Sharing Principles, Policies, and Law, Not Just Code

Michelle Koeth
Wed, 11 May 2011 15:00:06 +0000
Commentary, legal issues, procurement

With good reason, government staff require proven, reliable, and safe information technology solutions for their needs. Further, with government IT staff and budgets being cut, government needs to do more with less. Making apps already developed and proven by one government entity (such as a city government) available as open source, can be a great starting point for engaging with other government entities to reuse applications. Further, some of the fears of working with open source projects (such as lack of supporting technical community) can be alleviated by leveraging an application’s community resources such as discussion email lists.

However, support and viability of an application are only a few of the considerations government IT staff must consider. Sometimes procurement issues, restrictive licensing terms, and fears of intellectual property (IP) infringement also weigh heavy in the ultimate decision to proceed with implementing an open source software solution.

At its core, the open source software strategy revolves around “harnessing the power of distributed peer review and transparency of process,” as set forth by the Open Source Initiative. It follows then that the licences, and policy guidance used to support open source software should also harness the power of community and the transparency of process.

While the community of lawyers and technologists supporting open source legal and procurement policy certainly exists, their jurisprudence may be overshadowed by salacious headlines of software giants suing one another to challenge the open source status of code used in a particular software product. Further, lawyers are trained in understanding and identifying risk, and making decisions based upon an understanding of risk as they have been defined in the courts and by statute. Thus, a lack of understanding of the current state of case law around open source licensing and IP infringement issues frustrates a government attorney’s ability to make confident legal decisions about adopting open source software. This is something that needs to change.

Part of Civic Commons’ mission, in addition to facilitating the sharing and reusing of government technology, will be to facilitate the decision to reuse and share government technology. That is, we help bring greater exposure to the existing jurisprudence harvested from the experienced community of lawyers and technologists supporting open source. Our Wiki already holds many great links to such resources, but to get you started:

A primer for licensing, trademark, copyright and patent issues with use of open source software, authored by the experienced attorneys of the Software Freedom Law Center: http://www.softwarefreedom.org/resources/2008/foss-primer.html

A detailed explanation of the most popular open source licenses, by the Open Source Initiative, a governing body which reviews and approves licenses: http://www.opensource.org/licenses/category

Public education legal procurement tools: http://dotank.nyls.edu/contract-commons/

Tips for procuring open source software: http://www.oss-watch.ac.uk/resources/tips.xml

An international law review journal on Free and Open Source Software issues: http://www.ifosslr.org/ifosslr/index

In all, the Open Source Software model has proven that quality, efficiency and cost-savings result from distributed peer review and transparent processes. These benefits do not have to be limited only to software code; they can, and should be extended towards the supporting legal and procurement processes in government IT acquisition. Part of that is listening to, and collecting the wisdom from experienced government procurement and contracting specialists about the particular needs of government.

To that end, Civic Commons wants to know: what legal or procurement issues have you encountered that have complicated the use or adoption of open source software in your organization?