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.'"
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.
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.
Re:What's the fuss? (Score:2, Interesting)
DMCA applies to individuals only? (Score:5, Interesting)
Something here is off, or the DMCA just got castrated with this new precedent.
Re:What's the fuss? (Score:2, 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.
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.
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.
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.
Re:so in other words, cops, congressmen, governmen (Score:3, Interesting)
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.
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).
Re:What's the fuss? (Score:1, Interesting)
Re:It's good to be king... (Score:5, Interesting)
Re:so in other words, cops, congressmen, governmen (Score:3, Interesting)
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.
Re:What's the fuss? (Score:3, Interesting)
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.
My family has been airforce for 3 generation I know that line very well. It's because the enlisted men don't get enough pay to be able to care for their family. It's disgusting that an enlisted man and his wife cant afford to raise a child without him also working a second job.
It's also shameful that we had to live off base because we could not afford family housing on base.
Re:What's the fuss? (Score:2, Interesting)
The US government never works for the people. Fairness and justice for the general public are a sick joke and simply put forward to give an illusion. The powerful and connected feast upon the bone marrow of the people.
Frankly it is good that the people have no clue as to how deeply they are raped. If they had a clue it would be like the French Revolution with gutters filled with blood at every intersection.
Re:so in other words, cops, congressmen, governmen (Score:3, Interesting)
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.
Re:It's good to be king... (Score:3, Interesting)
Consider Luther Martin:
Luther Martin of Maryland, a slaveholder, said that the slave should be subject to federal regulation since the entire nation would be responsible for suppressing slave revolts. He also considered the slave trade contrary to America's republican ideals. "It is inconsistent with the principles of the Revolution," he said, "and dishonorable to the American character to have such a feature in the constitution."
http://www.digitalhistory.uh.edu/learning_history/revolution/revolution_slavery.cfm [uh.edu]
So, for all one might concede a theoretical point to Southern States for arguing some 10th Amendment separation of powers, that Civil War (and the Civil Rights Movement a century later) is simply fruit of a bad seed planted in earlier.
Of course, our modern shackles are so much more refined:
http://perotcharts.com/category/challenges-charts/page/14 [perotcharts.com]
The percentage of the federal budget devoted to mandatory spending has increased markedly over the past 40 years. Mandatory spending has doubled during the period, while discretionary spending has almost been cut in half. The increase in mandatory spending is due primarily to the growth of the three major entitlement programs. These programs are growing for several reasons:
New programs have been added to provide benefits to individuals deemed to be in need of assistance who were previously not covered by other programs.
Existing programs have been expanded to provide more benefits deemed to be necessary to fulfill the primary mission of the programs.
The retirement of the Baby Boomers (those born from 1946 through 1964) are beginning to swell the ranks of the entitlement programs.
Medical and prescription drug costs have outpaced the growth of the economy.
Improved medical procedures and healthier lifestyles have increased life expectancies to all-time highs, thereby extending the coverage period of many beneficiaries.
"I've found you can find happiness in slavery"--Reznor
Re:What's the fuss? (Score:2, Interesting)
I think the real issue is that he is suing the USAF under the DMCA, which is not a provision of the DMCA. If he would have identified individual person(s) responsible, he should be allowed to sue them.
Personally, this smells of grandstanding to me, and that's most of what sovereign immunity is there to prevent - wrongful death suits against the armed forces, claims of civil damages against lawmakers who legislated you out of a living, etc.
I like the the first post's Petty reference... I take it to be a reference to the coming revolution when the legislature sufficiently pisses off the populace with elitist crap like this. Of course, DMCA is a far cry from "let them eat cake."
Military duty is 24/7 (Score:4, Interesting)
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.)
Re:What's the fuss? (Score:1, Interesting)
-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.-
It looks to me like this is whats happening right now, either in the name of safety or for profit.
Re:It's good to be king... (Score:2, Interesting)
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?
Re:It's good to be king... (Score:4, Interesting)
Re:It's good to be king... (Score:3, Interesting)
According to Wikipedia, the US Civil War began when Confederate forces attacked a US military installation, rather than when it was created. If so, I'd say that they were asking for it.
And let's not forget that the southern states seceded over slavery. I'd say it's poetic justice to be denied the right of disassociation when your reason to disassociate in the first place is to maintain the ability to deny others such right. Offhand, I can't think of anything that would evoke my sympathy less than a nation of slave holders losing some of their political sovereignty in a war they began over their right to enslave others.
Re:It's good to be king... (Score:4, Interesting)
Actually, it's not.
the fact that sweatshops are the only option to many is because stronger foreign companies have been allowed into the domestic markets, destroyed previously functioning economies and essentially turned the local economies into a gigantic factory.
I probably could be convinced to live with the destruction of the local economic ecosystem, if a fair share of the profits stayed in the country, or if the WTO wasn't used as a big stick to stop governments from preventing this from happening.
So no, sweatshop bashing is quite validly in that package because it the sweatshop phenomenon is just another, run of the mill economic exploitation method.
And you would be wrong. (Score:4, Interesting)
The situation is anything but that back and white.
I suggest you brush up on the history of civic code [wikipedia.org]. 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 [wikipedia.org]. 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 [wikipedia.org]. 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 [un.org] 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.