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..._suit_blocked/

[Kazuaki Shimazaki II]

Originally Posted by 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.

[SUBMAN1]

Originally Posted by Kazuaki Shimazaki II

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]

Originally Posted by 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?

[SUBMAN1]

Originally Posted by August

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]

Originally Posted by Kazuaki Shimazaki II

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]

Originally Posted by CptSimFreak

Air Force promotion system does not work way.

Nope. I agree with you.

[August]

Originally Posted by SUBMAN1

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]

Originally Posted by 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.

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]

Originally Posted by 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

[August]

Originally Posted by 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"?

[August]

Originally Posted by SUBMAN1

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]

Originally Posted by August

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]

Originally Posted by 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.