BRIEFING PAPERS SECOND SERIES

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1 This material from BRIEFING PAPERS has been reproduced with the permission of the publisher, West, a Thomson business. Further use without the permission of the publisher is prohibited. For additional information or to subscribe, call or visit west.thomson.com/fedpub. BRIEFING PAPERS is now available on Westlaw. Visit westlaw.com BRIEFING PAPERS SECOND SERIES PRACTICAL TIGHT-KNIT BRIEFINGS INCLUDING ACTION GUIDELINES ON GOVERNMENT CONTRACT TOPICS COPYRIGHT PROTECTION UNDER GOVERNMENT CONTRACTS By W. Jay DeVecchio One of the most daunting issues facing companies that do business with the United States is understanding the scope of the Government s rights to contractors intellectual property (IP) under procurement contracts. This is particularly true with respect to IP rights in the largest categories of information generated under Government contracts today technical data and computer software. 1 The data rights provisions and contract clauses of the Federal Acquisition Regulation and the Defense FAR Supplement are long and complex. 2 Moreover, there are fundamental differences in the operation and application of these regulations depending upon whether one is contracting with a civilian or military agency. Nowhere are these differences more evident than in those portions of the clauses dealing with copyright. Copyright protection is an issue of increasing interest and litigation in the private sector, particularly with respect to software. Yet it is not at all well understood in Government contracts. Too often, Government contractors do not appreciate that they are entitled to copyright protection even when their technical data or software have been generated entirely in the performance of a Government contract or at Government expense. This copyright protection may well preclude third parties, who otherwise have access to a contractor s information through the Government, from using technical data and software for anything other than Government purposes. This BRIEFING PAPER examines the issue of IN BRIEF copyrights in Government contracts with an Copyright Protection eye toward increasing contractors understanding of the copyright protections avail- What Is Protected? able under contracts governed by the FAR Who Holds The Copyright? and DFARS and how to maximize those protections. The PAPER also considers the in- Copyright Licenses In Government Contracts creasingly questionable use by the Government of the regulations Special Works DFARS Copyright License Marking At DOD clauses, which narrow contractors IP rights in data and software. 3 FAR Copyright License Data Not First Produced In The Performance Of The Contract Special Works W. Jay DeVecchio is a partner in the law firm of Jenner & Block LLP. The author wishes to acknowledge the assistance of Jessica Tillipman in preparing this PAPER. NO MAY 2005 THOMSON/WEST COPYRIGHT 2005 ALL RIGHTS RESERVED

2 Copyright Protection n What Is Protected? The copyright laws are designed to protect expressions of ideas and concepts. Specifically, copyrights protect the following: 4 original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. A fundamental, corollary principle is that copyright protection does not apply to the ideas or facts that are expressed: 5 In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. The essential point is that the expression itself is protected e.g., the organization of words used in a book but the ideas, facts, concepts, principles, and discoveries that the words describe are not. This is because facts do not owe their origin to an act of authorship. 6 The ideas, procedures, and processes may, however, be susceptible to protection under the patent laws. Applying these principles to Government contracts means that most forms of technical data are subject to copyright protection because they are by definition recorded information works of authorship under the FAR and DFARS data rights clauses. 7 The copyright laws also apply to computer software such as object code and source code, which have been recognized as copyrightable. 8 But copyright may not pertain to the operations of a computer because these are processes or methods of operation. 9 Similarly, computer databases may not be susceptible to copyright protection to the extent they are simply basic compilations of preexisting fact and information, 10 although the extent of protection for a database can increase depending upon the incorporation or exercise of creativity in formatting the database. 11 n Who Holds The Copyright? Under 17 USCA 201(a), the general rule is that the author of the work owns it: Copyright in a work protected under this title vests initially in the author or authors of the work. The term initially means that title can be transferred by the author through conveyance or operation of law. 12 On the other hand, under the copyright principle of work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of the copyright laws. 13 Absent an express agreement, however, independent contractors are not employees and therefore retain authorship rights. 14 This principle of ownership in the author was expressly recognized in the former interim DFARS data rights provisions, in effect from 1988 to 1995, which stated: 15 The Contractor shall be considered the person for whom the work was prepared for the purpose of determining authorship under 17 U.S.C. 201(b). The current DFARS does not contain this language, but there is no indication that the DOD BRIEFING PAPERS (ISSN ) is published monthly except January (two issues) and copyrighted 2005 Valerie L. Gross, Editor Periodicals postage paid at St. Paul, MN Published by Thomson/West / 610 Opperman Drive, P.O. Box / St. Paul, MN Customer Service: (800) Postmaster: Send address changes to Briefing Papers / 610 Opperman Drive, PO Box / St. Paul, MN BRIEFING PAPERS Thomson/West, has created this publication to provide you with accurate and authoritative information concerning the subject matter covered. However, this publication was not necessarily prepared by persons licensed to practice law in a particular jurisdiction. Thomson/West is not engaged in rendering legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional. BRIEFING PAPERS is a registered trademark used herein under license. All rights reserved. Reproduction, storage in a retrieval system, or transmission of this publication or any portion of it in any form or by any means, electronic, mechanical, photocopying, xerography, facsimile, recording, or otherwise, without the written permission of West is prohibited, except that the publisher grants permission to reproduce portions of this publication (not the entire issue) provided that a $2.50 per page per copy fee is paid directly to Copyright Clearance Center (CCC), 222 Rosewood Drive, Danvers, MA (978) Fee Code: ( )/97/$0+$

3 intended to change this practice, which is consistent with the copyright statute. As discussed below, the circumstances are somewhat murkier under the FAR but typically the result is the same. If one considers that copyright generally is vested in the author, and couples this with the point that the data rights provisions under both the FAR and the DFARS are meant to provide data rights to the Government rather than to higher-tier contractors and primes then it becomes clear that prime contractors have no claim to copyright and software prepared by suppliers by virtue of flowing down the standard data rights clauses. 16 In any event, the issue of Government contractors rights was not addressed directly when the Copyright Act was amended in There was, instead, recognition in the legislative history that agencies could formulate policies to address this issue: 18 The bill deliberately avoids making any sort of outright, unqualified prohibition against copyright in works prepared under Government contract or grant. There may well be cases where it would be in the public interest to deny copyright in the writings generated by Government research contracts and grants; and it can be assumed that, where a Government agency commissions a work for its own use merely as an alternative to having one of its own employees prepare the work, the right to secure a private copyright would be withheld. However, there are many other cases where the denial of copyright protection would be unfair or would hamper the production and publication of important works. Where, under the particular circumstances, Congress or the agency involved finds a need to have a work freely available outweighs the need of the private author to secure copyright, the problem can be dealt with by specific legislation, agency regulations, or contractual restrictions. Much later, in 1987, there was an attempt at uniformity through Executive Order No. 12,591, which states: 19 The head of each Executive department and agency shall, within overall funding allocations and to the extent permitted by law: * * * (6) cooperate under policy guidance provided by the Office of Federal Procurement Policy, with the heads of other affected departments and agencies in the development of a uniform policy permitting Federal contractors to retain rights to software, engineering drawings, and other technical data generated by Federal grants and contracts, in exchange for royalty-free use by or on behalf the government. This is the principle that is applied in the Executive Branch generally with respect to patents, and it holds true for rights in technical data and computer software under Government contracts. That is, under both the FAR and the DFARS the contractor retains its rights in data and software that are developed during the performance of the contract, and the Government obtains license rights rights of use in the technical data and computer software. 20 Thus, even if the item, component, process, or software was developed entirely at Government expense and the Government accordingly obtains unlimited license rights, 21 the contractor will still retain ownership of the IP rights. Stated simply, unlimited rights, though extensive, are not exclusive rights. Copyright Licenses In Government Contracts The Government s ability to exercise its unlimited (or limited or restricted) rights would be constrained if the Government did not commensurately obtain some form of a copyright license since it would be unable to reproduce copies of the work (or display or distribute it). Accordingly, the basic data rights provisions of the FAR and DFARS provide a copyright license to the Government. 22 The scope and nature of this license vary significantly between the military and the civilian agencies. n DFARS Copyright License The copyright concept of the current DFARS is straightforward and essentially the same as its predecessors. The DOD obtains a copyright license coextensive with whatever other data rights it obtains. This is specifically addressed with respect to software at DFARS Copyright (and its counterpart at for technical data): 23 3

4 (a) Copyright license. (1) The clause at [DFARS] , Rights in Noncommercial Computer Software and Noncommercial Computer Software Documentation, requires a contractor to grant, or obtain for the Government license rights which permit the Government to reproduce the software or documentation, distribute copies, perform or display the software or documentation and, through the right to modify data, prepare derivative works. The extent to which the Government, and others acting on its behalf, may exercise these rights varies for each of the standard data rights licenses obtained under the clause. The standard rights are unlimited rights, Government purpose rights, limited rights (in data), restricted rights (in software), and specifically negotiated license rights. 24 In other words, if the Government gets restricted rights in software, it gets a copyright license to reproduce, distribute, perform, display, and prepare derivative works of the software as needed to implement those restricted rights. For negotiated rights, Contracting Officers are precluded from negotiating copyright licenses that provide less than restricted rights in software or limited rights in technical data. 25 The broadest application of this license right at the DOD is, unsurprisingly, with respect to unlimited rights. Unlimited rights are defined under the DOD clauses as the following rights: 26 to use, modify, reproduce, perform, display, release, or disclose technical data [or computer software or computer software documentation] in whole or in part, in any manner, and for any purpose whatsoever, and to have or authorize others to do so. The Government s copyright license is unbounded under this clause and, as a practical matter, is coextensive with the author s rights but for title. 27 Notwithstanding this breadth, the DOD s policy guidance on IP Intellectual Property: Navigating Through Commercial Waters provides that COs should not automatically pursue unlimited copyright licenses, stating: 28 Only in the rarest of cases should the Government demand over the IP owner s objection more than GPR [(Government purpose rights)] to copyrighted material, even if the material was developed entirely at Government expense. * * * The contracting officer should use the specifically negotiated license rights to reduce the rights in copyright material to GPR only. Contractors are still cautioned to be vigilant about their rights because, unless otherwise negotiated, a Government purpose rights license sunsets or matures into an unlimited rights license for the Government after a specified time, typically five years. 29 The breadth of the Government s copyright license also raises interesting, and so far unlitigated, questions as to what rights a third party may have when the Government obtains unlimited rights data or software. Without doubt, under this license the Government may give the data to any third party for any reason. 30 Some commentators have likened this to the right to sublicense the data. 31 It also seems clear that the party to whom the data is given can use the data to perform for the Government. It is not certain, however, whether the third party could use the material (including data in which the Government has an unlimited rights license) for any other purpose, such as a commercial nongovernmental use. In other words, although the Government has a broad license, this wording is not expressly an unlimited sublicense to third parties to reproduce or distribute the data. That there might be some preclusion on a third party is supported inferentially by the statute that provides the basis for the unlimited rights definition, 10 USCA It states that, for technical data, the Government shall have the unlimited rights to do the following: 32 (i) use technical data pertaining to the item or process; or (ii) release or disclose the technical data to persons outside the Government or permit the use of the technical data by such persons. Use in this context need not encompass reproduction or distribution, display, or performance. n Marking At DOD A related question is how a third party would know that the contractor has a copyright in- 4

5 terest in data or software developed under a Government contract. The DFARS clauses clearly permit marking unlimited rights data or software with a copyright notice, stating that the contractor may affix a notice of copyright as prescribed under 17 U.S.C. 401 or Therefore, DOD contractors should be marking their unlimited rights data and software with a copyright legend. This puts third parties on notice of the contractor s rights. 34 Although marking will not preclude others from receiving the copyrighted information from the Government or using it, should the Government direct them to do so, marking does point out that the third party may not be able to reproduce the data or display or distribute the data without the contractor s permission. n FAR Copyright License The Government s copyright license, as well as a contractor s ability to mark its data and software with a copyright notice, is very different under the FAR. The FAR s definition of unlimited rights also draws upon the language of the Copyright Act and also appears to provide no constraints on the Government s copyright license: 35 Unlimited rights, as used in this clause, means the right of the Government to use, disclose, reproduce, prepare derivative works, distribute copies to the public, and perform publicly and display publicly, in any manner and for any purpose, and to have or permit others to do so. This unlimited rights definition is modified, however, by paragraph (b), Allocations of Rights, of the basic FAR Rights in Data General clause, which states: (1) Except as provided in paragraph (c) of this clause regarding copyright, the Government shall have unlimited rights. 36 In turn, paragraph (c) of the clause, Copyright, changes the Government s unlimited copyright license into what is essentially a Government purpose rights license when a contractor seeks the written permission of the CO to establish a claim to copyright. 37 In other words, when that permission is granted, the Government does not obtain an unlimited copyright license. There are several key issues that contractors requesting such permission should consider. First, with respect to data first produced in the performance of a FAR contract, a contractor need not seek permission of the CO to assert a copyright, but only if the contractor is claiming copyright in scientific and technical articles based on or containing data first produced in the performance of this contract and published in academic, technical or professional journals, symposia proceedings or similar works. 38 Nor is permission required in any circumstance when Alternate IV of the clause is used. 39 Second, unlike under the DFARS, the contractor must get the express written permission of the CO to establish (really to assert ) 40 a claim to copyright in all other data first produced in the performance of the contract. 41 The FAR states that permission to establish claim to copyright will be granted in most typical circumstances and describes the form of copyright notice the contractor must use. 42 Although arguably this process of seeking permission is contrary to the copyright statute, which automatically vests the copyright in the author, it is consistent with the legislative history indicating that agencies can restrict a contractor s copyright interest. Third, if the contractor requests the permission of the CO and it is granted, then the Government obtains what is essentially a Government purpose rights copyright license. Paragraph (c)(1) of the FAR Rights in Data General clause states in pertinent part: 43 When claim to copyright is made, the Contractor shall affix the applicable copyright notices of 17 U.S.C. 401 or 402 and acknowledgment of Government sponsorship (including contract number) to the data when such data are delivered to the Government, as well as when the data are published or deposited for registration as a published work in the U.S. Copyright Office. For data other than computer software the Contractor grants to the Government, and others acting on its behalf, a paid-up, nonexclusive, irrevocable worldwide license in such copyrighted data to reproduce, prepare derivative works, distribute copies to the public, and perform publicly and display publicly, by or on behalf of the Government. For computer software, the Contractor grants to the Government and 5

6 others acting in its behalf, a paid-up nonexclusive, irrevocable worldwide license in such copyrighted computer software to reproduce, prepare derivative works, and perform publicly and display publicly by or on behalf of the Government. Thus, the copyright license is restricted to activities by or on behalf of the Government. It would be unusual for activities by or on behalf of the Government to encompass the authority to provide copyrighted data or software for commercial purposes. This is, therefore, effectively a Government purpose rights license. Note also that the clause provides fewer rights with respect to software by eliminating the Government s right to distribute copies of the software to the public. 44 n Data Not First Produced In The Performance Of The Contract (1) FAR The FAR precludes contractors from including any technical data in the contract that is preexisting and that contains a copyright notice without obtaining a copyright license of the same scope as paragraph (c)(1) above. 45 Software is treated differently. The contractor either must obtain a copyright license coextensive with the Government s restricted rights as described in paragraph (g)(3) of Alternate III of the FAR Rights in Data General clause if included in the contract, or, if not, then as provided for in a collateral agreement incorporated in the contract. 46 This typically means a supplier s commercial software license. In all events, such a commercial software license should include an express preclusion prohibition against reproducing, distributing copies, displaying publicly, or preparing derivative works for any purpose other than the work under the Government contract. (2) DFARS Under the DFARS there is no basic data rights clause for commercial computer software. Instead, contractors and subcontractors supply commercial software in accordance with their standard software license agreements. 47 Again, these should (and typically would) include copyright prohibitions. Indeed, there is no contemplation in the DOD regulations or guidance that COs are to deviate from standard software license agreements with respect to copyright. Moreover, in almost no circumstances would it be necessary for the Government to obtain unlimited rights in commercial software or, for that matter, anything broader than Government purpose rights. Typically, the Government s right to use commercial software for the application of the contract is sufficient. Any attempt by the Government to negotiate for broader rights should be questioned and probably resisted. In contrast, the principles under the DFARS with respect to third-party copyrighted technical data are similar to those under the FAR. The DFARS Rights in Technical Data Noncommercial Items clause provides: 48 Third party copyrighted data. The Contractor shall not, without the written approval of the Contracting Officer, incorporate any copyrighted data in the technical data to be delivered under this contract unless the Contractor is the copyright owner or has obtained for the Government the license rights necessary to perfect a license or licenses in the deliverable data of the appropriate scope set forth in paragraph (b) [standard license rights] of this clause, and has affixed a statement of the license or licenses obtained on behalf of the Government and other persons to the data transmittal document. Special Works The term special works connotes a creative work that, generally, is authored or commissioned for the Government, such as a public service announcement, a painting, or a compilation of information for investigative purposes that is to be maintained in confidence. The FAR includes a comprehensive list of typical special works: 49 (i) The production of audiovisual works, including motion pictures or television recordings with or without accompanying sound, or for the preparation of motion picture scripts, musical compositions, sound tracks, translation, adaptation, and the like; (ii) Histories of the respective agencies, departments, services, or units thereof; (iii) Surveys of Government establishments; (iv) Works pertaining to the instruction or guidance of Government officers and employees in the discharge of their official duties; 6

7 (v) The compilation of reports, books, studies, surveys, or similar documents that do not involve research, development, or experimental work; (vi) The collection of data containing personally identifiable information such that the disclosure thereof would violate the right of privacy or publicity of the individual to whom the information relates; (vii) Investigatory reports; (viii) The development, accumulation, or compilation of data (other than that resulting from research, development, or experimental work performed by the contractor), the early release of which could prejudice follow-on acquisition activities or agency regulatory or enforcement activities; or (ix) The development of computer software programs, where the program (A) May give a commercial advantage; or (B) Is agency mission sensitive, and release could prejudice agency mission, programs, or follow-on acquisitions. The FAR has a clause addressing data rights in special works at FAR The DFARS counterpart is at DFARS Both of these clauses give the Government broad copyright licenses. The DFARS clause requires assigning the copyright to the Government (and requires indemnification by the contractor), with the contractor retaining use and disclosure rights in the work unless the Government negotiates for restrictions. 50 The FAR Special Works clause continues the principle of requiring the contractor to seek permission of the Government to assert claim to copyright and continues the Government s unlimited rights by or on behalf of the Government when permission is granted. 51 But, unlike under the basic FAR Rights in Data General clause, the Government can require the contractor to assign its copyright to the Government or a third party. 52 The FAR Special Works clause also precludes the contractor from using its data for anything other than the purposes of the contract or to give it to third parties: 53 Except as otherwise specifically provided for in this contract, the Contractor shall not use for purposes other than the performance of this contract, nor shall the Contractor release, reproduce, distribute, or publish any data first produced in the performance of this contract, nor authorize others to do so, without written permission of the Contracting Officer. Given the reach of these clauses, they are to be used only in limited circumstances. Under the FAR, they are to be used (1) in contracts that are primarily for producing or compiling data for the Government s own use ; (2) when there is a specific need to limit distribution and use of the data ; or (3) where the Government requires indemnification for liabilities that might arise out of using the data. 54 If none of these circumstances is present, use of the clause is inappropriate and should be resisted. The DFARS clause similarly is to be used when the Government has a specific need to control the distribution of the works or the Government has a specific need to obtain indemnity from liabilities arising out of the work. 55 Absent those circumstances, the basic DOD data rights clauses are applicable. GUIDELINES These Guidelines are intended to assist you in understanding how to identify and maximize your protection of IP in Government contracts. They are not, however, a substitute for professional representation in any specific situation. 1. Remember that most forms of technical data and computer software generated in performing Government contracts are subject to copyright protection. While this includes source code and object code, it may not include the operations of a computer. You should consider patent protection for computer processes and methods of operation. 2. Be aware that computer databases may well not be copyrightable to the extent they are merely compilations of preexisting fact and information. 3. Keep in mind that under both the FAR and the DFARS, you retain rights in data and 7

8 software that are developed during the performance of your contract, while the Government obtains license rights not title or exclusive rights in the technical data and software. This holds true even if the data or software were developed entirely at Government expense. 4. Recognize that these license rights, including a copyright license, accrue to the Government, not prime contractors or highertier subcontractors. The contractor who authors the copyrightable work is generally the copyright holder as a matter of law. 5. Understand that the DOD s copyright license is coextensive with whatever other rights it obtains in your data and software, such as restricted rights in software. DOD policy guidance provides that COs should not automatically pursue unlimited copyright licenses. 6. To maximize copyright protection, if you are a DOD contractor, mark all deliverable data and software with a copyright notice as prescribed under 17 USCA 401 or 402. This should be done even when the Government obtains unlimited rights, because it puts third parties on notice of the your rights. 7. Remember that under the FAR, you must seek written permission of the CO to assert a claim to copyright in all technical data and software first produced in the performance of a contract, unless you are claiming copyright in scientific or technical articles. 8. When this permission is granted, however, bear in mind that the Government s copyright license under the FAR is essentially only a Government purpose rights license (restricted to activities by or on behalf of the Government ) not an unlimited rights license. Furthermore, with respect to software, under the FAR, the Government does not have the right to distribute copies of the software to the public. 9. If you license your preexisting software to the Government under the FAR or DFARS, include in your license agreement copyright prohibitions against reproducing, distributing copies, displaying publicly, or preparing derivative works for any purpose other than the work under the contract. 10. Remember that the DFARS and FAR Special Works clauses are supposed to be used only in limited circumstances, which are expressly described in the regulations. If none of the requisite circumstances is present, the use of the clause is inappropriate and should be questioned. H REFERENCES H 1/ See generally DeVecchio, Licensing Commercial Computer Software, Briefing Papers No (Feb. 2004); Burgett, Sweeney & Kunzi, Government Rights in Data and Software/Edition II, Briefing Papers No (Oct. 1995). 5/ 17 USCA 102(b). 6/ Feist Publ ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 347 (1991). 2/ See FAR subpt 27.4, ; DFARS subpt , , -7014, / FAR , para. (a); DFARS , para. (a)(14). 3/ FAR ; DFARS / 17 USCA 102(a). 8/ Lexmark Int l, Inc. v. Static Control Components, Inc., 387 F.3d 522, 533 (6th Cir. 2004) (citing 17 USCA 101). 8

9 9/ Ervin & Assocs., Inc. v. United States, 59 Fed. Cl. 267, (2004), 46 GC 54. See generally Nash, The FAR Rights in Data General Clause: Interpreting Its Provisions, 18 Nash & Cibinic Rep. 19 (May 2004). 21/ See DFARS , para. (b)(1), , para. (b)(1). 22/ FAR (f)(iv); DFARS , / Ervin, 59 Fed. Cl. at / DFARS (a), (a). 11/ See Feist, 499 U.S. at / DFARS , / 17 USCA 201(d). 13/ 17 USCA 201(b). 25/ DFARS , / See 17 USCA 101 (defining work made for hire ). 26/ See, e.g., DFARS , para. (a)(15), , para. (a)(15). 15/ DFARS , para. (e)(3) ( Rights in Technical Data and Computer Software (OCT 1988) clause) (prior to 1995 revisions). 27/ See generally Nash, Protecting Unlimited Rights Data: The Inadequate Clauses, 18 Nash & Cibinic Rep. 21 (May 2004), 16/ See DFARS , , (a); FAR , para. (h). 28/ Office of the Under Secretary of Defense for Acquisition, Technology & Logistics, Intellectual Property: Navigating Through Commercial Waters 4-21 (Version 1.1, Oct. 15, 2001). 17/ See Copyright Act of 1976, Pub. L. No , 90 Stat (1976). 18/ S. Rep. No , at 56 (1975). 29/ DFARS (b)(2), (b)(2), , para. (b)(2), , para. (b)(2). 19/ 52 Fed. Reg. 13,414 (Apr. 10, 1987), amended by Exec. Order No. 12,618, 52 Fed. Reg. 48,661 (Dec. 24, 1987). 30/ DFARS , para. (a)(15), , para. (a)(15). 20/ See, e.g., FAR , paras. (b)(2), (d); DFARS , / Simchak & Vogel, Licensing Software and Technology to the U.S. Government (2000). 9

10 32/ 10 USCA 2320(a)(2)(A) (emphasis added). 43/ FAR , para. (c)(1) (emphasis added). 33/ DFARS , para. (f), , para. (f). 44/ FAR , para. (c)(1). 34/ See Innovative Concepts, Inc. v. Symetrics Indus., Inc., Civil Action No A, (E.D. Va. 2003) (contractor s rights in software are only enforceable if the contractor takes proper steps to put third parties on notice of copyrights by attaching the appropriate markings or legends). 45/ FAR , para. (c)(2). 46/ FAR , para. (c)(2). 35/ FAR , para. (a). 47/ DFARS See generally DeVecchio, supra note 1. 36/ FAR , para. (b)(1). 48/ DFARS , para. (d). 37/ FAR , para. (c). 49/ FAR (a)(1). 38/ FAR , para. (c)(1) (emphasis added). 50/ DFARS (b), (b), , paras. (c), (e). 39/ FAR (f)(1)(iii), (e), , para. (c)(1) (Alternate IV). 51/ FAR , para. (c). 40/ See NASA FAR Supplement (e)(5) ( In order to insure consistency with copyright law, paragraph(d)(3)(iii) clarifies that the word establish in FAR , Rights in Data General shall be construed as assert when used with reference to a claim to copyright.). 52/ FAR , para. (c)(1)(ii). 53/ FAR , para. (d). 41/ FAR , para. (c)(1). 54/ FAR (a)(1) (emphasis added). 42/ FAR (f)(1)(ii), (v). 55/ DFARS (a), (a). 10

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