back to article Sovereign immunity blocks DMCA suit against Air Force

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 …


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  1. Big_Boomer Bronze badge

    One law for the people,

    and a different law for the rulers.

    No change there then.

    Better yet;

    "You can't expect to work with snakes and not get bitten"

    This is obviously part of the US Govt's plan to reward initiative in it's employees. Get them to work extra hours to create something useful and then once they have, and it has been proved to be useful, treat them like terrorists so you don't have to pay for it.

    I suggest that everyone out there who deals with the US Govt. beware.

    Now that they have actually realised that they don't have to pay their software, they almost certainly aren't going to. That money will be far better used paying for "fact finding" missions to the Caribbean and for "stress relief" services.

  2. JP Sistenich
    Black Helicopters

    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?

  3. Anonymous Coward
    Anonymous Coward


    so Governments and public bodies don't need to pay for licenses, so get on with it global Governments the US has given you a green flag.

  4. Anonymous Coward
    Anonymous Coward

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

    If I was the military I worry about backdoors and all sorts of stuff.

  5. Anonymous Coward
    Black Helicopters

    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".

  6. Secretgeek

    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.

  7. Jamie

    It's good to be KING!!!

    Type your comment here — plain text only, no HTML

  8. Andrew Cooper


    Having realised this, will the Air Force (or any other branch of government for that matter) ever pay for software again?

    Microsoft, take note!

  9. Sillyfellow

    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'

  10. Anonymous Coward
    Black Helicopters

    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?

  11. Peyton
    Paris Hilton


    "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.

  12. Matt Bryant Silver badge

    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.

  13. Hollerith

    I have this great idea

    I have this genius concept for software that will save the Government, my employer, oodles of money. Will I work on it in order to give it, for free, to give to my employers? When they didn't ask me for it, I just decided to do it? Do they own every idea I have while I am sitting at my desk? If I have this genius idea, will I (a) forget about it, because look what happens if you /do/ act on it (b) develop it on their time and then resign to hawk it around to venture capitalists (c) take it to Microsoft, knowing that they can always eyeball the Government down when they can't make a cozy deal with them?

  14. Steven Knox



    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.


    "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.

  15. Rod Shoaf

    Did this guy even own the software he created?

    OK.. my question is.. Since he was in the Air Force at the time he created this application.. Wouldn't the software he authored be property of the Air Force and HE broke the law by attempting to transfer the copyright to Blueport?

    Seems like common sense to me!

  16. tom
    Dead Vulture

    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.

  17. Anonymous Coward
    Anonymous Coward

    so apart from the sovereign immunity...

    how is this different to people not paying for downloaded music?

    Just wondering.

  18. Big Al
    Black Helicopters

    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.

  19. Richard

    One less employee

    It seems to me as a member of the military he owed the Air Force his source code. Military members do not have the same rights as a contractor or civilian.

    Still, the way the Air Force attempted to force him into submitting the code (demotion, punitive measures) seems to me to only ensure that he'll leave the force once his time is up. Thereby ensuring that they have one less talented individual working for them - just what they need.

  20. Slik Fandango

    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.

  21. Harry Stottle

    The Divine Right of Kings

    "Sovereign immunity basically states that the United States is immune from lawsuits, except in areas where it has given its consent to be sued"

    "Sovereign Immunity" is the last vestige of the "Divine Right Of Kings". It's about as corrupt as a political system can get. It's not unique to the Police State of America, of course. They inherited it from the UK and decided it was such a good idea, they would keep it.

    As the author points out, there might be legitimate security reasons for the State to need to bypass normal copyright and other legal protections. In this particular case they might even have an arguable case on other grounds. But there is NEVER a legitimate reason why they should not have to at least justify such exceptions to We The People in the form of a duly constituted Jury (if necessary, in secret session)

    It continues to amaze (and depress) me that State Bullying like this can be public knowledge and not start riots...

  22. Anonymous Coward
    Anonymous Coward

    they own your mind

    the IP situation between a company and its employee is that the company own any IP generated in the course of normal work, and/or relating to their field of endeavour.

    so if i invent a new type of dishwasher, whilst working for an IT company, its mine all mine - even if i pinched the companies resources to develop it.

    If however i produce a new spreadsheet, or executable, that addresses a need within the company or its market, its theirs, tough shit if i did it in my own time.

  23. Chris Campbell

    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.

  24. Steve Brooks


    "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 think whether or not he owes the code the government due to his employment depends very much on what he was employed to do, if he was employed to write code to do this sort of thing then yes they would have an expectation, if he was employed to shoot people and wrote the code as a hobby that's different. To claim that he owed the Air Force the code would be the same as claiming that if an enlisted man painted masterpieces in his spare time they were also government property. They wouldn't be, even if he hung them in the canteen to brighten the place up because he thought it was dull and mind numbing.

    Just because other members of the forces found his code useful doesn't meant they automatically owned it, just as they wouldn't own the painting if they liked them.

  25. Mark

    Re: Actually...

    "where the rights owner has induced the infringement"


    By not giving them the source code they didn't own??? By putting a DRM process in the code???

  26. Anonymous Coward
    Anonymous Coward


    The air force would only own it if their contract said it did, like mine. If I invent something on my own time - the company own it.

    So it all depends on the contract.

  27. Jesse

    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.

  28. Mark

    Re: Logic error

    Your logic error is thinking he'd written it FOR THE USAF. He'd written it to make HIS job easier.

  29. Jesse
    Black Helicopters

    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.

  30. Bill Gould
    Gates Halo

    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.

  31. matt


    since the USAF contracted another company to actually break the dmca for them why not go after the contractor? If having a government contract is enough to get you out of dmca then surely there are lots of cleaners who now don't need to buy windows?

  32. Andy Bright
    Black Helicopters

    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.

  33. Erik Aamot

    it's often the case ...

    .. I've had an active Air Force programmer work with me on game software, and he had to clear *anything* he coded through higher ups for security reasons, didn't matter if it was related in anyway to his work in the Air Force. The hassle involved forced him from our private project

    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

    This fellow also took *compensation* in the form of a promotion, rewarded for his good work related to his service .. he would not have been in the position to even think of such software except for being in the job the Air Force brought him to

    if he thought the idea was potencially profitable, leave the service first, then contract with Air Force and other services to write the software, which private companies run by ex-military do regularly, and do profit greatly from

  34. Hud Dunlap

    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.

  35. Oliver Drew
    Paris Hilton

    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.

  36. RRRoamer

    I would be sueing the company that cracked it

    The Air Force might be immune. But the company that actually cracked it ISN'T. They violated several Federal laws and are wide open to a suite.

  37. RW

    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.

  38. Anonymous Coward

    @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.

  39. amanfromMars Silver badge

    More than just Jobs for the Boys

    "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"...... By Anonymous Coward Posted Wednesday 30th July 2008 12:20 GMT

    Hence the attraction of Self Employment in Civvy Street, AC?

    For the Military, is it their preferred Option that it be a LifeStyle Choice 24/7/365 ..... followed by an Index Linked Pension from the age of 55 for the Dedication?

  40. kain preacher Silver badge


    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

    GI= government issue . When you sign up you are bound by different set of rules then every one else. If they really wanted to be dicks they could of court martial his ass.

  41. Mark

    Re: Military life

    They own you 24/7 AS A SOLDIER.

    If he'd been tasked with creating a program, that would be part of his duties.

    AFAIK, no soldier is hired "to write programs" and so doing is NOT their duty. This is not owned.

  42. Mark


    "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...

  43. Ty Cobb


    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

  44. Michael

    Owned by the USAF

    When I got hired at my company, part of my contract is that anything I create, even in my spare time, that uses the proprietary knowledge I have gained by working here, belongs to the company. It's a near certainty that the author drew on his proprietary knowledge of USAF systems in building his software, so it's very likely that the USAF is the legal owner of the software.

  45. Bounty

    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!

  46. Anonymous Coward
    Jobs Horns

    If you give it to them, they own it.

    From a DTIC site ( "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.

  47. Anonymous Coward
    Anonymous Coward


    The Air Force might be immune. But the company that actually cracked it ISN'T. They violated several Federal laws and are wide open to a suite..

    Nope they are protected. They were working for the GOV. My father found that out when he tried to sue the government for a on the job injury . The gov said wasn't our fault it , you were working for a contractor , plus you need permission to sue us, plus since the contractor was working for us you need our permission to sue him

  48. Dave Harland

    Using military resources means military-owned.

    As Ty Cobb noted above, the USAF owned the software the moment he installed on USAF hardware. Period. The fact that he used USAF resources to test it is just one more nail in the coffin he created for himself.

    As a member of the US Military, your rights are considerablly different from the rights civilians enjoy; and some rights you lose entirely for the duration of your enlistment. If he had never used any USAF resources at any point in the life cycle of his software, then he might, repeat might, have a case. That's debatable. But he immediatly lost all claim the moment he took it to work.

  49. Anonymous Coward

    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.

  50. Jon Minhinnick



    Who's Queen??


  51. Anonymous Coward

    This is it!!!

    all we have to do it petition our Congress to force our government to reverse-engineer the Windows XP source code, and release the source code to the public! The government ignores its own laws, takes no responsibility for its actions, and we gain the full source code at last!!!

    Why didn't they think of this earlier!?! Now they can stop the anti-trust monopoly Microsoft has, and make future OS's better as a result!


  52. A J Stiles

    Copyright comes from Government

    Copyright is an agreement administered by the Government. They would have been entirely within their powers just to annul the copyright on the software in question, and cite National Security if anyone asks for a reason.

    Still, the Air Force must have lose somt credibility points for allowing this to happen.

    There's an old saying, "Don't pay the ferryman until he gets you to the other side". Maybe we should update that: "Don't pay the Programmer until he gives you the Source Code".

  53. Vladimir Plouzhnikov

    Like a proverbial broken tub from a Russian fable...

    That greedy schmuck should have taken the promotion and the extra pay and be happy instead of trying to blackmail the service into making him a "government contractor" - it just does not work like that.

    "Because he wrote the software on his own time, and therefore it was his code."

    When you are in the army you don't have "own" time.

  54. Anonymous Coward
    Black Helicopters

    Copyright law differs by region

    Ignoring the Military, which this story is concerning itself with, in the US, an individual retains a degree of control to the rights to an innovation that they had even if it is done on company time. This is the reason why Sun were able to set themselves as a company using software technology largly developed when Bill Joy and the other the founders were working or grad students for University of California, Berkley. They did cross license it, but the fact that they had retained some of the rights gave them a great lever to do so. I thing that Bill Joy's name is still listed explicitly on some copright notices on BSD derrived code.

    This can be altered by employment contract, but is then subject to being challenged in court.

    In the UK, copyright for an innovation made on work time, or using work resources are owned exclusivly by the employer. This is how IBM and others in the UK can own all innovations by their employees in the UK. Their contract of employment is quite explicit about this, and contains the clause Slik Fandango commented about earlier. I knew a clever bod who had to get explicit agreement from the management to participate in BSD 4.4 development, even though he had been involved with this before joining IBM.

    So please be aware that just because you were able to do something, it may not be possible in another country.

    In this case, the US military and government are involved, so all bets are off.

    I wait for IBM or the black-hats to track me down!

  55. Trevour Crow

    First right

    To the guy who compared it to art: The government(and most IT employers) generally only practice first-right; that it, you can do anything with your creation you want, so long as they don't want it(I recall something like this happening with HP and Jobs related to the Apple). The military generally won't take your pretty pictures, but code is gold.

  56. Tony Lewis
    Jobs Horns

    Law's... we don need no steenking laws!

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

    Maybe not the US principle, but since 911 any Government can just make-up laws without regard to international law, since the biggest proponent of such laws arbitrarily decides which rules apply to them.

    Or in other words, if you can't follow rules, don't expect anyone to listen to you regarding "the rules." It's a free for all now.

  57. Anonymous Coward
    Anonymous Coward

    Davenport was on taxpayer's dime, period...

    IMHO, even though Davenport created the core program at home, he was still a military goon in the Air Force and thus on the U.S. taxpayer's dime. Therefore, USAF owns the software, not Davenport.

    If he really wanted to make a buck, he should have left the Air Force and become a consultant (back into the USAF). I have seen this happen many times while assigned as a contractor for a USAF base.

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