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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?
This has little to do with the DMCA, even before the DMCA it was used from time to time what the feds wanted to use a patent without paying fair market value for it.
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.
Tried to fly that one under the radar, did they?
*rimshot*
--RIAmAses! Let my MP3ople go!
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.
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.
Derive Politics
You have an odd idea of what makes a work for hire. The guy's job was explicitly not programming. He actually asked for training in programming and was turned down. It appears that he in fact did do all of the work on his own time with the possible exception of listening to requests for improvements in the software that he graciously provided at no cost.
Even if he did do some of the work while on duty, that wouldn't make it government property. It would only be government property if it was the product of his job. Suppose that a soldier while on duty works on his novel or that a sailor carves scrimshaw. Do you think that the resulting novel or carving cease to be his property? No, they don't, because they weren't made in the course of his job.
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.
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.
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).
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.
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.
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.
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.
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.
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.
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
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.
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 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.