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USAF Violates DMCA, Escapes Unscathed
Posted by
kdawson
on Mon Aug 04, 2008 11:03 PM
from the because-we've-got-planes-that's-why dept.
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.'"
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It's good to be king... (Score:5, Insightful)
Just for a while.
Re:It's good to be king... (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.
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Re:It's good to be king... (Score:5, Funny)
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Re:It's good to be king... (Score:4, Insightful)
Well, US foreign policy is pretty much a rickrolling exercise.
<US> Become democratic, open your markets and your economy will flourish. :(
<Poor_Country> That sounds great, we'll give that a shot.
* US companies then enter and ravage what little wealth the locals have, expatriating funds and enslaving previously subsistent worker.
<US> Haha gotcha!
<Poor_Country>
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Re:It's good to be king... (Score:4, Informative)
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.
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Re:It's good to be king... (Score:5, Interesting)
Your package deal has a problem: sweatshop bashing is not like the others.
Have you ever asked why anyone would choose to work in a sweatshop? Could it be because any employment at all is better than roaming the streets looking for coins and bits of food?
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Re:It's good to be king... (Score:5, Interesting)
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Re:It's good to be king... (Score:5, Insightful)
News Flash: the US government (or any government for that matter) NEVER obeyed it's own laws. This is recorded throughout history. The Military has done crap like this for decades and will continue to do so.
This is simply reporting that is bringing to light the Standard Operating Procedures that they use.
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Re:It's good to be king... (Score:5, Informative)
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.
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Re:It's good to be king... (Score:5, Insightful)
I seem to recall a state whose title prominently featured both those words. Now what was it?
Ah yes... the German Democratic Republic (GDR).
It's what people do that matters - not what they say about themselves.
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Re:It's good to be king... (Score:5, Insightful)
Check out a republic which is democratic and belongs to the people, the DPRK [wikipedia.org].
China is also a People's Republic.
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Re:It's good to be king... (Score:5, Insightful)
A republic can also be undemocratic (Zimbabwe, Soviet Union). There are democracies that are not republics (Britain, Sweden). The two concepts are, as you point out, not mutually exclusive as GP seems to think - they're not even on the same axis. You can draw a 2 x 2 grid and find examples in each cell.
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But define *which* people - not all (Score:5, Insightful)
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".
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Re:It's good to be king... (Score:5, Insightful)
Plato would disagree. In The Republic, Socrates discusses what form of government the State should be. He states that democracy erodes to oligarchy which turns to aristocracy, which inevitably becomes a dictatorship. Shortly thereafter, he states that the most stable government would be a republic.
The argument being, if you are using Greek etymology as the basis for non-exclusivity, then I would imagine the Greeks should not reflect such a dichotomy in their own writings.
Finally, "... of the people, by the people, and for the people..." is an except from the Gettysburg Address, and is not in any way a declaration of government. Rather, the Declaration of Independence and the Constitution itself are the only documents that define the government of the United States of America. Please let me know exactly where the word "democracy" appears in either of those two documents please.
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Re:It's good to be king... (Score:5, Insightful)
Republic is a form of government not ruled by a monarch, in which the people have a say in the government, and at least nominally ruled at the consent of the goverened. Wiki link [wikipedia.org]
Our republic is ruled by members chosen from the citizenry by the people. A democratically elected republic. Of course the balance between democracy and republic varies over time.
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Re:It's good to be king... (Score:5, Informative)
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.
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Re:It's good to be king... (Score:5, Informative)
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. [yale.edu]
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 [merriam-webster.com]
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.
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Re:It's good to be king... (Score:4, Informative)
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.
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What's the fuss? (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.
Re:What's the fuss? (Score:5, Funny)
I'm betting his next review board doesn't go so well.
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Re:What's the fuss? (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.
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Re:What's the fuss? (Score:5, Interesting)
And since he did it within in the military, he's lucky he's not facing a court martial for selling the software to Blueport and pulling this crap.
I really dislike the decision, because it hinges on stuff that pisses me off. But the guy who wrote the software pisses me off too.
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Re:What's the fuss? (Score:5, Informative)
Except that the court didn't say that the USAF owned the software, but that they were immune from the DMCA for cracking it.
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Re:What's the fuss? (Score:5, Informative)
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Re:What's the fuss? It's the copyright, not DMCA (Score:5, Informative)
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.
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Re:What's the fuss? (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.
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Re:What's the fuss? (Score:5, Funny)
Google must be shitting themselves.
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Re:What's the fuss? (Score:4, Interesting)
No, I'll tell you what's unnerving: that plaintiff's counsel couldn't read and cite USC Title 28 Â 1346(b)(1):
Subject to the provisions of chapter 171 of this title, the district courts, together with the United States District Court for the District of the Canal Zone and the District Court of the Virgin Islands, shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.
In short, you can sue the government if an agent of the government commits a tortuous act that, if performed by a private citizen, would ordinarily be actionable in court. Maybe they sued for more than $10k and disqualified themselves from using this law, I don't know. But if a non-lawyer can find this information after about two minutes of searching, why didn't Blueport's attorneys find it?
Not that it matters, they had tenuous claims to the copyright, anyway. They're lucky they didn't get hit with an injunction to stop selling it. But now every other content producer out there (*cough*Microsoft*cough*) is stuck with this precedent.
Expect to see some amicus curiae filed by large software companies in the near future to get the Supreme Court to issue a writ of certiorari to rehear this case.
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Re:What's the fuss? (Score:5, Informative)
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.
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Re:What's the fuss? (Score:5, Informative)
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.
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Re:What's the fuss? (Score:5, Informative)
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. [wikipedia.org] The court made the legally correct (though possibly morally wrong) decision.
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Might be OK if limited to DCMA (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).
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Re:What's the fuss? (Score:5, Insightful)
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.
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Re:What's the fuss? (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.
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Re:What's the fuss? (Score:5, Interesting)
Yes it does vary by state to state. Here in michigan they passed a law that makes the police immune from any legal and civil actions to help them in their fight against terrorism and the war on drugs.
If they raid your house by accident, kill your family dog and trash the house you have NO RECOURSE for restitution. Hell they will not even apologize because that is an admission of guilt or improper action.
They pile on laws like this a little at a time to help protect you. It's for your protection you know.
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Re:What's the fuss? (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.
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Re:What's the fuss? (Score:5, Funny)
The fact that he was nasty or not has nothing to do with the DMCA violation. If someone broke the law then he broke the law, no matter that by breaking the law he uncovered some other criminal act. You can not break and enter so that you can prove that your neighbour is running some extortion racket. The police can, if they have a proper authorisation from a judge, but you can not. If you do, you might go to jail while your neighbour might actually walk.
Now the government clearly stated that they are above the law; they are the sovereign, they make the law and the law applies only to their royal subjects, serfs and lesser vermins also known as "the people". This system is known as democracy. It is in stark contrast with the system of tyranny, where there is a tyrant, a sovereign making the law that only applies to his royal subjects, serfs and other vermins also known as the "oppressed".
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Re:What's the fuss? (Score:5, Informative)
He's in the military, "personal time" and "at home" have different meanings than they do for civilian employees.
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Re:What's the fuss? (Score:4, Insightful)
Sorry, but no, he didn't install a defect. The military knew that the expiration code was there and when it would expire - he wasn't springing a trap. And the software was not life-critical. He did nothing criminal.
The military handled this very badly. The guy may have made limited use of military resources for testing, but the testing was done only for the use of the military, not for third parties. He developed the software on his own, outside of his job responsibilities. He wasn't a programmer and when he asked for training in programming they refused him. It's his software. If the military hadn't been complete assholes they would have paid him a bit and given him a pat on the back and the problem would never have arisen.
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so in other words, cops, congressmen, government (Score:4, Insightful)
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?
DMCA applies to individuals only? (Score:5, Interesting)
Something here is off, or the DMCA just got castrated with this new precedent.
Ahem (Score:4, Funny)
*rimshot*
Guess who Batman (Score:5, Funny)
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.
I don't see the problem here (Score:4, Insightful)
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.
Here's the actual decision (Score:4, Informative)
Here is the actual court decision [uscourts.gov], 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.
Running unapproved code on a military computer? (Score:5, Insightful)
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?
This is a narrow decision (Score:5, Informative)
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.
Re:Do as I say, not as I do (Score:5, Interesting)
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.
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Re:Quit Smoking the Good Stuff (Score:5, Informative)
Actually most other countries also view corporations as artificial people. It's kind of a characteristic of being a corporation.
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Re:Tough call. (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.
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