License to Hack

Dyane L. O’Leary

Legal hackathons are exploding in popularity. “Hacking” is a term often associated with illegal behavior, but a hackathon is something different. At a hackathon, lawyers, technologists, data scientists, public interest organizations, law students, and just about anyone who is interested converge in a friendly, time-pressured competition aimed at solving some defined problem. For more than a decade, different industries have looked to hackathons as a source of new ideas. Today, the legal industry uses hackathons to spark creation of innovative tools to chip away at the access to justice crisis and improve the delivery of legal services.

But often lost in the excitement is a key piece to hackathon success: treatment of the intellectual property. For example, who owns the copyright in software created at a hackathon? What about a new business method? What about the rights to trademark a new design? Most hackathons have some form of a participant agreement, but many outright ignore the “who owns it” question or fail to address it in a purposeful manner.This is a problem in need of a solution—or at least some concrete guidance.

This Article explores intellectual property rights in the context of legal hackathons. How intellectual property is approached at the start can impact the success (or not) of creations at the end. Taking rights away from participants risks alienating them and interfering with the collaborative and fun spirit most hackathons embody. Yet giving participants all the marbles may not be preferable either, especially if it disincentivizes organizers to support future development and help a tool survive beyond the hackathondoors. In circumstances where one size doesn’t fit all, this Article discusses pros and cons of varying approaches to intellectual property in hackathon participant agreements. Embodying the hackathon resolve to create something tangible and useful for others, the Article connects readers to an online repository of sample agreements as well as a participant agreement template.