[Harmony-Drafting] Fwd: [Harmony-Review] What about US Government contracts?
Allison Randal
allison at lohutok.net
Fri Apr 29 16:40:29 UTC 2011
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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