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Can a government agency "own" v. "license" software, source code, data?

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The FAR and DFARS clauses for copyright and patent do not expressly address the scenario where the government agency desires to retain ownership of the software developed during the performance of a contract for software development. The FAR and DFARS clauses seem to say, if a contractor is paid to develop software during the life a government contract, at the expiration of the contract, the contractor has ownership or title to the software developed at government expense/funding, but the government gets the right to use the software/data produced ("unlimited data rights").

So my question is, is there any way to lawfully structure a government contract to ensure that the government gets ownership, not just a license, to the data produced, software developed, and the source code, at the end of a contract? How would all this be harmonized with the FAR and DFARS clauses? Would this involve seeking an individual deviation from the FAR and DFARS?

There was a similar discussion on Government Data Rights in Wifcon at this link, but I want to expand on it further:

http://www.wifcon.com/discussion/index.php?/topic/1337-government-data-rights/page__hl__copyright

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http://www.cendi.gov..._copyright.html

You might be interested in visitng the site above -- CENDI is chartered by a group of federal agencies to handle difficult technical information matters, such as copyright issues. Your agency might even participate in CENDI; if so, your agency's CENDI member might be helpful to you.

You are right in separating ownership and license -- usually, license is all the Government needs -- but it looks like you want to go further, and you want to deny your contractor any ownership in the data you're buying and any opportunity to use the data for other purposes.

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Guest Vern Edwards
[M]y question is, is there any way to lawfully structure a government contract to ensure that the government gets ownership, not just a license, to the data produced, software developed, and the source code, at the end of a contract? How would all this be harmonized with the FAR and DFARS clauses? Would this involve seeking an individual deviation from the FAR and DFARS?

When it comes to intellectual property there are always two basic issues. The first issue is physical possession. The second issue is usage rights. When you buy a book you own the copy that you purchased. You do not own the content of the book in the sense that you control what can be done with it. For instance, you cannot copy the content and then sell or give it to someone else, and you cannot control what the author subsequently decides to do with it. It's more complicated with software because of the way that business has evolved.

The problem with your question is that it is not clear what you mean by "ownership." "Ownership" in what sense? How do you define "ownership"? What is it you want to own, exactly, and what will ownership entitle you do with it?

You can buy a copy of source code, but what you can do with it will be determined by the terms of the sale -- which is usually a license agreement. When you buy MSWord, you get a CD with code. You own that CD, but you cannot access all of the code, and you cannot do anything you want to do with it. You cannot copy it and give it to someone else. You cannot take part of the code and use it in another software program.

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I found this DOD FAQ about Open Source Software (OSS) that touches upon how it is possible for the Government to make a contractor assign copyright to the Government. The general presumption, though, is that the even software developed at government expense, with federal funds, that the right to try to copyright it belongs to the contractor.

http://dodcio.defense.gov/OpenSourceSoftwareFAQ.aspx#Q:_Can_government_employees_contribute_code_to_open_source_software_projects.3F

Q: Can government employees contribute code to open source software projects?

Yes, but the following considerations apply:

As stated above, software developed by government employees as part of their official duties is not subject to copyright protection in the United States. If a government employee enhances or modifies a (copyrighted) open source software program, the resulting work is a “joint work” (see 17 USC § 101) which is partially copyrighted and partially public domain. The resulting joint work as a whole is protected by the copyrights of the non-government authors and may be released according to the terms of the original open-source license.

However, the public domain portions may be extracted from such a joint work and used by anyone for any purpose. For computer software, modern version control and source code comparison tools typically make it easy to isolate the contributions of individual authors (via "blame" or "annote" functions).

(See also Free Software Foundation License List, Public Domain)

(See also GPL FAQ, Question "Can the US Government release improvements to a GPL-covered program?")

Q: Can contractors develop software for the government and then release it under an open source license?

In many cases, yes, but this depends on the specific contract and circumstances. Under the "default" DFARS and FAR rules and processes, the contractor often keeps and exercise the rights of a copyright holder, which enables them to release that software as open source software (as long as other laws and regulations are met).

For DoD contractors, if the standard DFARS contract clauses are used (in particular DFARS 252.227-7014) then the contractor who developed the software retains the copyright to the software and has the right to release it to others, even if the software was developed exclusively with government funds. In some cases a DoD contractor may be required to transfer copyright to the government for works produced under contract (see DFARS 252.227-7020). If this is the case, then the contractor cannot release the software as OSS without permission, because the contractor doesn't own the copyright.

Contractors for other federal agencies may have a different process to use, but after going through a process they can often release such software as open source software. If the contract includes the typical FAR 52.227-14 (Rights in data - general) clause, without any special alternatives or additions, then the contractor must make a written request for permission to assert copyright in works containing data first produced under the contract. As described in FAR 27.404-3, a contracting officer would generally grant such a request. Certain FAR clause alternatives (such as FAR 52.227-17) require the contractor to assign the copyright to the government. Again, if this is the case, then the contractor cannot release the software as OSS without permission, because the contractor doesn't own the copyright.

There are many alternative clauses in the FAR and DFARS, and specific contracts can (and often do) have different agreements on who has which rights to software developed under a government contract. The FAR and DFARS specifically permit different agreements to be struck (within certain boundaries). Thus, if there is an existing contract, you must check the contract to determine the specific situation; the text above merely describes common cases.

Contractors must still abide with all other laws before being allowed to release anything to the public. Obviously, contractors cannot release anything (including software) to the public if it is classified. The release of the software may be restricted by the International Traffic in Arms Regulation or Export Administration Regulation. The release may also be limited by patent and trademark law.

<a name="Q:_Can_the_government_release_software_under_an_open_source_license_if_it_was_developed_by_contractors_under_government_contract.3F">

Q: Can the government release software under an open source license if it was developed by contractors under government contract?

In many cases, yes, but this depends on the specific contract and circumstances. Under the usual "default" rules, the answer is "yes" if it was developed for the DoD under the DFARS. Under the "default" rules, the answer is typically "no" if it was developed for under the default FAR rules (used by many other federal agencies) unless the contract transferred the copyright to the government or was modified in some way to permit it.

If the contractor was required to transfer copyright to the government for works produced under contract (e.g., because the FAR 52.227-17 or DFARS 252.227-7020 clauses apply to it), then the government can release the software as open source software, because the government owns the copyright.

Under the DFARS, which is typically used for DoD contracts, the government can release software as open source software once it receives "unlimited rights" to that software. DFARS 252.227-7014(a)(15) defines "unlimited rights" as "rights to use, modify, reproduce, release, perform, display, or disclose computer software or computer software documentation in whole or in part, in any manner and for any purpose whatsoever, and to have or authorize others to do so". As noted in "Technical Data and Computer Software: A Guide to Rights and Responsibilities Under Federal Contracts, Grants and Cooperative Agreements" by the Council on Governmental Relations (CAGR), "This unlimited license enables the government to act on its own behalf and to authorize others to do the same things that it can do, thus giving the government essentially the same rights as the copyright owner." In short, once the government has unlimited rights, it has essentially the same rights as a copyright holder, and can then use those rights to release that software under a variety of conditions (including an open source software license), because it has the use and modify the software at will, and has the right to authorize others to do so.

If the standard DFARS contract clauses are used (see DFARS 252.227-7014), then unless other arrangements are made, the government has unlimited rights to a software component when (1) it pays entirely for the development of it (see DFARS 252.227-7014(B)(1)(i)), or (2) it is five years after contract signature if it partly paid for its development (see DFARS 252.227-7014(B)(2)). Before award, a contractor may identify the components that will have more restrictive rights (e.g., so the government can prefer proposals that give the government more rights), and under limited conditions the list can be modified later (e.g., for error correction). Where possible, software developed partly by government funds should broken into a set of smaller components at the "lowest practicable level" so the rules can be applied separately to each one. Note, however, that this may be negotiated; if the government agrees to only receive lesser rights (such as government-purpose rights or restricted rights) then the government does not have the rights necessary to release that software as open source software.

The rules for many other U.S. departments may be very different. Contracts under the federal government FAR, but not the DFARS, often use clause FAR 52.227-14 (Rights in Data - General). If all defaults are accepted, and no additional alternatives/amendments are added, by default the government does not receive the right to distribute to the public software it paid to develop; see FAR 52.227-14©(1)(iii). (This is actually a special case; the government normally does have the right to public release of copyrighted works it paid to develop.)

There are many alternative clauses in the FAR and DFARS, and specific contracts can (and often do) have different agreements on who has which rights to software developed under a government contract. The FAR and DFARS specifically permit different agreements to be struck (within certain boundaries). Thus, if there is an existing contract, you must check the contract to determine the specific situation; the text above merely describes common cases.

If the intent of a contract is to develop software to be released as open source software, it is best to expressly include release as OSS as part of the contract. This makes the expectations clear to all parties, which may be especially important as personnel change.

Other laws must still be obeyed. Classified information may not be released to the public without special authorization to do so. The release of the software may be restricted by the International Traffic in Arms Regulation, or Export Administration Regulation. The release may also be limited by patent and trademark law.

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Guest Vern Edwards

These were your original questions: "So my question is, is there any way to lawfully structure a government contract to ensure that the government gets ownership, not just a license, to the data produced, software developed, and the source code, at the end of a contract? How would all this be harmonized with the FAR and DFARS clauses? Would this involve seeking an individual deviation from the FAR and DFARS?"

What does your last post have to do with those questions, if anything?

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My question was whether it was possible for the government to "own" source code produced during the life of a government contract, developed by the contractor. The article I quote above cites FAR 52.227-17 (specifically, FAR 52.227-17©(1)(ii)) as a way for the government to require the contractor to transfer the ownership, the copyright, of a "special work," to the government.

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The implications of this question is huge. Assuming you have a valid need and are planning a procurement, I would conduct market research with some companies and ask about the impact. I think many companies may not bid because because if you disclose things like source code, that divulges how many of their proprietary tools, techniques, and processes work.

An analogy is asking McDonalds for their receipe for special sauce or Coke for their formula.

This is why the FAR and DFAR clauses are written the way they are - give the Government lots of latitude for use of software without requiring companies to divulge their trade secrets.

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Hmm. What about writing a solicitation to require the contractor to develop software as Open Source Software (OSS), so that the source code is public anyways? I have come across a few articles online that say that DOD and GSA have been trying this in the past several years, but I searched FedBizOpps and cannot find a good example solicitation that explains how such a solicitation/statement of work/tailored clauses would be written. If anyone knows, please enlighten me.

And here is the DOD CIO FAQ on OSS:

http://dodcio.defense.gov/OpenSourceSoftwareFAQ.aspx

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That might work. I would conduct market research or at least do an RFI with specifics on your planned solicitation though before locking your strategy in. I can speculate that companies may say it will cost more and add time that way because they couldn't use their proprietary tools and approaches. But that's just my guess and only industry or someone that's actually done this could tell you are sure.

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