Should Software Created By The Federal Gov't Be Open Source Licensed... Or Public Domain?
from the debate-time dept
Top Three Reasons to Mandate Open Sourcing of Custom Federal Software: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.
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.
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.