Subject: Re: Software as a public service
From: Ben Tilly <btilly@gmail.com>
Date: Mon, 14 Mar 2005 13:18:40 -0800

On Mon, 14 Mar 2005 11:46:52 -0800, DV Henkel-Wallace
<gumby@henkel-wallace.org> wrote:
> 
> On 14 Mar 2005, at 07:43, Sergio Montoro Ten wrote:
> 
> > I'd like to propose the topic of discussion:
> >
> > Should a goverment pay a software development for its release as Open
> > Source?
> 
> I am unclear on what you are asking.
> 
> - If the government buys pre-written software (e.g. MS Word) then that
> should convey no special status any more than when it buys an
> automobile tyre or telephone service.  To do anything else would
> essentially be taking by (in US legal terms) "eminent domain"  and
> should be broadly circumscribed (in fact in the US there is currently a
> case before the supreme court specifically about the scope of eminent
> domain).
> 
> - If the government pays for software _to be written_ (i.e. either by
> contractors working to government specification or by government
> employees) I think that such software should be explicitly placed into
> the public domain, including source.  Much as I love the GPL I think
> its use in this context would be unjust.
> 
> By the way this was in general how it worked into the 1990s in the US.
> The details are hazy in my mind, but for example I seem to remember
> that software written (for example) by NASA could be purchased from
> some organization in Georgia (the state, not the country!) and was
> priced, as a holdover from the day of card decks, per line.

I agree up to here.

> However as easy as my position is to state, it is hard to make work in
> reality:

This I do not see.

> - Clearly something classified (e.g. written by the NSA for in-house
> use) ought not be released, at least if you accept the premise of
> classified information at all, which I do.

Classified information can and should be protected by something
other than copyright law.  The punishment for, say, compromising
the position (and possibly life) of a field agent should be /much/
higher than the penalty for singing Happy Birthday at the wrong
place and time.

> - What about changes to a proprietary program funded by the government?

Not copyrighted doesn't mean that it has to be distributed.
Furthermore once you mix the public text with proprietary text,
the whole has a copyright on it.

>   Bug fixes?

Ditto to the above.

> - What about indirectly funded and partially-funded work?  Where's the
> dividing line?

That's a huge issue.  Plenty of companies start with technology
developed on NSF research grants.  Who should own that
technology?

> - What about de minimus code (e.g. an Excel macro that is written and
> used once in the course of an afternoon?)

To me "public" means "not copyrighted".  It doesn't mean that it
has to be distributed.

[...]

Cheers,
Ben