — inappropriate expansion and ambiguous. What does the “/” mean? Any or all of these? Can one be both employed and appointed? Appointed and associated? What does it mean to be “associated”? Associated with what exactly? The university? Research activities? And how does “association” come into effect? Is there a formal “association” agreement? If employment and association are mutually exclusive, and faculty members are appointed, then they cannot be employed as part of their appointment–employment would take a separate arrangement, entirely outside the conditions of appointment. But any such thing would require, say, mental discipline and respect for words. Administrative bombast style does not require either discipline or respect.

abide by — strange language. To “abide” means “to accept” or “to act in accordance with” or “to tolerate.” It is one thing to accept a policy and another thing to agree to assign one’s inventions within an agreed upon scope to the university. Here, “abide by” has some of the stink of a loyalty oath, but here the oath is to the IP policy (and by extension, the technology licensing program).

the terms — as if a policy is a contract. In what sense is a policy a contract, with “terms and conditions”? Ooh–but here it’s only “terms”–“any provision forming part of a contract.” Except we are dealing with “terms of a policy”–any provision forming part of a policy.” Twisted stuff. In a non-bombastic policy setting, an institution establishes policies to set standards for employees–folks the institution directs to carry out the actions of the institution. Anyone else relies on those policies to receive proper services and benefits. It would be the institution that would assert that it must follow its own policies. But here, the institution asserts that anyone–not even employees but also appointees and associatees–must agree to follow the policy.

the University’s Intellectual Property Policies and Procedures — Penn State has Policy IP01 – Ownership and Management of Intellectual Property. So what does “Policies” in the plural refer to? The authority for the IP agreement is IP01. There are other IP policies–IP02 through IP  And what does it mean to require agreement as well with procedures? Do procedures have the same standing as policies? What if a procedure is rogue and does not follow policy? Say, an IP agreement that inserts requirements that university policy does not authorize? Should one have to agree to such rogue procedures, too? Administrative bombast style demands complete submission, not mere agreement. A beating of minds rather than a meeting of minds.

currently in effect — a time marker. Good as far as it goes, but it also sets up what comes next, which is pure bombast.

as well as any subsequent revisions thereto — that is, once you sign this IP agreement, you have agreed to whatever whim that university administrators have with regard to either policy or procedure. “You will wear these clown shoes and refer to yourself ‘Mary’“. Here we have a basic unconscionable requirement in what is set up to appear to be “legally binding”–an agreement to agree. The university proposes a contract in which it dictates the terms (policy and procedure), controls the interpretation of policy and procedure (see the appeals process–“final authority rests with the Vice President for Research”), and can unilaterally change policy or procedure. The IP agreement here says, basically, “if you don’t abide by any change we make in IP policy or procedure, we can fire you.”

If this threat is true for especially this IP policy (and any procedure), then the university would do well to make that clear, especially in light of policy on academic freedom. Penn State’s policy on academic freedom has this to say about policy and procedure:

The faculty member agrees, therefore, to abide by the regulations of the University, and to perform to the best of his/her ability such reasonable duties as are assigned by authorized University officials.

As for faculty members, then, they already have an obligation to “abide by the regulations of the University.” There’s no need to sign anything extra. Further, it is clear that the scope of obligation is that of “such reasonable duties as are assigned.” It is only within the context of assigned duties–“research activities” that are commissioned or sponsored, say–that the regulations of the university with regard to IP apply. If a faculty member does not “abide” by the regulations, then there’s a matter of discipline–or in reviewing the regulations to determine whether they are proper and properly interpreted or practiced.

The policy on academic freedom has this to say about research:

Faculty members are free to engage in research or scholarship of their own undertaking, and in the publication of the results, subject to the adequate performance of other academic duties.

The condition for being free to engage in research is that faculty do an “adequate” job with “other academic duties.” That research is “of their own undertaking”–it is not assigned by the university. For research, faculty aren’t employees. Research also must follow this stipulation:

Research conducted for this University shall be in harmony with the provisions set forth in the official research policies of the institution, or in memoranda of agreement entered into between the University and industries or other agencies.

It’s all ambiguous, but one sense here goes, “Even though the research is your own undertaking, your research conduct will be “in harmony with” official policies and any extramural research contracts.” Is “in harmony” the same as “comply”?

Is the IP policy an “official research policy” of the university? If the IP policy repudiates faculty freedom to publish the results of their research, are faculty bound to their agreement to the IP agreement? Does the IP agreement amount to a demand by university administrators that IP policy take precedence over policy on academic freedom? “You are free only when we decide you are free, you silly fools.” Note, as well, that the university apparently can contract its way out of academic freedom by “entering into” “memoranda of agreement” with “industries” or “other agencies”–pretty non-descript stuff. What does a memorandum of agreement with an industry look like? Dunno. Bombast.

We can see then the administrative strategy at work. Create a policy. Make everyone agree to follow the policy. Make them agree to follow any changes to the policy and procedures. Change the policy or procedures at will. Make them accept the changes. Or fire them.


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