Publicly Releasing Open Source Software Developed for the U.S. Government

Final notes

If the government and relevant contractors intend to release software as OSS, it’s best if that is explicitly stated ahead of time.  For example, OSS could be identified as the planned software maintenance philosophy per DFARS 227.7203-2(b)(1).  However, since many contracts do not discuss releasing software as OSS, it’s important to understand the default rules for commonly-encountered cases.

If software is released to the public as OSS and it becomes “customarily used by the general public or by nongovernmental entities for purposes other than governmental purposes,” then that software becomes commercial software.  This is by both law (41 USC §403) and regulation (e.g., DFARS 252.227-7014(a)(1)).  It does not matter if the software was originally developed with government funds, or not.  Thus, releasing software as OSS can be a commercialization approach.

The U.S. government and its contractors have released many programs as OSS.  I hope that this material helps you understand how you can release software as OSS in a manner consistent with laws, regulations, and contracts.

The publication of this paper does not indicate endorsement by the Department of Defense or IDA, nor should the contents be construed as reflecting the official positions of those organizations.

1. This is, in summarized form, the Free Software Definition (http://www.gnu.org/philosophy/free-sw.html) from the Free Software Foundation.  A similar definition is in the DoD’s “Clarifying Guidance Regarding Open Source Software (OSS)” ).  A more detailed definition of OSS is the Open Source Definition (http://www.opensource.org/osd.html) from the Open Source Initiative.
2. To release under an OSS license you must have the copyright-related rights (listed in 17 USC §106) to reproduce the work, to prepare derivative works, to distribute copies, and to permit others to perform those actions.
3. The Council on Governmental Relations (CAGR)’s “Technical Data and Computer Software: A Guide to Rights and Responsibilities Under Federal Contracts, Grants and Cooperative Agreements” states that “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.”
4. CENDI’s “Frequently Asked Questions about Copyright and Computer Software” at http://cendi.gov/publications/09-1FAQ_OpenSourceSoftware_FINAL_110109.pdf  question 4.3 says: “an agency may distribute software created by a vendor to all users under an open source licensing scheme if it acquired sufficient rights from the vendor to do so in the software. For example, an “unlimited rights license” acquired under a DFARS procurement-type contract…”  Similarly, the “DoD Open Source Software (OSS) FAQ” says that once the government has unlimited rights, it can “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.”
5. The government can probably take other measures against someone who does not comply with the license, though.  For example, the government may be able to sue for breach of license.  Also, an infringer may lose any ability to enforce rights over the resulting work in U.S. court due to the doctrine of unclean hands.
6. Ashton B. Carter, “Memorandum to Acquisition Professionals Subject: Better Buying Power: Mandate for Restoring Affordability and Productivity in Defense Spending” on Defense Spending 28 Jun 2010.pdf –  His first point on providing incentives is to “Avoid directed buys and other substitutes for real competition. Use technical data packages and open systems architectures to support a continuous competitive environment.”
7. GAO GAO-06-839 “WEAPONS ACQUISITION: DOD Should Strengthen Policies for Assessing Technical Data Needs to Support Weapon Systems” (July 2006) http://www.gao.gov/new.items/d06839.pdf reported that “The lack of technical data rights has limited the services’ flexibility to make changes to sustainment plans that are aimed at achieving cost savings and meeting legislative requirements regarding depot maintenance capabilities… Unless DOD assesses and secures its rights for the use of technical data early in the weapon system acquisition process when it has the greatest leverage to negotiate, DOD may face later challenges in sustaining weapon systems over their life cycle.”
8. See, for example, “Fire support’s dependence on contractors,” Sgt Timothy Caucutt, https://www.mca-marines.org/gazette/2010/08/paying-pirates
9. This U.S. law does not cover software, but the DoD also applies this to software per DFARS 227.7203-1(c) and (d).
10. George O. Winborne, Jr., “Who’s Killing the Goose?” American Bar Association Section of Public Contract Law Program Intellectual Property in Government Contracts—What You Didn‘t Learn in Kindergarten, November 11-12, 2010, Seaport Hotel, Boston, Massachusetts.  https://acc.dau.mil/adl/en-US/401584/file/54029/Winborne_ABAPCL_paper_Wh… _Release.pdf