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\begin{document}
 
\bibliographystyle{ieeetr}
 
\title{Findings of the CARDS Sponsored
                    Software Reuse Legal Workshop (22-24 Mar 93)}
 
\author{ Theresa R. Huber\\
\\
DSD Laboratories, Inc.\\
75 Union Avenue\\
Sudbury, MA  01776\\
Tel: (508) 443-9700\\
Email: huber@cards.com\\
}
\date{}
 
\maketitle
 
\begin{abstract}
The Central Archive for Reusable Defense Software (CARDS) Program
is currently addressing concerns being raised by the software reuse
community regarding perceived legal impediments in software reuse.
In March of this year, CARDS held a workshop in conjunction with
the U.S. Army Intellectual Property Law Division (IPLD) and the
Defense Information Systems Agency/Center for Information
Management (DISA/CIM) to address outstanding legal questions,
liability issues and agreements so that the results could be
transitioned to Government managers who are investigating
implementing reuse.

\vspace{0.2in}
\noindent
{\bf Keywords:} Software Reuse, Legal Issues, Liabilities, Risk,
Agreements, Reuse Libraries, CARDS.
 
\vspace{0.2in}
\noindent
{\bf Workshop Goals:} Promulgate findings of legal issues workshop,
network, learn.
 
\vspace{0.2in}
\noindent
{\bf Working Groups:} 
Reuse Management, Organization and Economics
 
\end{abstract}
 
\newpage
 
\section{Background}
Ms. Huber currently works on the Air Force's Central Archive for
Reusable Defense Software (CARDS) Program.  CARDS is developing a
knowledge base to transition domain-specific reuse techniques and
guidance throughout the DoD.  By developing and operating a domain-
specific reuse library system and necessary tools as well as a
Franchise Plan, CARDS can provide a blueprint for
institutionalizing domain-specific, library-centered, model-based
reuse throughout the DoD.  This Franchise Plan is being implemented
by providing users with a tailored set of services to support
reuse.  Included in this knowledge base is guidance for acquisition
executives and Program Managers.  Ms. Huber has worked on this
portion of CARDS by researching, developing and implementing plans
to facilitate the adoption of software reuse within DoD.  She has
developed and written guidance in technical, personnel, risk and
budgetary issues for both middle managers and high level executives
to implement software reuse technology.
 
\section{Position}
Since the DoD began investigating strategies for incorporating
reuse into systems acquisition and development, various groups have
been examining and developing in-roads into both the technical and
business aspects of software reuse.  Issues that impact software
reuse, such as, acquisition regulations and policies, library
mechanisms and interoperability have been addressed.  However,
there has been limited progress within the legal discipline in
formulating guidance for Government managers in software reuse in
general, and in establishing and operating reuse libraries in
particular.

The Central Archive for Reusable Defense Software (CARDS) Program,
sponsored by the U.S Air Force, (ESC/ENS) Hanscom AFB, MA, has
investigated business areas that impact software reuse.  During
this research, it was learned that the DoD community perceived many
legal impediments in applying software reuse in general.  But,
specifically, many questions were unanswered regarding establishing
and operating a software reuse library.  As a result, the CARDS
Program held a workshop for Government lawyers to address general
legal aspects of operating a software reuse library and to try to
resolve these legal questions.

The primary goals behind the workshop were to document the
recommendations and distribute them to policy makers and
implementers in the software reuse, software development,
acquisition and legal communities and to initiate positive changes
within these communities.  The participants determined the baseline
assumptions, which were the foundation of all discussions, analyzed
and provided answers to the posed questions, and discussed library
liability and agreements to reduce those liabilities.  The results,
as documented in the proceedings \cite{CARDS93b}, can be used by
managers who are responsible for formulating or implementing plans
of operations for software reuse libraries, as an overview of some
of the problem elements that should be taken into account, and to
initiate discussion between them and their legal counsel.


\subsection{Library Baseline}

Since legal decisions are dependent upon particular circumstances,
great care was taken in defining terms and establishing the
assumptions of a library model before any particular discussions
began.  All discussions assumed that the hypothetical library is a
Government owned-Government operated or Government owned-contractor
operated, domain-specific library.  Use of the library is
restricted to Government purposes only and the users and suppliers
are Government employees, Government contractors or prospective
Government contractors.  The library could contain Government off
the Shelf (GOTS), Commercial off the Shelf (COTS) and public domain
components, but no classified components.  However, the library
does provide effective safeguards to prevent unauthorized access.
Furthermore, the library does not negotiate nor determine terms and
conditions of use with respect to third party users.

For purposes of the workshop discussions, a component was defined
to be any reusable item (e.g., requirements, specifications,
designs, object code, source code or system/software documentation)
pertaining to computer software or its documentation.  Liability
was defined to be a "risk of claims", since use of it during
discussions did not take into consideration the amount of liability
nor degree of likelihood of a recovery.

\subsection{Liability/Agreements}

Liability depends upon the library's particular activities.  As the
library engages in more varied activities, the greater the risk of
claims for mistakes/errors in its activities and in the reusable
software component.  As the library becomes more active, its
liability increases.  Some variables that should be taken into
consideration when conducting an analysis of liability are:  the
nature and frequency of the activity; how the activity is
performed; the functional knowledge or scope of knowledge of
library personnel, subscribers and suppliers; technical
qualifications of library personnel, suppliers, and subscribers;
and the purpose or goal of the library, subscriber and supplier
organizations.

If all, or most, of these variables are known, then the level of
risk can be roughly estimated.  The more variables known, the more
accurate the estimate.  If the level of risk is judged as being too
great (unacceptable), then supplier and subscriber agreements can
be drafted to include provisions which reduce the level of risk for
the library.

Many issues of contention can be avoided through negotiation and
careful drafting of supplier and subscriber agreements.  Various
provisions can be negotiated into the agreement, which will
decrease the potential of liability for the library and/or
contracting agency.


The terms and conditions of doing business with the library will
not be the same for the supplier and subscriber.  Clauses should be
drafted and negotiated which deal with such subjects as:
disclaimers; warranties (full and limited); collection and payment
of fees; releases; waivers of liability; indemnity; non-disclosure;
standard of care; information provided; or evaluations to be
performed.  Most problems, potential problems or conditions which
may lead to liability can be addressed in the agreement.  While
even the most carefully drafted and negotiated agreement cannot
solve all problems, it can significantly reduce the potential for
problems arising.

Most terms and conditions can be negotiated.  However, a business
plan and detailed concept of library operations is crucial to
properly draft and negotiate the necessary supplier and subscriber
agreements.

\subsection{Findings}

The most disconcerting of results, is that, in general, not only
are those who are developing and operating Government reuse
libraries not aware of these issues, legal counsel who are
providing support are not knowledgeable in software reuse issues.
The major findings are:

\begin{enumerate}
\item
      Risk depends upon library activities.
\item
      Risk can be managed by using well-drafted agreements
      (supplier, subscriber, reuse)
\item
      Legal decisions depend upon specific circumstances.
\item
      There is no known regulatory/statutory bar to establishing an
      effective software reuse program.
\item
      There is a failure of the concerned parties to come to terms
      and conditions of licensing adequate for software reuse.
\item
      Through negotiations, a mechanism can be worked out to
achieve the minimum needs of the Government and the commercial ends
of the contractor. (i.e., negotiate terms in accordance with
      limited rights clause).
\end{enumerate}

\subsection{Conclusions}

The topics discussed during the 22-24 Mar 93 workshop focussed on
library-related legal issues, which  is only one segment of reuse
barriers which need to be addressed in order to successfully
implement software reuse.   Although this workshop specifically
addressed library issues, future forums are planned to address or
expand upon:  liability/risk issues; library agreements with
suppliers and subscribers; and training/education on legal issues
effecting software reuse (liability, agreements, negotiations).

CARDS is currently developing sample agreements for libraries that
will address interactions between the library and: suppliers,
subscribers and interoperability with other libraries.  Common
terms and conditions that should be included in agreements, will be
outlined.  In addition, the effect on the agreement by variables,
such as ownership, risks, security, component types, and the goals
of the various players will be discussed.


\section{Comparison}

There have been several studies in the past which have investigated
legal issues pertaining to copyrights, policies and regulations,
and liability as it relates to warranty (or lack of it).  However,
what is new from this workshop is the focus on providing guidance
to Government managers in establishing and operating reuse
libraries.  Since reuse libraries have not existed very long, many
library managers are finding it difficult to develop agreements and
determine the best legal approach to operations and interactions
with others.  The proceedings of this workshop will help meet that
need.  In general, Government lawyers are not knowledgeable about
software reuse and in turn are not able to provide the necessary
support to Government managers.  This workshop addressed this issue
by getting Government lawyers together to take an interest in reuse
and to provide them with background information on reuse.

The Strategic Defense Initiative Organization (SDIO) sponsored
conference on legal issues in software reuse \cite{SDIO}, held in
Colorado in 1990, addressed legal issues that could arise in
establishing reuse libraries.  However, some questions were left
unanswered.  A member of that workshop brought the unanswered
questions to the CARDS workshop, where most of them were answered.
The discussion of library legal issues tended to focus on the
industry perspective rather than that of the Government, while the
CARDS workshop focussed on the Government viewpoint.

Last year, CARDS developed two guidebooks, the Direction Level
Handbook \cite{CARDS92} and the Acquisition Handbook 
\cite{CARDS93a}, which
provided guidance to acquisition executives and  Program Managers,
respectively, in incorporating software reuse into the acquisition
cycle.  They cover planning the acquisition strategy through
awarding the contract to managing the effort and follow-on support.

Legal issues, such as software rights, liabilities, recoupment,
license agreements, royalties, incentives, warranties, are
discussed only as they pertain to acquisition planning for a
particular system.  Additional contractual guidance was provided to
assess risk, choose contract types, develop Requests for Proposal
(RFPs), Contract Data Requirements List (CDRLs), and evaluate
criteria for reuse.  Neither document addressed reuse library
issues.

The Software Technology for Adaptable, Reliable Systems (STARS)
program sponsored a study \cite{STARS} to examine the Federal
Acquisition Regulation (FAR) and all its supplements, as well as
budget/finance regulation impediments, in the way data rights and
software is contracted and for any cost restrictions and financial
disincentives.  This report documents the FAR environment with
respect to software development, software reusability and the use
of commercially available software and proposes changes to the FAR
and DoD Federal Acquisition Regulation Supplement (DFARS) to
promote reuse of software products.  Liability is discussed only
with respect to warranty (or lack of) of the software.  Unnecessary
cost restrictions and disincentives to providing financial
resources for software reuse and for reusing commercially available
software are also documented.  However, the study does not focus on
libraries nor other aspects of liability.

The DoD Center for Software Reuse Operations' report on legal and
acquisition issues primarily discusses acquisition and contractual
topics and recommends changes to the FAR and DFARS \cite{CSRO}.  It does
have some discussion of agreements and some examples.  However,
discussion focusses on ownership, incentives and liability as it
relates to warranty and third party users.


\bibliography{huber}


\section{Biography}

Theresa R. Huber is employed by DSD Laboratories, Inc., assigned to
the USAF Central Archive for Reusable Defense Software (CARDS)
Program.  She is researching alternative business solutions to
barriers that are restricting the implementation of software reuse
with DoD.  Ms. Huber has also developed software reuse strategies,
methods and guidance for systems acquisition personnel at various
levels in the DoD.  Ms. Huber has in-depth knowledge and experience
in Government technology transition processes, DoD contracting and
acquisition, and technical planning from both strategic and
tactical points of view.  She earned a Bachelor of Science in
Mathematics and a Master of Business Administration from the
University of Lowell, Lowell, MA.

 
\end{document}
