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USAF Violates DMCA, Escapes Unscathed

kdawson posted more than 6 years ago | from the because-we've-got-planes-that's-why dept.

The Military 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.'"

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It's good to be king... (5, Insightful)

Anonymous Coward | more than 6 years ago | (#24476175)

Just for a while.

Goatse! (-1, Offtopic)

Anonymous Coward | more than 6 years ago | (#24476685)

You nerds love it ;)
http://goatse.cz/ [goatse.cz]

What's the fuss? (5, Insightful)

lecithin (745575) | more than 6 years ago | (#24476183)

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? (4, Funny)

shawn(at)fsu (447153) | more than 6 years ago | (#24476201)

I'm betting his next review board doesn't go so well.

Re:What's the fuss? (5, Insightful)

StringBlade (557322) | more than 6 years ago | (#24476215)

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.

Re:What's the fuss? (1)

tedu_again (980692) | more than 6 years ago | (#24476267)

Search for "university of california patent shield" for a more spectacular case.

Re:What's the fuss? (4, Interesting)

gbulmash (688770) | more than 6 years ago | (#24476275)

The sovereignty issues are a bit unnerving, but one of the things 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.

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? (4, Informative)

corsec67 (627446) | more than 6 years ago | (#24476361)

The sovereignty issues are a bit unnerving, but one of the things 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.

Except that the court didn't say that the USAF owned the software, but that they were immune from the DMCA for cracking it.

Re:What's the fuss? (5, Funny)

Chuck Chunder (21021) | more than 6 years ago | (#24476541)

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.

Re:What's the fuss? (2, Interesting)

besalope (1186101) | more than 6 years ago | (#24476561)

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? (2, Informative)

MindStalker (22827) | more than 6 years ago | (#24476623)

Dude, if your in the Military or work for the military, the military owns your ass 24/7.

Re:What's the fuss? (3, Interesting)

corbettw (214229) | more than 6 years ago | (#24476625)

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:What's the fuss? (2, Insightful)

Free_Meson (706323) | more than 6 years ago | (#24476717)

injury or loss of property, or personal injury or death

Praytell what injury or loss of property, personal injury, or death occurred here?

Re:What's the fuss? (2, Interesting)

folstaff (853243) | more than 6 years ago | (#24476287)

All laws are not written for all entities without limitations. The American's With Disabilities Act does not apply to state governments or the federal government. There are other laws and reasons that the fed and state governments make their buildings handicap accessible, but no one can sue the fed or state to make it happen.

Re:What's the fuss? (1)

pete6677 (681676) | more than 6 years ago | (#24476303)

I've heard of this before, but it seems to be applied very inconsistently. There are plenty of cases where the government is successfully sued, and certainly does not seem to like it one bit. Could some lawyer please enlighten us as to why sovereign immunity of a government agency seems to only apply in some cases?

If sovereign immunity is real, why does any government agency (such as a state university) waste tax money on liability insurance? It's completely unnecessary if they can't be sued.

Re:What's the fuss? (1)

whoever57 (658626) | more than 6 years ago | (#24476365)

If sovereign immunity is real, why does any government agency (such as a state university) waste tax money on liability insurance? It's completely unnecessary if they can't be sued.

Because there are laws in various states that provide a right to sue the government over various issues -- in other words, the state has consented to being sued over those specific issues.

Re:What's the fuss? (-1, Offtopic)

Anonymous Coward | more than 6 years ago | (#24476347)

inb4 some warez group renames itself USAF

Re:What's the fuss? (0, Offtopic)

PhasmatisApparatus (1086395) | more than 6 years ago | (#24476523)

Right. And I'll rename myself Anonymous Coward. Er,.. wait.

Re:What's the fuss? (4, Informative)

Solandri (704621) | more than 6 years ago | (#24476385)

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.

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.

Re:What's the fuss? (2, Informative)

TubeSteak (669689) | more than 6 years ago | (#24476655)

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.

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.

It's not new, but it sure sounds scary to the ignorant/uninformed (no offense to the GP).
This is the type of stuff they teach in civics & political science classes.
I just find it astounding that there are people who don't understand the basic characteristics of a State.

Note to /.'ers: If you ever have kids, do 'em a favor and force them to take a polysci class or two. I promise you it isn't useless knowledge.

Re:What's the fuss? (1)

dkuntz (220364) | more than 6 years ago | (#24476475)

That exists right down to the state level.. it's nothing new...

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.

I'm willing to bet that that law came into effect to stop the "Well, the government passed a law that offends me... so I'm going to sue it!" and then all the courts would be tied up with stupid lawsuits that waste everyones time... and of course, then they can use it to stop lawsuits that should be allowed to continue.

Remember.. with the government (state and federal), the law is there to protect them, and can be shrugged off whenever needed. Like the invisible clause in the first ammendment... which should read "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. (Unless said speech bothers us)"

Such as those towns/cities who make it unlawful to swear in public... that would be a government passing a law abridging the freedom of speech in my book.

But yeah... when I enlisted, part of the contract said I cant sue the Air Force, or the Government, for anything which may occur during my time in the Air Force. I'm sure civilian contractors have the same thing too.

But... I go off on tangents.

The King is sovereign (0)

Anonymous Coward | more than 6 years ago | (#24476533)

I'm willing to bet that that law came into effect to stop the "Well, the government passed a law that offends me... so I'm going to sue it!" and then all the courts would be tied up with stupid lawsuits that waste everyones time... and of course, then they can use it to stop lawsuits that should be allowed to continue.

Actually sovereign immunity has been around a lot longer than the US.
The idea is that the King is sovereign and can do what he damn well wants.
We inherited it from the English, as did most other Commonwealth nations.

Immunity is frequently waived nowadays (by statute, e.g. Sec. 1986 Civil Rights suits, IIRC), but it the blanket immunity is still around and the default state of affairs.
Yes, it stops a lot of political shenanigans from happening in court.
I don't remember if it stops injunctive relief or just monetary ($$$) relief. Constitutional cases are usually about invalidating a law, not money or equitable (injunctive, writ of mandamus) relief.

Re:What's the fuss? (5, Interesting)

Aczlan (636310) | more than 6 years ago | (#24476589)

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? (2, Informative)

Arguendo (931986) | more than 6 years ago | (#24476495)

Sovereign immunity is just a hanger-on from the days of the monarchy. The U.S. has allowed itself (i.e. the taxpayers) to be sued for a variety of reasons exactly because it is a government by the people for the people. I think we all want to be fair and just.

But if they just opened up the spigots and let every nut job sue for losing their welfare benefits or not getting as much social security as they were promised, it'd be a total waste of money and then people would call the laws idiotic for allowing people to sue for things like that. It's just a policy decision, nothing nefarious.

Re:What's the fuss? (1)

Cathoderoytube (1088737) | more than 6 years ago | (#24476665)

Where've you been for the past eight years? *honk* *honk*

Re:What's the fuss? (0)

Anonymous Coward | more than 6 years ago | (#24476693)

This isn't the first time this has happened. My family once owned the land the White House was built on. In order to sue for compensation, they had to prove that the United States Government could afford to be sued in order to get permission to sue them.

Re:What's the fuss? (1)

Jarik_Tentsu (1065748) | more than 6 years ago | (#24476715)

That being said, one could argue a defense organisation shouldn't really be having to worry about the pedantics of DMCA's and whatnot.

Of course, you could also argue they shouldn't be above the law.

~Jarik

Re:What's the fuss? (0)

Anonymous Coward | more than 6 years ago | (#24476249)

yeah, the USAF does have something like that buried in it's legal rules. Sheesh, that guy was really greedy to try and shaft the Air Force over such an obvious thing. And Blueport was equally greedy, or got scammed by Davenport.

Re:What's the fuss? (0)

Anonymous Coward | more than 6 years ago | (#24476279)

Blueport, Davenport... too many ports if you ask me.

Re:What's the fuss? (1, Funny)

Anonymous Coward | more than 6 years ago | (#24476403)

Listing 2 ports out of 65,535 is the best you can do?

As tech support for the teleport is crap, I suggest you take your passport, report to the airport, and deport yourself via transport from the heliport.

Re:What's the fuss? (1, Insightful)

mrmeval (662166) | more than 6 years ago | (#24476255)

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:What's the fuss? (0)

Anonymous Coward | more than 6 years ago | (#24476325)

More over I fail to see how his software isn't work for hire, and work product owned entirely by the Air Force. JAG has lawyers, they can make money for the government for a change. Private industry trying to steal government work product and passing it off as their own, bastards should be shot. If only we could find some people who knew how to shoot....

Re:What's the fuss? (1)

Paxton (24233) | more than 6 years ago | (#24476529)

That's why he joined the AF and not the Army -- the AF guys can't shoot.

Well, they can shoot pool, maybe...

(I'm ex-AF BTW. Pow pow.)

Re:What's the fuss? (3, Insightful)

belmolis (702863) | more than 6 years ago | (#24476525)

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.

Re:What's the fuss? (0)

aglidden (1338797) | more than 6 years ago | (#24476319)

The thing you sign is more like "what you do AT the company is the company's property". If he worked on the software at home, then the USAF has no claim to it whatsoever. Just because his boss allowed him to install it there doesn't mean that it now belongs to them.

Re:What's the fuss? (0)

Anonymous Coward | more than 6 years ago | (#24476375)

Just what planet do you work at?

AT the company and FOR the company equal the same thing. Um, anyway... The agreements that I have seen never are specific on WHERE.

Oh, I see.. You are just trolling... Good for you.

Re:What's the fuss? (4, Informative)

visualight (468005) | more than 6 years ago | (#24476459)

He's in the military, "personal time" and "at home" have different meanings than they do for civilian employees.

Re:What's the fuss? (2, Informative)

Martin Blank (154261) | more than 6 years ago | (#24476497)

Even for civilians, the ownership of works created off-site still varies by state. In California, it's explicitly stated that, with the exception of a few well-delineated items, if you don't create it on employer time, premises, and/or equipment, and especially if it's not something that the employer already does, then you own it. I've had to bring this up to a couple of employers in the past, and had letters added to my file regarding it to ensure that they know that I know it.

Re:What's the fuss? (2, Insightful)

Achromatic1978 (916097) | more than 6 years ago | (#24476585)

Alright, so all he has to do is show that he NEVER so much as researched his program on-site, NEVER fixed a bug on-site as a result of the beta testing, NEVER asked anyone for suggestions for his program on-site, NEVER promoted or advertised his product on-site, and he's fine then. "Especially if it's not something that the employer already does" is not even remotely relevant - he wrote a replacement for the HR program it was his job to maintain.

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:What's the fuss? (1)

pegdhcp (1158827) | more than 6 years ago | (#24476595)

The smart-ass was using his employer's data and design as baseline for his work. Taking this knowhow to home without official consent -even if from a private entity, which USAF is not- might lead to a piracy case... If TFA is complete and the guy just got away from the incident without a serious trouble, he is damn lucky. Also -I know from local experience- it is easy to forget, but USA is in a -kinda fuzzy- state of war, and the gentleman we are talking about is a military person...

Re:What's the fuss? (5, Informative)

Anonymous Coward | more than 6 years ago | (#24476499)

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.

RTFA (1)

Hackerlish (1308763) | more than 6 years ago | (#24476531)

It says he learned programming on his own time (they refused his request for training) and programmed the system at home on his own time.

Re:What's the fuss? (4, Funny)

kocsonya (141716) | more than 6 years ago | (#24476579)

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".

Re:What's the fuss? (2, Insightful)

LackThereof (916566) | more than 6 years ago | (#24476629)

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.

Do as I say, not as I do (1)

SpaceLifeForm (228190) | more than 6 years ago | (#24476199)

So speaketh the darkside when DMCA was written.

Re:Do as I say, not as I do (4, Interesting)

hedwards (940851) | more than 6 years ago | (#24476259)

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.

Um, ... in a democracy, the people are sovereign (0, Troll)

Anonymous Coward | more than 6 years ago | (#24476217)

So I guess all citizens are immune to the DMCA since we're the one's who are sovereign. Not the government.

Re:Um, ... in a democracy, the people are sovereig (0)

Anonymous Coward | more than 6 years ago | (#24476235)

Luckily for the USAF, the US is not a democracy. It's a republic.

And as this case demonstrates, citizens have no power. Only representatives and the people who pay for them to be elected.

Um... you also have free speech (1)

EmbeddedJanitor (597831) | more than 6 years ago | (#24476423)

but don't try to use it.

so in other words, cops, congressmen, government (4, Insightful)

Anonymous Coward | more than 6 years ago | (#24476237)

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:so in other words, cops, congressmen, governmen (1, Redundant)

Dan541 (1032000) | more than 6 years ago | (#24476273)

A dim bulb brightens.

Re:so in other words, cops, congressmen, governmen (1)

SirSlud (67381) | more than 6 years ago | (#24476465)

While in general I agree with your sentiment, that's kind of the idea of any electoral process. I can't enforce the law by seizing your drugs or stolen property, but authority can.

I can't own a nuke but the government can, and it seems rather reasonable to me, as long as you believe that your electoral process is putting the right people in power. Democracy is just a way of mitigating privileges to a select group of people. All societies will have an unbalance of power and priviledges, the question is, how do you pick who gets them? Democracy, in its ideal, avoids the might is right problem with past feudal or fascist societies.

Does it work all the time? Of course not. You have a choice with respect to where you live, or work, and thats more than many people on earth can say but I'd hardly classify some people having more legal privileges as I do, even if they set the rules, as corruption. By that logic, any boss that makes a rule that I can't spend more than 30 bucks a day on food but grants himself a per diem of 40 is corrupt.

See the forest for the trees - you can't have a government that can govern if they arn't expempt from certain restrictions placed on citizens. It might not apply in this case, but thats kind of the point, isn't it? Our hallowed western world judicial system absolutely requires that some people have certain exemptions from laws that apply to citizens, otherwise it couldn't actually function. Who wants to require that the government license copy written material everytime it is valid evidence in a legal trial?

Re:so in other words, cops, congressmen, governmen (2, Interesting)

wickerprints (1094741) | more than 6 years ago | (#24476691)

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.

Re:so in other words, cops, congressmen, governmen (1)

DaveAtFraud (460127) | more than 6 years ago | (#24476707)

Actually, Congress in particular and the federal government in general are usually exempt from most of the "do good" laws and regulations that they inflict on the remainder of the citizenry. Things like the minimum wage laws, anti-discrimination laws, etc. don't apply to the government unless Congress decides to include itself.

Nothing new here other than you just realized it. It's not corruption. It's business as usual.

Cheers,
Dave

we need a new set of laws (-1, Troll)

Anonymous Coward | more than 6 years ago | (#24476277)

laws that make homosexuals punishable by death. laws that put an end to the asshattery of bitch whores.

I would very much like... (0)

Jane Q. Public (1010737) | more than 6 years ago | (#24476301)

to kick that judge's ass.

Correction. (0)

Jane Q. Public (1010737) | more than 6 years ago | (#24476401)

I would like to kick the asses of the Congresscritters who thought DMCA was enough of a good idea to vote for it.

Re:I would very much like... (0)

Anonymous Coward | more than 6 years ago | (#24476435)

And because of this statement of yours, some very specialized interrogators at the Guantanamo facility would like to kick your butt as well...

Re:I would very much like... (1)

fireheadca (853580) | more than 6 years ago | (#24476543)

oooooOoooo....cock meat sandwiches for all!

DMCA applies to individuals only? (5, Interesting)

Nymz (905908) | more than 6 years ago | (#24476307)

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.

Re:DMCA applies to individuals only? (3, Informative)

ArtemaOne (1300025) | more than 6 years ago | (#24476345)

The Pirate Bay isn't in the USA, thus the DMCA doesn't have any jurisdiction, but your YouTube example is very good.

Re:DMCA applies to individuals only? (1)

Nymz (905908) | more than 6 years ago | (#24476575)

You're right, but that hasn't stopped others (MPAA) from trying.

press release [mpaa.org] - "Since filing a criminal complaint in Sweden in November 2004, the film industry has worked vigorously with Swedish and U.S. government officials in Sweden to shut this illegal site down."

Re:DMCA applies to individuals only? (1)

Firehed (942385) | more than 6 years ago | (#24476369)

Well legally speaking, a corporation "is" a person (in the sense that it can own property, write checks, etc). The government, on the other hand, well... it's the government. It'll do what it damn well pleases and you'll like it.

Re:DMCA applies to individuals only? (1, Insightful)

Anonymous Coward | more than 6 years ago | (#24476387)

It doesn't apply to the government. That's different than saying it only applies to individuals.

Re:DMCA applies to individuals only? (1, Informative)

Anonymous Coward | more than 6 years ago | (#24476405)

Section 1498(b) of title 28, United States Code, contains the waiver of immunity for copyright infringement. As the Federal Circuit pointed out, it "grants copyright owners a right of action for copyright infringement against the United States, subject to three provisos." First, there is no right of action where the employee "was in a position to order, influence, or induce use of the copyrighted work by the Government." Next, there is no right of action where the employee prepared the work as part of his or her "official functions." Finally, there is no right of action when "Government time, material, or facilities were used" in the creation.

http://www.theiplawblog.com/archives/-copyright-law-were-the-government-and-were-here-to-copy-blueport-co-v-united-states.html [theiplawblog.com]

Re:DMCA applies to individuals only? (2, Insightful)

EsonLinji (723693) | more than 6 years ago | (#24476431)

Corporations are not sovereign states which means they don't get as many "get out of jail free" cards, and in particular the ones the government used in this case. Corporate personhood might ensure that companies are still bound by the DMCA as a measure of last resort. It would be nice to see that bite a corporation on the ass for a change.

Re:DMCA applies to individuals only? (1)

smcallah (861614) | more than 6 years ago | (#24476721)

There are copyright laws that precede the DMCA, they would apply to Google in that case. The DMCA was put together mostly for the circumvention of copy protection involved in copyright violations. You don't have to circumvent any kind of copy protection to get TV shows on the YouTubes.

Cops can kiill, Marines can destroy. (-1, Offtopic)

Anonymous Coward | more than 6 years ago | (#24476327)

I can't kill people or destroy foreign military property without a really, REALLY good reason. Even then - I'm subject to laws as a civilian.

I'm very anti-cop, anti-DCMA and anti-War but the Government operates in a different sphere.

This does not negate that they should be questioned or, if needed, overthrown.

L'etat, c'est moi! (1)

Opportunist (166417) | more than 6 years ago | (#24476335)

We're the country. We're above the law.

Could be me, but I learned at school that the cornerstone of a working democracy is that everyone's equal, especially when facing the law. Did that change somehow, or is the system just not working anymore?

Re:L'etat, c'est moi! (0, Troll)

Secret Rabbit (914973) | more than 6 years ago | (#24476381)

You're a fairly naive person aren't you. It's always been this way. It's just that this sort of thing was handled discreetly in back rooms. All that has happened now is it's been made into law.

Land of the free, eh? Thankfully, I don't live in the US!

Re:L'etat, c'est moi! (1)

corsec67 (627446) | more than 6 years ago | (#24476397)

Where do people get the idea that the US is a democracy?

Republic != Democracy.

Re:L'etat, c'est moi! (1)

story645 (1278106) | more than 6 years ago | (#24476635)

Where do people get the idea that the US is a democracy?

Well probably from the fact that many people probably can't tell you why the following statement:

Republic != Democracy.

is true.

Seriously, the two are used pretty interchangeably, and most every politician who makes a speech uses democracy, probably 'cause republic has an aristocratic connotation (which yeah, goes back to Ancient Greece and Rome and the roots of it all.) And 'cause the US being a democracy has been shoved down most American's throats since oh 3rd grade (or whenever school started in on the history/civics lesson.) Yes, I know the bit about the US being a republic is in the pledge of allegiance, but really how many people pay attention to some statement they had to memorize in grade school?

And, if you accept that there are there are different types of democracies [wikipedia.org] then people aren't wrong 'cause republics are a form of representative democracy.

What does it feel like... (0)

Anonymous Coward | more than 6 years ago | (#24476355)

...to live in Soviet Russia, but without universal health care?

Playing catch-up (-1, Troll)

Anonymous Coward | more than 6 years ago | (#24476379)

Over in Jolly old England, they had something called the Magna Carta (Great Charter) that made the sovereign subject to laws (just like everyone else). One day in the future, the United States may consider laws that put rich people, CEO's, the ruling government, maybe even the president under the same laws as other Americans. Heck, one day, they may even consider their their laws and constitution fit enough (shock! awe!) to be applied to those pesky foreigners! Not now of course. The US has a lot to learn about democracy. One day they might even practice it. And the hope here is, they might even practice it in front in foreigners and in other places. Not now of course, but maybe a long long time from now in the future. Something about leading by example, and all that. Not now of course (as demonstrated), but perhaps one day, far far in the future.

Re:Playing catch-up (0)

Anonymous Coward | more than 6 years ago | (#24476415)

The US has a lot to learn about democracy. One day they might even practice it.

If I want bread and circuses I'll buy some bread and go to the circus. I don't need my fellow citizens to have a vote and decide the government should provide bread and circuses for everyone.

And the hope here is, they might even practice it in front in foreigners and in other places.

The phrase "pearls before swine" comes to mind.

Double standards are new? (0, Troll)

lixee (863589) | more than 6 years ago | (#24476383)

Governments tend to preach what they don't practice. The US government is no exception. They threaten military action against countries trying to acquire civil nuclear energy, while over a thousand nukes sits in their hangars. They terrorize whole populations while denouncing terrorism. I ask you. Why makes anyone think the army would give a damn about the DMCA?

Re:Double standards are new? (1, Offtopic)

Martin Blank (154261) | more than 6 years ago | (#24476581)

No one has said that Iran (or Libya before them) were prohibited from developing civilian nuclear energy. There's lots of help for that, as demonstrated by the recently-concluded talks with India to help develop the civilian nuclear program there.

However, signatories to the NNPT are required to be completely open about their civilian reactors and facilities. They are also, with the exception of the admitted nuclear-armed states, prohibited from undertaking anything that would lead to a nuclear weapons program. Failure to follow the requirements to the letter tends to raise suspicion.

And just to be pedantic, the US has about 3700 strategic nuclear warheads in active service.

Judge reading? Good judge. (1)

SEWilco (27983) | more than 6 years ago | (#24476389)

Oh, good. Another judge reading what is actually in copyright law.
Wait, does he have a license to do that?
Does the copyright law say that a license to practice law allows him to read that text and do whatever he wants with it?

Re:Judge reading? Good judge. (1)

Fulcrum of Evil (560260) | more than 6 years ago | (#24476515)

nope. Copyright law is silent on your rights to use a work. You just can't copy random stuff and distribute it.

Re:Judge reading? Good judge. (1)

DustyShadow (691635) | more than 6 years ago | (#24476719)

Does the copyright law say that a license to practice law allows him to read that text and do whatever he wants with it?

Yes. Copyright law says that works by the federal government do not get copyright protection. Please see 17 USC 105.

Ahem (4, Funny)

confusedneutrino (732640) | more than 6 years ago | (#24476391)

Tried to fly that one under the radar, did they?

*rimshot*

sovereign immunity (1, Insightful)

Anonymous Coward | more than 6 years ago | (#24476449)

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:sovereign immunity (1)

squidfood (149212) | more than 6 years ago | (#24476697)

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.

And the government "allows" it fairly often, for example, in the (U.S.) Endangered Species Act, other environmental legislation, Freedom of Information Act, and so on. So the government can respond to public pressure. SCOTUS may interpret the law, but the law (in theory) comes from the people.

Who owned the code he modified? (1)

BlueBoxSW.com (745855) | more than 6 years ago | (#24476463)

Reading the article, it sounds like he took code the airforce owned, modded it, then tried to sell it back to the airforce.

That's not good.

Re:Who owned the code he modified? (1)

belmolis (702863) | more than 6 years ago | (#24476563)

No, if you read the article it indicates that he wrote the code from scratch. He initially proposed that such a program be created and asked for training in programming. They said no. He taught himself to program and wrote the program at home, then brought it in to work and used it. Other people found out about it and asked for it. He provided it at no cost. When they asked for improvements, he made them, on his own time, at no cost. He owned the code, lock, stock, and barrell. He only sold it to a third party when the military tried to steal the code from him.

Re:Who owned the code he modified? (1)

mysidia (191772) | more than 6 years ago | (#24476669)

He abused his position in the USAF to attempt to market a product that he was trying to sell.

He wouldn't have known about the need for the product unless he worked there.

And by spreading free versions around, he was using government-owned resources to test and develop his product.

B/c he used government resources and time in testing the software; by all rights, developing the software was in the course of his duties, the software and its source code should mostly belong to the government.

Quit Smoking the Good Stuff (1, Informative)

Anonymous Coward | more than 6 years ago | (#24476473)

C'mon fellow Slashdotters:

Learn the darn Constitution before you start spouting over your silly beliefs. Governments always have been completely immune to suits. The political theory behind that is that government should never be compelled by a single person (i.e. a claimant) to do anything it didn't want to. Instead, the elected representatives should do that.

The United States, unlike almost every nation, has chosen to waive this immunity in certain cases where it felt appropriate. So have the various States. The United States can also waive it for the States under only the 14th Amendment. Some examples of this waiver are the Federal Tort Claims Act and Section 1983.

And to those of you who think this doesn't apply to corporations because they aren't "persons" - don't be silly. One of the principal elements of corporate law is that corporations are artificial persons with respect to the law and almost always fall under the term "persons."

Re:Quit Smoking the Good Stuff (1)

Falconhell (1289630) | more than 6 years ago | (#24476505)

One of the principal faults of corporate law is that corporations are artificial persons with respect to the law and almost always fall under the term "persons."

Fixed that for ya!

This is only in the US by the way, most other countries do not view corporations as people.

Re:Quit Smoking the Good Stuff (5, Informative)

BuddyJesus (835123) | more than 6 years ago | (#24476587)

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.

Amazing (1)

Hackerlish (1308763) | more than 6 years ago | (#24476517)

* If Joe Public copies a song or a movie he faces big fines and jail. http://www.theage.com.au/news/national/australia-hands-over-man-to-us-courts/2007/05/06/1178390140855.html?page=fullpage [theage.com.au]
* If Movie Studios don't pay their artists, that's fine. http://en.wikipedia.org/wiki/Hollywood_accounting [wikipedia.org]
* If Big Media (like News Limited) cons the public of of their IP that's fine too. http://www.bjphoto.co.uk/public/showPage.html?page=807947 [bjphoto.co.uk]
* When I hire a DVD I have to sit through an FBI warning telling me copying is bad, but...
* If the Government hacks software to get around license restrictions, that's fine.

Wow.

Tough call. (1, Insightful)

jcr (53032) | more than 6 years ago | (#24476551)

I think the judge was using faulty reasoning here, but the plaintiff didn't deserve to prevail. It sounds like he wrote this code while drawing a salary from the USAF, and it's not clear that he did it all on his off-duty time.

-jcr

Re:Tough call. (5, Insightful)

belmolis (702863) | more than 6 years ago | (#24476621)

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.

Guess who Batman (4, Funny)

enoz (1181117) | more than 6 years ago | (#24476565)

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 (3, Insightful)

SleepyHappyDoc (813919) | more than 6 years ago | (#24476567)

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.

Very bad move. (0)

Anonymous Coward | more than 6 years ago | (#24476637)

Never sue an entity that can drop massive amounts of bombs on you.

Here's the actual decision (3, Informative)

belmolis (702863) | more than 6 years ago | (#24476661)

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.

; (this space is filler for the damn filter) (0)

Anonymous Coward | more than 6 years ago | (#24476677)

Dear god, if nothing else, the editors ought not produce a comma where a stop is clearly necessary.

Fifth Amendment? (1)

PPH (736903) | more than 6 years ago | (#24476687)

"...nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

The military is bound by law and oath to uphold the Constitution.

Looks pretty clear to me. Cough up the just compensation.

This makes sense -- done with patents all the time (1)

NSParadox (135116) | more than 6 years ago | (#24476695)

It is well understood by all who sell to the government that they will never allow you full monopoly powers. The government does not want to be enslaved by their need for a product, and thus can freely violate patents for the purposes of defense if it so chooses. This is old, old law, and anyone who sells patented defense products is well aware of it.

This ruling seems entirely consistent with DMCA. Patents create a government-sponsored monopoly on inventions. DMCA allows individuals and companies to create monopoly-like powers on copyrighted materials. It's crucial that the government be able to break its own sponsored monopolies to ensure it won't get unnecessarily squeezed and can still function. Informed private parties are well aware this is always a danger when selling to the government, and can simply choose not to if they don't want to be impacted by it.

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