Should Software Created By The Federal Gov't Be Open Source Licensed... Or Public Domain?

from the debate-time dept

Mon, Jul 23rd 2012 2:25pm — Mike Masnick

Anil Dash recently alerted me to a White House petition to get "government-developed software" under an open source license for the sake of allowing others to build on it and approve it.

Top Three Reasons to Mandate Open Sourcing of Custom Federal Software:

Openness: Open Sourcing ensures basic fairness and transparency by making software and related artifacts available to the citizens who provided funding, consistent with the President’s 2009 declaration that “Information maintained by the Federal Government is a national asset.”

Economic Multiplier: Making Provides an economic stimulus by serving as the raw material that supports a competitive software development and services industry.

Supports the Federal “Shared First” Agenda: Maximizes value to the government by significantly increasing reuse and collaborative development between federal agencies and the private sector, consistent with the current Office of Management and Budget (OMB) “Shared First” initiative.

While I certainly share the sentiment expressed in those reasons, I got into a bit of a debate on Twitter about this, because existing law (i.e., 17 USC 105) already says that "Copyright protection under this title is not available for any work of the United States Government." In other words, anything created by the US government is already public domain. Of course, public domain and open source are two different things -- but if something is public domain, it could preclude the ability to then slap a license on it, since those licenses are effectively built off of copyright, and claim specific limitations, which the government might not be able to actually claim over the software. Of course, they don't always seem to follow this, as we noted recently in our post about the NSA open sourcing its database technology, Accumulo.

The flip side, of course, is that even if something is public domain, the government could still keep it a secret -- as is the case with many Congressional Research Service (CRS) reports. So you can see the argument for pushing for an open source license, rather than just an admission of public domainness. Furthermore, as amac helpfully pointed out, there are significant exceptions to the rules saying the feds can't copyright (for example, contractors or just those funded by the government can copyright their works and then even assign them to the federal government). Furthermore, it may only be seen as public domain in the US, rather than elsewhere.

And, on top of that, Dash made a reasonable point that his focus is on advocating pragmatism in dealing with this -- and he believes that pushing for open source licenses is, perhaps the most pragmatic.

I don't disagree with Dash, but I fear the idea of setting up the belief that the federal government needs to set a particular license for a work to be useful to the public to build on. It only increases the idea that public domain works can be "owned" and limited in ways that is simply not true. I would think that a much more useful solution is a two-fold one: first an admission that government-created software is, in fact, public domain and second, a policy decision and statement that not only will such works be public domain, but, as a matter of standard procedure, that the federal government will also release the code for others to build on with no particular limitations and with encouragement to then share the results in kind.

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Filed Under: copyright, government, open source, public domain, software

17 Comments

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RonKaminsky (profile), 23 Jul 2012 @ 3:04pm

Contractor-developed gov't SW
Software paid for by the government but developed by private contractors can be under copyright of the developing contractor. Perhaps the petition also meant to include limiting government-awarded contracts to having a clause which forces the contractor to license the software he produces to the public under an approved open-source license?
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- aethercowboy (profile), 24 Jul 2012 @ 5:37am
  
  Re: Contractor-developed gov't SW
  I was under the impression that gov contract software was a "work for hire", and as such, was a funny little legal loophole that lets the gov have copyrights on software.
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Anonymous Coward, 23 Jul 2012 @ 3:45pm

I already "approve" of the idea. What government software will need is "improve"ment.
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- Anonymous Coward, 23 Jul 2012 @ 10:21pm
  
  Re:
  Correct. Please fix story.
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Anonymous, 23 Jul 2012 @ 4:54pm

It's the others contributions
The purpose of an open source license is two-fold; it also describes under what conditions contributors are granting a license to their contributions. It ensures that the entire codebase, not just the part written by the government, is fully available to all.
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- Mike Masnick (profile), 24 Jul 2012 @ 12:06am
  
  Re: It's the others contributions
  The purpose of an open source license is two-fold; it also describes under what conditions contributors are granting a license to their contributions. It ensures that the entire codebase, not just the part written by the government, is fully available to all.
  
  I understand that, but the simple fact is that if it's public domain, the government CANNOT put such a restriction on the content, even if it wants to. I recognize it may be good to have that, but I'm not convinced it's legal.
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  - The eejit (profile), 24 Jul 2012 @ 1:43am
    
    Re: Re: It's the others contributions
    As an aside, am i yhe only one amused that the GPL on this thing would be issued by "The Feds"?
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Lawrence D'Oliveiro, 23 Jul 2012 @ 6:04pm

�it may only be seen as public domain in the US, rather than elsewhere�
But how would that work? In any country of the world, as I understand it, a civil copyright infringement suit can only be brought by the copyright holder, or someone authorized to act on their behalf. Would the US government dare to try to enforce copyright on its works outside the US, when it knows full well it cannot do so within the US?
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Anonymous Coward, 23 Jul 2012 @ 6:52pm

In practice, "public domain" counts as an open source license
While in theory it is a different thing, in practice "public domain" is treated as a valid open source license. For instance, take a look at how Debian and Fedora (two Linux distributions which are quite cautious about licensing) treat it.
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techinabox (profile), 23 Jul 2012 @ 9:59pm

If the Federal Government has to release the software it produces to the public domain rather than under an open source license there would almost certainly be some licensing conflicts with other open source licenses. GPL is the most obvious one but most of the other open source licenses all have redistribution restrictions that would make utilizing code difficult if not impossible. Now we can quibble about open source licenses being good or bad or stupid or what have you but do we really want to argue that the US government agencies shouldn't be allowed to submit improvements to Apache or send things upstream to Debian or build a database based on Couch?
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- Anonymous Coward, 24 Jul 2012 @ 6:59am
  
  Re:
  LOL what? public domain is GPL comatable since any dirived work can be GPL licensed.
  
  Note that both the permissive MIT and apache 2.0 are both GPLv3 compatable despite having more restrctions than pubic domain works.
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  - Yoshord, 27 Jul 2012 @ 9:43pm
    
    Re: Re:
    You can take something MIT licensed and then put it into a GPL licenced work.
    
    What you cannot do is take a GPL licenced work and then put it into a MIT licensed work.
    
    It's not just that the GPL requires that derivative works can be incorporated back into the original. It's that the GPL requires every derivative work of a derivative work of a derivative work of a derivative work of a derivative work ad infidium. A derivative work of a MIT licenced work can be closed source. Therefore, if a derivative work of a GPL work is MIT licensed, there is some point in which a derivative of a GPL work can be closed source. This contradicts the GPL license. Therefore a derivative work of a GPL work cannot be MIT licened.
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Anonymous Coward, 23 Jul 2012 @ 11:03pm

Oversight
Government bureaucrats are nearly always in favour of closed source proprietary software. This is because it always gives them someone to blame when it -- inevitably -- goes wrong. If the vendor is getting the blame, then the bureaucrat is not. Also, it is clearly the vendor's responsibility to fix the problems, not the bureaucrat's. Then there is no requirement for the government organization to hire programmers to fix anything. Then the contract ends, the vendor announces success and walks away counting the money. If the software is then still not functional, it gets scrapped. Rinse, repeat, at vast expense to the taxpayer.

The answer is adequate oversight from the political level. Senior bureaucrats need to be held accountable (that is, fired) when this little scenario plays out. Alas, Congress declines to adequately perform its oversight responsibilities. It is too much like hard work for them. The only answer to that is to make it an election issue. US voters, do your duty.
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Ninja (profile), 24 Jul 2012 @ 4:49am

Public domain. It was paid with my money, your money, everybody's money. So it's public domain, simple as that. Obviously software developed for military or any sensitive area could remain closed (I know, I know it's a broad definition and open for abuse and I know the interwebz was a military thing at first but that's another discussion).
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Anonymous Coward, 24 Jul 2012 @ 10:24am

Outside any software that shouldn't be released (which would mostly be specialized military software.) for national security reasons, *ANY* software built by the government, or specifically built under contract for the government, should damn well be open source.
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Chris Maresca, 24 Jul 2012 @ 1:24pm

Most US gov't software doesn't fall under public domain clause...
.. that's because contracts are not written as 'work for hire', so the developer typically retains all the rights.

This isn't as stupid as it sounds since it makes the developer fully responsible for the software (in the same way off-the-shelf software is) and it allows for intra-agency re-use. Intra-agency re-use is really, really hard otherwise as Congress bans cross-agency resource usage in any way. Basically, sharing resources between agencies requires explicit Congressional approval (aka, a law). Never mind laws that prevent the US gov't from doing anything competitive with the private sector...

Open source *might* be a solution, but the management of an open source project is even more a headache (see above re: resources), so that's not optimal...

The only other 'easy' solution is to contractually require the developer to license their work under an OS license. Of couse, the developer would still retain copyright, so it would make zero difference in practice and if you wanted a community it would wind up costing more money...

How do I know this? I advised four cabinet level US gov't agencies on open source strategies. Usage is easy, but creating/managing it is very, very hard. Politically, it's far easier to just keep it proprietary. Besides, the gov't often extracts other benefits by using Cooperative Research & Development Agreements (CREDA) to get free stuff in exchange for it's IP....
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Gene Cavanaugh (profile), 24 Jul 2012 @ 2:15pm

Public Domain for government software
Total agreement, Mike.
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