DMCA does not apply to US government, which can crack DRM with impunity
A US appellate division court has thrown out a DMCA claim against the Air Force (a former soldier wrote some software on his own time for the USAF, added in a time-bomb that made it stop working, and quit and sold the software's copyrights to a company that sued the Air Force for defusing the time-bomb rather than buying a license) and has made it clear that the DMCA doesn't apply to the US government at all.
But the court also addressed the DMCA claims made by Blueport, and its decision here is quite striking. "The DMCA itself contains no express waiver of sovereign immunity," the judge wrote, "Indeed, the substantive prohibitions of the DMCA refer to individual persons, not the Government." Thus, because sovereign immunity is not explicitly eliminated, and the phrasing of the statute does not mention organizations, the DMCA cannot be applied to the US government, even in cases where the more general immunity to copyright claims does not apply.LinkIt appears that Congress took a "do as we say, not as we need to do" approach to strengthening digital copyrights.
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Thus, because sovereign immunity is not explicitly eliminated, and the phrasing of the statute does not mention organizations
Does that means *any* organisations? ie companies and such can lawfully break the DMCA without anything happening?
I would have to read the decision itself on, say, center for internet law and regulation, but it seems to me that the Ars report gives far too much credit to congress for the results of this decision. It claims that the US has given up much of its sovereign immunity with regards to copyright law, but I can't find a single provision in the Copyright Law of 1977 that refers to sovereign immunity. At all. Most US sovereign immunity is waived through two acts easily found the wikipedia entry for it. Based on precedent, I doubt that the DMCA is even the kind of law that might require the waiver of sovereign immunity.
There's a rich history of copyright law being secondary to national need; take for example the WTO TRIPS agreements, which reserve the right to governments of compulsory licensing in the case of national emergency. While this has commonly been used with drugs, I don't find it hard to extend to, say, a proprietary encryption protocol during a time of war, where the DMCA might otherwise apply.
Though I agree that this is an abuse of power on the part of the USAF, the judicial background is sound. The test for compulsory adoption was clear-cut.
A cursory look at the wikipedia entry for sovereign immunity shows that most precedent supports the ruling with regards to the DMCA. Sovereign immunity appears only to be waived in clear tort cases or cases in which the US government is party to a contract, and in cases where an individual has abused their office (whereby their immunity is stripped). In the latter case, the "stripping doctrine," the accusation that the public official has violated the law in an official capacity is a legal fiction, meaning that it is taken to be true by courts of law (but not necessarily true), so that it will always get around sovereign immunity in the US.
Look, I'm not even a law student. I'm just a mildly interested guy who did 15 minutes of research. But if this guy really wanted to get rid of his program's use by the USAF, initiating a suit under tort law (to get monetary damages) or under the stripping doctrine against whichever superior officer was responsible (which usually doesn't grant monetary damages but might result in an injunction).
tl;dr I'm not sure that this is such a landmark case at all. The court ruling went against the USAF officer on a technicality, and the DMCA-related ruling was pretty legally conservative (as opposed to politically so).
Don't agree with the ruling that the US is immune from the DCMA, but Davenport/Blueport would've failed in their anyway since:
Given that Davenport used his position as part of the relevant Air Force office to get his peers to use his software, the case fails this test.
I would also say that what Davenport did was sleazy: he was pushing his software within his unit, attaching a timebomb to make it stop working, and then he sold it off to another company (who would do the work of taking the government to court if they didn't pay up). The thing is that people develop a dependence on the software they use. If I created a wordprocessing program, passed it around to people, and then a year later, it stopped working - preventing them access to all the documents they created (because they're saved in my proprietary format) until they paid me, that would be world-class sleazy. It's just unfortunate that Davenport got paid by Blueport for this software.
Regarding the DMCA judgment, I sort of wonder if the judge was just looking for a way to get the US government out of the trap set by this sleaze-bag.
I know it's nitpicking, but soldiers are part of the army. The correct term for an air force member would be airman or Airman.
Speaking as someone in the USAF, I'm surprised they did this. They stress heavily on licensing and being legal. I can't believe they didn't just pay up, like they do with so many other boutique software publishers.
That anyone finds this surprising is slightly absurd in itself.
The DMCA is and always was a way for a few specific media giants to get the government to act coercively against individuals on their behalf. It's about taking away your freedom to protect a very specific and possibly obsolete business model.
It is only natural that the government, while schizophrenic in many of its other activities, would not enforce its own law against itself when that law was clearly intended only to be used against common citizens.
#2 said, "There's a rich history of copyright law being secondary to national need..."
Yes there is. Let me tell you how it works: When I was in the military the work we did was for the military, ergo owned by the Government of the United States of America. If I had designed a faulty system that had a “bomb” in it, I would not only expect to be charged with a crime, I'd expect to be "retired".
Oh, gods.
Anyone know how this might affect the Australian DMCA, which floated in on the back of a free trade agreement?
I know it's nitpicking, but soldiers are part of the army. The correct term for an air force member would be airman or Airman
Thanks for saying this. One of my pet peeves.
That said, when I worked for the Air Force, it was very common to write home-grown utilities to get work done faster. It was the quickest way to get stand-up recognition for our crew anyways. The comm folks get weird about licensing but the crusty old chiefs in the squadron just want to get the job done the best way possible.
@2 wrote:
"I would have to read the decision itself on, say, center for internet law and regulation, but it seems to me that the Ars report gives far too much credit to congress for the results of this decision. It claims that the US has given up much of its sovereign immunity with regards to copyright law, but I can't find a single provision in the Copyright Law of 1977 that refers to sovereign immunity."
Its in 28 U.S.C. § 1498(b) and was added in 1960. Waiving sovereign immunity for the DMCA would require a specific act by Congress -- the Supreme Court has ruled before that there cannot be an assumption or implied waiver of sovereign immunity. It has to be explicit in legislation.
I have an analysis of the case Cory writes about here.
"the Supreme Court has ruled before that there cannot be an assumption or implied waiver of sovereign immunity. It has to be explicit in legislation."
The idea of the State or Feds being beyond the reach of the law is supported by the fact that it happens. It does get legislated, but it’s usually an assumption in many cases without specific legislation. One also has to consider how National Security is defined and enforced. This will depend on the Supreme Court, and a more conservative S.C. may enable the Feds to cover almost anything they need to if they can argue well for it. There would then be no need for specific legislation per se. How the Feds are able to influence what becomes law, or how law is enforced is the great Sausage Factory of Politics.
I'm curious- was he a "former" airman at the time he wrote the software? If he was currently an airman then it's likely he wrote the software on USAF computers. I know a previous job I had used a pretty simple rule regarding copyrightable content: use our gear to do it, then we own the copyright. If the USAF doesn't have this sort of rule as well I'd be shocked.
So if I'm correct, then USAF could make a case that THEY own the copyright not Davenport.
I don't wish to be the pessimist but why did anyone expect anything different? Laws are enacted for the average good, but whats good for you and I doesn't have to apply to those in power, it never has it never will, and no rule of law when persons of power feel it is necessary will apply period. Or it will be twisted to make sure it is mostly if not wholly negated. The particulars of this case are enough to muddy the waters enough, but even if the circumstances were wholly clear and clean cut... this ruling proves that they can do what they need to when they need to. Expecting different is just naive and irrational.
This is particularly interesting in light of the recent case of Marketing Information Masters v. The Trustees of the California State University that gave back sovereign immunity to state institutions, including state universities. In other words, if the university requests someone working in their official capacity to hack a piece of software or break encryption or in any other way violate the DMCA or other copyright laws, they are free to do so.
The caveat is that it must be an official act of the university, not the personal decision of an employee, even if it is done as part of their job. I'm guessing an IRB for digital research would arguably offer that sort of protection, but I'm not a lawyer.
Now if only private universities and colleges could enjoy the same protection. Academic freedom should be enshrined in law, but our (American) government is much more interested in enforcing "freedom" around the world than providing rights to liberty and free enquiry at home.
I suppose this applies to 'contractors' too.
"[the airman] wrote some software on his own time for the USAF, added in a time-bomb that made it stop working..."
IANAL, but wouldn't the UCMJ have something to say about that...like, isn't this sabotage? Certainly ballsy, risking messing with the military justice system...
It's just another example of the standard, and often unwritten, disclaimers that law and policy makers include. The disclaimer is
"Except for me".
That's not actually what the decision holds.
It isn't that the DCMA doesn't apply to the government, it's that you cannot sue the government and win money damages because the government has not consented to the suits. (Yes, you read that right. The government has to consent to being sued for money.) What Cory said is NOT the same thing at all and has profoundly different legal consequences.
The reason it isn't the same thing is that you CAN get an injunction against the United States government even when you cannot get money damages. A federal statute has been construed as a blanket waiver of the US government's "sovereign immunity in suits requesting other than monetary relief. Thus, federal suits for injunctive and declaratory relief are permitted...directly against the United States." (Chemerinsky, Federal Jurisdiction, 5th ed. at p. 634/sec. 9.2.) That means you CAN get a federal court to order the federal government to stop breaking the law.
The actual decision: http://www.cafc.uscourts.gov/opinions/07-5140.pdf
I think that there is one point everyone is missing here, and that is the fact that when you are a member of the armed forces you are considered "GOVERNMENT PROPERTY".
Your actions (in and out of uniform) are regulated by the UCMJ. You may only own the property that you are allowed to. Just because you may not be at your duty station, doesn't mean you aren't contributing to your mission.
If you build, design or contribute anything to your military assignment that becomes mission essential, the military owns it.