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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.'"
The Pirate Bay isn't in the USA, thus the DMCA doesn't have any jurisdiction, but your YouTube example is very good.
Except that the court didn't say that the USAF owned the software, but that they were immune from the DMCA for cracking it.
If I have nothing to hide, don't search me
This isn't exactly a new development. It's been this way for hundreds of years in countries that rely on common law, including the entire history of the U.S. The court made the legally correct (though possibly morally wrong) decision.
http://www.theiplawblog.com/archives/-copyright-law-were-the-government-and-were-here-to-copy-blueport-co-v-united-states.html
He's in the military, "personal time" and "at home" have different meanings than they do for civilian employees.
Samsung took back my unlocked bootloader because Google wants me to rent movies. They're both evil.
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."
Sovereign immunity is just a hanger-on from the days of the monarchy. The U.S. has allowed itself (i.e. the taxpayers) to be sued for a variety of reasons exactly because it is a government by the people for the people. I think we all want to be fair and just.
But if they just opened up the spigots and let every nut job sue for losing their welfare benefits or not getting as much social security as they were promised, it'd be a total waste of money and then people would call the laws idiotic for allowing people to sue for things like that. It's just a policy decision, nothing nefarious.
Even for civilians, the ownership of works created off-site still varies by state. In California, it's explicitly stated that, with the exception of a few well-delineated items, if you don't create it on employer time, premises, and/or equipment, and especially if it's not something that the employer already does, then you own it. I've had to bring this up to a couple of employers in the past, and had letters added to my file regarding it to ensure that they know that I know it.
You can never go home again... but I guess you can shop there.
That's bull.
No offense, but as a former Staff Sergeant in the USAF, I can tell you that the Air Force doesn't work the way you're saying. Maybe you'll disagree with the law, but the law doesn't give the government total ownership of everything that our military personnel create on their own time.
The Air Force encourages personnel to take up a second job if they choose to do so-- as long as they understand that the Air Force comes first.
Part of the process of obtaining a second job involves a series of briefings on preventing conflicts of interest and improper use of government equipment. Part of the briefing is a segment explaining that works created on YOUR OWN TIME are YOUR PROPERTY. Examples are given of guys who created new tools to improve life at work-- and then sold them back to the Air Force.
And as for the "system"-- often times, the "system" that the Air Force uses is developed in-house, by people who are PAID FOR THAT JOB by the Air Force. Under federal copyright law, government-created works aren't subject to copyright (look it up). As long as the data system wasn't classified or OTS software, Sergeant Davenport has every legal right to copy, improve, and even sell back the software that the USAF has developed-- it's public domain.
Dude, if your in the Military or work for the military, the military owns your ass 24/7.
True, but the implications of "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,'" is particularly frightening language to me.
This isn't exactly a new development. It's been this way for hundreds of years in countries that rely on common law, including the entire history of the U.S.
It's not new, but it sure sounds scary to the ignorant/uninformed (no offense to the GP).
This is the type of stuff they teach in civics & political science classes.
I just find it astounding that there are people who don't understand the basic characteristics of a State.
Note to /.'ers: If you ever have kids, do 'em a favor and force them to take a polysci class or two. I promise you it isn't useless knowledge.
[Fuck Beta]
o0t!
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.
Read TFA:
He did testing on his employer's equipment. Company A isn't going to try to claim ownership to something you develop on your own time and on your own equipment, using skills they refused to help you acquire. But when you start using their equipment on their premises to test and troubleshoot your invention, you trigger the clauses in their employment contracts that give them at minimum an interest in your software if not outright ownership.
Considering that this software was meant to solve a problem he encountered in his job, was used in his job, was tested in his job, and was distributed by him to his co-workers, they have a hell of a leg to stand on that he crossed the line between private time and work time in the development of this software. And that leaves out the fact that as a soldier, he technically doesn't have private time.
Now, he sued them under DMCA. Rather than claim ownership of the software, the government claimed immunity. This was not because they couldn't, but because the immunity defense looks to be an easier way to get the case dismissed. But if the immunity defense is eventually knocked down by a higher court and the case goes to trial, you can bet your ass the Air Force would raise their right of ownership or partial ownership as a defense. Like a lawyer in the RIAA trials said... you can't infringe your own copyright. So I'd totally expect that to be a fallback position for them.
Start a happiness pandemic
The court didn't make any findings because they can't. They found that they lack jurisdiction to hear the case at all. Its commentary on the DMCA's language is simply in the vein of "the government is immune and this bill didn't provide consent from the government to be sued, therefore they remain immune." The only news here is that an appeals court just agreed with that assessment.
For active duty I don't believe you ever have any time you could claim was outside of their responsibility. They provide housing, food, health care basically everything. If you want you may live off base but usually for active duty they pay for that too. Working for the military you are never working outside of your military responsibilities.
Check your facts next time. First of all if a TOWN makes it illegal to do something, that's not exactly CONGRESS passing a law now is it? Second, check and see if your local police department has liability insurance (hint: they do) when you find out that they do have said insurance, contemplate the usefulness of said insurance if the police department could not be held accountable legally for anything they damage.
Not all life is cyber. Extra Income
agreed the air force likes to remind you of this at all times, you know 0-0-1-3, and the whole wingman concept. See when you join the military they really do own your ass, lucky for me i have less than 2 years before my enlistment runs out.
But if a non-lawyer can find this information after about two minutes of searching, why didn't Blueport's attorneys find it?
The Federal Torts Claim Act doesn't apply here; there's a specific US statute, 28 USC 1498 that deals specifically with bringing copyright infringement cases against the government, and that was at issue here. Blueport's attorneys are quite familiar with the FTCA, as they mention it in their appeal, but only used FTCA cases as analogies.
Democracy, the word coing from Greek, literally, means "rule by the people". It is not a specific governmental structure. "Republic" refers to a particular set of characteristics that define a type of government. Thus, a republic can be democratic. That's what "of the people, by the people and for the people" means; a republic with democratic characteristics.
I hate printers.
Lol,we established a republic,not a democracy.
If you want to nitpick governmental structure, I think the US is a federation. But it's a (somewhat) democratic federation without a monarch.
The word "republic" simply means there's no monarch. The word "democracy" means that the government be it monarchy or republic, is subject to (dis)approval of the people. And "federation" means it's a collection of smaller semi-autonomous states under a somewhat but not completely centralised government.
All these terms are orthigonal. Republics can be federations, but many aren't. Monarchies used to be autocracies, but nowadays most of them are democracies. Republics can be democratic, partially democratic (with a voting elite of the rich/white/patricians/party members) or completely undemocratic.
Although sometimes it looks like the US is trying to combine a democratic, federal republic with elements of divine-right monarchy, and that's definitely not something you see every day.
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.
If the rest of his work is fine, I doubt he'll run into any serious flack for it. He doesn't get a "review board", just a performance report, and enlisted careers are much more damage-tolerant than those of officers.
He should have used the suggestion program, made a buck that way, and used the positive outcome to further his career. (Opinion based on 26 years enlisted service.)
Sounds like a talented guy, but for some reason clueless outside of his field of expertise.
"This post is an artistic work of fiction and falsehood. Only a fool would take anything posted here as fact."
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.
Democracy is not a form of government, it is a conception of social order, it is the structural manifestation of libertarianism, and capitalism is the economic face of libertarianism. They are all tightly related.
As for denying that the US engages in exploitation of the third world, perhaps a trip to your local library and some light reading in geopolitical history may be enlightening. Try to following keywords:
* Bechtel Bolivia water
* Pfizer Nigeria illegal trial
* Nike sweatshop Asia
* UFC Chile
* Chile copper Allende assassination
Then perhaps look at the way USAID operates, the "conditions" placed upon nations that receive its aid, and the results over the last few decades. Perhaps you'll slowly realize that USAID is really just a program of bribing local tinpots to allow US economic interests pillage the locals. Its then easy to point the finger and say "Hey, well, the locals are suffering because the guy we gave the aid to stole it, our expatriation of profits has nothing to do with it."
Get your head out of the sand.
I hate printers.
The word "republic" simply means there's no monarch. The word "democracy" means that the government be it monarchy or republic, is subject to (dis)approval of the people.
From the federalist papers: The two great points of difference between a democracy and a republic are: first, the delegation of the government, in the latter, to a small number of citizens elected by the rest; secondly, the greater number of citizens, and greater sphere of country, over which the latter may be extended.
The US founders meaning of republic was that there would be a government by representatives rather than by direct democracy, by a true federation (where the central government's power is derived from that of the component states), or by a monarchy or dictatorship. The word has evolved somewhat, as countries have found it useful to call themselves republics even if it would not accord with how the US founders used the word.
Your definition is 1a and the other definition is 1b of http://www.merriam-webster.com/dictionary/republic
While your definition does have support, it's not as cut and dry as you make it. It is one definition of several, not the only acceptable definition of the word.
The major US corporations' employment contracts almost always include a provision granting them ownership of anything created by its employees within the corporate fields of business, even on the employees' own time.
So if you signed the standard contract and work for an aerospace company, and at home create a great little program for automating personal aircraft flight plan creation and filing... they own it. If you create a great cocktail recipe or write the next great American novel, it's yours.
If you have a great idea that might be marketable by your employer, then your first step is to get a clear, written exemption for that idea's implementation from an authorized agent of the corporation (think Legal).
I'm far too certain of this now, having negotiated just such an exemption with my employer's lawyers last year so I could work on certain open source projects on my own time. Nor am I grousing - I signed the contract in exchange for a job I love, and the lawyers were quite reasonable about the entire process. But it's important to be proactive to ensure clear title to your "home work". A mg of prevention is worth a kg of cure. :-)
The word "republic" has a few more shades of meaning; from the Latin "res publica", or "public affairs", it implies that the affairs of the nation are the collective interests of its public citizens, rather than the private domain of a despotic monarch. The US system of government is basically the British parliamentary system from c. 1780, replacing the monarch with a president and with greater and more formalised democracy. Certainly you guys seem to treat your presidents with far more respect that we treat our cretinous prime ministers... :)
"If he were a plant, people would roll him up and smoke him."
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"
The use is called a 'Democratic Republic' 'Democratic' in this case is used as an adjective, with Republic as a noun. A republic (run by representatives of the people, NOT the people) with elements of a Democracy (the people chose the representatives and some of the laws). We are primarily a Republic, not a Democracy, and when the two conflict, the republic wins out more often than the democracy.
Self proclaimed typo king, and inventor of the bear destroying coffee table (patent not pending).
Which is funny, because as a counter-example, here in Canada, a constitutional Monarchy and not a Republic, you are certainly entitled to sue the Sovereign, though strict time limits apply, and suing Her Majesty the Queen abrogates your right to a jury at Trial. But you can still do it. And you can still win. In the firm I work at, auto collision files often have the Queen named as a co-defendant or a third party. In fact, courts in Canada also hand out awards to people who've been imprisoned and later found innocent, they are some of the biggest awards handed out in the civil system.
So really, the concept of Sovereign immunity is only as entrenched as you want it to be, in a democratic country.
Rule of Slashdot #0: You and people like you are not representative of the larger population. - A.C.
http://www.indiaresource.org/campaigns/coke/2003/nowaterdrinkcoke.html Coca Cola Company has done it in India
just one example, i guess you can find more if you care to look.
i find your lack of faith in science disturbing!
rofl...yeah, guess what. Europe does this too. Ever hear of the World Bank? It's the whole reason they exist...to fuck over poor countries and EVERY western country takes advantage of it. Thanks for trying to pin it all on the US though. You guys are just as dirty as we are so fuck off.
Are agnostics skeptical of unicorns too?
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.
Federation is basically when a group of states (in the technical sense, a defined area of land with a government) get together and decide that acting as one foreign policy unit is a good thing, and there is a weak federal government to enforce the limited agreement between the members.
I think (but am by no means certain) that's a confederation (like Switzerland) and a federation is a bit more centralised than that. At least, that's the impression I've always had.
The USA under the articles of confederation was a federation.
That's odd. Sounds like it should be a confederation.
The CSA, aka "The South" is a federation. The "Russian Federation", not so much. The EU, almost.
Looks like my definition of "federation" fits most political units that call themselves a federation, whereas your definition fits those that call themselves a confederation.