We're The US Government, So We Can Ignore Pesky Things Like The DMCA

from the isn't-that-nice? dept

While the federal government of the US has dumped on us dreadful laws like the DMCA, when it comes time for it to follow those laws itself, it takes a pass. Why be inconvenienced like the rest of us? We've talked about how the US government likes to ignore patent law using either "state secrets" or "sovereign immunity" claims, and now it appears they're using that for copyright law as well. CAFC (Court of Appeals for the Federal Circuit) has allowed the Air Force to dismiss a DMCA lawsuit lodged against them by claiming "sovereign immunity."

The details of the case are pretty straightforward. A guy in the Air Force, in his spare time, developed some useful software that the Air Force started using, without any sort of contractual relationship established (and, apparently, unlike most companies, it didn't have any agreement with him that automatically gave them ownership of the software). He kept the source code secret, but the Air Force rewarded him with a promotion. But, then, the Air Force got worried that it was so dependent on this one guy, so it demanded the source code to the software. The guy refused, and received a pay cut and a demotion. The Air Force then hired another company to reverse engineer the software, and to get around the DRM that the guy had put on his original software.

No matter how silly the DMCA's anti-circumvention provision is, this would seem like a textbook case where it was violated. Except that the Air Force basically said "we're the gov't, so that doesn't apply to us" and the court agreed. It must be fun to be the government, where you get to pass laws and then can ignore them at will.

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Why Do States Need Patents In The First Place?

from the head-scratcher dept

The Software Information Industry Association is asking the Supreme Court to examine whether states are immune from patent infringement lawsuits. Lower courts have ruled that states are immune from patent infringement lawsuits. But at the same time, states apparently can obtain patents themselves and sue the very same private companies for patent infringement. The SIIA is asking the Supreme Court to level the playing field. It argues that if states are going around demanding licensing revenues for their own patents, it's not fair for them to turn around and claim sovereign immunity when they infringe other peoples' patents. That seems like a sensible argument to me, although I'm no lawyer.

But the story brings to mind a more fundamental question: why are states allowed to obtain patents in the first place? The usual policy argument for patents is that they promote the common good by giving people incentives to invest in new technologies. But this argument doesn't really make sense when we're talking about a state government. States are already supposed to be spending taxpayer dollars to promote the common good, so they don't need extra incentives to do so. And they already have access to tens of billions of dollars through taxation, so they don't need a way to raise capital. If spending more taxpayer dollars on research promotes the common good, then states have the ability to do that regardless of whether they can get a patent for it. And if a new technology is developed with taxpayer dollars, all taxpayers should be allowed to use it without paying still more money in royalties.

Timothy Lee is an expert at the Insight Community. To get insight and analysis from Timothy Lee and other experts on challenges your company faces, click here.

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Law Lets State Universities Sue Over Patents, But Not Be Sued Back

from the nyah-nyah-nyah dept

Isn't it wonderful how the government likes to impose all kinds of ridiculous patent laws on everyone, but gets to often ignore them itself? A few years back, we talked about how the government used "state secrets" claims to avoid paying royalties on patents, and now the Wall Street Journal highlights how state organizations can get out of patent infringement lawsuits by claiming "sovereign immunity," a leftover bit of legacy regulation that really is no longer even remotely appropriate. The specific situation covered in the article is that state universities can avoid any kind of patent infringement lawsuits directed at them, even as they use the patent system to sue lots of others. The article highlights the University of California, which has been one of the more aggressive universities when it comes to patents and suing others for infringement. Some had been arguing that since UC was suing others for patent infringement, sovereign immunity should no longer apply. Unfortunately, the appeals court disagreed. Even UC's own lawyer admits that it's a dumb law: "Sovereign immunity came from the king not wanting to be sued by his subjects and it ended up in our jurisprudence. It's not fair but it's the current state of the law." Indeed. So the courts may have ruled correctly based on the law, but isn't it about time that the law got changed?

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