1. What is a copyright and how does it differ from data rights? [Answer]
2. What is computer software and what are the types of software developed or delivered under government contracts? [Answer]
3. Why is the distinction between GOTS v. COTS software important? [Answer]
4. Are there special issues that program managers and contracting officers should be aware of and address in contracts requiring development of computer software (e.g. non-commercial computer software {Government-off-the-shelf (GOTS) and commercial computer software (Commercial-off-the shelf (COTS))? [Answer]
5. What is open source software? [Answer]
6. Does DoD have a policy regarding the use of open source software? [Answer]
7. Does DISA have special projects involving OSS? [Answer]
8. Can DISA employees use works protected by copyright, such as music, video clips or content from a publication or web site in the preparation of agency brochures, videos or other content? [Answer]

What is a copyright and how does it differ from data rights?

Copyright is a form of protection by the laws of the United States to authors of “original works of authorship,” including literary, dramatic, musical, artistic and certain other intellectual works.  “Literary works” include computer software.

Copyright owners, including contractors, who develop computer software under a government contract, own the copyright in the software and acquire the following exclusive rights:   

• Reproduce the copyrighted work;
• Prepare derivative or other works;
• Distribute copies to the public by sale or other transfer of ownership;
• Perform the copyrighted work publicly; and 
• Display the copyrighted work publicly

While the contractor owns the copyright in technical data or computer software that it develops under a government contract, the Government, which is prohibited under US Copyright law, 17 USC Section 105, (although the Government may own copyright by assignment) from owning copyrights, acquires "data rights" or a license to the work. The scope of the license as previously noted depends on several factors. 

What is computer software and what are the types of software developed or delivered under government contracts? 

Computer software (“software”) includes executable code, source code, code listings, design details, processes, flow charts, and related material.  

Generally, the two types of software delivered to federal agencies under government contracts include: Government-off-the shelf (GOTS) software developed exclusively for Government use, and Commercial–off-the shelf (COTS) which is licensed commercially, but may also be sold to the Government.     

Why is the distinction between GOTS v. COTS software important?

The federal agency usually acquires an “unlimited rights license” in GOTS software if the agency funded the development, there are no specifically negotiated terms in the contract restricting the Government’s use, and if the software is delivered without any restrictive markings limiting the Government’s use.

The Government’s licensing rights in COTS software, however, is usually governed by the terms of the End User or other licensing agreement. Therefore, it is important to fully understand the Government’s licensing rights in COTS and determine whether it is necessary to negotiate for greater rights.    

Are there special issues that program managers and contracting officers should be aware of and address in contracts requiring development of computer software (e.g. non-commercial computer software {Government-off-the-shelf (GOTS) and commercial computer software (Commercial-off-the shelf (COTS))?

Yes.  All contracts should include: (a) delivery of the “source code” for noncommercial computer software as a deliverable; (b) identification of all COTS software and applicable licenses that will be delivered to the Government either separately or as an integrated component in GOTS solutions; (c) the right for the agency to inspect GOTS and COTS deliverables to ensure that they meet contract requirements prior to acceptance; and (d) a requirement that copies of licenses for COTS applications be provided to the contracting officer for review and approval prior to use in the deliverable.     

What is open source software?  

Open source software (OSS) is software licensed to users under an open source license, which generally allow users the freedom to access and use the software source code for any purpose, to study and modify the software, and to redistribute copies of the original and modified software without payment of royalties.

Does DoD have a policy regarding the use of open source software?

Yes, DoD issued a memorandum in October of 2009 providing clarifying guidance on the use and development of open source software (OSS), which supersedes it earlier memo issued in May of 2003. It has also issued a technical memo discussing legal, policy and technical issues surrounding the use of OSS.

Does DISA have special projects involving OSS?

Yes, DISA has two projects, Forge.mil and OCMIS CRADA, which follow the open source model of allowing a community of users the freedom to access, share, modify and use the software source code for the benefit of the entire community.

Forge.mil is a family of services provided to support the DoD's technology development community and includes “SoftwareForge” and “ProjectForge.”

OCMIS is a Cooperative Research and Development Agreement (CRADA) between DISA and the Open Source Software Institute (OSSI) for the purpose of releasing DISA’s internally-developed CMIS application suite via an open source licensing scheme and collaborative approach to other government agencies, industry and academia to research enhanced functionality.

Can DISA employees use works protected by copyright, such as music, video clips or content from a publication or web site in the preparation of agency brochures, videos or other content?

The answer depends on who created the content (e.g. Government agency, individual). In accordance with 17 USC 105, content created by federal employees is not protected by copyright and can be used without permission if it does not contain proprietary content or its use is not restricted by federal law or policy. However, if the content was created by a private individual or is owned by a company, then permission to use the work must be obtained from the copyright owner.