[Harmony-Review] What about US Government contracts?

David A. Wheeler dwheeler at dwheeler.com
Fri Apr 8 17:42:03 UTC 2011


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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