Sovereign immunity blocks DMCA suit against Air Force

Could he sue...

the company that reverse-engineered his program? Surely they's profitting from infringing on his IP, even it is only at the behest of the Air Force?

They own his brain

Or at least, I'd be amazed if they didn't... My employer certainly owns mine, and the copyright/patent rights to anything I might "invent".

Bring on the freebies.

So the entire US Government can become massive freetards with the added advantage that they have the resources to set people to task cracking any piece of software they take a fancy to, while the rest of the freetard world has to wait for some civic minded hacker before they can download it from p2p sites?

Hmm...not exactly setting the best of examples are they?

Doh! What am I saying? This is the US Gov we're talking about.

Gimme the freestuff.

It's good to be KING!!!

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so the law applies to who exactly?

surprise surprise (not)..

yes, another clear as day example that shows you that the law applies to everyone... except of course the government who do as they please.. or else!

isn't this selective application of the law, which should apply to EVERYONE??

oh, silly me, of course not..

our most trustworthy leaders who never lie <ahem, cough, CHOKE> have made other laws that exempt them from any law that they themselves don't want to abide by. or simply hide behind the old 'national security' squealings.

so just accept and understand that the law is intended only for us 'general public sheep/slaves'

Never pay for license fees again

So essentially this ruling means that the US Government doesn't have to ever pay for any software again. It can copy Windows, Office, or anything else it desires, and no-one has any right to stop it. And the US gets annoyed with China for breaking copyright laws. Irony anyone?

puzzled

"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 government and its branches get sued all the time for a plethora of reasons. This doesn't add up to me... Also, it says that he wrote the software on his own time. As a member of the military - precisely what counts as his "own time"? I know when I sign an employment contract for a commercial entity it spells out that I will be expected to work 40 hours a week. I somehow doubt that's spelled out when one enlists... but I will admit I know next to nothing about the workings of the US military.

Governments rarely pay much for software...

.... but they do pay handsomely for support, usually, so Microsoft et al probably aren't too worried. This is can be a double-edged sword though - the US and UK Governments are both adept at getting special and extended support for obsolete kit and software which the public has been forced to upgrade or replace, much to some vendors' annoyance.

in this case, the poor bloke obviously laboured under the misbelief he could retain control of his code and sell it either to the military or a public company, which he actually did in the end so I suppose he's laughing all the way to the bank. I'm surprised the buyers weren't lawyered up enough to see the sovereignty issue coming though.

Actually...

@Commenters:

The US government DOES have to pay for software licenses, because they HAVE waived Sovereign Immunity re copyright infringement EXCEPT in cases (such as this one) where the rights owner has induced the infringement.

@Kevin:

"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."

Not so. Although they could not be liable under DMCA, they would still be liable for copyright infringement, because using a trial version beyond the expiry date is a violation of the license, and there is a waiver of Sovereign Immunity for copyright infringement.

Oh, and AC, the US principle of Sovereign Immunity doesn't apply to foreign governments. Sorry.

I dont get it

The shocking thing is that the software was written in his own time. If i worked on a program at home, even if it was linked to my job, it would still be mine.

What they've done is basically theft.

He offered it free with a time bomb for updates, that should be respected.

Logic error

I have to admit that I see the USAF's point here. Given that an enlisted man wrote software for use specifically by the USAF, I would have thought it a given that the code would basically end up belonging to them... and surely refusal to obey a direct order to hand over to a superior something directly relating to the performance of his duties is something that they can't possibly be expected to stand by and allow? Could be a very nasty precedent indeed, that one.

Who own's it?

I worked and had an employment contract at a major IT manufacturer.

It clearly stated that anything I produced whilst employed by them, whether in theirs or MY OWN time, was owned by them. UNLESS I had specfic permission, which a few of my colleagues had.

And he offered it to them and let them use it! Then he decides he wants paying?

I have little sympathy - he should have agreed something from the start.

Same as trial software?

This seems basically to be the same as someone offering trail software, a company (USAF) started using it and becoming dependant on it, then the trial runs out and they demand it for free.

Tux because maybe he should've open sourced it and kept his job/pay packet.

RE: Can someone explain why he didnt just give the source over ?

Only in the navy would you need to worry about intruders in your backdoor.

RE: They own his brain

That is precisely correct, and especially in the US military. As an Airman, this guy might have only had official duty days that were from 7:00 to 4:00 or whatnot, but the fact of the matter is he was Government property 24-7 for the entire duration of his enlistment. Does that mean they could raid his home and take his stuff? Not exactly, but he did, as the courts noticed, induce the Military to use his software, and for free.

This is typical with intelligent people who can write code/use the intarwebs/invent stuff; they make for dipshits when it comes to business sense and often common sense as well.

Do you really...

think that the US Gvt actually pays for software now? No. They pay for support and licenses which ties into support.

They get their copies of Office and Windows free, and pay for the support contract, just like any big company.

RE: Can someone explain why he didnt just give the source over?

Because he wrote the software on his own time, and therefore it was his code. Handing it over means he gives up the potential of selling the software, or modifying it for other purposes and selling it in his future life outside of the military.

As for "owning his brain" and the like. It's true that most development companies do have these sorts of contracts, where anything you write, even on your own time and on your own equipment belongs to the company. You are made fully aware of this (or at least should be) usually on the day you start work and fill out all the other legal paperwork.

But this is actually pretty rare outside of the development community. Most employers just wouldn't consider that a future employee might create something worth stealing, and with government employees in the US enjoying almost UK levels of employee rights, it's unlikely they would think it legal to try to include this sort of ownership clause in employee contracts. Besides most contracts are the result of bargaining agreements with fairly powerful unions, which is why most government employees in the US still have decent workers rights.

I'm sure the military would think this is a great idea, and if it was common practice in private business, might try to do something similar if they were aware of the possibility. Fortunately they aren't, and because they have no proof he wrote the software on their time, or using their equipment, they can't force him to hand over the code.

This also means he's still free to adapt it and sell it to other businesses or better still, other branches of the US military. Which is of course one of the main reasons he'd refuse to give up his code in the first place.

What I would say is he missed the boat. Rather than going after the government for stealing his code, he should have gone after them for the demotion. It was his software, he had every right to refuse to hand over the code. It wasn't his fault they based his previous promotion on the value of the software, he wasn't stopping them from using it after all.

So if I was him, I'd start adapting and hawking my software to other branches of the US military, it's about the only safe avenue left for him to take. If they like it enough to steal it, chances are other branches of the US military will too.

He was stupid

He should have just given them the code and then used the fact that the airforce is using a program he wrote on his resume.

In "Surely you are joking Mr. Fynman", he talks about trying to get his one dollar out of the government for various patents. It is a weird quirk of law in the US. Even if your contract says that your employer owns your patents they still have to give you a dollar. I have seen lots of framed one dollar bills with patent statements hanging on walls.

They own my brain......

@Anonymous Coward...

I know I'm new here...please don't take offense...but why would you sign a contract that gave ownership of your work at home to your employer? I honestly don't think, as a developer who develops stuff in his own time, that I could do that.

Military life

I suspect in the US it's like it is in Canada: members of the armed forces belong thereto, body and soul, 24/7/365 for the duration. Another comment has also pointed this out.

Friend in the navy here was found to have colon cancer. The navy organized the treatment outside the usual system of universal health coverage. He had very little say in the matter, but also had a successful recovery; all's well that ends well.

Moral: if you develop anything -- even a better mousetrap -- during military service, or while enslaved by one of the more demanding corporations, don't say a word to anyone about it until you are free of them.

Organizations with gumption that impose such conditions on their employees are very careful to make sure that if any such individual effort results in profit, the originator gets a slice of the pie. Not all organizations have that much gumption, however.

@Andy Bright

As was mentioned earlier, if you're in the military, your "free time" is STILL their time. Technically, you make a couple bucks an hour, but you get paid for 24 hours each day for the whole week, so it's comparable to a "real" job. So it's just a given that it was made on Air Force time; being on Air Force equipment is kind of beside the point thanks to that.

I've made quite a few things to make my job easier, but I would never password-protect them and tell the Air Force to sod off and expect that to be just taken in stride. I might try to negotiate my way into getting credit of creation and/or "ownership" of the future of an item, but that's somewhere you might actually be able to succeed.

This guy was actually treated pretty fairly. He did a good job, got rewarded for it, then tried to twist the service's arm into paying him more for it than just the raise he got for a job well done. The fact that the Air Force gave him a jolly smack for his impertinence seems perfectly normal.

Now, he might have a case about getting demoted... But then again, he was probably hit with something under the Uniform Code of Military Justice that applies to his refusal to cooperate. 'Cause it sounds mostly like he was being insubordinate and trying to hijack what had essentially become an Air Force program for personal gain.

Don't expect the military to play nice if you give them something and then try to take it back... They're pretty big bastards even when they DON'T have a right to something.

@Erik

"This fellow did 'induce', which is unethical on the order of injecting copyright/patent code into a standard without letting the standards' body know the intent to patent or copyright on the part of the author for future profit"

Nope, this was NOT the case. The infringement was in modifying the code and breaking the protection mechanism, NOT using the code for operational work.

And the operational procedures hadn't been changed to demand inclusion: they could have done without the program at the expense of a less efficient workload that they already had.

If I loan you $10 and then take it back a month later, do you complain that I'd stolen it from you because you now had $10 less than you did before? USAF had at least profited for no cost a time of more effective process. Even with the program withdrawn, they would now know that a change in process was needed and could have *bought* a new product.

But they decided that just taking was OK instead. Under threat of court martial.

We can see who the REAL pirates are, now...

@amanfromMars

Not a lifestyle choice, per se.

Active Duty personnel can retire after 20 years of service, and begin drawing retirement pay immediately. Guard and Reservists wait until 55. Not necessarily indexed either, but tied to the increases given Civil Service; not a given what percentage it will be either, more at the mercy of Congress.

@ the rest;

IMHO, the software was the property of the USAF. Also, he and his testers had to use the USAF computers to verify his program worked; ergo, not entirely "on his own time". Further, you aren't allowed to install software from any source without prior permission; in this, he essentially gave express rights to the AF. Finally, he disobeyed a lawful order when he refused to hand the code over; a Court-Martialable offense.

The Air Force could have sued Blueport, as the software was and is property of the US Government.

MSgt USAF, Retired

hmmm not enough details!

"contracted instead with another company to replicate the program and modify the object code to avoid the auto-expiration "

So did they replicate the program, or modify it... which one? You wouldn't need to do both. Since the want the source, I'd guess they made a simalr program from scratch w/o the DRM.

and this program was tailor made for the USAF. You can't say he made it for himself, when he took it to work and gave it to co workers.

Imagine if you go home and figure out a good logon script for your company, then show up the next day and try to charge them for it. Better yet, you give it to them, (with a backdoor/DRM) deploy it... then ask for money for it! Otherwise your systems that depend on it will not work anymore. This guy should face military tribunal for blackmail. Hell the admin in SF did no worse.

I also think the head guys should smack the middle managemnet guys that approved homebrew binarys into their systems. seriously!

If you give it to them, they own it.

From a DTIC site (http://www.dtic.mil/ndia/2006small_business/kneissler.pdf): "if you give it to them without restriction, they are free to use it as they see fit!"

It goes farther, in that the government gets unlimited rights to software produced under contract (DFAR 252.227-7014(a)(15)) and can authorize others to modify in any manner.

I believe that, under certain circumstances, that the government can also declare the software (and/or hardware) to be critical to "National Security" and obtain unlimited rights to it.

Just another criminal act by the government

Just goes to reinforce the fact that the government under the current administration has become a criminal organization that feels that they are above the law.