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USAF Violates DMCA, Escapes Unscathed
eldavojohn recommends coverage at Ars on a Byzantine case just thrown out by an appeals court. The US Air Force cracked the code that would expire a piece of software. For this they were sued under the DMCA in Blueport v. United States. The Court of Federal Claims heard it and threw it out. "The reasoning behind the decisions focuses on the US government's sovereign immunity, which the court describes thusly: 'The United States, as [a] sovereign, "is immune from suit save as it consents to be sued... and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit."' ... 'The DMCA itself contains no express waiver of sovereign immunity,' the judge wrote, 'Indeed, the substantive prohibitions of the DMCA refer to individual persons, not the Government.'"
Just for a while.
In most civilian jobs you have to sign a paper that states something like "what you do for the company is the company's property". I suspect that most agreements are a bit more stringent than that. When you are in the Armed Forces of the United States, I'd say that those rules apply, even more so.
It appears that this guy took his employer's 'system', redesigned it and then tried to profit from it by having a vendor sell it back to his employer. That stuff would get you fired at my company. I wouldn't expect it to go over well for somebody in the armed forces either.
I'm sorry dude. You did a great job by helping out. But... Your job is to help out. Suing the US Government over something that you produced while working as a government employee isn't going to work.
It could be worse, it could be Monday.
So speaketh the darkside when DMCA was written.
You are being MICROattacked, from various angles, in a SOFT manner.
So I guess all citizens are immune to the DMCA since we're the one's who are sovereign. Not the government.
Luckily for the USAF, the US is not a democracy. It's a republic.
And as this case demonstrates, citizens have no power. Only representatives and the people who pay for them to be elected.
are immune from the restrictions and laws they help write to rule the people that put them in power.
In fact they may do the very thing the laws were written to prevent, with impunity.
Couldn't that be considered a definition of corruption?
A dim bulb brightens.
An SQL query goes to a bar, walks up to a table and asks, "Mind if I join you?"
to kick that judge's ass.
If the DMCA refers only to individuals, and not to organizations like a company or government, then shouldn't Google's YouTube be in the clear against Viacom? or the ThePirateBay in the clear from... everyone?
Something here is off, or the DMCA just got castrated with this new precedent.
We're the country. We're above the law.
Could be me, but I learned at school that the cornerstone of a working democracy is that everyone's equal, especially when facing the law. Did that change somehow, or is the system just not working anymore?
We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
...to live in Soviet Russia, but without universal health care?
Governments tend to preach what they don't practice. The US government is no exception. They threaten military action against countries trying to acquire civil nuclear energy, while over a thousand nukes sits in their hangars. They terrorize whole populations while denouncing terrorism. I ask you. Why makes anyone think the army would give a damn about the DMCA?
Res publica non dominetur
Oh, good. Another judge reading what is actually in copyright law.
Wait, does he have a license to do that?
Does the copyright law say that a license to practice law allows him to read that text and do whatever he wants with it?
Tried to fly that one under the radar, did they?
*rimshot*
--RIAmAses! Let my MP3ople go!
I would like to kick the asses of the Congresscritters who thought DMCA was enough of a good idea to vote for it.
The US has a lot to learn about democracy. One day they might even practice it.
If I want bread and circuses I'll buy some bread and go to the circus. I don't need my fellow citizens to have a vote and decide the government should provide bread and circuses for everyone.
And the hope here is, they might even practice it in front in foreigners and in other places.
The phrase "pearls before swine" comes to mind.
but don't try to use it.
Engineering is the art of compromise.
the US has always had and always will have sovereign immunity over anything and everything that it feels like having sovereign immunity over. if you don't believe me, go reread the 11th amendment.
sovereign immunity isn't used very often because the government knows that, just like eminent domain, if they abuse their power, the people will complain long enough and loud enough until the government loses their power, either through legal means (amended away) or through social means (political suicide for anyone who tries to use it).
you may not agree with it, but SCOTUS has ruled numerous times that the only time a person can sue the government, (i believe all the way down to cities and counties, as well as states and the national government) is when the government allows it.
Reading the article, it sounds like he took code the airforce owned, modded it, then tried to sell it back to the airforce.
That's not good.
While in general I agree with your sentiment, that's kind of the idea of any electoral process. I can't enforce the law by seizing your drugs or stolen property, but authority can.
I can't own a nuke but the government can, and it seems rather reasonable to me, as long as you believe that your electoral process is putting the right people in power. Democracy is just a way of mitigating privileges to a select group of people. All societies will have an unbalance of power and priviledges, the question is, how do you pick who gets them? Democracy, in its ideal, avoids the might is right problem with past feudal or fascist societies.
Does it work all the time? Of course not. You have a choice with respect to where you live, or work, and thats more than many people on earth can say but I'd hardly classify some people having more legal privileges as I do, even if they set the rules, as corruption. By that logic, any boss that makes a rule that I can't spend more than 30 bucks a day on food but grants himself a per diem of 40 is corrupt.
See the forest for the trees - you can't have a government that can govern if they arn't expempt from certain restrictions placed on citizens. It might not apply in this case, but thats kind of the point, isn't it? Our hallowed western world judicial system absolutely requires that some people have certain exemptions from laws that apply to citizens, otherwise it couldn't actually function. Who wants to require that the government license copy written material everytime it is valid evidence in a legal trial?
"Old man yells at systemd"
C'mon fellow Slashdotters:
Learn the darn Constitution before you start spouting over your silly beliefs. Governments always have been completely immune to suits. The political theory behind that is that government should never be compelled by a single person (i.e. a claimant) to do anything it didn't want to. Instead, the elected representatives should do that.
The United States, unlike almost every nation, has chosen to waive this immunity in certain cases where it felt appropriate. So have the various States. The United States can also waive it for the States under only the 14th Amendment. Some examples of this waiver are the Federal Tort Claims Act and Section 1983.
And to those of you who think this doesn't apply to corporations because they aren't "persons" - don't be silly. One of the principal elements of corporate law is that corporations are artificial persons with respect to the law and almost always fall under the term "persons."
nope. Copyright law is silent on your rights to use a work. You just can't copy random stuff and distribute it.
"We returned the General to El Salvador, or maybe Guatemala, it's difficult to tell from 10,000 feet"
* If Movie Studios don't pay their artists, that's fine. http://en.wikipedia.org/wiki/Hollywood_accounting
* If Big Media (like News Limited) cons the public of of their IP that's fine too. http://www.bjphoto.co.uk/public/showPage.html?page=807947
* When I hire a DVD I have to sit through an FBI warning telling me copying is bad, but...
* If the Government hacks software to get around license restrictions, that's fine.
Wow.
It says he learned programming on his own time (they refused his request for training) and programmed the system at home on his own time.
I'm willing to bet that that law came into effect to stop the "Well, the government passed a law that offends me... so I'm going to sue it!" and then all the courts would be tied up with stupid lawsuits that waste everyones time... and of course, then they can use it to stop lawsuits that should be allowed to continue.
Actually sovereign immunity has been around a lot longer than the US.
The idea is that the King is sovereign and can do what he damn well wants.
We inherited it from the English, as did most other Commonwealth nations.
Immunity is frequently waived nowadays (by statute, e.g. Sec. 1986 Civil Rights suits, IIRC), but it the blanket immunity is still around and the default state of affairs.
Yes, it stops a lot of political shenanigans from happening in court.
I don't remember if it stops injunctive relief or just monetary ($$$) relief. Constitutional cases are usually about invalidating a law, not money or equitable (injunctive, writ of mandamus) relief.
I think the judge was using faulty reasoning here, but the plaintiff didn't deserve to prevail. It sounds like he wrote this code while drawing a salary from the USAF, and it's not clear that he did it all on his off-duty time.
-jcr
The only title of honor that a tyrant can grant is "Enemy of the State."
Let me get this straight: You think that your client, one of the largest, most powerful airforces in the world, is hacking your software. And your plan is to blackmail these people? Good luck.
According to what the law says, this situation is exactly proper. This should only serve to point out how archaic a concept sovereign immunity is, and how it needs to be removed.
Stasis is death. Embrace change.
Never sue an entity that can drop massive amounts of bombs on you.
Here is the actual court decision, which contains a more detailed account of what actually happened. Among other things, it makes it clear that the source code never left the guy's home.
Dear god, if nothing else, the editors ought not produce a comma where a stop is clearly necessary.
"...nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."
The military is bound by law and oath to uphold the Constitution.
Looks pretty clear to me. Cough up the just compensation.
Have gnu, will travel.
The problem as I see it is not whether a sovereign entity has the legal or moral right of immunity from law. That is somewhat misleading for the exact reason and example you provide. The problem is, in my view, thankfully much smaller in scope, and that is the problem of compensation. That is to say, if the government (of the people or otherwise) decides to appropriate a work product without reasonable compensation for that work, then where does this logic end under such legal precedent? Why not simply force companies, manufacturers, and workers to produce goods or services to the government? Now that's one way to cut down on pork barrel spending, isn't it?
Perhaps you have heard of this economic model that I have just described. It's called communism. And you would think that a Republican administration professing to uphold the "enlightened" principles of capitalism and a free-market system, would be the last people on this pillaged planet to use "sovereign immunity" as a lever to appropriate the work of others without proper compensation.
After all it's not like the US government, or specifically, the Pentagon (with the single biggest defense budget in the world) is exactly starving for cash. They don't seem to have a problem throwing wads of it away on the Middle East debacle, or even handing it out to the same Iraqis that tried to kill our soldiers last year.
The truth is that our system of government speaks out of both sides of its mouth. 'Of, for, and by the people' is a lovely sentiment but it is accountability that makes such warm fuzzy feelings ring true.
BTW I don't like the DMCA and I don't support it in any meaningful way. But one doesn't need its backing to understand the problem with the government's assertion of immunity.
It is well understood by all who sell to the government that they will never allow you full monopoly powers. The government does not want to be enslaved by their need for a product, and thus can freely violate patents for the purposes of defense if it so chooses. This is old, old law, and anyone who sells patented defense products is well aware of it.
This ruling seems entirely consistent with DMCA. Patents create a government-sponsored monopoly on inventions. DMCA allows individuals and companies to create monopoly-like powers on copyrighted materials. It's crucial that the government be able to break its own sponsored monopolies to ensure it won't get unnecessarily squeezed and can still function. Informed private parties are well aware this is always a danger when selling to the government, and can simply choose not to if they don't want to be impacted by it.
Unless mankind redesigns itself
Actually, Congress in particular and the federal government in general are usually exempt from most of the "do good" laws and regulations that they inflict on the remainder of the citizenry. Things like the minimum wage laws, anti-discrimination laws, etc. don't apply to the government unless Congress decides to include itself.
Nothing new here other than you just realized it. It's not corruption. It's business as usual.
Cheers,
Dave
They that can give up essential liberty to obtain a little temporary safety deserve neither safety nor liberty.
Ben
Does the copyright law say that a license to practice law allows him to read that text and do whatever he wants with it?
Yes. Copyright law says that works by the federal government do not get copyright protection. Please see 17 USC 105.
As much as I hate defending the government, the US is a Republic, not a Democracy.
Which might explain how Republicans keep getting voted in as presidents, but Democrats don't. ;)
GLaDOS for President 2016! "Well here we are again. It's always such a pleasure." -- GLaDOS, 2011
Cheers,
Dave
They that can give up essential liberty to obtain a little temporary safety deserve neither safety nor liberty.
Ben
As the church lady from SNL would say "How convenient!"
I agree with you that the decision is quite disturbing, even in the light of other comments that this has been the status quo for a long, long time.
I would have found the decision rather balanced, actually, if it had been explicitly limited to the DCMA, for several reasons. First, works of the US government (or the military, anyway) are automatically in the public domain --- the government has waived its "right" to copyright. Interestingly, this means that the crack itself is in the public domain (but not the cracked software, which is a derived work). Secondly, if the US gov't is not bound by the DCMA, it is then legal for it to distribute tools for breaking DRM, which might be useful in many situations (e.g., if Microsoft is vaporized in a war, or if public libraries need them for the purposes of archiving cultural works in danger of disappearance).
...I can't enforce the law by seizing your drugs or stolen property, but authority can.
I can't own a nuke but the government can, and it seems rather reasonable to me, as long as you believe that your electoral process is putting the right people in power. Democracy is just a way of mitigating privileges to a select group of people...
I cant sleep with children, I cant break into your house in the night and kill you and all your family, I cant dope peoples drinks with lsd, etc.
What somebody should do is establish the rights of the people (including the government) and write it out into some sort of document, perhaps bullet point it. If the government needs powers that the people cant have they should be explicit put into this document, NOT implicitly granted because they're the government. hmm i wonder if anybody else has thought of this?
P.s you can seize stolen property if it was stolen from you. If somebody owes you something you can take it.
IranAir Flight 655 never forget!
I can't believe that the lawyer made such an obvious mistake. In suits such as this the suit needs to name a member of the armed forces. If the would have just sued the Secretary of Defense or some such individual that works on behalf of the government the case would stand.
Can't have that happening. *smashes bulb*
When will they ever give consent to be sued? Mind you, this is the government.
Winkey shortcut mapping for 64bit windows. WinKeyPlus
He should not have even allowed them to know about the system if he was going to sell it and used corporate intermediaries when he did. The most proper way would have been to gone for commendations and a good record. Later if he got shafted, in theory he could apply for back pay on time spent learning and coding. The ruling was rather heavy handed and not even need sovereign immunity directly. Allot of court cases are popping up that never should have reached litigation/prosecution let alone the courtroom.
No, those are not "other words" for this story or the concept of law that applies. However, I think other words for yoru sentiment applied by the post would be "US-bashing."
quod licet jovi, non licet bovi
bickerdyke
since when in the governemnt not OF THE INDIVIDUALS?
we the people??
of the court's concerns. Maybe the decision came down the way it did because the USAF has everything from pop bottle rockets to nukes, and has the court's home coordinates.
What makes your incredibly stupid and ill-informed comment delightfully ironic, is that you added the touch of (poser) French... try reading up on French powers of state sometime.
You seriously need a remedial civics lesson man.
"There is more worth loving than we have strength to love." - Brian Jay Stanley
Logical thinking about the government is not allowed here! I bet you RTFA too!
you make me sick!
Not all life is cyber. Extra Income
What violation? There ain't no violation The government read the contract - did you?
While I'm not a lawyer, I believe both sides of the case suffer from "unclean hands" problems - the coder for having gov't employees test his privately produced code on gov't time, the USAF for hiring someone to do a DMCA violation on their say-so.
If I beta test MS Vista do I get to have free copy and to be able to break copy protection on the OS because of it?
No.
Even in Jolly Old England the government has "crown immunity" from prosecution in certain areas. Even where those protections don't apply, they can try to hide behind a public interest argument.
All your base are belong to us.
Eclipse PDE and Me
It started by screwing foreign countries and violating international pacts. I can have it "for the good of people", fine, non-americans is not that important after all. But then it violates it's own laws on grounds of "it's my law so I'm immune". What's next? Outright tyrranny?
The guy was lucky, the USAF legally could send him to Guantanamo, or Egypt to interrogation. Or waterboarding him to obtain the source code.
Cracking his program is like a child game in this War Time.
I would not like to live in a country like that. I suppose at least if it gets that bad you can always pick up your guns to overthrow the Government (and army)...
Become Governor, start pirating.
Okay, I may be biased here, being a career officer and all...
BUT: he writes a piece of software at home, and then brings it to work to 'test'? In fact, he's running unverified, non approved software on a military computer, most likely networked to other military computers? Seriously, WTF?
It boggles me that IT security is that lax in a military organisation - our setup won't let me run anything than the approved, verified apps delivered over the network - operational security being key. And don't even think of executing something of a removable media...
We all know that pretty much anyone can be bought (if the offer is high enought) - what if he had been less upright and loyal and had put a trojan or two into his program?
Everything in the world is controlled by a small, evil group to which, unfortunately, no one you know belongs.
So he owns the copyright but since he induced the use of his copyrighted work in the course of his regular work related duties he forsakes his right to actionable copyright proceedings as it relates to the USAF.
He can still sell his copyrighted program to others, the USAF does not own his code -- the USAF just never have to be concerned about any claims of violation of copyright in regards to this code because they are immune because of his actions.
Three issues here -- copyright, immunity from copyright actions and DMCA.
1) Copyright was and still is his.
2) Immunity from copyright actions was decided based on above
3) DMCA violation was decided based on judges decision that the DMCA doesn't apply to the government.
It's crucial that the government be able to break its own sponsored monopolies to ensure it won't get unnecessarily squeezed and can still function. Informed private parties are well aware this is always a danger when selling to the government, and can simply choose not to if they don't want to be impacted by it.
Funny, the company/manufacturer I work for does a LOT of selling software to the Government. In all the contracts I deal with (on a daily basis) the fact that the company may not be there is simply solved by putting the code in escrow.
Problem solved, software companies rights of term of use are protected while the government gets their protection against future software issues when the company's not around.
Oh on a side note, the Government gets caught pirating our software 4-5 times a year. Mostly in error. They (for the most part) take it VERY seriously even in times of budget crunches and cutbacks. If the person doesn't take it seriously, the procurement arm sure does.
Yo Grark
Canadian Bred with American Buttering
Democracy as the ancient Greeks understood it meant rule by a certain group of people, not all people. In ancient Athens (5th century BC? please correct me) this meant men over a certain age who owned land. Not women, not slaves (it was fine to have slaves in this democracy) and not free men who didn't own land. Thus "democratic" can have a wide range of meanings. I think it would be fair to say that several of the founders of the US constitution wouldn't be too happy to have women and certain ethnic groups having the vote but still feel they were being true to the statement "of the people, by the people and for the people".
I believe corporately that's true. But as individuals they are subject to all the same laws.
Bad analogies are like waxing a monkey with a rainbow.
Since there has been no trial and no finding of guilt, the USAF in fact has done nothing wrong. Those accused of violating the law are "innocent until having been proved guilty," remember? Since the USAF has not been found guilty, then they have not done anything wrong as far as the rest of us are concerned.
Nothing to see here. Move along.
I've always thought that in a democracy the people are the sovereign, not the government: Popular sovereignty. I guess the judge has different ideas.
Land of the free, my ass.
The guy HAD a leg to stand on. It's about how viciously loosely DMCA is worded.
If only government could be sued, they would be quite likely to lose, despite all signs pointing to them owning the intellectual rights to the software.
Note the guy didn't sue them for making/distributing illegal copies (because they were legal), or for not paying him money for them (they didn't owe him any). He sued them for copyright protecting device circumvention (cracking time lock). The fun part of DMCA is that NO-fucking-BODY is allowed to circumvent the lock. Even the owner. You can get your own sources and modify them, but if you lose the sources you can't reverse-engineer your own binaries to write a crack for software you wrote yourself. Evil, and evil squared, but still there. They did copy-protection circumvention and on whose software they did it is moot. If they weren't immune to DMCA as a whole, they'd be found guilty (and possibly pay a compensation as the violators, to... themselves as the victims - but also any other fees and such.)
45 5F E1 04 22 CA 29 C4 93 3F 95 05 2B 79 2A B2
Soverign immunity is a legal concept the US inherited from english law.
"sovereign is exempt from suit [on the] practical ground that there can be no legal right against the authority that makes the law on which the right depends." 205 U.S. 349, 353."
The DMCA gives legal rights to copyright holders, however those rights cannot be used to sue government agencies since the government did not give permission. Common law copyright was abolished in the US in 1790, copyright only exists in the US to the extent congress allows it.
Face it people: it's fascism. Pure and simple. Leave while you can.
RS
Shoes for Industry. Shoes for the Dead.
Only to the limited extent that the "immunities" help them preform their duties. The President is immune from prosecution post office for actions taken as the holder of the office (no chance for prosecuting GW for the Iraq war). Police officers can speed and make a left handed turn without using a blinker, and have no fear of being ticketed by some "civic vigilantly".
Its not a perfect solution, but without these types of limited immunities, there would be no doctors, police officers, fire fighters, government officials/agents/servants, etc.. Without a limited but reasonable exception to certain laws, certain jobs would simply be vulnerable to litigation to be worth doing.
Very few entities are immune to criminal prosecution (to some extent). The action plus the intent are key factors in determining whether something was being done for the "job" or for the "person". In cases involving crime with the government, the government may remain blameless, but the person perpetrating the crime may very well be liable.
Since I am sounding kinda "pro-government", a sure fire way to be modded down, let me throw out the following +5 interesting/insughtful plugs:
- Bush is evil
- Americans are fat
- America is corrupt
- America is to blame for all the worlds woes
- Americans are stupid
- Socialism and Communism aren't like perpetual motion...
20th century Marxism is not progress...
The DCMA lawers do not have balls to sue the USAF? :)
LOL!
Religion: The greatest weapon of mass destruction of all time
If the federal government decides that it is immune from copyright, why do they bother buying software at all? Can't they just get it from warez sites?
Help! I'm a slashdot refugee.
The officer used Air Force code to write improvements to it. If he had done this under contract, he would have been given data rights to it, but since he "took" Air Force code, fixed it up, and then sold non-existent rights to a corporation to try and make money off of his improvement. He got somewhat compensated (promotion/pay raise/having your name in code all over the AF). Under contract, this would have been a different story, freelance improvement on AF property, they did things acceptably.
That's not exactly what was ruled here. The issue of whether the federal government is immune from copyright is different from the issue of whether the federal government is immune to suit under the DMCA.
The issue here is whether the federal government committed a tort against the copyright owner by cracking encryption as proscribed in the DMCA. While the government may or may not have waived immunity under normal copyright legislation, it has apparently not waived any immunity under the DMCA in particular. This suit was about the DMCA violation, and so that was the issue discussed by the court.
"Stumble before you crawl"
I don't see what new information provides this in that regard. It's always been very difficult to win financial damages from the federal government in civil court. Even when a court finds that a person's constitutional rights have been violated, the relief typically involves (a) a cease and desist order enjoining the government from continuing the behavior called out in the lawsuit, and/or (b) at best compensatory damages, for instance when someone's property is seized, the court may order it returned in similar condition or an equivalent payment made in its stead.
People have been wrongly convicted and spent decades in jail, and even when the prosecution probably knew its evidence was bogus or at least dubious, all the "inmate" was granted by the court was a release from jail. Most of them don't get any financial compensation, any support for their re-entry into the community, and many of them don't even get an apology from the agency that sent them to prison. (Some states now allow such lawsuits, but as far as I know the federal government and the majority of states still don't allow these lawsuits to proceed). And with the "war on drugs" and RICO-related legislation, a person can be acquitted of a crime, yet have personal or real property seized afterwards because it allegedly participated in a crime. All the person gets in "compensation" is the admonishment "You may not be guilty of any crime, but you shouldn't have bought a house/car/whatever that's a venue for drug dealing/money laundering/other crime!"
Now if someone brought suit on a 4th Amendment related complaint and got told by a U.S. court: "The federal government is a sovereign entity and neither it nor its employees acting in official capacities can be party to a lawsuit", then we've got a BIG problem. Otherwise, this is just another instance of what most Americans should have known for decades: that it's pretty hard to win cash from the U.S. government in the courtroom.
1)Government does something wrong and causes damage to person or person's property.
2)Person sues government and suit is dropped.
3)Person makes big deal about damage done to them.
4)If people agree with person they express outrage.
5)Elected officials fearing losing their jobs will demand action.
6)Appropriate steps are taken to appease person thus ensuring said politicians get reelected.
If enough elected officials feel they will lose their jobs over an issue they will act.
Knowledge = Power
P= W/t
t=Money
Money = Work/Knowledge so the less you know the more you make
Here's the problem... you can't sue the gov't with laws that pertain to individuals without their permission... guess how many times that's happened?
I'm not a lawyer but I'm guessing not many.
In this case, the USAF owned the software. The people who bought it were wrong.
If you read the enlistment contract, it clearly spells out that you are on duty pretty much all the time - as in 24/7. That's why the military doesn't pay overtime and why you get 30 days vacation - because you don't have to get any other time off. Even at home, you're still on duty.
I know, I did it for 21 years. Stuff you develop for the military while in uniform belongs to the military.
So it really wasn't a DMCA issue at all. (Not that I don't think the DMCA is a crock, but it doesn't even apply in this case.)
Guy hates the software he uses at work.
Guy learns to program.
Guy hands out free copies of superior program at work and everyone loves it.
Program cripples itself after trial period.
Guy: A ha! Now you have to pay me money to get it working again!
USAF: A ha! We're the Government you moron.
Democrats or Republicans. They are both taking us to the same place and they are not afraid of us anymore.
And, your point, exactly?
Today's system of laws was created by lawyers, and guess who these laws benefit first? Well, to first benefit lawmakers directly would be too obvious, they at least go the route of pork barreling to benefit those who can then give back to them via campaign contributions and other mechanisms legal and otherwise. After that, the lawyers are usually well taken care of - any disputes benefit attorneys on both sides, at the expense of plaintiff and/or defendant. Nevermind that 99% of the population is now sufficiently educated to make rational argument infront of a judge, the interlocking laws, case law, rules of venue, predisposition of individual judges, etc. ensure that a lawyer experienced in the venue has overwhelming advantage over a normally educated layman in any case.
Were it not for this byzantine structure, lawyers might find themselves out of work, similarly to most typists, now that most people do their own typing, or blacksmiths now that most people don't use horses. Instead, law continues to be a vast and lucrative field - and will continue to be so as long as we continue to let lawyers make laws to benefit lawyers.
Maybe the police, even though they might have immunity, realize that they might lose it if they abuse it too much - the occasional problem might be fine, but screw over too many upstanding, successful citizens and next thing you know you have a liability responsability bill passing through the state congress. Complete with a couple weapy families to get the sympathy vote.
The occasional illegal drug user, hooker, or john - they don't have much in the way of defenses. Nobody's real sympathetic for the rapists, molesters, and beaters.
On the other hand, there's a case right now where SWAT busted into a mayor's house, killing both their dogs, that were running AWAY from SWAT. They were labradors! Somebody mailed his wife a bunch of pot - which seems odd, as no other drugs were in the house except for the still sealed package, everybody in the house tests negative for drugs*, etc...
It seems somebody mailed the drugs to deliberately cause trouble - much like the asshat who faked 911 calls.
Oddly enough, even in the USA, for upstanding people it's often cheaper to apologize(even if you admit no specific wrongdoing) and pay for damages.
In one case there was a drug raid on the wrong house, that of a grandmother. Fortuantly, the mistake was quickly realized. The sheriff showed up, personally apologized to the grannie - including a bit of a fix, along the lines of 'I'm sorry, we had what we thought was a valid tip, we'll review procedures'. Posted a deputy to guard the door for the few hours until morning when the department hired carpenter came to fix the door.
- Result: No Lawsuit. Cost: 1 hour sheriffs time. ~6 hours deputy time. 1 Door, carpenter install. Estimated cost: $750. Of that, probably only $300 or so was out of a discretionary fund to hire the carpenter.
What lawsuit can you have that DOESN'T cost you $750, in lawyer's fees alone, even if you're going to pull an immunity clause? Meanwhile the grannie is happy with the police - despite having her door broken in the middle of the night. The police are out there *protecting* people. Yes, they're not perfect, but they made good on their mistake.
That's the model police and other government agencies should be going for. I'd support an innocence fund as well - if a convicted person is later proven innocent, the fund can pay out for the imprisonment. Yes, mistakes occur. But it's normally cheaper in the long run to pay out on valid claims without involving the courts. Take prison - how many lawsuits would be successful if the state automatically paid $20k per year of imprisonment to people falsely convicted? $20k really isn't that much, but after 10 years, $200k would pay for an education, living expenses, basically a transition back to outside life. You could even cap it at $250-500k(depending on average state income, living cost levels). Instead of having to beg the governer for a job after spending 40 years behind bars, ending up with an almost minimum wage job as a janitor in the state building. For the guy who spends 40 years behind bars before it's found out that, no, he didn't rape that girl, well, he doesn't even qualify for much social security, not having held a real job enough to gather the necessary SS credits, work experience, etc... So maybe capping isn't the greatest idea.
Of course, I'm also all for throwing cops, prosecuters, and judges who misrepresented the facts in order to gain a conviction of an innocent man. If the facts were presented as best known to them - well, shit happens sometimes. All we can do is our best.
Of course, I also support having a fund for this sort of stuff - lawyers fees, damages, and such come out of the fund. If any is left at the end of the fiscal year, it's paid as bonuses to the officers. They don't screw up, they get bonuses. They screw up too much, they don't.
*telling you this isn't DC. :(
I don't read AC A human right
my 2 cents... This is bad lawyering and shoddy research on the plaintiffs part.
Fristoe vs. Blum, 92 Texas, 76.
It is held in the above cited case, and it is a correct statement
of the law, that, so long as the state is engaged in the discharge
of governmental functions, it is to be regarded as
sovereign, but when it becomes a party to a contract with a citizen,
the same law applies to it as under like conditions governs
the contracts of an individual.
just for good measure
The words "sovereign state" are cabalistic words, not understood by the disciple of liberty, who has been instructed in our constitutional schools. It is our appropriate phrase when aplied to an absolute despotism. The idea of sovereign power in the government of a republic is incompatible with the existence and foundation of civil liberty and the rights of property. Gaines v. Buford, 31 Ky. (1 Dana) 481, 501
Obviously, all of this could have been avoided if he had just included a EULA mandating the giving up of sovereignty and naming an arbitrator/jurisdiction of his choice.
Since the Government is immune to the DMCA, they would pursue a case against the soldier that cracked the copy protection.
I am Bennett Haselton! I am Bennett Haselton!
If the AF can claim they did it for any of the following reasons, they are exempt from the DMCA: `(e) LAW ENFORCEMENT, INTELLIGENCE, AND OTHER GOVERNMENT ACTIVITIES- This section does not prohibit any lawfully authorized investigative, protective, information security, or intelligence activity of an officer, agent, or employee of the United States, a State, or a political subdivision of a State, or a person acting pursuant to a contract with the United States, a State, or a political subdivision of a State. For purposes of this subsection, the term `information security' means activities carried out in order to identify and address the vulnerabilities of a government computer, computer system, or computer network.
Is the US Government the only "sovereign" entity that is permitted to violate the DMCA? Or can other "sovereign nations" such as the numerous Native American tribes also participate?
If so, does that mean they are allowed to decrypt/transcode their DVD collection to their iPods - but the rest of us "can't"?
Cheers,
Dave
They that can give up essential liberty to obtain a little temporary safety deserve neither safety nor liberty.
Ben
The court said the government cannot be sued. But it pretty directly pointed out that the individuals involved can be.
Since the DMCA isn't applicable to sovereign entities, then the DMCA must be changed!!!
sine puella vita suget
It's a reasonable, but narrow, decision. The decision turns on a section of the Copyright Act that says a government employee "shall have a right of action against the Government under this subsection except where he was in a position to order, influence, or induce use of the copyrighted work by the Government." That's what happened here. Davenport used his job in the USAF to introduce his manpower-management software into USAF use. He wasn't an outside supplier.
The DMCA issue is one of jurisdiction. This case was filed with the Court of Federal Claims, which handles copyright claims against the Government. But the DMCA specifies that DMCA anti-circumvention claims must be brought in federal district courts. It's a narrow ruling; it's not clear what would happen if a DMCA case was brought in a district court. Especially if it was brought against the company that did the cracking, SAIC.
The government put down by our founding fathers is a democratic republic. That said, I don't think they ever envisioned granting the government a get out of jail free card for them doing things that would be illegal for citizens to do. They specifically wanted citizens to get redress from government abuses.
However this case is really a non-issue. Since Blueport got the rights to the code from an employee of the USAF who wrote the program to do his job. Even though he did it at home on his own time. He wrote it for his work and if he was working for any corporation he would not have the right to the copyright anyway. Ergo, the USAF really is the rightful owner of the copyright anyway.
Interesting decision that the US Gov't is excluded from the DMCA, but they still can be sued for copyright infringement. It's just in this case they didn't infringe. I wonder if Blueport is going to try to get the money back from that USAF Sergeant?
They might of had a better luck if they had filed a tort claim.
The situation is anything but that back and white.
I suggest you brush up on the history of civic code. The development of the Western World has been very much a transition of making ever more entities (individuals and institutions) subject to law. A typical example for such a transitional order would be the civic code enacted by Frederick the Great in Prussia. Of course he was a bit ahead of the curve and actually did not believe in the divine rights of kings famously calling the crown "a bad hat that lets the rain in".
With regards to the US you are almost right as the government does lavish itself with excessive immunity (which is why the court ruling appears absolutely proper). But there are exceptions. For the UK you would be right "as lawsuits against the Sovereign in his or her personal, private capacity are still inadmissible in British law". Pretty sorry state of affairs if you ask me.
A modern approach to law is to start with the universal declaration of human rights and derive all civil code from there without allowing for immunity exceptions.
It goes without saying that much of the credit for this approach goes to the American Founding fathers and Jefferson in particular. Assuming that you are American I'd wish you knew better than espousing this view. It reeks of fatalism.
The law binds us all equally. If it doesn't apply to those at the top, it applies to none at all. We are a nation of laws, not of willy-nilly "get out of jail free" cardholders. Were I the company in question, I would immediately set up a authentication activation system (a la Microsoft) that forces activation to be done over the Internet....and just snoop to see if the USAF is one of the "clients" -- and then fail to authenticate their license. Then the USAF can cry themselves a river when they receive a monstrous bill for licensing. Ooops, sucks to be you, USAF. The sheer fact that the DMCA is the law should mean that it should be followed by even governmetn agencies....if they don't like it, they can find alternative software to fit the bill.
First off, the 11th Amendment was ratified in 1795 after the Supreme Court ruled that Article 3, Section 2, of the Constitution abrogated the States' sovereign immunity and granted federal courts the affirmative power to hear disputes between private citizens and States.
The 11th Amendment states that "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."
Sovereign immunity isn't perfectly in line with democratic values and norms, which is why it has numerous exceptions...since our elected representatives can waive claims of immunity by appropriate legislation, like the Federal Tort Claims Act.
Well, US foreign policy is pretty much a rickrolling exercise.
<US> Become democratic, open your markets and your economy will flourish. :(
<Poor_Country> That sounds great, we'll give that a shot.
* US companies then enter and ravage what little wealth the locals have, expatriating funds and enslaving previously subsistent worker.
<US> Haha gotcha!
<Poor_Country>
Umm, name one example where a country that became Democratic and opened trade with the US is poorer? You don't even have Russia to point to anymore. Your rant is basically thinly disguised Marxism... democracy + capitalism = bad. Furthermore, you're a hypocrite, sir. That computer that you're comfortably posting this shit from is a product of capitalism. Your living standards... which I'd lay cash are probably not lacking much... is also a product of capitalism. Again.... give me one example... just one... where a country's economy suffered because they entered into trade with the United States, or any other free-market country for that matter, including your own Australia?
Life is hard, and the world is cruel
The federal government is not immune from all copyright claims!
..... and again it's a frigging success. The major goes hog wild though when the code stops working after the demo date and hearing about this case decides she can just take the code without any worries.
This is one of the very rare circumstances where the government is immune.
Let's change the circumstances a little example.
Private Snokry LaRue is an infantry man -- and his lovely wife, Cindy Who-LaRue is civilian and works at the afternoon-evening shift at a local food distribution warehouse.
In his spare time ( cause he's bored during the evening ) Snorky learns to program and then writes a little piece of software called "TimeSaver" (tm) for his wife's company, it's a frigging success and the warehouse can, on average, process orders twice as fast as before.
The manager, Randy RipHoff, at the civilian warehouse happens to be the husband of USAF Major Roberta RipHoff who is in charge of the nearby USAF military logistics unit/depot. Randy raves about the benefits of Snorky LaRue's "TimeSaver" software. The Major drops by the civilian warehouse spring picnic asks for and gets a time constrained demo code CD from Snorky LaRue.
The major has one of her seventeen warehouses test the software for six weeks
So Private Snorky LaRue(Army) takes the USAF to court, and knowing about this case does not challenge them on the violation of DMCA cause he's aware the government is immune from DMCA actions.
Private Snorky LaRue (Army) only challenges the USAF on the copyright violation ---- and because Snorky LaRue did not induce "TimeSaver" testing or use in the course of his regular duties the court must and does find that the government does not have immunity from copyright actions
End result --->
1) Major Roberta RipHoff gets verbally abused about the head, by USAF logistics General Cash Cow.
2) General Cash Cow, well known by all as a kind and decent officer, pays a visit to Private Snorky LaRue and offers a reasonable settlement for the violation and to purchase new (non-demo) versions for all six hundred warehouses under his command.
3) Being a loyal and patriotic American who realizes that the error was entirely Major RipHoff's, Snorky Larue agrees to a $1.00 plus legal costs no-fault admitted settlement and then sells his code to the USAF for a mere $10,000.00/per warehouse
4) PROFIT!!!! of about $6,000,001.00
Same three issues - copyright, immunity from copyright actions and DMCA, but because Private Snorky Larue did not induce the software testing or use through the course of his regular duties the government is not immune from copyright related court actions.
The government didn't waive copyright on the software --- The Sergeant waived copyright related actions against the Government by inducing the testing and use of his software through the course of his regular duties.
Please note the Sergeant still is the copyright holder of the software and can sell it to whomever wants to purchase it.
I think there is a misunderstanding here. We are talking about "civil" suit. You can not bring a civil suit against the Government except by its concent. This doesn't exempt them from the Constitution or allow them to commit FELONY crimes (although they can pardon themselves).
can anyone be anything but disgusted by this? Soon our outrage will be replaced by indifference of course. Stimuli like this resulting also in surprise, and soon outrage, will make the change to bored acceptance as the emotional output. America is progressively less and less what all the weeping fools at baseball games imagine it to be, and more and more source material for Soviet style humor. Which of course you have noticed is becoming more popular? smellmyfinger
Let me get this straight: The government can steal from citizens with impunity. And this is different how?
Ouch, confused the initials of that law again --- not enough coffee, I suppose.
Showing the sort of personal initiative that only gets people into trouble
Ain't that the truth in American business or government? I can hear it now:
And the fact that it works, it is in use, its users are absolutely thrilled, it is saving/making the business/government money, and all previous attempts to take one or more of the above bureaucratic steps utterly failed doesn't matter worth a tinker's damn.
Orwell: "In a Time of Universal Deceit, telling the Truth is a Revolutionary Act"
So the government can torture, illegally search and seize and whatever else because it will never assent to being held accountable. Gee, no wonder impeachment is off the table, bush won't consent to it. Let's print this decision up and spread it around the world
You didn't understand the point: the government here has sovereign immunity from law suit, regardless of whether they committed a tort. The issue is that they didn't waive their immunity.
"Stumble before you crawl"
There is more than one issue under discussion in this post, in no particular order here a a few of them.
1) Copyright ie who owns the software copyright --- the Sergeant, nerds rejoice
2) Did the government remove copyright from the original producer of this software --- no, nerds rejoice again
3) Why the government is immune from copyright lawsuits under a very narrow and particular set of circumstances --- the Sergeant induced the use of his copyrighted work through the course of his regular duties, some nerds are dejected and learn from this error
4) Why the government in not immune from all copyright lawsuits ---- because the government waived blanket sovereign immunity from copyright years ago, most nerds rejoice
5) Did the USAF break the time-lock on the software and in doing so violate DMCA provisions -- yes and they even paid someone to break the lock, nerds are wishy-washy as some hate and some like the DMCA
6) Why the government is immune from DMCA lawsuits --- and your point( which I have not disagreed with nor missed ) the government didn't waive sovereign immunity from this lawsuit, nerds are ambivalent, cause it's the government
Remember this is "news for nerds" --- and some of the nerds were concerned that the government could commit copyright violations of their work and the courts will give blanket approval under this "precedent".
If you fill a DMCA lawsuit against the government -- the courts will use this case to decide that the DMCA violation exists, and that the government is immune from suit for the DMCA violation.
But if you, I or any other nerd ( who isn't a government employee inducing the use of their copyrighted work throught the course of their regular duties) files a copyright lawsuit against the government -- the judge should allow it to go ahead because they government waived blanket sovereign immunity from copyright years ago.
If you check the court records and/or other reports you will find that this lawsuit did address both the copyright and DMCA claims and that the court made decisions on both the copyright and DMCA claims so the point is --> it's not just sovereign immunity ( though that was directly related to the DMCA claim ) it was also the Sergeant not knowing enough about copyright to insure that his copyrighted work would be protected from the very limited set of circumstances in which the government can ignore actions under pre-existing copyright laws.