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USAF Violates DMCA, Escapes Unscathed

Posted by kdawson on from the because-we've-got-planes-that's-why dept.

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.'"

16 of 458 comments (clear)

  1. It's good to be king... by Anonymous Coward · · Score: 5, Insightful

    Just for a while.

    1. Re:It's good to be king... by MrNaz · · Score: 5, Insightful

      This is NOT off topic.

      This points out the obviousness that the US government is no longer bound by the tenets of what was called "democracy", a concept that is fundamentally at odds with the concept of "sovereignty".

      In a so-called democracy, the executive is only authorized to carry out the instructions of the legislature, and is subject to the judiciary in doing so.

      If the courts are saying that the executive can break the laws set by the legislature, and are only subject to courts when they, the executive, consent to it, then the power being invested in the executive is that of the old notion of King as appointed by God as supreme authority over the land, whose word is Law and not subject to question.

      Given this development, things like warrantless wiretapping are not even the tip of the iceberg, they're a tiny lump of seagull shit on top of the tip of the iceberg.

      --
      I hate printers.
    2. Re:It's good to be king... by MrNaz · · Score: 5, Informative

      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.

      --
      I hate printers.
  2. What's the fuss? by lecithin · · Score: 5, Insightful

    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.
    1. Re:What's the fuss? by StringBlade · · Score: 5, Insightful

      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.

      I'm no lawyer, but I read that as, "We're the government, we can't be sued except when we want to be sued and even then we'll define the conditions of the jurisdiction in which our lawsuit will take place as it suits us," (so to speak).

      Not exactly a government by the people for the people.

      --
      ...and that's the way the cookie crumbles.
    2. Re:What's the fuss? by Anonymous Coward · · Score: 5, Informative

      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.

    3. Re:What's the fuss? by Chuck+Chunder · · Score: 5, Funny

      TFA also states is that he brought in beta copies for testing. He had government employees testing his software on government equipment on government time. While he was possibly due some recognition for going above and beyond the call of duty, if you did that at most any tech company, they'd have a reasonable claim to owning that software or owning an interest in it.

      Google must be shitting themselves.

      --
      Boffoonery - downloadable Comedy Benefit for Bletchley Park
    4. Re:What's the fuss? by Aczlan · · Score: 5, Interesting

      If you're driving along.. and a cop car rear ends you, without it's lights on... you cant sue the police department, at least in most states. They dont have to pay to fix your car, you're just SOL and have to fix your own car.

      that must vary by state, 4-5 years ago we had a boat for sale alongside a relatively busy 2 lane road near Atlanta, GA. about 2am one day a couple of cops were chasing a speeder and doing 75+ around a corner that is dicey at 55, one of them made it, the other one went off the road, through the fence and into a 6' bushhog, then on into our boat, the tongue of the trailer was bent, the post that the winch bolts to was snapped off and there was a large (>2' across and 8" deep) dent in the bow of the boat. the police departments insurance paid for out boat, the bushhog and repairs to the horse trailer that they hit after hitting our boat.

      --
      "Democracy is two wolves and a lamb voting on what to have for lunch. Liberty is a well-armed lamb contesting the vote
    5. Re:What's the fuss? by gbulmash · · Score: 5, Informative

      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.

      --
      Start a happiness pandemic
    6. Re:What's the fuss? by Dhalka226 · · Score: 5, Informative

      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.

    7. Re:What's the fuss? by Charcharodon · · Score: 5, Insightful
      I'm no lawyer, but I read that as, "We're the government, we can't be sued except when we want to be sued and even then we'll define the conditions of the jurisdiction in which our lawsuit will take place as it suits us," (so to speak).

      Not exactly a government by the people for the people.

      Actually that's exactly what it is. People are bad enough these days with civil lawsuits (which by the way have their own conditions and limitations, imagine if they could sue over any little thing and the government had to let them do it.

      I don't like roads, I'm going to sue the government to get rid of them.
      I don't like the police, I'm going to sue the government to get rid of them
      I don't like public schools, I'm going to sue the government to get rid of them.
      I think black people should be slaves, I'm going to sue the government to get rid of the 13th Amendment.

      The government is elected by the people, and for the most part works for the people. What you are hinting at would be legal anarchy at best, a tyranny of the wealthy at it's worst who could employ vast pools of lawyers to strip away every right and freedom you currently enjoy.

    8. Re:What's the fuss? by gnasher719 · · Score: 5, Insightful

      Exactly! That's the worrying part about this. Had the court ruled that the USAF was (at least partially) owner of the software and therefore allowed to modify it, then there'd be no problem at all. It's the unlimited license to pirate, copy and steal that's wrong here.

      Courts do their rulings in the most efficient way possible. The USAF was sued for a DMCA violation. The usual defences against this are: (1) The plaintiff doesn't own the copyright. (2) The defendant didn't breach the DMCA. In this unusual case, there was a third defence: DMCA doesn't apply to the USAF. Once that was found to be the case, there was no point in even looking at the other defences. Even looking at whether the USAF had rights to the software would have been a waste of tax payers money.

      The plaintiff is still free to sue the USAF for copyright infringement.

  3. DMCA applies to individuals only? by Nymz · · Score: 5, Interesting

    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.

  4. Re:Quit Smoking the Good Stuff by BuddyJesus · · Score: 5, Informative

    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
  5. Re:Tough call. by belmolis · · Score: 5, Insightful

    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.

  6. Might be OK if limited to DCMA by Mathinker · · Score: 5, Interesting

    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).