Should governmnet software be Open Source?

Seth David Schoen schoen at
Wed Mar 8 19:37:34 UTC 2000

Derek J. Balling writes:

> At 10:52 AM 3/8/00 -0800, Brice, Richard wrote:
> >Public domain and Open Source are not the same thing... No problem with
> >that.

But public domain is one form of Open Source; see below.

> >As a specific example, the Pennsylvania Department of Transportation has
> >written some bridge design software that they refuse to share the source
> >code and charge non-government agencies upwards of $1500 per copy for the
> >executables. Please refer to sections 4 and 5 of their license agreement as
> >it asserts their copyright and position of
> >ownership(
> ><> .
> I don't know about State gov't's, but I'm almost positive the US gov't 
> can't do things like that.

Well, the Regents of the University of California, a public corporation of
the State of California, certainly hold a lot of copyrights.

> >Public domain is a legal term that means "not copyrighted". Anyone can take
> >public domain software, tweak it, call it their own, and copyright it. From
> >that point on, the software might not be "free" at all. If government wants
> >to provide the maximum benefit of its assets to its citizens, then an Open
> >Source license is the only way to go. Once a private individual or company
> >copyrights and restricts the use and further distribution of software that
> >was originally created by government, the remaining citizens are denied the
> >maximum benefit of their investment.

I think you are confusing Open Source with copyleft; there are lots of Open
Source licenses which are not copyleft licenses, such as the BSD license.

The argument that government agencies should use a copyleft license is a
difficult one; copyleft is an activist tactic which might not be very
patable to governments.

> Open Source requires the ability to copyright and "protect" the data, which 
> to my recollection the US gov't at least cannot do. To use your example, 
> let's say the gov't create Widget-Software-1.0, which does something 
> "neat". Evil-Company (located in a Seattle suburb) gets WS1.0 and tries to 
> copyright it. They CAN'T copyright 1.0, it's already in the public domain. 
> They can take it, tweak it a little, call it 1.1, and copyright THAT all 
> they want. That's their legal right. They have taken what their/your/my tax 
> dollars paid for and modified it to their needs. The changed version has 
> THEIR modifications, which they are free to deny you. You can still obtain 
> the original 1.0 "from the source" and do whatever you like with it 
> (possible creating a more open version of 1.1 to compete with 
> Evil-Company's product).

Since last year the OSI has accepted source code in the public domain as Open

Free software has existed longer than statutory recognition of copyright in
computer programs.  Proprietary software was originally treated as a trade
secret (which is how I wish it were still treated, but the law has changed
dramatically); presumably, at that time, _all_ free software was in the
public domain.

Seth David Schoen <schoen at>  | And do not say, I will study when I
Temp.  | have leisure; for perhaps you will
down:   (CAF)  | not have leisure.  -- Pirke Avot 2:5

More information about the License-discuss mailing list