So I’m flipping through the September 2008 issue of Maximum PC and come across an article by Quinn Norton called “IP Rights Fairy Tale.” The title is intriguing, but as I read on it becomes apparent that Norton is clueless about even the most basic concepts she’s writing about. From top to bottom the article gets pretty much everything wrong.
Then, I read the mini-bio at the end of the article that says,
Quinn Norton writes about copyright law for Wired News and other publicatons. Her work has ranged from legal journalism to the inner life of pirate organizations.
Wow. Apparently you can go a long way with very little knowledge.
Anyway, the article is about Blueport Technologies. In Norton’s version, Blueport sold a piece of software to the Air Force. The Air Force then basically stole the software. When it was sued for copyright violations, however, the Air Force invoked sovereign immunity and got off scott free. It’s a lot more complicated than that, but for now just accept that at face value (as I did the first time I read through Norton’s article). Here’s how Norton describes sovereign immunity (emphasis added),
. . . But the Air Force had an ace up its sleeve — the “Uh uh, no you don’t” defense. It asked the judge to throw out the case based on sovereign immunity. Sovereign immunity is a legal principle that states that no one can sue the government unless the government gives them permission. In the 18th century, when the country was just a wee whippersnapper, we passed the 11th amendment to create sovereign immunity.
Someone who can write something as idiotic as that last sentence, shouldn’t be allowed to get anywhere near “legal journalism.”
First, sovereign immunity is a very old legal principle in English law that predates the formation of the United States. Moreover, the United States did not need to pass an amendment to assert that the federal government was immune from lawsuits. That idea was essentially imported into U.S. law thanks to our adoption of the English legal system.
Second, the 11th amendment had nothing to do with sovereign immunity involving lawsuits against the federal government (and in the Bridgeport case, as Norton herself notes, it was the federal government being sued). Rather the 11th amendment was concerned with whether individual states have sovereign immunity from lawsuits brought by citizens of other states and other states themselves.
In 1793, the Supreme Court ruled in Chisolm v. Georgia that federal courts had jurisdiction over lawsuits filed against states. The 11th amendment nullified that decision, saying that
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
Norton’s bizarre belief that the 11th amendment created sovereign immunity in the United States made me wonder if her description of the Blueport case was accurate. Not surprisingly, she leaves out a few important details.
Not very long ago, in a land not at all far away, there was a little company called Blueport. It held the copyright on a piece of software that the US Air Force liked using for logistics. Blueport protected its software with a time bomb — a bit of code that made the software self-destruct when the license expired. That date was approaching, and Blueport wanted to negotiate a new license with the USAF –a nd you know, get paid.
Instead, it got a bit of the ol’ shock and awe. The Air Force not only didn’t pay up, it paid big contractor SAIC ($2.5 million in lobbying in 2007) to reverse engineer Blueport’s program and disable the time bomb. The Air Force also paid SAIC to rewrite the program, and by rewrite I mean simply cut and paste any of the original code that seemed useful.
. . .
It [sovereign immunity] doesn’t have anything to do with who’s right, just who’s allowed to sue. The government can waive immunity, but nothing in the DMCA or copyright law says, “Yeah, OK, we’ll play by these rules too.”
Again, anyone who can write the nonsense in the last sentence shouldn’t be writing about copyright law. She is correct about the DMCA — the federal government is exempt from that on sovereign immunity grounds. Courts have held that there is no implicit exemption to sovereign immunity, so anytime a new law like the DMCA is passed, Congress has to pass an explicit sovereign immunity waiver if it wants there to be any exception.
But the federal government has waived almost all of its sovereign immunity in copyright cases in 28 U.S.C. § 1498(b) which was added in 1960. The law does include a few exceptions to the waiver of sovereign immunity related to copyrights owned by federal employees (emphasis added below on one of those exceptions),
(b) Hereafter, whenever the copyright in any work protected under the copyright laws of the United States shall be infringed by the United States, by a corporation owned or controlled by the United States, or by a contractor, subcontractor, or any person, firm, or corporation acting for the Government and with the authorization or consent of the Government, the exclusive action which may be brought for such infringement shall be an action by the copyright owner against the United States in the Court of Federal Claims for the recovery of his reasonable and entire compensation as damages for such infringement, including the minimum statutory damages as set forth in section 504 (c) of title 17, United States Code: Provided, That a Government employee shall have a right of action against the Government under this subsection except where he was in a position to order, influence, or induce use of the copyrighted work by the Government: Provided, however, That this subsection shall not confer a right of action on any copyright owner or any assignee of such owner with respect to any copyrighted work prepared by a person while in the employment or service of the United States, where the copyrighted work was prepared as a part of the official functions of the employee, or in the preparation of which Government time, material, or facilities were used: And provided further, That before such action against the United States has been instituted the appropriate corporation owned or controlled by the United States or the head of the appropriate department or agency of the Government, as the case may be, is authorized to enter into an agreement with the copyright owner in full settlement and compromise for the damages accruing to him by reason of such infringement and to settle the claim administratively out of available appropriations.
So if the government has waived its sovereign immunity in most copyright cases, why was sovereign immunity invoked in the case involving Blueport Technologies?
The program at issue was written by a Sergeant Davenport employed by the Air Force. Davenport wrote the program, tested it on Air Force time, and then freely distributed it within the Air Force. The Air Force was apparently impressed, and arranged for Davenport to provide training for using the program at different Air Force facilities. Almost 20 months after writing the program, it dawned on Davenport that maybe he could make some money from it, so he formed Blueport Technologies with a relative and registered a copyright for the program.
The Air Force was not amused at efforts by Davenport to attempt to license back what the Air Force believed was software it already owned, and so hired SAIC to reverse engineer the software. At that point, Blueport Technologies sued.
So sovereign immunity was invoked because the courts agreed with the government that the software in question met the criteria of what might be called in other context’s a work for hire. That, in other words, it was clearly a “copyrighted work prepared by a person while in the employment or service of the United States, where the copyrighted work was prepared as a part of the official functions of the employee, or in the preparation of which Government time, material, or facilities were used” and as such fit one of the exemptions of the waiver of sovereign immunity in 28 U.S.C. § 1498(b).
So, in other words, the government tends to have a lot more leeway in appropriating the work-related intellectual property that its employees produce. That may or may not be a good idea, but it is a long way from Norton’s patently false claim that,
The government cannot ever be sued for violating its own DMCA or infringing on copyright.
Well, there is certainly an IP “fairy tale” in there. Perhaps for future analysis of copyright issues, Maximum PC might want to ditch Tinker Bell and find a real expert.