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.'"

Comments

Re:What's the fuss?

[Anonymous Coward]

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.

Re:Quit Smoking the Good Stuff

[BuddyJesus]

This is only in the US by the way, most other countries do not view corporations as people.

Actually most other countries also view corporations as artificial people. It's kind of a characteristic of being a corporation.

Re:What's the fuss?

[gbulmash]

So if you're working for Company 'A' and in your off time at home you have a personal software project that you end up selling to Company 'B,' Company 'A' should be able to discipline you? I think not. If this was coded on official paid time, then I would whole agree with you, but there is no way to actually know. Therefore, the USAF couldn't legally touch him even if they wanted to.

Read TFA:

Although Davenport did his development on a personal system at home, he began to bring beta versions of his code in for testing...

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.

Re:What's the fuss?

[Dhalka226]

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.

Re:It's good to be king...

[MrNaz]

Lol,we established a republic,not a democracy.Clue up.

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.