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CHIPS Articles: What is the ruckus about DoD issuing open source software?

What is the ruckus about DoD issuing open source software?
A response to the foremost questions regarding open source use in the Defense Department.
By Damien Walsh and John Masterson - October-December 2007
Q: Can the Department of Defense (DoD) issue open source software (OSS), and what is the benefit to DoD if it does? If DoD holds enforceable rights to the software, can it license OSS?

The short answer: Whenever it is in the best interests of DoD to expedite refinement and development of its software through active participation of private development, DoD will benefit from the issuance of OSS — assuming the software is not classified or mission sensitive.

What is open source software?

OSS is often mischaracterized as "free" or "free software," but a more accurate definition within the industry is that OSS has a license with limited restrictions which allows royalty free distribution of the material and derivative works. Open source is a development method for software that harnesses the power of distributed peer review and transparency of processes. The OSS model implies better quality, higher reliability and lower cost.

A more detailed definition from the Open Source Initiative can be found on its Web site at www.opensource.org/docs/osd. The OSI is a nonprofit corporation formed to educate about and advocate for the benefits of open source and to build bridges among different constituencies in the open-source community.

Does DoD hold enforceable rights to its software?

If the software is developed solely by DoD personnel, government employees or uniformed service members, U.S. Code Title 17.105 prohibits federal copyright of the software. DoD personnel may develop such software either as a contributor to already existing OSS or as a producer of new OSS.

It appears the general intent of the statute was to promote commercial use and development of government technologies by creation of a statutory determination that such technology was automatically part of the public domain for use by all.

Under these circumstances, DoD arguably would have no rights to issue or enforce any rights or responsibilities in an OSS license. This prohibition stated in U.S. Code Title 17.105 does not extend to software and other technology produced by a federal contractor, in which case, the federal government can require a contractor to assign the technology copyright back to the government.

In such cases, the Defense Department would hold a copyright, which would give it enforceable rights in an OSS license. However, DoD agencies must cautiously examine the software to ensure that is neither based on nor relies on other proprietary software for which it must either: (1) seek separate license agreements with the proprietary owner or, (2) advise other users of the underlying software, for which they must purchase separate license agreements.

Does DoD have the authority to license software and other technologies developed by its federal workforce?

U.S. Code Title 15 3710(a) states that a government-operated federal laboratory may negotiate licensing agreements under U.S. Code Title 3535.207 or under "other authorities" for inventions made or "other intellectual property" developed at the laboratory.

The intellectual property fields applicable to laboratories are patents (U.S. Code Title 3535.207), trademarks (U.S. Code Title 15.1127) and copyright assignments to the Government (U.S. Code Title 17.105). Thus, if the intellectual property does not fall into one of these categories, or another "specific authority," such as trade secrets, it is unlikely that DoD has the authority to license the intellectual property under OSS or some other type of license.

An argument can be made that reliance on state law, such as the Uniform Trade Secrets Act, may be appropriate where federal common law does not exist under Erie v. Tompkins. But that argument fails where the federal statute is clearly intended to prohibit copyright of intellectual property created solely by federal employees so that the intellectual property would be part of the public domain.

An argument can also be made that the intellectual property could be protected and distributed under a nondisclosure agreement, but this contractually enforceable arrangement appears to circumvent the clear intent of U.S. Code Title 17.105.

A question for debate is how much must a contractual collaborator participate in the creation or add to the creation before it is distinguishable from a creation of federal personnel under U.S. Code 17.105? Some agencies are so frustrated that they are considering patenting software to maintain some enforceable rights over government-created products.

Government written software may be withheld from the provisions of the Freedom of Information Act if it is not a "record," or if it is a "tool," rather than inextricably entwined with a particular database. But FOIA protection does not provide enforceability against infringement that would be provided by a copyright, software license or patent, and it does not provide the basis needed for an open source software license.

What sort of problems do these limitations engender in the DoD research and development arena?

Because DoD is limited within narrow parameters of copyright and enforcement, it is left without enforcement rights for other intellectual property relegated to the public domain. By contrast, open source software is protected by a copyright invoked in the OSS license as a "copyleft" — and is not in the public domain. A copyleft grants reuse and reproduction rights to everyone under a General Public License or other OSS license.

Recent examples show a growing trend in which DoD and other federal intellectual property have been plucked from the public domain, mildly modified into derivative works — then resold back to the government at an alleged market price that includes full developmental costs of the intellectual property — which were entirely or substantially already paid by the government.

This trend is not likely to diminish as the interpretation of derivative works becomes more and more liberal. Thus, it appears that legislation may be necessary to protect government interests.

What benefits does open source software use offer to DoD?

The debate is split on the benefits of OSS development in the public arena. Some argue that OSS access does not allow the controlled, enforceable development of intellectual property, and that the process is filled with security challenges.

Kenneth Brown, president of the Alexis de Tocqueville Institute asserted in his 2002 white paper, "Opening the Open Source Debate," that OSS can, and, in fact, is "anxious" to ruin the growth of the software industry and is riddled with security problems.

But others believe that OSS allows immediate collaboration with experts in the industry, and prompt, if not immediate, identification and resolution of weaknesses, which result in faster development of better products available to the public.

Statistics show that public access to OSS products has routinely resulted in identification and correction of security shortfalls and hacking issues in just a matter of days. These same types of issues may take proprietary owners months to identify and resolve with finality. Proprietary quick fixes are often characterized as band-aid solutions.

In his 2001 article, "Open Source-onomics: Examining some pseudo-economic arguments about Open Source," Ganesh Prasad concludes that: "There is great wealth that will be created through open source in the coming months and years, and very little of that will have anything to do with money. A lot of it will have to do with people being empowered to help themselves and raise their living standards."

Prasad also writes, "Open source gives means to human aspiration. It breaks the artificial mercantilist limits of yesterday's software market and unleashes potentially limitless growth."

A Mitre Business Case Study of Open Source Software found that "OSS provides more options than traditional COTS (commercial-off-the-shelf) products for life-cycle supportability … It can be used in the form of pure COTS, 'modifiable COTS,' or custom code …"

The same report recommends particular applications for command and control, information systems and embedded weapon system program managers. It also states that "… OSS can provide substantial advantages over commercial software, particularly when reliability and long-term support are key requirements …" The case study can be found at http://www.mitre.org/work/tech_papers/tech_papers_01/kenwood_software/.

OSS appears to be an excellent vehicle for meeting the Defense Department's technology transfer goals. But there is a cautionary note: If the Department uses OSS, there is a risk that the software it develops will continue to be identified as DoD software, even after it has been substantially modified.

For example, Defense software and derivative software have in the past been marketed by reference to a DoD nomenclature, which gives the impression that the marketed product is the same and of the same quality associated with the government-produced OSS.

To avoid this, the Defense Department can coordinate subsequent modifications by other software developers with a reputable OSS organization. An excellent case study of how this approach can work for DoD is the development of Linux software. For an example, see Federico Iannacci's paper, "The Linux Managing Model," from the London School of Economics.

Final thoughts …

The Defense Department should take advantage of open source software licenses and the use of other OSS products where it is in its best interests to do so. OSS offers immediate access to nearly limitless resources for product refinement and improvement, as well as flexible solutions, which are not always available from COTS-based solutions. These benefits and cost savings extend to the public sector as well.

Damien Walsh is an attorney advisor with U.S. Joint Forces Command. John Masterson is an attorney advisor with Naval Sea Systems Command.

The Department of the Navy Chief Information Officer (DON CIO) issued the DON Open Source Software Guidance Memorandum June 5, 2007. This memo provides guidance for all Navy and Marine Corps commands regarding the use of OSS. Go to the DON CIO Web site at www.doncio.navy.mil for more information.
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