Software created by most states are not in the public domain and not obviously subject to public records requests

[marctjones]

https://github.com/18F/technology-budgeting/blob/master/handbook.md#share-your-software

"Additionally, in many states software created as a work of government is inherently in the public domain, which means an open-records request is all that’s necessary for software to become public." I believe this is a overstatement. At the very least the citation to Harvard's project does not support the assertion.

For example California is listed as being green on that map indicating "documents" are "presumptively public domain." the problem is that the researchers were looking at documents not software. So even in California which is one of the few states listed as green, Software is specifically by California statute not in the public domain and subject to Copyright. Cal. Gov't Code § 6254.9. [1] If you go to the California page on the site, the statute is specifically cited. [2]

Further, states, often have a very complex policies on copyrighted works. For instance state universities often have very different policies governing who owns the IP created by its employees then employees of other state agencies.

[1] http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=6254.9.&lawCode=GOV
[2] http://copyright.lib.harvard.edu/states/california/

While I would love if this was true. And there have been attempts to free software, I believe this is paragraph is an overstatement. Even just looking at the map you are referencing without digging into how it applies to software, Only two states are "green" and two states are "light green". One of those green states specifically excludes software from this openness, so it is green despite software not being open. Florida the other green state also retains IP rights for IP created by several state agencies including "data processing software created by a state agency." And if you look at one of the light green ones, Massachusetts, the citation makes clear the light green status is based on a court case discussing "records."

I would suggest removing this paragraph. Your recommendations for including requirements about sharing in the RFP are good, but the reason to do them is if you don't it is very hard to get the software to be publically available.

[westurner]

"In many states" is not invalidated by the current policy in California.

The paragraph in question reads:

Share your software

An agency’s software is likely to be useful, in whole or in part, to other agencies within the state, to local and regional governments within the state, or to similar agencies in other states. Additionally, in many states software created as a work of government is inherently in the public domain, which means an open-records request is all that’s necessary for software to become public.