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“When Two Worlds Collide”: Comparing Software License Boilerplate with Government Contracts

David S. Bloch

©2016. Published in Landslide, Vol. 8, No. 3, January/February 2016, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

Government software contracts are just like ordinary commercial software contracts: they involve an offer, acceptance, consideration, and other concepts that licensing experts know well from the private sector. Indeed, in Department of Defense (DoD) contracts, the government is instructed that “[c]ommercial computer software or commercial computer software documentation shall be acquired under the licenses customarily provided to the public unless such licenses are inconsistent with Federal procurement law or do not otherwise satisfy user needs.”2 And “civilian” government contracts (meaning non-DoD contracts with agencies such as the Departments of State, the Interior, or Homeland Security) follow a similar line: “commercial computer software or commercial computer software documentation shall be acquired under licenses customarily provided to the public to the extent the license is consistent with Federal law and otherwise satisfies the Government’s needs.”3

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