COLLLABORATIVE SOFTWARE DEVELOPMENT TO ADDRESS STRATEGIC CHALLENGES IN HIGHER EDUCATION KINGSLEY OSEI CONTRACTS COUNSEL STATE UNIVERSITY OF NEW YORK

 “Copyleft”  Conditional licenses-free to use, subject to licensing requirements, but modified software remain free for others to use.  The GNU General Public License  The most widely used open source license  About three versions has been released by the Free Software Foundations to take advantage GPL code.  Assignment and Unification Issues  Transferring copyright ownership to the project to enforce ownership, avoid competing copyright claims. Copyrights Issues

 Whether government workers can contribute to open source? Yes, but the following considerations apply:  The resulting work or modification to open source code, may be considered “joint work.”  Partially copyrightable and partially in the public domain  Can public domain portion be extractable from the “joint work”?  Whether private vendors can use open license software in government contracts? Public Contracting Questions

 Constitutional considerations in New York! If contribution by public entity to an open source community or collaborative enterprise, the following issues must be examined:  New York State Constitution Article 7 Section 8, with its prohibition against gifts or loans of state credit or money to private a corporation or association, or private undertaking. This is subject to: Public purpose exception Educational purposes Public Contracting Questions

Security of Use & Continuity Matters  Licensing of Proprietary Software Which Incorporates Open Source Elements.  What to do if vendor experiences a terminable event such as bankruptcy? Disclosure by vendor of hybrid nature of software is key Traditional escrow arrangement with third party escrow agent as applicable to proprietary software may not be feasible Express contractual provision of direct release to the client for the most current version of the Licensed Software, for the limited purpose of continuing Client’s internal use after the terminable event and through the anticipated expiration of the licensed term. If SaaS license, attention to be paid service levels, outages and remedies to address them.