We're The US Government, So We Can Ignore Pesky Things Like The DMCA

from the isn't-that-nice? dept

While the federal government of the US has dumped on us dreadful laws like the DMCA, when it comes time for it to follow those laws itself, it takes a pass. Why be inconvenienced like the rest of us? We've talked about how the US government likes to ignore patent law using either "state secrets" or "sovereign immunity" claims, and now it appears they're using that for copyright law as well. CAFC (Court of Appeals for the Federal Circuit) has allowed the Air Force to dismiss a DMCA lawsuit lodged against them by claiming "sovereign immunity."

The details of the case are pretty straightforward. A guy in the Air Force, in his spare time, developed some useful software that the Air Force started using, without any sort of contractual relationship established (and, apparently, unlike most companies, it didn't have any agreement with him that automatically gave them ownership of the software). He kept the source code secret, but the Air Force rewarded him with a promotion. But, then, the Air Force got worried that it was so dependent on this one guy, so it demanded the source code to the software. The guy refused, and received a pay cut and a demotion. The Air Force then hired another company to reverse engineer the software, and to get around the DRM that the guy had put on his original software.

No matter how silly the DMCA's anti-circumvention provision is, this would seem like a textbook case where it was violated. Except that the Air Force basically said "we're the gov't, so that doesn't apply to us" and the court agreed. It must be fun to be the government, where you get to pass laws and then can ignore them at will.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    Evil Mike, Jul 30th, 2008 @ 2:39pm

    Air Force

    If you're in the US Armed Forces, then technically you are "chattel" of the United States Gov until such time as you are released from service.

    For example--let's say you're in the USAF and manage to get a nasty sunburn and broken leg while on your 3 day weekend--you can be charged with "destruction of government property" by your superior for said events. (Don't laugh, seen it happen.)

    If this guy was IN the AF when he developed this software; then his claim of ownership is actually quite weak, being as he was owned by somebody else at the time.

     

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  2.  
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    Griper, Jul 30th, 2008 @ 3:04pm

    From what I've seen, this guy was lucky to get a promotion out of it. A squadron I was assigned to a couple guys made a better tool for servicing the jet than was being sold to the Air Force. All they got was an atta-boy.

     

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  3.  
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    eleete, Jul 30th, 2008 @ 3:07pm

    An Admission

    Well it does get right to the point that copyright and Intellectual Property laws are a nuisance. Our laws may say one thing, but common sense prevails.

     

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  4.  
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    Tom The Toe, Jul 30th, 2008 @ 3:29pm

    In vs. Working For

    When you are "In" the AF you don't have time of your own. You aren't working as a contractor you are a 24X7 employee and anything you create or invent belongs to the them.

     

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  5.  
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    Mike, Jul 30th, 2008 @ 3:31pm

    Copyright and IP, when inconsistently enforceable, are more a nuisance than a benefit because they offer false promise. If the military adopted a more advantageous policy to reward inventors appropriately, their benefit would likely be tremendous.

     

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  6.  
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    Wolfgang, Jul 30th, 2008 @ 3:46pm

    Hell

    I think it would be an honor to have your program that you made be used by your government even though you aren't paid. I would rather see something better than what's being used be used without pay than let an inferior product be used and hold out for money, especially when it's your own armed forces and it only betters them.

     

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  7.  
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    Yakko Warner, Jul 30th, 2008 @ 3:53pm

    <tongue location="in cheek">

    Oh, so it's not illegal if the president (government) does it!

    Glad we've finally cleared that up.

    </tongue>

     

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  8.  
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    Mike (profile), Jul 30th, 2008 @ 4:01pm

    Re: Air Force

    If this guy was IN the AF when he developed this software; then his claim of ownership is actually quite weak, being as he was owned by somebody else at the time.

    That issue wasn't even being addressed at all. If that were the issue, then it's a different story.

    The issue here was whether or not the DMCA could be used, and the court said, effectively, that the gov't can ignore the DMCA if it wants.

     

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  9.  
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    Mike (profile), Jul 30th, 2008 @ 4:02pm

    Re: In vs. Working For

    When you are "In" the AF you don't have time of your own. You aren't working as a contractor you are a 24X7 employee and anything you create or invent belongs to the them.

    Again, *that* was not the issue here at all. If it were, then that's how the AF would have responded. Instead, they admitted that this guy had the rights to the software, and then claimed they could ignore the law.

    So, your statement is meaningless, as the AF did not even focus on that point at all.

     

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  10.  
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    Anonymous Coward, Jul 30th, 2008 @ 4:04pm

    I think you`ve all missed the point....

    "his spare time, developed some useful software"

    USA, we take what WE want & screw you trying to use OUR own laws (DCMA) back at us.

     

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  11.  
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    Anonymous, Jul 30th, 2008 @ 4:09pm

    Not that simple

    I find it incredibly hard to believe that it's really so simple. If it were merely a case that could be settled by enforcing ownership through employment, the USAF could easily have done it. Notice, though, they didn't use that defense but rather claimed sovereign immunity. I'm not a copyright lawyer but it just doesn't seem as simple as you've made it sound.

     

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  12.  
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    Freedom, Jul 30th, 2008 @ 4:21pm

    >> "his spare time, developed some useful software"


    I think you missed the point. He has no spare time - he is literally owned by Uncle Sam.

    Since the government essentially owns the fruits of his labor, they 'cracked' their program and not his. In that case, why would the DMCA apply. Maybe Uncle Sam took a shortcut legally to just win, but I agree with the comment on being proud to serve and an honor that the armed forces would use it apply first and foremost.

    It is the constant need for immediate reward that is an interesting state that we find right now in the US. This guy got the promotion and the recogonition and probably would have gone much further if he would been a team player. Instead, his ego got in his way and cost the military valuable resources.

    Sorry, but when you are in the armed forces, the US comes first.

    #1 rule for success, make sure all those around you succeed. If you decide to toss an anchor and halt the success of those around you, better be prepared to be thrown overboard.

    Freedom

     

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  13.  
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    bobbknight, Jul 30th, 2008 @ 4:25pm

    If

    As a member of the armed forces, even if you develop something in your so called spare time, it belongs to the government.
    Also he was given payment ie the promotion.
    Because the Air Force in effect actually owns the software they can do what they what with it.
    The guy's an idiot and should have been kicked out of the military.
    The court rightfully saw that the military was the owner and that it had the right to do as it wished with the code.

     

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  14.  
    identicon
    Yakko Warner, Jul 30th, 2008 @ 4:41pm

    Re:

    Actually, you missed many points yourself.

    It wasn't an independent piece of software that he wrote in his spare time. It was software he wrote for his job, which he installed at his job, "enlisted" the help of coworkers at his job to test and help him improve it.

    The USAF didn't take something that was external to them and absorb it into the collective. It was already in.

     

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  15.  
    identicon
    cc, Jul 30th, 2008 @ 4:57pm

    SO, in short:
    Lesson 1. If you ever develop anything useful while in the service of the government, shut your trap. It doesn't exist. When you get home, give it to someone you trust and say they made it.

     

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  16.  
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    GriffiN, Jul 30th, 2008 @ 5:05pm

    huh?

    i think they can use for whatever they want the software, but if it comes down to the source code, and they dont own it and they dont have the permission of the programmer to reverse engineer, isnt it ilegal to try to get it by other means?

    if the guy got promoted without it being mentioned that he was being payed for the whole stuff, then its still wrong to go around the guy.

    anyway, the government should always be an example and get the licences of the stuff they use, or else get authorization to bypass the security, or make it themselves.

    @bobbknight: if its not said that the promotion was for payment of the software before hand, then alot it the world would go wrong with your idea.

    @freedom: doesn't it sound like slavery if your "owned" 24x7? your giving a part of you to your country, but your not "owned". no spare time? gimme a break.

     

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  17.  
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    flesh99, Jul 30th, 2008 @ 5:30pm

    Some logic to the decision

    The copyright claim was tossed on a very logical decsion by the court:

    "Because Davenport was in a position to induce the use of the software in question, the court argued, he couldn't then turn around and sue for violation of his copyrights...

    otherwise a government employee could induce infringement of his personal copyrights, then sue the government and make a nice little profit."

    That actually makes sense.

    The other portion, and while it may be bad law, is still law. Ambiguity is decided in favor of the sovereign and since the DMCA doesn't contain any language addressing the sovereign immunity the case was decided in the favor of the USAF. This may be annoying but it is law. Congress is to blame for this and not the USAF as it was Congress who passed the law without any language addressing sovereign immunity as is in other IP the government gets to ignore on occasion such as copyright.

    This may have simply been the easiest method for the USAF to get the case dismissed, as has already been stated, a case could easily be made that the source was already property of the USAF and the copyright was never held by Mr. Davenport. I would have preferred the USAF to pursue that route so there would be a clear ruling on that issue but it seems they took the fastest route which, arguably, is the best use of the taxpayers' money. While I may not agree with the route taken I can see a case made for using the most expedient route.

    This was not an end run around Davenport as he signed the rights over to a company, Blueport - who did not develop the software, but rather a case brought by a company against the USAF. There may have been different considerations if it had been Davenport himself but not being a lawyer I cannot comment on that.

    The blurb here is incorrect. The US government has long had the right to ignore copyright using sovereign immunity and has to abide by provisos and stipulations contained in copyright law. Sovereign immunity had absolutely nothing to do with the copyright claim being dismissed, the article is clear on that, the only sovereign immunity claim was used against the DMCA.

     

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  18.  
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    Mike (profile), Jul 30th, 2008 @ 5:49pm

    Re:

    I think you missed the point. He has no spare time - he is literally owned by Uncle Sam.

    Again, if that were the case, then the USAF would have made the argument that they own the software.

    They did not.

    They granted the fact that he owned the software, but claimed they were immune to the DMCA charge.

    Since the government essentially owns the fruits of his labor, they 'cracked' their program and not his.

    Again, that's simply not the case at all. If it were, the DMCA point would be moot.

     

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  19.  
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    Mike (profile), Jul 30th, 2008 @ 5:51pm

    Re: If

    As a member of the armed forces, even if you develop something in your so called spare time, it belongs to the government.

    *sigh*

    Once again... if that were the case, the USAF would have said that. They would have claimed that they owned the software. They DID NOT. Instead, they admitted he owned the software, but invoked sovereign immunity to ignore the DMCA.

    Because the Air Force in effect actually owns the software they can do what they what with it.

    Nope. That's not what the court said.

    The court rightfully saw that the military was the owner and that it had the right to do as it wished with the code.

    Nope. That's not what the court said (hell, it's not even what the Air Force said).

     

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  20.  
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    Mikey42 (profile), Jul 30th, 2008 @ 6:04pm

    Wow! Point missed...

     

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  21.  
    identicon
    Dan, Jul 30th, 2008 @ 6:07pm

    They don't seem concerned with constitutional limits so why would they give a damn about DCMA? Laws are only for the peons.

     

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  22.  
    identicon
    MLS, Jul 30th, 2008 @ 7:16pm

    Re: Re: If

    Merely for info to those who post:

    If the software was written as a part of his official duties, then 17 USC 105 clearly states that copyright does not exist with respect to "government works". Under this scenario, there is no copyright capable of being infringed and, hence, reference to sovereign immunity would be unnecessary.

    The "influence..." language in the opinion is interesting given that the court cited not a single precedent, nor did it even attempt at an analysis of what the clause does or should mean. In the context of government contracts, language such as this is generally limited to procurement officials.

    Sovereign immunity was most recentoly visited by the CAFC last year in Zoltek v. US (cert. denied). The opinion writer in this and the Zoltek case was Judge Gajarsa, so when it came to the scope to be accorded 28 USC 1498 the handwriting was already on the wall.

    All I can do when the dust finally settles is ask the simple question "Why weren't both the government and the contractor sued in a filing with the Federal District Court in Washington State?" Relating the question in a rather simplistic way to the recent "teleco immunity" discussion, sovereign immunity does not extend to private parties except by legislation. Here the government seemed to believe it was judgement proof because of sovereign immunity, but this is a far cry from saying the private contractor is also off the hook. Were this the case then why was teleco immunity even being discussed?

     

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  23.  
    identicon
    Airman, Jul 30th, 2008 @ 11:55pm

    Re: In vs. Working For

    So I, being "In" the Navy (Active Duty), develop the new napster... RIAA sues the Navy?

     

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  24.  
    identicon
    TSO, Jul 31st, 2008 @ 6:31am

    > While the federal government of the US has dumped on us dreadful laws like the DMCA, when it comes time for it to follow those laws itself, it takes a pass.

    DMCA? Pah! How about Geneva Convention? Gitmo, anyone?

     

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  25.  
    identicon
    Anonymous Coward, Jul 31st, 2008 @ 9:02am

    re:

    They don't seem concerned with constitutional limits so why would they give a damn about DCMA? Laws are only for the peons.

    I don't give a damn about the DCMA either.

     

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  26.  
    identicon
    BTR1701, Jul 31st, 2008 @ 9:41am

    Re: In vs. Working For

    > When you are "In" the AF you don't have time
    > of your own. You aren't working as a contractor
    > you are a 24X7 employee and anything you create
    > or invent belongs to the them.

    That's nonsense. If you're in the AF and (on your own downtime) you write a screenplay that ends up selling in Hollywood and becoming the next mega-blockbuster, the AF can't confiscate all the money you made from the sale of the screenplay and the residuals from the movie because you were in the AF and they "own" every single thing you do.

    It would take a federal court about 4 seconds to strike down any such attempt by the AF to do such a thing. The legal principles involved don't change when it comes to software, either.

     

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  27.  
    identicon
    BTR1701, Jul 31st, 2008 @ 9:53am

    Re: Owning People

    > he is literally owned by Uncle Sam.

    Yes, I know that's what the military likes to say but there's no actual basis in law for the claim that citizens become the property of the military when they join. In fact, the Constitution of the United States (to which the military is subject) declares just the opposite:

    AMENDMENt XIII

    Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to its jurisdiction.

    The common response is that by joining the military, people waive certain guaranteed rights under the Constitution (freedom of speech, assembly, etc.) and while that may be true, the right guaranteed under the 13th Amendment is the *only* right that cannot be voluntarily waived by a citizen. It remains applicable regardless of whether the citizen (or the military) wants it to.

    So no, the military doesn't actually own the people who belong to it.

     

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  28.  
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    rbaum, Jul 31st, 2008 @ 1:56pm

    But does it apply across the entire AF

    Of the course the AF owns you if you're "in" it. If you start there, the AF wasn't breaking a law since they owned the software. Was it right, no. The AF has plenty of money to purchase what they need.

    Based on my experience, this act would not happen if the person had sufficient rank and say wrote a best seller, or a song that got recorded.

     

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  29.  
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    Anonymous of Course, Jul 31st, 2008 @ 2:21pm

    Inslaw

    Compared to what the "justice" department
    did to William Hamilton he got off easy.

     

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  30.  
    identicon
    jake, Aug 1st, 2008 @ 11:10am

    But was he:
    1.In service for the AF.
    2.Civilian working for the AF.
    3.Contractor working for the AF.
    I believe if he was actually in the AF all his free time is counted as uncle sams, but as for the other two...if he did it at home I think its his property.

     

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  31.  
    identicon
    Victor, Aug 1st, 2008 @ 10:46pm

    Re: Re: Owning People

    Technically, they don't own you.

    Factually, however, as a part of enlistment, taking a commission, or receiving a Warrant, you surrender your Constitutional rights - at a minimum, for the duration of service - and agree to be bound by the Uniform Code of Military Justice.

    In short, as the military likes to put it: "We protect Democracy, we don't practice it."

    So, yes, as far as that goes, the Air Force owns what he made. The Air Force is being EXCEEDINGLY foolish in making such an unneeded point about it in such a public fashion...
    But they own his butt for all practical purposes, until he separates from the service.

    I'm not surprised by the article though.
    Gov't making the efficient, effective, and correct decision?
    Yeah. Enough said.

     

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  32.  
    identicon
    Gav, Nov 16th, 2010 @ 6:42am

    Soviets

    I don't know anything about USAF employee contracts but that just seems wrong.
    Would I be incorrect in comparing this to Mikhail Kalashnikov who invented the Avtomat Kalashnikova 47 (AK-47). His assault rifle was used by the soviet army and he never got a penny for it.
    For something so similar to happen in the US just seems comical.
    Oops, just noticed this article was two years old. Oh well.

     

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