[Harmony-Drafting] Fwd: [Harmony-Review] What about US Government contracts?

[Allison Randal]

I could use some of the lawyers in the group to step in on this one.

-------- Original Message --------
Subject: [Harmony-Review] What about US Government contracts?
Date: Fri, 08 Apr 2011 13:42:03 -0400 (EDT)
From: David A. Wheeler <dwheeler at dwheeler.com>
Reply-To: dwheeler at dwheeler.com, Review Harmony Contributor Agreements 
<harmony-review at lists.harmonyagreements.org>
To: harmony-review at lists.harmonyagreements.org

Hi, I have some concerns about the agreements (primarily the Contributor 
Assignment Agreements) and their potential incompatibility with software 
developed with U.S. government funding.  Can you clarify that in the 
agreement, or if you think that's really adequately covered, talk about 
that specifically in the FAQ?

The U.S. government annually spends billions of dollars on software. 
However, as written, these agreements might make it difficult for an 
assignment to occur.  Where possible, this should be easy not hard.  I 
suspect that other governments have similar rules, so this probably 
applies elsewhere.  I'm sure that you want to make sure that governments 
and contractors can participate too!

Here's the background.  In *many* circumstances, the U.S. government has 
"Unlimited rights" to software it pays to develop, but NOT the 
copyright.  Even though the U.S. government is *not* the copyright 
holder, it holds essentially all the same rights as a copyright holder 
("unlimited rights" is actually same list of rights, in the same order, 
as the rights of a copyright holder).  It should be clear in these 
agreements that the government can enter into an agreement if it has the 
rights of a copyright holder, even if it's technically not the copyright 
holder.

Similarly, even if someone is the copyright holder, they typically can't 
give exclusive rights because they don't *HAVE* exclusive rights.  E.G., 
in defense contracts, often the contractor has the copyright, but the 
government has unlimited rights, and so even if they transfer copyright, 
they CANNOT give anyone exclusive rights (because the contractor doesn't 
have exclusive rights).

A short article that is a "decoder ring" for government contracting and 
open source software is here:
  https://softwaretechnews.thedacs.com/stn_view.php?stn_id=56&article_id=180

I see that you've tried to do something like this, both in the 
agreements and the FAQ discussion of "neighboring rights" - but I'm not 
sure it's quite enough.  Contributor Assignment Agreement part 2.1(a) 
seems to say pretty clearly that title transfers, yet the one who's 
contributing (and has the rights to do so) may not have title.  I think 
that needs to back off a little bit, e.g., "title where the contributor 
has title" or some such.  And somewhere deal with "exclusive"; the 
contributor might not have completely exclusive rights.

Since US government contracts represent billions of dollars, and similar 
situations probably apply elsewhere, I think it's worth making *sure* 
that it's okay.  I will see if a lawyer in CENDI (or some such 
organization) would be willing to work with you, to resolve any issues 
like this.

--- David A. Wheeler
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