Ever see the restricted rights legend in a software license agreement and wonder what it means? The following is a discussion on the Code of Federal Regulations for educational purposes, and should not be considered legal advice.
Code of Federal Regulations:
Effective June 30, 1995, 48 C.F.R. §252.227-7013, Rights In Technical Data And Computer Software, was revised and retitled into four sections. The four sections are:
1) 48 C.F.R. §252.227-7013, Rights In Technical Data – Noncommercial Items;
2) 48 C.F.R. §252.227-7015, Technical Data – Commercial Items;
3) 48 C.F.R. §252.227-7014, Rights In Noncommercial Computer Software and Noncommercial Computer Software Documentation; and
4) 48 C.F.R. §227.72, Rights In Computer Software and Computer Software Documentation.
48 C.F.R. §252.227-7013, Rights In Technical Data – Noncommercial Items:
Noncommercial Items are presumably defined as items that do not qualify as Commercial Items. Commercial Items are defined in 48 C.F.R. §2.101 to mean any item that is customarily used for nongovernmental purposes, and that has been offered, sold, leased, or licensed to the general public, or that is not yet available in the commercial marketplace, but will be available prior to the satisfying of a governmental purpose.
When a software company’s business does not involve Noncommercial Items, 48 C.F.R. §252.227-7013 is irrelevant.
48 C.F.R. §252.227-7015, Technical Data – Commercial Items:
This section applies to technical data contained in Commercial Items. According to 48 C.F.R. §252.227-7015(a)(1), Commercial Items do not include Commercial Computer Software. However, there is no exclusion of Commercial Computer Software Documentation from the definition of Commercial Items.
48 C.F.R. §252.227-7014(a)(5) defines Computer Software Documentation as owner’s and user’s manuals, and installation and operating instructions, regardless of storage medium, that explain the capabilities, or provide instructions for usage, of computer software.
According to 48 C.F.R. §252.227-7015(b), the government has unrestricted rights to use, modify, reproduce, release, perform, display, or disclose technical data, and permit others to do so if the Commercial Items have been provided without restrictions.
Thus, 48 C.F.R. §252.227-7015 requires a Restricted Rights Legend on a software company’s user’s manuals and other documentation to prevent the government from using, modifying, or reproducing such documentation.
48 C.F.R. §252.227-7014, Rights In Noncommercial Computer Software and Noncommercial Computer Software Documentation:
As defined in 48 C.F.R. §252.227-7014(a)(14), restricted rights mean the government’s rights to: (1) use a computer program with one computer at a time, (2) transfer a computer program to another government agency without the further permission of the licensor if the transferor destroys all copies of the program and related computer software documentation in its possession and notifies the licensor of the transfer, and (3) make copies of the computer software required for safekeeping (archive).
According to 48 C.F.R. §252.227-7014(a)(14) and 48 C.F.R. §252.227-7014(b)(3), restricted rights apply only to Noncommercial Computer Software when the software is developed exclusively at private expense.
48 C.F.R. §252.227-7014(a)(13) defines Noncommercial Computer Software as software that does not qualify as Commercial Computer Software. 48 C.F.R. §252.227-7014(a)(1) defines Commercial Computer Software as software developed or regularly used for nongovernmental purposes, which has been sold, leased, or licensed to the public, or has not been offered, sold, leased, or licensed to the public, but will be available for commercial sale, lease, or license in time to satisfy the delivery requirements to the government.
When a software company’s business does not involve Noncommercial Commercial Software, 48 C.F.R. §252.227-7014 is irrelevant.
48 C.F.R. §227.72, Rights In Computer Software and Computer Software Documentation:
According to 48 C.F.R. §227.7202-1 and §227.7202-3, Commercial Computer Software and Commercial Computer Software Documentation are licensed to the government only with those rights as granted to all other end users, according to the terms and conditions contained in the license agreements that accompany the software and documentation. Licensors are not required to: (1) furnish technical information that is not customarily provided to the public, except for information documenting modifications made at the government’s expense, or (2) relinquish to, or provide, the government rights to use, modify, reproduce, release, perform, display, or disclose Commercial Computer Software or Commercial Computer Software Documentation, except for a transfer of rights mutually agreed upon.
According to 48 C.F.R. §227.7202-4, the government’s rights to use, modify, reproduce, release, perform, display, or disclose Commercial Computer Software or Commercial Computer Software Documentation are only those rights identified in license agreements.
Thus, it is not mandatory that a software company have a Restricted Rights Legend in its license agreements, but it is required that all the government’s rights be identified in the license agreements.
.jpg)
Comment Preview