Governing Rights in Technical Data & Computer Software

Definitions
Title vs. License
Unlimited Rights - Data and Software
Limited Rights - Technical Data
Restricted Rights - Computer Software
Government Purpose Rights - Data and Software
Rights Allocation
Private Expense Determination
Traps for the Unwary
Notice/Marking
Marking Requirements
Problem Clauses

Definitions

• Technical Data
  - Recorded information only
  - Does not include financial, cost, pricing, management or contract administration data
  - Includes databases and computer software documentation

• Computer Software (FAR 52.277-14)
  - "Computer programs that compromise a series of instructions, rules, routines, or statements,
     regardless of the media in which recorded, that allow or cause a computer to perform a
     specific operation or series of operations;" and
  - "Recorded information comprising source code listings, design details, algorithms, processes,
     flow charts, formulas, and related material that would enable the computer program to be
     produced, create, or compiled."
  - Excludes databases & computer software documentation
  - DFARS 252.277-7013 definition essentially the same

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Title vs. License

• Contractor gets title
• Government gets license
• 3 general categories of government license rights:
  - Unlimited rights
  - Limited rights (technical data) / Restricted rights (computer software)
  - Government purpose rights

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Unlimited Rights

• U.S. Government has the right to do whatever it wants with the data/software.

• U.S. Government can grant third party rights as well.

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Limited Rights

• Refers to the most restrictive rights in technical data.
• May be reproduced or used by the U.S. Government.
• May not be disclosed outside the U.S. Government or used for manufacture.
• FAR Exception (FAR 52.227-14, Alt. II)
  - Other permitted uses may be listed in the contract.
• DFARS Exceptions (DFARS 252.227-7013(a)(14))
  - Emergency repair
  - To U.S. Government support contractor
  - To foreign government if in the interest of the U.S.
  - Subject to certain restrictions and contractor notification

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Restricted Rights

• Refers to most restrictive rights in computer software
• U.S. Government may:
  - Use a computer program with one computer at one time.
     - May not be accessed at one time, by more than one terminal or CPU.
  - Transfer to another U.S. Government agency.
  - Make copies for safekeeping (archive), backup, or modification purposes.
  - Modify computer software.
  - Permit service contractors to use computer software to diagnose/correct deficiencies, or to modify
    to respond to urgent tactical situations.
  - Disclose to contractors for emergency repair and overhaul.
• DFARS 252.277-7013(a)(15)

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Government Purpose Rights

• Term used for technical data and computer software.
• DFARS concept only.
• Right to use within the U.S. Government without restriction, and
• Right to authorize others to use for any U.S. Government purpose.

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Rights Allocation

The contract between the DoD and civilian agencies is the DoD gets what the U.S. Government pays for
(DFARS). Civilian agencies get first produced in performance of contract (FAR).

When does U.S. Government Unlimited Rights in tech data?

• DFARS
  - Developed exclusively with Government funds.
• FAR
  - First produced in the performance of a Government contract.
  - Irrespective of funding
• Other specific categories delivered under contract, for example:
  - Form, fit and function data.
  - Manuals for instructional and training materials for installation, operation, or routine maintenance or
    repair.

When does U.S. Government get Unlimited Rights in computer software?

• DFARS: U.S. Government gets unlimited rights in:
  - Computer software developed exclusively with Government funds.
  - Computer software documentation required to be delivered under the contract.
  - Corrects or changes to computer software or computer software documentation furnished to the
    Contractor by the U.S. Government.
  - Computer software when limitations expire (e.g., government purpose rights).
  - DFARS 252.227-7014(b)(1)
• FAR
  - First produced in the performance of a government contract.
  - Irrespective of funding.

When does U.S. Government get Limited Rights in tech data?

• DFARS 252.227-7013(b)(3)
  - Developed at private expense.
  - 252.227-7013(b)(3)
• FAR
  - Not developed in the performance of a contract; and
  - Developed at private expense.
  - FAR 52.227-14(a)

When does the U.S. Government get Government Purpose Rights?

• DFARS concept
• Developed with mixed funding
  - Some government
  - Some private/indirect
• Item, component, or process developed with mixed funding
• Technical data developed with mixed funding where contract does not require the development,
   manufacture, construction, or production of items, components, or processes

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Private Expense Determination

• Developed exclusively at private expense
  - "was accomplished entirely with costs charged to indirect cost pools, costs not allocated to a
     government contract, or any combination thereof" DFARS 252.227-7013(a)(8)
• Developed exclusively at U.S. Government expense
  - Direct contract charges
• Segregability
  - Private expense determination should be made at the lowest practicable level
  - If you cannot segregate, then mixed funding/Government Purpose Rights
• For fixed price contracts, if costs exceed fixed price, additional costs not considered for rights
   allocation.

DFARS Private Expense Determination, Generally

When is an Item, Component, or Process "Developed"?

• An item, component, or process exists and is workable.
• The item or component must have been constructed or the process practiced.
• Workability is generally established when the item, component, or process has been analyzed or
   tested sufficiently to demonstrate to reasonable people skilled in the applicable art there is a high
   probability it will operate as intended.
  - It need not be actually reduced to practice
• DFARS 252.227-7013(a)(7)

When is Software "Developed"?

• Computer program (e.g., object code)
  - Successfully operated in a computer and tested
    • To demonstrate to to reasonable persons skilled in the art.
      - Program can reasonably be expected to perform its intended purpose.
• Computer software (e.g., source code)
  - No operation required
  - Only "testes or analyzed"
• Computer software documentation
  - Written in any medium
• DFARS 252.227-7014(a)(7)

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Traps for the Unwary

• Marking Requirements (Notice)
• Special Data Rights Clauses

Notice/Marking

• Must provide notice and mark technical data exactly as required or risk a grant of unlimited rights to the
   government.
  - Unlabeled data is unlimited rights data.
• Bright line rule.
• Proposal must include table identifying what data/software is being provided with other than unlimited
   rights.

Marking Requirements

• Non-commercial Computer Software
  - Contractor may only assert restrictions on the Government's rights to use, modify, reproduce, release,
     perform, display, or disclose computer software by marking the deliverable software or documentation
     subject to restriction.
  - Exception:
    • Instructions that interfere with or delay operation of computer software in order to display markings
      must not be inserted in software that "will or might be used in combat or situations that simulate
      combat conditions"
• DFARS 252.227-7014

Problem Clauses

• Rights in Data - Special Works (FAR 52.227-17)
  - Grants the government unlimited rights in:
    - All data delivered under the contract
    - All data produced in the performance of the contract.
  - Limits contractors' use of data to performance of the contract absent express Government
    authorization.
  - Restricts rights to copyright assertion.

Reach-Back Clauses

• Generally contractors may control U.S. Government rights by limiting the data that is delivered to the
   U.S. Government.
• Reach-back clauses allow the government to require delivery of data produced or used in the
   performance of the contract.
  - DFARS 252.227-7026, Deferred Delivery Clause: 2 years; only pre-designated tech data and computer
    software
  - DFARS 252.227-7027, Deferred Ordering Clause: 3 years, any tech data or computer software
    generated in the performance
  - FAR 52.227-16, Additional Data Requirements: 3 years, "any data first produced or specifically used in
    the performance of th[e] contract"

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