[Solar-general] USA gob libera soft como GPL

Vie Jun 11 06:05:11 CEST 2004

http://www.linuxjournal.com//article.php?sid=7622

The right of passage no one noticed.

Earlier this year, a major open-source event came and went without much
community notice and with little media attention. A Cabinet-level federal
agency released a software product under the GPL, making it the first tool of
its kind to be licensed by the US government free of charge to public and
private sector organizations.

Although the Open Source and Industry Alliance praised the effort in a letter
to Secretary Elaine Chao, some of us wonder if this kind of event will happen
ever again. This story received little to no attention by the media, yet it
created quite a stir within the government software vendor community. The
backlash might have government officials thinking twice the next time the
subject comes up.

Opportunities seem rare in the case of the government releasing GPL software.
First, the government wants industry to bring solutions to government problems
rather than have government agencies develop their own software. That makes it
difficult for procurement officials to find their "best value proposition".
Secondly, open-source vendors do not have the funds, organization and
alliances to educate procurement officials the way proprietary firms do. So,
government agencies buy licensed software products almost universally.

So, when a government agency does put GPL software on a Web site and let
people download it for free, that's an important milestone. It's not one we
should take lightly.
How It Happened

Peter Gallagher, of DevIS worked diligently for several months to have the
first federally funded GPL project released. When he finally saw light at the
end of the tunnel, he realized he achieved his goal but not without a high
degree of difficulty. It took nine months of negotiations, extensive legal
fees and many sleepless nights--a high cost for a small business. He still
wonders if he created a model agencies can follow in the future. Peter explains:

    Our experience working with the Dept. of Labor to have our work released
under an OSS license was telling. Here we are talking about software
development that was funded by the government as opposed to buying a license
in an existing product. The Federal Acquisition Regulations (FAR) have
something called "Rights in Data" that are part of any Federal contract. The
basic clause says authors generally have the right to their copyright--this
applies to a research paper as well as software although it does get complicated.

    To release under the OSS license you need to have a copyrighted work, and
the government generally does not create copyrighted works. So in the case of
the DoL, DevIS transferred our copyright to the DoL who released the work. I
think it would have been easier to just have us release the code directly as a
small business. Developing the copyright transfer document cost us over
$20,000 in legal fees but in this case our customer, the DoL, wanted the
responsibility. The important thing for us was that a product we developed,
primarily with federal funds, was now released on a .GOV site as OSS. 

Companies should be able to release such code without difficulty. When DevIS
requested its copyright, the customer hesitated and decided not to release the
copyright. That began rounds of negotiations, which ended with DevIS giving
the copyright to the DoL, which in turn placed the product under the GPL,
albeit awkwardly. You can download the software after you agree to the license
and register with the agency--not exactly a FLOSS approach.
Is Government Software Really Public?

Many of us seem confused about the federal government's ability to fund,
copyright and release code under the GPL. I discussed this topic with a number
of people who pointed me to the United States Code, Title 17, Chapter 1,
Section 105. It states:

    Subject matter of copyright: United States Government works: Copyright
protection under this title is not available for any work of the United States
Government, but the United States Government is not precluded from receiving
and holding copyrights transferred to it by assignment, bequest, or otherwise. 

Peter explains:

    In many cases, assuming the software is not proprietary, the work is
available to the whole government for unlimited use and it falls under the
public domain. Public domain materials can be requested by anyone, but in
practice the people who know about an internal government project are limited.
Thus, being available to the public does not mean anyone would know to ask
[for it]. So is it really public? 

Is the Federal Government Missing an Opportunity?

Open-source advocates may find the situation perplexing, at best. If the
government uses our tax dollars to develop software to solve government
problems, why can't we know about it? Why can't a vendor have the copyright
and release it as open source? Where's the level playing field we so often see
quoted? How can I compete against industry giants as a small company?

Again, Peter explains:

    The advantage of an Open Source Software license is that the code must be
published--I assume that to mean that it must be made available via the Web.
An Open Source Software license creates clear commercial rights, making it
more likely that government funded code will result in something beneficial
for citizens, including eGovernment re-use that cuts costs--and hopefully
taxes someday. 

In last week's article, we discussed the Library of Texas.org project. In that
case the vendor, Index Data of Denmark, made the software available under the
GNU General Public License (GPL). From my point of view, that seems like the
appropriate way a government-funded project should proceed. Public money
funded the project, so the vendor should have some obligation to make it
available to the public through a normal commercial channel, without us having
to pay for it again and again, a la Microsoft.

If you question the logic, consider this scenario: the government (on the
citizens' behalf) asks a commercial vendor to build a car, the vendor builds
the car and the government says, "we invented the car". Although the
government funded the project, you have to ask who did the inventing. Who had
the brain power to make it happen? Also, who paid for it? In some distorted
belief systems, some agency officials somehow feel that the money belongs to
them and not to the people of the United States.
Did the Public Benefit?

I asked Peter about the status of the project once it became a GPL project.
Here is what he said:

    We continued our support for the project through a derivative work we call
EZRO (EZ Reusable Objects). It has a clear lineage. Since the original
software was finished, the DoL has modified it through other contracts, and
DevIS has enhanced EZRO. The public benefits because software now is available
that in the past would have been locked away. The government benefits too; the
DoL/OSHA, for instance, has saved hundreds of thousands of dollars by
developing and delivering e-learning using EZRO. And open-source projects
benefit when the government uses their products, because professional
developers can contribute to communities with which they otherwise might not
have been able to work.

    I think, as a default license, any federal contractor should be allowed
and encouraged to request copyright so that work can be published easily under
an OSS license. There is no reason that specific contracting language could
not require OSS releases as well, although the federal government is unlikely
to state such a preference, relying instead on the market to propose solutions
to their requirements.

    Except where the government has security issues, I think publicly funded
code should be available to the public. And as we move more to components, Web
services and portals, it is pretty clear to me that OSS can save a lot of
money and make systems better by sharing investments in public infostructure. 

Has Peter's Work Made a Difference?

In my experience, getting the Department of Labor to GPL a software product
has made a difference. For one thing, the rest of the government knows the
product exists. Although government-developed software should be available to
any other agency, rarely does one agency know what another has. Secondly, a
milestone by any other name is still a milestone. Regardless of the
awkwardness of the process, a precedent exists and we now can show proof of
concept.

Finally, I have dug around and looked for any possible opening to see if
open-source software can have a place in government procurement. One exists in
an obscure Request for Proposal (RFP) hardly anyone would know about. Among
the familiar wording,I found something about which to smile. From a RFP:

Describe in detail a standards based system solution: Include the software and
hardware products and components of your proposed solution. State the hardware
platforms and operating systems on which your system will operate. Define COTS
(Commercial Off-the-Shelf) products, including Open Source software you
propose and the standards (ANSI, IEEE, ISO, etc.) of your proposed solution.

Noticed that the authors of the RFP asked the vendors to "Define
COTS...including Open Source software". Of the thousands of RFPs posted on
government sites in the United States, someone got the message.

In an election year, I doubt this will become much of an issue, especially in
light of the media's focus. But, wouldn't it be something if the people
somehow demanded that such a clause exist in every RFP issued in the future?

Tom Adelstein works as a Linux consultant and specializes in identifying
opportunities for open-source software in organizations. He's the coauthor of
the upcoming book, Exploring Linux with the Java Desktop System, published by
O'Reilly and Associates. He also works with the Open Source Software
Institute. He recently published two articles in Forbes about open-source
software and JBOSS. He also has written numerous articles as a guest editor
for a variety of publications.