Digging the Value of Source
Recently, the "Big Dig" construction project here in Boston ran into some big trouble over software. It seems that the Massachusetts Turnpike Authority (MTA) the agency in charge of the Big Dig, failed to stipulate all their rights to the Integrated Project Control System (IPCS) program of Transdyn Inc. It is clear that they had the right to execute the program, but when it came time to hand the project off to the next lowest bidder, there was no source code to be found.
At the end of the “early-build” contract, the final development of IPCS was to be done by the winning bidder of the “full-build” contract. Honeywell, a bidder on the “early-build” contract, was the lowest bidder on the “full-build” contract. Transdyn argued that the software in question was off-the-shelf so they did not need to provide the source, while the MTA contended that the numerous changes to tailor the software to the circumstances make it a custom work, which would entitle the state to the source code.
After an out-of-court settlement by the State, in the amount of $350,000, Honeywell, was able to use Transdyn's work. The total cost of this incident, according to the state auditor, exceeds $10 million. This causes a smirk to flit across the faces of all those who have ever looked over their employment contracts and seen words to the effect of, "anything you say, see, think, or do which is in anyway related to our current business and or planned business is OURS!" Agreed, there are differences between contractors and employees which affect the legal analysis of the situation. But you would have thought that by 1994 even the government would have realized that you don't truly have the program until you have the source. Too bad they didn't talk to the Government Open Code Collaborative, to which Massachusetts belongs.
If nothing else this serves as a poignant example of the importance of securing an employer disclaimer. That is, if you want the peace of mind that your piece of mind is yours, get a disclaimer.
Source: NO.2003-0510-3C3 Independent State Auditor's Report on Certain Activities of the Massachusetts Turnpike Authority's Central Artery/Third Harbor Tunnel Contract C22A1 January 1994 Through December 2004