David A. Wheeler's Blog

Tue, 11 Mar 2008

OSS and the U.S. DoD - Questions and Answers

I’ve just posted Questions and Answers for 2008 “Open Source Software and DoD” Webinar. These are my attempts to answer the questions people sent me at my February “Open Source Software (OSS) and the U.S. Department of Defense (DoD)” Some of the questions were easy to answer, but some were surprisingly difficult. In some cases, I asked lawyers and got conflicting answers. But this is the best information that I could find on the topic.

For example, I explain in detail why In particular, it appears fairly clear that both the government and government contractors can release their results as open source software under the default DoD contract terms for software development (DFARS contracting clause 252.227-7014):

  1. The government can release software as OSS once it receives “unlimited rights” to it. Unless other arrangements are made, the government has unlimited rights to software components when (1) it pays entirely for their development, or (2) five years after contract signature if it partly paid for their development. 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). 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. Of course, the software can only be released to the public as OSS if other laws are also met (such as classification, export control, patent law, and trademark law).
  2. Normally a DoD contractor can release the software as OSS at any time, since it holds the copyright. This default can be overridden by the contract, e.g., DFARS 252.227-7020 assigns copyright to the government, and is included in some contracts. Again, this release can only occur if other laws are also met (such as classification, export control, patent law, and trademark law).
These are the usual defaults; negotiations can change things, so read the contract to see if the contract changes these defaults. For example, sometimes the government has copyright assigned to it, in which case it can release the software simply because it has the copyright.

I also point out that even when the government isn’t the copyright holder, if it releases software under an OSS license it can still enforce its license. That’s because, even when it’s not the copyright holder, it can still enforce the license… and because the doctrine of unclean hands will impact those who refuse to obey the license.

Several people had questions about software developed by a government employee (which can’t be copyrighted in the U.S.) and how that impacts OSS. The short impact is that there’s no problem; government employees can still contribute to OSS projects, for example. I also discuss some of the export control issues (especially ITAR), and how to address them.

If there are mistakes, please let me know. Thanks!

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