New York CIty Council Member Ben Kallos
This website is maintained for historical purposes.
Ben Kallos is no longer a candidate for Manhattan Borough President or any other office.

Statement on Dropping FOSS from FITARA

To the extent FITARA used the term open source, I would suggest it be expanded to read free and open source (FOSS).  The FOSS license is about software freedom – importantly, the freedom for the user, the federal government in this case, to (i) run the code, (ii) study how it works and change it, (iii) redistribute the original code, and (iv) distribute the modified code.

While a novel idea for software code, it is not novel for how government works.  Ever since 1895, copyright law has explicitly not protected “work prepared by an officer or employee of the United States Government” leaving it in the public domain.[i]  Furthermore, the Compendium II of the Copyright Office Practices treats edicts of all levels of government as “not copyrightable for reasons of public policy.”[ii]

Software code developed by a United States Government employee is not protected by copyright, but somehow when the United States Government hires a third party to develop it, it is.

The current practice of paying third party developers to create software code where they retain ownership means that when their job is complete or they are fired, their software code is either useless or quickly becomes obsolete.  In effect, this would be the same is requiring Congress to draft the America’s legal code from scratch every two years.

In their ICT Sector Trade Association comments on FITARA,  they express concern with a section that would require the Director of the Office of Management and Budget to provide guidelines to enable effective adoption of open source software. Stating:

[W]e are concerned that the draft legislation, particularly in Title IV, Sec. 405: Promotion of Government-Wide Support for the Use and Development of Open Source Software, strays from the core principle that statutes should be technology neutral. To the extent that there may be misconceptions among government procurement officials about the legality of using certain types of technologies, that could be addressed through your Committee’s oversight authorities. However, under no circumstances do we believe the government should promote or mandate consideration of commercial IT products or services based specifically upon the licensing, contracting, or business model used to develop them.

The comments from ICT Sector Trade Association are illogical. 

With regards to the “principal that statutes should be technology neutral,” Open Source is not technology, it is a license, and it is technology neutral.  There are many different pieces of software technology built to solve similar problems such as operating systems where there are currently hundreds of choice among free Unix variants Linux and BSD.  Additionally, the FOSS license is no longer limited to software with expansion to everything from Wikipedia to textbooks.

With regards to “under no circumstances do we believe the government should promote or mandate consideration of commercial IT products or services based specifically upon the licensing, contracting, or business model used to develop them” it seems that ICT Sector Trade Association disagrees with the very purpose of government licensing and contracting. 

The United States Government is the world’s biggest tech buyer with more than $80 billion spent on IT annually. [iii] The United States has long established its right to mandate consideration of contracts based on local source of labor, ownership by women and minorities, wages at a prevailing wage, healthcare and even licenses. 

To the extent that the United States Government as well as states and their localities should be developing software using their own employees so that the code can be shared nationally free of copyright.  To the extent that the United States Government has privatized work that could and should be done by its officers and employees, that software should be developed in a way that is completely free of copyright or using a FOSS license.

Were the United States Government to begin developing all new code without a copyright or using a FOSS license, it would mean hundreds of billions of dollars in cost savings as software created for and used by one Federal agency was shared laterally and vertically with other Federal agencies, states and localities.  The IT sector would flourish with thousands of new jobs implementing and improving FOSS applications for government, with new improvements helping governments nationwide.


[i] “Issues Affecting the U.S. Government: Frequently Asked Questions About Copyright,” CENDI/2008-1, October 8, 2008 available at http://www.cendi.gov/publications/04-8copyright.html#314

[ii] “Compendium II: Copyright Office Practices,” United States Copyright  Office, available at http://ipmall.info/hosted_resources/CopyrightCompendium/chapter_0200.asp

[iii] “World’s Biggest Tech Buyer,” Bloomberg Businessweek, April 26 available at http://www.businessweek.com/videos/2013-04-26/worlds-biggest-tech-buyer