Legal issues for the use of free and open source software in government

Abstract

This article explains the notion of free and open source software (‘FOSS’) and the reasons why governments throughout the world are giving it close consideration. In particular, it highlights key legal issues facing the adoption and development of FOSS by governments. From the aspect of government procurement the article examines the models used by governments to create a level playing field for the supply of FOSS, intellectual property warranties and indemnities and the operation of the Trade Practices Act. In terms of government development of FOSS, the article considers the licensing mechanisms that will be implemented in the development and distribution of such software. In the final section, the article assesses the threat software patents and the current SCO litigation provide for FOSS. The article concludes by emphasising that governments need to be fully aware of this landscape to assess what is the most effective technology available.