Legal Issues Surrounding the Use of Digital Intellectual Property on Design and Construction Projects (2013)

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21 The Missouri DOT reports that the department uses Microstation and Geopak to create its engineering mod- els, but that the software does not provide the neces- sary encryption technology for the agency’s processes.260 The department relies on Adobe Acrobat signatures for its signing and sealing process.261 The department has “created custom software that includes versioning through our document management system that inte- grates the [two-] dimensional view of the model ex- tracted from our design software into the Adobe Acrobat encryption process.”262 The project managers apply their seal with Adobe Reader.263 The Michigan DOT states that if it implements the use of digital signatures, most likely the department would use third-party software.264 Although not pres- ently using digital signatures, the Minnesota DOT ob- served that some BIM applications provide “an applica- tion specific signature tool” and that the department is seeking and will evaluate a preferred business method of e-signature for a variety of project-related document types.265 VIII. MODELS AND INTEROPERABILITY ISSUES A. Identification of Interoperability Issues A 2002 National Institute of Standards and Technol- ogy study concluded that the added cost to a project because of the absence of interoperability is “astonish- ing.”266 Interoperability refers to the ability of various entities and persons “to share electronic information seamlessly among all participants on a construction project,” whereas BIM is “the computer-assisted design process whereby 3D and 4D images are developed….”267 Interoperability is the “ability to comprehend and inte- grate this information across multiple software sys- tems…so that your system can ‘talk’ to mine, and we can all ‘talk’ to the designers, contractors, subcontrac- tors, vendors, and owners’ representatives in the same electronic language.”268 One source argues that “[t]here is little interopera- bility in [the] AECO (architect, engineer, contractor, owner) community today.”269 The interoperability problem exists for several rea- sons. One reason is that contractors have been reluc- tant to embrace the new technology, partly because of the expense. Of 884,300 contractors in the United States, only 32 percent have more than four employees, 260 MoDOT email dated Aug. 3, 2012. 261 Id. 262 Id. 263 Id. 264 MDOT email dated Aug. 6, 2012. 265 MnDOT email dated Aug. 7, 2012. 266 See LEVY, supra note 2, at 456. 267 Id. at 451. 268 Id. at 454. 269 Id. and only 1 percent have more than 100 employees.270 Profit margins are narrow—about 1.2 percent to 1.5 percent.271 In addition to the cost of technology and training, contractors are concerned that computers will crash with a loss of work and information.272 Another issue is that many of their subcontractors use com- puters only for payroll and accounting.273 Not only are internal business practices fragmented, contractors and subcontractors also spend much of their time securing information from “disparate sources.”274 In addition, interoperability problems exist because of “paper-based business practices, a lack of standardi- zation, and inconsistent technology among stake- holders.”275 Moreover, government offices may require a paper format for filing and require that documents have original signatures and seals.276 Electronic media at the site may be inefficient and not work properly.277 All-in- all, “[t]here is no real incentive to work electroni- cally.”278 Another issue is that “[c]ollaboration software is not integrated with a contractor’s other systems.”279 Unlike the manufacturing industry, the construction industry is unique in that its products are not the result of “an integrated design build process” that occurs in one place.280 Furthermore, there are different versions of the same software, or the collaborators are using differ- ent software.281 One source maintains that absent the existence of uniform standards for BIM and interoperability, the contract documents for a BIM project should require “bidders to have interoperable software, and the ability to provide BIM modeling as part of their qualification package.”282 Moreover, the contract documents should include guidance on software and/or interoperability requirements for modeling and a file format for ex- changed files so that there is a “relatively seamless flow of information….”283 “A lack of data standards inhibits the transfer of data” among the participants’ systems and applica- tions.284 The industry has to “develop the specific non- graphic common language required for interoperabil- ity.”285 The development of a neutral file format 270 Id. at 1. 271 Id. at 2. 272 Id. at 452. 273 Id. 274 Id. at 457. 275 Id. 276 Id. at 452 277 Id. 278 Id. at 454 279 Id. at 457. 280 Id. at 456 281 Id. 282 Id. at 458. 283 Id. 284 Id. at 457. 285 Id. at 458.

22 provides for communication “by translating a program’s native format into a neutral format to allow data ex- change across multiple platforms.”286 A successful translation system has implications for copyrights and/or patents (and possibly litigation), for more effec- tive and widespread use of BIM, and for the overall con- trol of a project. B. Transportation Departments’ Responses Regarding Interoperability As for whether transportation departments are ex- periencing any interoperability issues with the use of BIM and models for construction projects, five depart- ments stated that they had experienced interoperability issues,287 whereas four departments had not.288 The California Department of Transportation (Caltrans) has used Land XML as a means of translating electronic files, but stated that Land XML is not 100 percent effec- tive.289 Caltrans also said that it has encountered some issues, but the issues do not necessarily involve inter- operability. For example, with respect to engineers, they may choose not to interact with contractors until after a contract is awarded; are concerned that contrac- tors will modify a model; or are concerned that provid- ing a model may result in change orders and construc- tion claims.290 The department is concerned with the authentication or signing of a model electronically and with the potential liability resulting from the sharing of models.291 Delaware stated that it utilizes Bentley software to create its roadway models, but that the models gener- ated by its software are not in a format that is readily readable or usable by a majority of its contractors that do not use Bentley products. Delaware’s solution has been to allow for the conversions of its data to an XML format that may be converted easily by its contractors to suit their needs.292 MDOT uses the Bentley MicroStation format. Michi- gan requires all consultants to use its standard design software to ensure that construction deliverables de- signed in-house or by a consultant are in the same for- mat.293 Its contractors have been asking for CADD in- formation and models in the Autodesk (AutoCAD) format. Michigan’s policy is to provide its native for- mats and not to perform conversions of files into other formats. However, Michigan plans, when possible, to use XML (generic) formats to transfer data. MDOT noted that in the past, global positioning system (GPS) 286 Id. at 460 (citation omitted). 287 Caltrans, DelDOT, MDOT, MnDOT, and MoDOT. 288 FDOT, PennDOT, TxDOT, and WisDOT. 289 Caltrans Response. 290 Id. 291 Id. 292 DelDOT Response. 293 MDOT Response. manufacturers have had difficulties using the XML format for automated machine guidance.294 Minnesota stated that it has experienced technical issues with respect to format, that the issues have been resolved through collaboration among the partners, and that there are fewer issues than before because the “ap- plications support more standard output formats.”295 The Missouri DOT stated that it provides a model “in a neutral file format (LandXML) that gives the contractor the ability to read it in his software package of choice. Other ancillary data is provided in the department’s design software format.”296 The departments were asked about any precautions they are taking to ensure software compatibility. Four departments stated that they make efforts (e.g., in the bid documents and/or bidder qualification) to ensure that BIM software that will be used by all participants is either suitable for or compatible with a project and/or in compliance with what the department has speci- fied.297 Five departments reported that they have not been taking any precautions.298 As for the departments reporting that they are tak- ing precautions, in Florida the DOT’s CADD Manual specifies the format of the CADD data that must be delivered, a requirement that helps to assure that the data may be shared on a reasonable basis.299 Minne- sota includes contractual provisions on whether a “ma- chine control model” is an option; on data formats and exchange; and on the designation of decision authority to resolve ultimate issues.300 In Missouri the plan sheets in the bidding documents are the legal contract, not the model.301 However, the DOT expects eventually to make the model a legal document.302 No departments responding to the survey reported requiring a work log to document progress in modifica- tions that are transmitted on a daily basis to a pro- tected database. Finally, although not providing any details, only one department reported that there had been any litigation involving interoperability for any of its projects.303 The other transportation departments using BIM did not report any claims or litigation.304 PennDOT observed that it provides model data, which is not mandatory, with a nonreliance disclaimer; consequently, it is the 294 Id. 295 MnDOT Response. 296 MoDOT Response. 297 FDOT, MnDOT, MoDOT, and PennDOT. 298 Caltrans, DelDOT, MDOT, TxDOT, and WisDOT. 299 FDOT Response. 300 MnDOT Response. 301 Id. 302 MoDOT Response. 303 PennDOT. 304 Caltrans, DelDOT, FDOT, MDOT, MnDOT, TexDOT, and WisDOT.