Sovereign immunity blocks DMCA suit against Air Force

[SUBMAN1]

Wow! Don't do any favors for the Air Force! They might just take your hard work and not pay! Check this article out!

-S


Sovereign immunity blocks DMCA suit against Air Force

It's good to be king

By Kevin Fayle in San Francisco

Published Wednesday 30th July 2008 12:02 GM

Federal software contractors take note: A federal appeals court in the US recently ruled that a software owner couldn't sue the government for copyright infringement and anti-circumvention violations after the US Air Force refused to pay for a software license and cracked controls built into the software to control unauthorized use.


The owner of the rights to the software sued the Air Force in federal court, alleging copyright infringement and violations of the Digital Millennium Copyright Act, but the Court of Appeals for the Federal Circuit held that the principle of sovereign immunity blocked the claims entirely.

The software in question was developed by a member of the Air Force, Sergeant Mark Davenport, in his spare time in order to modernize the manpower database in use by the air service. He wrote the program at home, but always intended to use it in Air Force manpower applications.


As the process of developing the software continued, Davenport began distributing executable versions to his colleagues for testing purposes. He always kept the source code on his home computer, though. At some point in the process, Davenport added an automatic expiration date to the software that required the additional users to install the most recent version upon expiration.


Eventually, the program became popular in the Air Force's manpower community, the senior brass approved of its use and Davenport received a promotion. Everything looked great, but then the Air Force – apparently concerned that it had become too dependent on Davenport for support for the program – demanded his source code. Davenport refused.


In response, the Air Force demoted him, cut his pay and excluded him from certain advisory groups. Davenport still didn't turn over the source, however, and instead assigned all his rights in the program to the Blueport Company.


Blueport attempted to negotiate a license with the Air Force, but the Air Force refused and contracted instead with another company to replicate the program and modify the object code to avoid the auto-expiration feature. Not so happy with that outcome, Blueport sued the Air Force for copyright infringement and DMCA violations.


The courts slammed the door shut on the lawsuit almost immediately, however, after determining that principles of sovereign immunity barred the suit from going forward. Sovereign immunity basically states that the United States is immune from lawsuits, except in areas where it has given its consent to be sued.


The US has waived sovereign immunity in many areas – including copyright infringement – but it often does so with limitations or provisos. The court of appeals found one such proviso applicable here, and used it to terminate the copyright component of the suit.


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. This does seem to make a little bit of sense, since otherwise a government employee could induce infringement of his personal copyrights, then sue the government and make a nice little profit.


In this case, though, the issues aren't quite so open and shut – Davenport was perfectly happy to let the Air Force use the software until they began demanding his source, demoted him when he didn't turn it over, and then hired someone else to reverse engineer the program from the object code.


Still, the court said, any ambiguity in the scope of sovereign immunity is construed in favor of the sovereign, so the plaintiff here was out of luck.
Even more interestingly, the court found that the DMCA contains no waiver of sovereign immunity whatsoever. As a result, the portion of the lawsuit pertaining to the circumvention of the expiration feature was also jettisoned.


At first glance, this might also seem to make a lot of sense. The government might need to bypass locks on software for purposes of national security, to further a criminal investigation, or to access information from legacy systems after companies stop supporting them.


The lack of any kind of sovereign immunity waiver, however, also lets the government get away with non-essential circumventions. Government programmers, for example, could un-expire trial versions of software, thus avoiding having to pay for the full version and saving their departments money on pricey software license fees.


Congress could have easily waived sovereign immunity when drafting the DMCA and still kept provisos in place to deal with the national interests above, but chose not to do so. Maybe Congress just likes free software, too.http://www.theregister.co.uk/2008/07/30/dmca_suit_blocked/

[Kazuaki Shimazaki II]

Wow! Don't do any favors for the Air Force! They might just take your hard work and not pay! Check this article out!

Frankly, I've got extremely little sympathy for the DMCA in general, so anybody that tells it to go to h*ll, even if it is the government, automatically attracts my sympathy.

And I've got even less for Davenport's obtuseness. Yes, I know it is a program he developed in his spare time, but once you got a promotion for it, well, that means it just got professional, and the code becomes "company" (USAF in this case) property. Davenport was insubordinate, and actively acting against the interests of the USAF. ******* him.

[SUBMAN1]

Wow! Don't do any favors for the Air Force! They might just take your hard work and not pay! Check this article out!
Frankly, I've got extremely little sympathy for the DMCA in general, so anybody that tells it to go to h*ll, even if it is the government, automatically attracts my sympathy.

And I've got even less for Davenport's obtuseness. Yes, I know it is a program he developed in his spare time, but once you got a promotion for it, well, that means it just got professional, and the code becomes "company" (USAF in this case) property. Davenport was insubordinate, and actively acting against the interests of the USAF. ******* him.I don't see it that way. Here is a man with an idea that tried to create a business, and then got shunned for getting too big. To me, this is a terrible thing! The small guy got kicked! The Air Force liked his product that he spent many hours on hoping to create a future for himself! Then the AF copied it! That is absurd in my book. Insubordinate it is not. You can call that after the AF already dumped on him by demanding the source code.

The DMCA - I am no friend of that either, but it is one way this guy could have returned to his business model vs being dumped out in the cold. The DMCA however in iteself needs to be dumped. It is bad legislation.

-S

[XabbaRus]

Hmm interesting one this. Did he make a business out of it, ie selling it to the airforce after they approved use or did he just let them use it.

This is the deal. If I "develop" a new product or piece of kit for my company to use, even if it is in my own time but is then employed by my company I think it becomes theirs in all the rights so if I then refuse to let them have the original plans I can get kicked.

Personally I think he should have just handed over the source code or maybe worked out a deal. It seemd an airforce specific program anyway.

[August]

Here is a man with an idea that tried to create a business

You don't see anything inherently wrong with a serving member of the Armed Forces doing this?

[SUBMAN1]

Here is a man with an idea that tried to create a business
You don't see anything inherently wrong with a serving member of the Armed Forces doing this?No - he is in a position to know what they need. He didn't have to spend 1000's of hours in his living room creating something on his own time for free. If it was done on Air Force time, then yes, there would be a conflict of interest.

-S

[CptSimFreak]

Wow! Don't do any favors for the Air Force! They might just take your hard work and not pay! Check this article out!
Frankly, I've got extremely little sympathy for the DMCA in general, so anybody that tells it to go to h*ll, even if it is the government, automatically attracts my sympathy.

And I've got even less for Davenport's obtuseness. Yes, I know it is a program he developed in his spare time, but once you got a promotion for it, well, that means it just got professional, and the code becomes "company" (USAF in this case) property. Davenport was insubordinate, and actively acting against the interests of the USAF. ******* him.

Air Force promotion system does not work way.

[SUBMAN1]

Wow! Don't do any favors for the Air Force! They might just take your hard work and not pay! Check this article out!
Frankly, I've got extremely little sympathy for the DMCA in general, so anybody that tells it to go to h*ll, even if it is the government, automatically attracts my sympathy.

And I've got even less for Davenport's obtuseness. Yes, I know it is a program he developed in his spare time, but once you got a promotion for it, well, that means it just got professional, and the code becomes "company" (USAF in this case) property. Davenport was insubordinate, and actively acting against the interests of the USAF. ******* him.
Air Force promotion system does not work way.Nope. I agree with you.

[August]

Here is a man with an idea that tried to create a business
You don't see anything inherently wrong with a serving member of the Armed Forces doing this?No - he is in a position to know what they need. He didn't have to spend 1000's of hours in his living room creating something on his own time for free. If it was done on Air Force time, then yes, there would be a conflict of interest.

-S

Anyone who has ever served in the armed forces would know there is no such thing as free time. You are a serviceman 24/7/365.

[CptSimFreak]

Here is a man with an idea that tried to create a business
You don't see anything inherently wrong with a serving member of the Armed Forces doing this?No - he is in a position to know what they need. He didn't have to spend 1000's of hours in his living room creating something on his own time for free. If it was done on Air Force time, then yes, there would be a conflict of interest.

-S
Anyone who has ever served in the armed forces would know there is no such thing as free time. You are a serviceman 24/7/365.

What coolaid have you been drinking? I've seen people that had extra jobs and own companies while in USAF...does that mean their paycheck should be direct deposited into AF account?

[SUBMAN1]

Anyone who has ever served in the armed forces would know there is no such thing as free time. You are a serviceman 24/7/365.Well, this was his down time and he made the choice of creating something that the AF would like instead of doing personal things. Regardless how you spin it, it was his 'own' time that he could of wasted in other ways, but this guy is one enterprising individual. He should be compensated for his efforts. A promotion is nice, but that is not what he was after.

-S

[August]

What coolaid have you been drinking? I've seen people that had extra jobs and own companies while in USAF...does that mean their paycheck should be direct deposited into AF account?

That a service member owning a business that sells stuff to their own branch of service? Can you say "conflict of interest"?

[August]

Anyone who has ever served in the armed forces would know there is no such thing as free time. You are a serviceman 24/7/365.Well, this was his down time and he made the choice of creating something that the AF would like instead of doing personal things. Regardless how you spin it, it was his 'own' time that he could of wasted in other ways, but this guy is one enterprising individual. He should be compensated for his efforts. A promotion is nice, but that is not what he was after.

-S

Apparently the courts do not agree with your assessment...

[CptSimFreak]

What coolaid have you been drinking? I've seen people that had extra jobs and own companies while in USAF...does that mean their paycheck should be direct deposited into AF account?
That a service member owning a business that sells stuff to their own branch of service? Can you say "conflict of interest"?

....yes I have. And they provided cheaper service than a regular contractors and actually accomplished things.

[August]

....yes I have. And they provided cheaper service than a regular contractors and actually accomplished things.

I find that hard to believe. Please provide an example.

[CptSimFreak]

....yes I have. And they provided cheaper service than a regular contractors and actually accomplished things.
I find that hard to believe. Please provide an example.

Ok, conference equipment setup. If some airman's company competes and wins, why is it wrong?

[SUBMAN1]

Apparently the courts do not agree with your assessment...That is not true. They said nothing about my assesment. They took it from a National Security standpoint - Air Force immunity.

-S

[August]

....yes I have. And they provided cheaper service than a regular contractors and actually accomplished things.
I find that hard to believe. Please provide an example.
Ok, conference equipment setup. If some airman's company competes and wins, why is it wrong?

http://en.wikipedia.org/wiki/Conflict_of_interest

[CptSimFreak]

....yes I have. And they provided cheaper service than a regular contractors and actually accomplished things.
I find that hard to believe. Please provide an example.
Ok, conference equipment setup. If some airman's company competes and wins, why is it wrong?
http://en.wikipedia.org/wiki/Conflict_of_interest

.....just keep drinking coolaid.

[August]

....yes I have. And they provided cheaper service than a regular contractors and actually accomplished things.
I find that hard to believe. Please provide an example.
Ok, conference equipment setup. If some airman's company competes and wins, why is it wrong?
http://en.wikipedia.org/wiki/Conflict_of_interest
.....just keep drinking coolaid.

What's with you and coolaid anyways? BTW nice dodge...

[jumpy]

Sucks to be that guy... bullyboy tactics from the air force... I bet they don't hack civilian contractors software, large companies with interests and backing. They pay for it instead. Come to think of it, how many government officials have been involved with the process of bringing hackers to justice? iirc one of my countrymen has just lost a high court case to prevent him being extradited to the US for computer hacking. When did a US citizen last get extradited to the UK for anything less than murder?

Seems to me that the guy did something good and when he tried to keep in the loop as the creator of this new better way of doing his software thing, someone got on a power trip and it finally ended up in court where unsurprisingly the state used a convenient 'loophole' - you know, the 'ooh, we'll keep that one, just in case..' - to avoid any further hindrance to its agenda.

At face value, they could have handled it so much better.

[Platapus]

"...the senior brass approved of its use..."

There is a whole lot of information not in this article.

Brass can't just "approve" software, there are formal steps that need to be followed. Were these steps followed? Did Davenport follow the rules?


"...demoted him when he didn't turn it over,..."

Unless Davenport was stupid enough to take an Article 15, demoting him requires some level of Courts Marshal. There has to be a regulation he broke or a lawful order he refused to follow that would justify this action. I am sure that if this went to Court Marshal, the ADC would have reviewed the legality of any orders.

"Sergeant Mark Davenport, in his spare time..."

There is no spare time when you are in the military. There is no "off-duty".

To quote a favourite military movie: "Your heart may belong to jesus but your ass belongs to the corp!" Or in this case the Air Force.

I think the article left out some critical information here. Not that I would ever accuse a media source from selectively filtering the facts in order to further an agenda. :nope:

I would need a lot more detail before I can take sides with this issue.

[UnderseaLcpl]

I sympathize with Sgt. Davenport on this one. I have an allegorical example to explain my sympathy.

My unit, which shall remain nameless due to fear that this will come back to haunt me should I re-enlist, is an artillery regiment. As such, communications are of paramount importance to us. Even moreso, the speed with which comms can be established is a priority.

The S.O.P. (standard operating procedure for those lucky ones who don't feel the need to have an acronym for everything) for artillery command in my HQ battery is that should be two element; a forward C.O.C.(command operations center) and a main C.O.C. (yes I have heard all the jokes about who is the main C.O.C. around here and every imaginable variation of "that's what SHE said" jokes)

In the aforementioned S.O.P. the "forward" would establish a postion within comms range of the firing batteries and control them. The "main" element would then move to the forward position, set up, and assume control. Then the forward would jump to a new position and assume control once the batteries moved outside the main's comm range. The premise of this technique is fairly sound; constant command and control whilst continuing to advance at the exhaustive pace of forward combat units. However, it suffered from one major flaw; in many instances, communications can take so long to properly establish (especially when one considers the ancient equipment allocated to Marine reserve units) that rapidly advancing artillery batteries often outpace the regimental heaquarters' communication radii.

In response to this problem several radio techs and operators from my unit decided to circumvent this problem by vastly reducing the set-up time needed for effective communications. This was acheived by several ad-hoc modifications to vehicles (HMMVW M-145's) that allowed them to travel with fully extended and operational OE-254 long range VHF antennae erected. In this fashion, we all but eliminated set-up times for communications and reduced the average "transfer-of-control" time from one and a half hours to 30 seconds. We even expedited set up of remote antennae emplacement (to prevent RDF targetting of radio vehicles) to a mere 10 minutes, as the OE-254 anttenae were detachable and could be carried by two Marines to a position 500m distant in a matter of minutes.

The USMC's response to this approach was to take our designs and simply give them to General Motors without any compensation, awards, or even a "thank you" to us. Inexplicably, General Motors ruled it an "illegal modification" and subsequently voided the warranties on the converted vehicles. To add insult to injury, we had to dismantle all of our modifications and answer to an investigative commitee to explain why we felt it necessary to disobey established USMC doctrine.

In summation, not only can the military take your ideas without compensating you, they can also eat you alive for daring to have some initiative.

Despite these setbacks we have converted two new M-998 HMMVWs to what we have designated as the "Super-Vehicle" configuration. I can only hope these will escape the attention of our "superiors".


Just my two-cents!

[SUBMAN1]

.....just keep drinking coolaid.
What's with you and coolaid anyways? BTW nice dodge...I agree! It was an excellent dodge! :D

-S

[CptSimFreak]

.....just keep drinking coolaid.
What's with you and coolaid anyways? BTW nice dodge...I agree! It was an excellent dodge! :D

-S

It was not a dodge. I know from my prior experience that once person drinks military coolaid and actually believes in "Service before self" there is no turning back regardless of what arguments I provide.

[baggygreen]

he constructed his program using insider knowledge, which noone outside in the corporate world would've known about... As best as i can tell he wrote the program specifically for the air force and then went on to give it to some friends, who ised it on USAF property (computers, servers, whatever).

I see completely where they're coming from then, becuase if it was installed without the USAF paying for it then it was firstly against the rules, no doubt, and secondly, if he distributed it to other usaf personnel and then wanted exclusive rights...

he did stuff in the wrong order, voided his claims to ownership imo.