Unlimited Rights

[rsenn]

Do the Government's unlimited rights clauses in data and in software allow it to stop others (e.g. the contractor) from using the data or software outside of the Government?

My interpretation is that such an action is outside of the data or software itself, thus not a right granted, but recognize that others may have differing opinions.

What supports the counterarguement, that yes the Government can stop others from using the data or software outside of the Government?

[outsidelegalguy]

I know of nothing supporting the argument that the government can stop others (e.g., the contractor) from using the data, unless there's an unusual provision in the contract (and I'm not sure off hand how a contract provision could bar a third party from doing something).

See DFARS 227.7103-4(a) -- "The contractor or licensor retains all rights in the data not granted to the Government." DFARS 227-72-3-4(a) says the same re software. Thus, the government gets certain rights to use the data and software. The contractor retains ownership and can do what it wants with it.

[Guest Vern Edwards]

outsidelegalguy:

DFARS 227.7103-4(a) says: "The Government obtains rights in technical data, including a copyright license, under an irrevocable license granted or obtained for the Government by the contractor. The contractor or licensor retains all rights in the data not granted to the Government." That language is mirrored in the relevant contract clause.

So the contractor retains all rights "not granted to the government." What about rights granted to the government? Does the contractor retain those? Does it share them? Where does it say that? Would it be unreasonable to infer that the corollary is that the contractor does not retain those rights? Can you shed any light on that question?

[outsidelegalguy]

The government gets certain rights to use, duplicate, etc. the data and software, as described in the particular clause depending on who paid for the development. It is a non-exclusive license right. It doesn't make sense to me to say that the contractor retains rights it has granted to the government. But, nothing in the clauses or regulations says that the government gets ownership of the data/software -- it's just a license to do certain things with it. The contractor retains ownership and all the rights associated with ownership. So, the contractor can give someone else a similar (or different) license or sell its intellectual property to someone, all subject to the rights that were granted to the government.

Take a look at Regents of the Univ. of Color. v. K.D.I. Precisions Prods., Inc., 488 F.2d 261, 264 (10th Cir. 1973), where the court distinguishes between someone getting "unlimiited" and "exclusive" rights, with the former not giving ownership rights.

[Guest Vern Edwards]

That's all well and good, but you ignored the question that I asked. The issue is not ownership of anything. The issue is what you contractually agree that you can do with what you own. DFARS clause 252.227-7014, "Rights in Technical Data -- Noncommercial Items (MAR 2011), specifies the various rights that can be obtained by the Government in paragraph ( and then, in paragraph ( c), says:

( c) Contractor rights in technical data. All rights not granted to the Government are retained by the Contractor.

One might infer that rights granted to the Government are not retained by the contractor. Tell us why such an interpretation of the clause would be wrong. I am not the least interested in Regents of the University of Colo. v. K.D.I.. That was a contract interpretation case and it did not involve the language of the DOD clause. I don't understand why you brought it up.

Please look at the DFARS policy and clause and tell us why it would be wrong to infer from paragraph ( c) of the clause that the contractor does not retain any rights that it granted to the Government. I am not trying to trick you. I honestly want to know what you think and why we should believe that what you think is correct. If, as you say, something does not make sense to you, why, based on the language of the clause, does it not make sense?

[outsidelegalguy]

Rather than the abstract, let's speak of specific rights. Under 252-227-7013 (I think you meant this clause, not -7014), the government gets "unlimited rights" in certain data, meaning, in effect, that it can do anything it wants with the data, including publishing it in the New York Times if it wanted to do so. It is given the right to do that. There's nothing in the clause or anything else, however, that says the contractor can't do the same thing. Are you suggesting that, having given the government unlimited rights, the contractor then can't publish it in the Times? Where's the support for that?

Similarly, under limited rights, the government is only allowed to release or disclose the data outside the government for limited purposes. Again, there's nothing that says the contractor can't disclose it to whomever it wants to disclose it to. Limited rights are intended to protect the intellectual property of the contractor. If granting the government the right to disclose the data outside the government for only limited purposes meant that the contractor no longer had the right to disclose it for its purposes, rather than protecting the IP, it would destroy it. The contractor couldn't license it to others, give it to a subcontractor to help build something, etc.

That's why the ownership issue is important. DFARS 227.7103-4 makes it clear that the government gets "an irrevocable license." It doesn't get ownership, and rights associated with ownership (which would include the right to sell it or license it to others) remain with the contractor. If the government owned the intellectual property, then the contractor no longer could do anything with it, unless the government allowed it to do so.

Alternatively, if the government was given an "exclusive" license, although the contractor would retain ownership and could use it for its own purposes, it could not license it to anyone else. But, the standard clauses do not give an exclusive license.

It's true that paragraph © says that the Contractor does not retain the right given to the government, but the only right given is a non-exclusive license for the Government to do certain things. The Government has that right. The contractor has everything else.

[Guest Vern Edwards]

I'm going to quit now, because I don't think that you understand what I've been trying to get you to do, and I don't have the time to keep trying. Let me conclude with this: Someone who does not have the slightest idea has asked a question. When you answer a question for a person like that you have to see the problem through their eyes and explain so that they can understand. That's what I try to do. When I saw that you had jumped in, I thought that you might be interested in doing the same kind of thing, and I have tried to prompt you rather than do it myself. That's all.

Best to you.

[rsenn]

Thanks, Vern, and thanks outsidelegalguy.