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Text File | 1993-10-19 | 16KB | 340 lines

Findings  of  the  CARDS Sponsored  Software  Reuse  Legal  Workshop


                                                 (22-24  Mar  93)



                                                   Theresa R. Huber



                                               DSD Laboratories, Inc.

                                                   75 Union Avenue

                                                 Sudbury, MA 01776

                                                  Tel:  [phone]

                                              Email: [e-mail]



                                                         Abstract


           The Central Archive for Reusable Defense Software (CARDS)Program is currently address-
       ing concerns being raised by the software reuse community regarding perceivedlegal impedi-
       ments 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 ques-
       tions, liability issues and agreements so that the results could be transitioned to Government
       managers who are investigating implementing reuse.


       Keywords: Software Reuse, Legal Issues, Liabilities, Risk, Agreements, Reuse Libraries, CARDS.


       Workshop Goals: Promulgate findings of legal issues workshop, network, learn.


       Working Groups: Reuse Management, Organization and Economics



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1      Background



Ms.  Hub er  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 forb oth middle managers and
high level executives to implement software reuse technology.



2      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 softwarereuse.
During this research, it was learned that the DoD communityp erceived 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 [1 ], canb e used by managers who
are responsible for formulating or implementing plans of operations forsoftware 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.



2.1     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



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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 domaincomp onents, but no classified
components. However, the library does provide effective safeguards to prevent unauthorized access.
Furthermore, the library do es not negotiate nor determine terms and conditions of use with respect
to third party users.


For purposes of the workshop discussions, a comp onent 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.



2.2     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 b e 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 negotiatedwhich deal with such subjects as:  dis-
claimers; 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.  Whileeven 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 subscrib er
agreements.



2.3     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



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support are not knowledgeable in software reuse issues.  The major findings are:



    1. Risk depends upon library activities.


    2. Risk can be managed by using well-drafted agreements (supplier, subscriber, reuse)


    3. Legal decisions depend upon specific circumstances.


    4. There is no known regulatory/statutory bar to establishing an effective software reuse pro-
       gram.


    5. There  is  a  failure  of  the  concerned  parties  to  come  to  terms  and  conditions  of  licensing
       adequate for software reuse.


    6. 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).



2.4     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 im-
plement 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 be-
tween the library and: suppliers,  subscribers and interop erability 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 playerswill b e discussed.



3      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 Governmentlawyers 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 soft-
ware reuse [2], 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


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the unanswered questions to the CARDS workshop, where most of them were answered.  The dis-
cussion of library legal issues tended to focus on the industry perspective rather than thatof the
Government, while the CARDS workshop focussed on the Government viewpoint.


Last year, CARDS developed two guidebooks, the Direction Level Handbook [3 ] and the Acqui-
sition Handbook [4 ], 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, incen-
tives, warranties, are discussed only as they p ertain to acquisition planning for a particular system.
Additional contractual guidance was provided to assess risk,  choose contract types,  develop Re-
quests 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
[5] to examine the Federal Acquisition Regulation (FAR) and all its supplements, as well as bud-
get/finance regulation impediments, in the waydata rights and software is contracted and for any
cost restrictions and financial disincentives. This report documents the FAR environment with re-
spect 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 [6 ].
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.



References



[1]  "Proceedings:  Software  reuse  legal  issues  workshop  (22-24  mar  93)," in  Central  Archive  for
     Reusable Defense Software (CARDS), Apr. 1993.


[2]  "Proceedings of the workshop on legal issues in software reuse," in Strategic Defense Initiative
     Organization, Colorado Springs, CO., July 1990.


[3]  "Cards acquisition handbo ok, final,stars-ac-04105/001/00," tech. rep., Oct. 1992.


[4]  "Cards direction level handbook, final, stars-ac-04104/001/00," tech. rep., Nov. 1992.


[5]  "Current far and budget/finance environments, stars-sc-03501/001/00, stars-sc-03504/001/00,"
     tech. rep., Mar. 1991.


[6]  "Legal/acquisition  issues:  A  technical  report,  1222-04-210/49.1,"  tech. rep.,  DoD  Center  for
     Software Reuse Operations, Feb. 1993.



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4      Biography



Theresa R. Huber is employed by DSDLaboratories, 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 p ersonnel
at various levels in the DoD. Ms. Huber has in-depth knowledge and experience in Government
technology transition processes, DoDcontracting and acquisition, and technical planning from both
strategic and tactical points of view. She earned a Bachelor of Science in Mathematics and aMaster
of Business Administration from the University ofLowell, Lowell, MA.



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