From my research with government technical staff, I discovered that strictly speaking, there are not many issues that are truly “unknown.” Usually, the case is that the issue has at least has been experienced by government staff, but no best practice has clearly emerged. And then, sometimes it is not the issue that is unknown, but rather whether a potential solution for an issue would be valid and effective.
Sovereign/Governmental Immunity: One example of a potential solution whose effectiveness is fairly unknown is the doctrine of sovereign/governmental immunity. For example, consider the issue of a state being sued by a non-practicing entity for infringement of a business method patent, because software in use in that state is alleged to be duplicating the method of the patent without the state having paid royalties. Sovereign immunity could apply since patents are an intellectual property, and at least under eminent domain, states may only be liable for reasonable compensation, such as a reasonable licensing fee. Read more in the Sovereign Immunity section of the Legal and Procurement Issues Guide.
Effect of no license with FOIA released code: FOIA requests of government software code cause the unknown issue of what the licensing status is of the code post FOIA release. Without issuing a license alongside the code, it is unknown what liabilities may result from code for which no disclaimer or warranty has been provided. Read more in the Status of Code Released Under a FOIA request section of the Legal and Procurement Issues Guide.
Adherence to GPL License requirements: The GPL operates with the premise of copyright ownership to require that certain conditions are met while using and developing upon the code base. Because the Federal government cannot hold copyrights for works produced by Federal employees in the course of their jobs, there is no copyright available for the GPL to operate with. Thus the status of code which is attempted to be licensed under the GPL by a Federal government entity is unknown. Read more in the Adherence to GPL License Requirements section of the Legal and Procurement Issues Guide.
In all, the more publicity and sharing that an issue receives, the quicker it shifts from being an unknown to a known. In October, the UK Cabinet Office released a series of guides on open source procurement, which helped to shed light on some of the unknown procurement issues around open source software. In theory, the issue exists as to whether open source software enjoys an unfair advantage and bias in procurement because it is free to download, in comparison to proprietary fee based software. However, in this blog piece in Computerworld UK, the author cites to a portion of the UK procurement toolkit that seems to suggest that EU procurement rules do not apply if open source software is downloaded and deployed, so long as there is no need for a support vendor.
Thus, even with the release of official toolkit guides, unknown questions may linger – waiting for an answer from a voice of some authority. Accordingly, with the help and contributions to the Legal and Procurement Guide of government folks in the trenches who intimately encounter these “unknown issues,” everyone can benefit and a consensus and best practice can form around how to tackle these nuanced issues.
If you are a government staff member experienced with encountering “unknown” issues in procurement of open source software, we welcome your stories and experiences in the “Legal Issues Not Well Known, and Possible Solutions” section of the legal and procurement issues guide. Please create an account on the Civic Commons Wiki today and begin adding your insights today. Thanks!
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