Subject: Re: Software as a public service
From: "Stephen J. Turnbull" <stephen@xemacs.org>
Date: Thu, 12 May 2005 10:14:57 +0900

>>>>> "Joe" == Joe Corneli <jcorneli@math.utexas.edu> writes:

    Joe> It seems a bit curious that a contractor working for a gov't
    Joe> agency wouldn't be considered to be a gov't employee for the
    Joe> term of employment.

Not at all.  An employment relationship involves many specific
obligations and privileges on both sides.  This is just a sale of
goods or services.

    Joe> maybe the law about gov't employees should be extended to
    Joe> apply to gov't contractors, lest everything be outsourced and
    Joe> the law apply to nothing?

Do you really think that the contractors are getting something for
nothing?  This would dramatically raise the cost of software in the
short run.  It is not obvious to me that the taxpayers should be asked
to subsidize the software industry in that way.

Given the benefits of open source, it's not obvious that they
shouldn't, either, but I don't think it's a great idea.  The reason is
that the government notoriously sucks at "marketing in the necessary
sense", ie, telling people that the government has something that
people might want and they can have it for free.  Do you know how much
free money is left lying on the table every year?  By program count
it's something like 20% of all available grants aren't applied for!
By money, it's a small fraction but still runs to a couple billion $ a
year.  Do you think that the government would be better at marketing
free as in free beer software?  Uh-uh.

The contractor, on the other hand, has a strong incentive to market
that software, which is a first-order win (the software gets used,
even if the contractor sucks up all the profit).  Furthermore,
contractors that do make substantial profits in this way will proceed
to lower their bids (taxpayers rejoice!) and expand their business to
distribute even more software, a second-order win.

Note that since the software would be PD (under current practice for
government product), the contractor would _not_ open its sources, and
would have strong incentive to file off the serial numbers, give the
software a nose job, and get it a false ID.  So the burden really is
on the government to market that open source.  The net effect of your
proposal is simply to ensure that all government contractors would be
continuously liable to harrassment from the FSF et al under FOI.
Sure, you'd be able to pry out the occasional high-value software, but
the chilling effect on the whole industry and the general increase of
costs would be pretty fearsome.  Lawyers 1, Freedom 0.

I guess you could change the rules to demand that contractors copyleft
the software, but that would be evil, in my opinion.  That would
purely be a subsidy to the "free as we define it" software movement,
because copyleft is inherently incompatible with everything, including
most of itself.  Probably violates separation of Church and State!

    Joe> And can they _own_ copyrights, or do the copyright
    Joe> assignments then (effectively) become assignments to the
    Joe> public domain?

They own them.  For implications, see below.

    Joe> One might imagine that FOI would imply that anyone can _read_
    Joe> the things that gov't agencies own copyrights to, right?  But
    Joe> if FOI applies, then doesn't that in and of itself imply that
    Joe> the works are PD?

No.  The works are still copyrighted; unless the FOI law says otherwise,
you are not free to modify or republish.  Heck, you might not even be
allowed to _run_ it!

-- 
School of Systems and Information Engineering http://turnbull.sk.tsukuba.ac.jp
University of Tsukuba                    Tennodai 1-1-1 Tsukuba 305-8573 JAPAN
               Ask not how you can "do" free software business;
              ask what your business can "do for" free software.