USAF Violates DMCA, Escapes Unscathed 458
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.'"
It's good to be king... (Score:5, Insightful)
Just for a while.
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, 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.
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?
Re:What's the fuss? (Score:2, Insightful)
He's an idiot. He created something then offered it to his boss who let him install it. That gave them their license. By putting in a timer he was in effect installing a defect which if it impacted the performance of his unit could be construed as conduct unbecoming, dereliction of duty or deliberate sabotage. He needs to be booted for conduct unbecoming if nothing else, given a general discharge and told to walk. The Air Force needs to recover all the data this third party has to their software.
Re:DMCA applies to individuals only? (Score:1, Insightful)
It doesn't apply to the government. That's different than saying it only applies to individuals.
Re:DMCA applies to individuals only? (Score:2, Insightful)
sovereign immunity (Score:1, Insightful)
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 [wikipedia.org] 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.
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.
Comment removed (Score:1, Insightful)
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.
Re:What's the fuss? (Score:3, Insightful)
He just saw this as a get-rich-quick scheme, and presumed he could score off the contract, by getting it into place under the guise of it being something he'd developed for them, with a timebomb of "Oh, and if you don't pay $X to Third Party Company Z, this software will stop working."
I think when you look at the off-site, on-site distinction, this guy is gonna fall flat on his ass. Especially after it was deployed in beta format in his unit, is he going to try to claim, with a straight face, that he did zero work on it on-site?
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.
Re:What's the fuss? (Score:3, Insightful)
From TFA:
Davenport did his development on a personal system at home
. It also notes that he requested training to do the work as part of his job at the Air Force, and was denied.
In essence, they told him not to do it at work, so he did it at home, and then they lay claim to it anyway.
Re:What's the fuss? (Score:3, Insightful)
Praytell what injury or loss of property, personal injury, or death occurred here?
Re:What's the fuss? (Score:1, Insightful)
Re:What's the fuss? (Score:3, Insightful)
No, they may be able to tell you what to do 24/7, but they don't own the results of work that you do outside of your military responsibilities.
Re:so in other words, cops, congressmen, governmen (Score:1, Insightful)
Can't have that happening. *smashes bulb*
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.
as usual... (Score:3, Insightful)
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.
Not only that (Score:2, Insightful)
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.
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>
Re:What's the fuss? (Score:3, Insightful)
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.
As a matter of fact this is quite common. Particularly if they can argue that you developed the idea in the course of your employment. If you did any of the actual development on company time, or property, you have even less of a leg to stand on.
So yes, if you are an engineer for toyota, and 'in your off time at home, you develop a new fuel injection design', you can bet your ass Toyota will claim ownership of it -- after all, they'll assert the brainchild of the invention occured as a result of what you were exposed to at work.
Its a well known maxim, that if you have a patentable idea in your personal time, that you should quit the company, and wait 6 months to a year before publishing precisely to ensure they don't come back at you to claim ownership. Either that, or get your boss to sign off that its yours before you start working on it. (assuming you feel you can trust them not to steal it from you when you disclose the idea to them... but if that's your fear... see above: quit and wait.)
If this was coded on official paid time, then I would whole agree with you, but there is no way to actually know.
Did the military provide the laptop he used?
Even if they didn't, if the idea he developed is something that was within the 'scope' of his job, they'd still have a good shot at asserting they owned the project. It may not be 'right', but the law has ruled multiple times in cases like this, siding with the employer.
Re:It's good to be king... (Score:3, Insightful)
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?
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.
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.
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".
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.
Re:It's good to be king... (Score:3, Insightful)
I'm not saying your wrong, or that actions that have happened like this are justified, but do you think any country in power would be any different?
Yes, the U.S. has issues. Can they be fixed? I don't know. I think the bigger issue is correcting human behavior with those who are granted the responsibility to rule. Those who's life desire is to rule should throw a red flag. (this includes both presidential runners)
The complicated nature of the interdependencies between Nations around the Globe makes things even more difficult. But don't think that these "Poor_Country" leaders are stupid enough to realize what is going on either. They have sold out their populace time and time again. This is not a one way street MrNaZ.
Re:It's good to be king... (Score:1, Insightful)
This is modded insightful? Since when is democracy (a form of government) the same thing as capitalism (an economic system)?
And I am pretty tired of people blaming the US for what commercial entities and Poor_Country's corrupt politicians do to Poor_Country's economy.
Here's an idea. All countries should be isolationist. No country should be allowed to trade with any other country. This includes food aid because it is just a way for the Capitalist Corporate American Regime, et al to sink its evil fingers into Poor_Country's "wealth".
Seriously, your argument is akin to saying cable providers are evil because they convince you to buy cable, then play commercials to get you to buy more things. Those bastards are draining your wealth and enslaving you!
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.
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.
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.
Re:What's the fuss? (Score:2, Insightful)
Re:It's good to be king... (Score:0, Insightful)
Dude, if your neighborhood has 50 people, and 48 of them want to kill you and eat you, that's democracy.
We do live in a republic with laws protecting the individual from the collective.
public relations ploy - quite likely, (Score:4, Insightful)
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. :(
Anonymous Coward (Score:1, Insightful)
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
Re:It's good to be king... (Score:4, Insightful)
The US Gov't is hardly a lie. There it sits, doing exactly what we, the people, have made it to do. We are truly a democratic country. Gov't of the people, by the people and for the people. The current state of our government is what it is because it serves the people who invest the most of themselves in it. The more time, blood, sweat, tears and wealth a given group invests in our government, the more represented they will be. So if our government seems to be run by big oil, it is because the citizens of the U.S. have allowed it to be that way, through actions on big oil's side and inaction on everyone else's.
Yes, occasionally the government needs to be reset, but we're not at the stage of open revolt yet. If second amendment rights are abridged to the point where citizens are not allowed to arm themselves, many 'contrarians' will take their beliefs underground. With all those who oppose actions made by the government underground, rather than working within the system, you will see a revolution. If they are not driven underground, we should see evolution.
The social force required to bring about great change is great. You have to have support of 10% of the population to have a successful revolution (armed or not). That is the kind of change we'd need to see to fix the problems with our government. But it will not happen without great need. The U.S. citizen will not rise up from apathy without being forced to it. If the change is gradual enough, the sheep may even become more like drones, even more enslaved by the system. But until there is a great cause, a great rallying issue, good luck in waking us up.
Enjoy your bread and circuses.
Re:But define *which* people - not all (Score:2, Insightful)
It seems to me you're just arguing a semantic point, so I'll return fire with the same. It's really the definition of "who qualifies as a person" that has varied over time, not the essential meaning of democracy.
Re:It's good to be king... (Score:3, Insightful)
Did you RTFA? The guy asked for a programming training and it was denied. He studied for himself, wrote the software by himself, and bring it to the office, to get his job done. Thus, USAF didn't paid him to write this software. It is *his* software, and he has the right to sell/rent/loan it to anyone he wants, including his employer.
The same applies for every job in the world: you can do whatever you want in your spare time, unless it competes with what the company you work for produces.
Re:It's good to be king... (Score:3, Insightful)
Ain't it striking how willingly some folk casually toss out "democracy" when their team has the ball? Like they listened to one too many Limbaugh rant against those absurd "civil liberties" and "rights."
Listen for their screams and sobs, after the turnover next year, when they suddenly rediscover that U.S. government is, indeed, of the people, by the people, for the people.
Re:Who owned the code he modified? (Score:3, Insightful)
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.
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.