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The chronic abuse of legal immunity by the University of Minnesota

You can learn something about the University of Minnesota leadership by reading the report of the legislative auditor on the Dan Markingson case, published March 19, 2015. Here is the report's conclusion:

However, the Markingson case raises serious ethical issues and numerous conflicts of interest, which University leaders have been consistently unwilling to acknowledge. They have repeatedly claimed that clinical research at the University meets the highest ethical standards and dismissed the need for further consideration of the Markingson case by making misleading statements about past reviews. This insular and inaccurate response has seriously harmed the University of Minnesota's credibility and reputation.

In reading this report it becomes clear that the university didn't just stumble its way to this ignominious conclusion. It marched its way there.

Two recommendations are given at the end of the report, both of which ask the state legislature to write laws to force the university to do things it ought to have done anyway. The recommendations are prefaced by this brutal comment:

A primary problem uncovered by our review is past and current University leadership that is defensive, insular, and unwilling to accept criticism about the Markingson case either from within or outside the University. However, we do not have a recommendation that would change attitudes at the University about openness, accountability, and transparency. We can only suggest that the Legislature make the issue—and need for change—a more important consideration in selecting people to serve on the University Board of Regents.

The university does not seem to have changed its ways much since this report was issued. In April, 2017, the Office of the General Counsel, a participant in the Markingson debacle, sent this bizarre letter to my attorney. In it the university claims joint copyright to a computer code it plainly does not own, stating a rationale built entirely on severe factual errors. The failure to perform due diligence is absolute.

Let's go over these errors to appreciate how poorly this letter reflects on the university. The letter states that Ralph Goodwin is not entitled to any copyrights because his contributions to this code, made while he was employed at the University of Minnesota, were too minor to rise to a copyrightable act.

To begin with Goodwin was never employed at the University of Minnesota. How hard would it have been to verify that information? He has never had any connection to the University of Minnesota as a student, trainee, employee, contractor, or consultant. Furthermore, I presented a copyright assignment signed by Goodwin in the presence of a public notary which clearly indicated he believed himself to be an owner of Cats2D. These observations should have piqued the curiosity of the legal office enough to inquire of him his view on the ownership of the code before summarily dismissing his claim to copyright.

The letter does not stop there. It describes a fantasy in which "a new, inseparable program" was written by "Yeckel and others in the [Derby] lab, while they were acting in their university employment." Far be it from me to explain the law to the university's legal team, but unnamed "others" do not have property rights. Zero names means the university has zero legal claimants besides me and Goodwin.

As for the new, inseparable program, it doesn't exist. Of course you would need to read the code to know that for sure. Here is the thing. I don't think Derby knows enough about programming or algorithm development to read the code or to understand what is in it or how it was put together. But that does not relieve him or the university legal office of the responsibility to find someone capable of making this evaluation.

The letter also claims that all my code developments made while employed at the university are works made for hire, granting the university complete ownership. This claim blatantly contravenes the policies of the Regents of the University of Minnesota. The university owns exactly zero of my work. But let me emphasize also that the university has not identified a single piece of code that I created while employed there. This leaves the university with no claimants, and no claims, to works they never owned anyway.

Curiously, Goodwin (along with me) is credited with ownership of Cats2D in over fifty publications generated by Derby's lab, and his name appears prominently in copyright notices displayed since 1994. But now, suddenly, after 23 years of copyright notice, the university declared otherwise.

Our proof of ownership is ironclad. Goodwin has a pair of duplicate tamper-proof read-only CDs that document the development of the code from 1991 to 1995. File creation dates are reliably recorded in these archives. We can show what the code looked like when I started working on it in 1992, and what it looked like when I started working at the University of Minnesota in 1994.

Why did the university refuse to examine any evidence or make the barest of inquiries before claiming rights to someone else's property? Can't a flagship public institution do better than this? Is the university going to act in the interests of the citizens of this state? Or is it going to continue to shirk liability while hiding in the bunker during the fallout that follows its irresponsible actions?

Wrong about Goodwin's employment history. Wrong about Goodwin's contributions. Wrong about non-existent claimants. Wrong about inseparable changes. Wrong about work for hire. Wrong about everything.

The University constructed a defense to deny liability by claiming immunity. I think that defense evolved or you might say devolved into a strategy to simply avoid any accountability or responsibility and to deny that there were any serious ethical issues. And we found that serious ethical issues and conflicts of interest just permeated this case.— James Nobles, legislative auditor, March 20, 2015 (Star Tribune, Markingson case: University of Minnesota can't regain trust under current leadership).