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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.
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?
It doesn't apply to the government. That's different than saying it only applies to individuals.
Corporations are not sovereign states which means they don't get as many "get out of jail free" cards, and in particular the ones the government used in this case. Corporate personhood might ensure that companies are still bound by the DMCA as a measure of last resort. It would be nice to see that bite a corporation on the ass for a change.
Considering Phlebas, whoever the hell he is.
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.
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."
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.
Can't have that happening. *smashes bulb*
quod licet jovi, non licet bovi
bickerdyke
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.
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.
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".
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
That makes it his code, period.
There is no work-for-hire for active-duty personnel, because that is a huge conflict-of-interest. The code may belong to him but he belongs to the USAF, so by association (and about a million procurement regulations) the code belongs to the USAF as well. This shouldn't come as any surprise, as anybody who creates stuff for the military knows it belongs to the military.