On March 11, 2016, the Office of Management and Budget (OMB) published a Federal Register notice seeking public comment on a draft memorandum entitled, “Federal Source Code Policy — Achieving Efficiency, Transparency, and Innovation through Reusable and Open Source Software.’’ The notice explains that the Administration’s Second Open Government National Action Plan committed to adopting a Government-wide Open Source Software policy that ‘‘will support improved access to custom software code developed for the Federal Government.’’ The idea is that using and contributing back to Open Source Software (OSS) will fuel innovation, lower costs, and benefit the public. Unfortunately, the proposed policy threatens to strip government-funded software developers of the rights they have historically retained in the fruits of their labor – something that could ultimately prevent the government form achieving its stated goals.
The notice describes the draft policy memo as a way to improve the way custom-developed Government code is acquired and distributed moving forward. The policy requires that, among other things: (1) New custom code whose development is paid for by the Federal Government be made available for re-use across Federal agencies; and (2) a portion of that new custom code be released to the public as OSS.
Subject to certain limited exceptions, the requirements outlined in the policy memo apply to all covered agency agreements that (1) relate to Federally-procured software solutions; and (2) include requirements for, or may result in, custom-developed source code. The policy also applies to all custom code created by covered agency employees in the course of their official duties. It does not, however, require that existing custom-developed source code created by third party developers or vendors for the Federal Government be retroactively made available for Government-wide reuse or as OSS (although doing so to the extent permissible under existing contracts or other agreements is strongly encouraged). Nor does it apply to software code whose development was not paid for by the Federal Government, even if later procured by the Federal Government. Given the nature of the policy requirements, however, those carve-outs offer cold comfort.
To take advantage of the “numerous benefits for American taxpayers“ offered by reusing source code throughout the government, the draft policy states that all covered agencies and component organizations that procure custom-developed software solutions for the Federal Government must, at a minimum: (1) Require delivery of the underlying custom source code, associated documentation, and related files—from the third-party developer or vendor to the Federal organization (including build instructions and, when applicable, software user guides, other associated documentation, and automated test suites); and (2) Secure unlimited rights to the custom source code, associated documentation, and related files—which includes the rights to reproduction, reuse, and distribution of the custom source code, associated documentation, and related files across the Federal Government. The OMB policy directs covered agencies entering into agreements for the development of software to require unlimited data rights in accordance with this policy.
The policy memo’s approach to OSS is similarly motivated by the desire to benefit the public. In this case, the OMB seeks to build on the principles of transparency, participation, and collaboration outlined in its Open Government Directive as forming the cornerstone of an open government. Perhaps more telling is the OMB’s stated belief that “Federal OSS can also contribute to economic growth and innovation as state and local governments, private sector companies, taxpayers, and others can reuse that code to develop products and services for the public.” To that end, the policy memo requires that covered agencies participate in a pilot program under which each agency shall release at least 20 percent of its newly-developed custom code each year as OSS. The 20 percent figure is a floor, however. Covered agencies are “strongly encouraged to publish as much custom-developed code as possible to further the Federal Government’s commitment to transparency, participation, and collaboration.”
The draft policy memo also outlines specific implementation actions and time lines.
While the stated goals are laudable, achieving them essentially requires taking rights away from software developers. Anyone engaged in software development for the Federal Government needs to read the memo carefully and consider commenting on its provisions. The comment period ends April 11, 2016. Timely comments and feedback should be directed to https://SourceCode.cio.gov or to SourceCode@omb.eop.gov.
Eric Whytsell is responsible for the contents of this Article.
© Jackson Kelly PLLC 2016