A couple of years ago, we discussed the somewhat ironic story of a German software company suing the United States Navy for pirating its software. The initial story was a bit messy, but essentially the Navy tested out Bitmanagement's software and liked it well enough that it wanted to push the software out to hundreds of thousands of computers. After Bitmanagement sued for hundreds of millions of dollars as a result, the Navy pointed out that it had bought concurrent use licenses through a third party reseller. While Bitmanagement pointed out that it didn't authorize that kind of license itself, the court at the time noted that without a contractual arrangement between the company and the Navy, the Navy had an implied license for concurrent users and dismissed the case.
Bitmanagement appealed that ruling, however, arguing that the lower court stopped its analysis too soon. The story there is that such an implied license would require the Navy track concurrent users across its 500k-plus computers it installed the software on, but it appears the Navy didn't bother to track concurrent users at all.
“We do not disturb the Claims Court’s findings. The Claims Court ended its analysis of this case prematurely, however, by failing to consider whether the Navy complied with the terms of the implied license,” the Appeals Court writes.
“The implied license was conditioned on the Navy using a license-tracking software, Flexera, to ‘FlexWrap’ the program and monitor the number of simultaneous users. It is undisputed that the Navy failed to effectively FlexWrap the copies it made,” the Court adds.
And just like that, the dismissal flips entirely and the Appeals Court has now remanded the case to determine damages. Again, Bitmanagement is asking for just under $600,000,000 in damages, given the wide scale of installations the Navy undertook with its software. With nothing tracking how many users concurrently used the software, the Navy doesn't really have any way to argue back that it complied with the implied license.
The real lesson in this is just how messy these sorts of copyright conundrums are. It's reasonable to believe that the Navy thought it was doing the right thing, even if it failed to comply with the implied license by monitoring concurrent users. But it's also reasonable for a software provider, with no evidence providing nuance, to simply see 500k-plus installations as mass copyright infringement.
But, in the eyes of the same United States that likes to put out reports on how terrible other countries are in respecting intellectual property rights, I guess the United States Navy is just a bunch of pirates now.
In the midst of a pandemic, a Navy captain pleaded for the health and safety of his sailors. And for that, he was relieved of duty.
A letter to Navy officials, written by Captain Brett Crozier of the USS Theodore Roosevelt, was obtained by the San Francisco Chronicle. Social distancing doesn't work when you're stuck on a ship. Just ask anyone stuck on the handful of luxury cruise liners that became floating attack vectors for the coronavirus.
“This will require a political solution but it is the right thing to do,” Crozier wrote. “We are not at war. Sailors do not need to die. If we do not act now, we are failing to properly take care of our most trusted asset — our Sailors.”
In the four-page letter to senior military officials, Crozier said only a small contingent of infected sailors have been off-boarded. Most of the crew remain aboard the ship, where following official guidelines for 14-day quarantines and social distancing is impossible.
“Due to a warship’s inherent limitations of space, we are not doing this,” Crozier wrote. “The spread of the disease is ongoing and accelerating.”
On Thursday, after the letter was leaked to the San Francisco Chronicle, the acting secretary of the Navy, Thomas Modly, declared that he’d “lost confidence” in the captain and was therefore relieving him of his command.
This wasn't necessarily Modly's idea. But it appears to be Modly's idea of what he thought the Commander-in-Chief would want him to do.
Two days later, David Ignatius reported in the Washington Post that Modly had told associates he’d acted at the behest of President Donald Trump. Modly then phoned Ignatius at 1 a.m. to deny the story, saying he’d moved against Crozier before he heard from Trump. Rather, he acted in anticipation that Trump would want him to do so.
The removal of Crozier from the ship should have been the first indication the Navy would be unable to control this narrative. Several recordings exist of Crozier's exit from the ship, accompanied by sailors applauding him and chanting his name. Here's one of them:
Modly made it worse by boarding the ship and addressing the sailors. His efforts to win hearts and minds consisted of telling sailors to stop complaining and do their jobs, punctuated by him insulting the man he had fired.
“If he didn't think, in my opinion, that this information wasn't going to get out into the public, in this day and information age that we live in, then he was either A, too naive, or too stupid to be a commanding officer of a ship like this,” Modly told the Theodore Roosevelt’s crew on April 5. “The alternative is that he did this on purpose. And that's a serious violation of the UCMJ which you are all familiar with.”
A recording of this speech leaked, too. An unknown sailor speaks for everyone at the 1:57 mark, when he responds to Modly's "too naive or too stupid" comment with a very audible "WHAT THE FUCK?"
The Navy's damage control continues, but it appears to consist solely of dispatching more shovels and shovel operators to its hole. A self-serving communication from Navy brass telling sailors to STFU about the Crozier debacle was leaked to another journalist, which made its way to social media immediately.
Here's the best bit of Navy's insistent self-Streisanding:
*** Please engage with your sailors onboard and let them know that they need the person's permission to record them and put them online. If they posted SECNAV's 1MC remarks on social media, they need to take them down immediately. ***
It does not get any less laughable:
I know everyone's emotions are running high but posting negative comments on social media regarding Senior Leaders will not help our current situation.
[...]
Bashing a Senior Leader online will not rally the troops.
Looks like the troops are plenty rallied already, judging from the fond farewell they gave to their unceremoniously shit-canned senior officer. And they seemed pretty united in their rejection of SECNAV Modly's "shut up and go back to work" speech.
Modly appears to have belatedly realized his speech to the Theodore Roosevelt sailors was a mistake. But his non-apology isn't going to make things any better. Modly wants people to believe he was misunderstood by everyone that heard his comments, rather than actually take responsibility for the things he said.
I want to apologize to the Navy for my recent comments to the crew of the TR. Let me be clear, I do not think Captain Brett Crozier is naive or stupid. I think, and always believed him to be the opposite. [...] I apologize for any confusion this choice of words might have caused.
Shorter Modly: "I'm sorry you thought I called Crozier naive and stupid when I was calling him naive and stupid."
This whole response has been the epitome of "naive and stupid." The Navy's best option for letting this debacle get swept under the tidal wave of news that flows through social media every day would have been to let its original response -- given to the San Francisco Chronicle -- be its only response. Within 48 hours, no one would have cared. But it chose to fire an obviously-beloved and respected captain, insult him in front of his crew, and threaten unhappy personnel with punishment for sharing anything about this on social media. The Navy's measured response to the leak of Crozier's letter is all but forgotten now, buried under layer after layer of self-sabotaging hubris.
And, of course, as the finishing touches were being put on this post, Modly announced he was resigning. Apparently he realized that he was either "too stupid or too naive" to run the Navy, if he didn't realize how nearly all of his decisions in the last few days would play out.
A German software company, Bitmanagement Software, is now suing the US government for copyright infringement and demanding almost $600 million. The lawsuit, which was filed in the US Court of Federal Claims (basically a special court set up just for cases involving suing the US government for money), says that the US Navy copied Bitmanagement's 3D virtual reality software, BS Contact Geo. Apparently, the Navy had tested the software and had an evaluation license allowing the software to be used on 38 computers. And then the Navy just copied it onto hundreds of thousands of computers.
The lawsuit notes that the Navy had specifically requested the removal of Bitmanagement's usage tracking code, and then told the company that it wanted to license the software for upwards of 500,000 computers -- but also that it started doing those installs while the company was still negotiating a license. While that negotiation was ongoing, someone (accidentally, apparently) forwarded an email to Bitmanagement indicating that the software had already been installed on 104,922 computers. Apparently, a few months later, the Navy also disabled some other tracking software, called Flexwrap. This part is a bit confusing in the lawsuit, since earlier it notes that the evaluation contract required Bitmanagement to remove tracking software, but then the lawsuit notes that later on it was the Navy that removed Flexwrap, "in violation of the terms" of the license.
This is also a rare copyright case where the plaintiff is asking for actual damages, rather than mere statutory damages. That's partly because it notes that a single license of its software runs approximately $1,000 -- and it believes the software may have ended up on 558,466 computers. Thus, it's asking for $596,308,103, which is the market value of the unpaid licenses. If it had sought statutory damages, it would have been limited to just $150,000, as that's the maximum per "work infringed." But it's also because the US government has a special super power, called sovereign immunity when it comes to copyright claims, basically allowing it to avoid a copyright lawsuit in a regular ("Article III") district court. However, at least based on my understanding of the law, they can still go to the Federal Claims court (as Bitmanagement is) and seek the actual licensing fees.
It will be interesting to see how the US government responds. After all, this is the very same US government that regularly insists that copyright infringement is a horrible evil and that we need to ratchet up punishment for it. Yet, here is the Navy doing what appears to be fairly blatant direct infringement on software that it was evaluating, but failed to fully license. In the past, the US government has found itself negotiating settlements in similar cases. But, of course, none of that has resulted in the government recognizing that perhaps its hardline position on infringement by others is a bit extreme, considering its own behavior.
The latest example of how problematic our patent system has become, involves a series of patent infringement lawsuits against a bunch of banks based on a patent that is the property of the US Navy. It turns out that the Navy licensed the patent out to a small company in exchange for 30% of any profits from any patent licensing or litigation. It certainly looks like the Navy is encouraging questionable patent lawsuits. The Navy gets a patent for security authentication, using taxpayer money, and then hands it off to a small company to sue a bunch of banks and generate more revenue for itself. That doesn't seem right. It certainly doesn't help promote the progress of science or the useful arts. The story gets even more ridiculous when you compare it to a story we had a few years ago where an unnamed government agency (possibly the Navy) used a "states secret" claim to avoid having to license a patent. So, basically, the government can use whatever patents it wants without licensing them, but when it comes to its own tax-payer-funded patents, it hands them off to companies to sue others on its behalf. I'm sure that's exactly what Thomas Jefferson pictured when he worked out the details of our original patent system.
