OSS Procurement FAQ: Part 2 Boo!

It’s Halloween, and while some procurement issues can be quite dry, I figured for part 2, we could take on a more festive and spooky theme focusing on some edge cases discussed by some of the government staff I interviewed. As scary as some might sound, as edge cases, they are not the most frequently encountered issues. But it never hurts to know whats out there, potentially lurking, and some of the best practices to let these gruesome issues rest in peace.

A Twilight Zone in FOIA Requests: How does a Freedom of Information Act (FOIA) request or a public records law request apply to government software? At least for the Federal government, whether software is considered a “record” is unclear, and so whether or not software can be requested in an FOIA request has been detailed by some individual federal agencies in their own policies. How a FOIA request affects the licensing of in-house developed software is unclear, and an issue that we hope to document further in the legal guide. To read about Federal policies that discuss FOIA requests for software, see the section of the Legal Guide on Freedom of Information Act (FOIA) and Public Records Law.

Protected Secrets: On the flip side of public records and FOIA requests are government trade secrets which are immune from FOIA’s disclosure requirements. It may come as a chilling surprise that some of the information circulated within government actually never sees the light of day, er, the public’s eyes.  Would government software about to be open sourced be considered a trade secret? Read more in the Trade Secrets section of the Legal Guide.

A Halloween Tale – “Killed by Code”: We’ve heard of the “killer app” in a good sense, but as documented in this article by the lawyers at the Software Freedom Law Center, software in implantable medical devices can also pose a lethal security risk to its users. While many government web applications do not usually expose users to such drastic risks as loss of life, security is a real concern among government staff. Because open source code is open, there is sometimes a perception that the “security through obscurity” that closed or proprietary code features is preferable to the “peer reviewed” security offered by open source. Read more about it in the Tort section of the Legal Guide.

What Lurks Beneath the Bridge: Just the word “troll” evokes chills of a heartless beast.  It’s no wonder then that Peter Detkin coined the term “Patent Troll” as a non-libelous way to describe specific “allegedly exploitative non-practicing entities.” Whatever you want to call them, patent holders who practice a business model of shaking down government on what is likely a meritless claim of infringement have been noticed by Congress. New legislation provides some redress for those sued for infringement of a business method patent. Read more about patent infringement and the new patent laws in the Legal Guide’s section on Patent Infringement Issues.

I hope the above issues haven’t left you with nightmares. As scary as some may sound, the good news is that as more of these edge cases come to light by knowledge sharing over the web, best practices and strategies for overcoming these issues can be formed faster. If you have a legal or procurement issue you’ve found to be strange or scary, let us know! Tell your tale in our discuss group – discuss at civiccommons.org