US Navy On The Hook For 'Pirating' German Company's Software

from the yarrrr! dept

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.

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Filed Under: copyright, germany, infringement, us navy
Companies: bitmanagement


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  • icon
    That Anonymous Coward (profile), 4 Mar 2021 @ 12:19pm

    Of course had they had .5 seconds of a prince song in their latest ad they woudl be on the hook for trillions.

    reply to this | link to this | view in chronology ]

  • icon
    crade (profile), 4 Mar 2021 @ 12:38pm

    "the Navy doesn't really have any way to argue back that it complied with the implied license"

    They would presumably have as much of a way to argue that it complied as Bitmanagement would have a way to argue that they did not comply with the implied license unless Bitmanagement was keeping track itself.

    reply to this | link to this | view in chronology ]

  • identicon
    Whoever, 4 Mar 2021 @ 1:01pm

    How much?

    Bitmanagement is asking for just under $600,000 in damages

    I think you are missing three zeros.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 4 Mar 2021 @ 1:12pm

      Re: How much?

      indeed...

      In the original complaint, Bitmanagement argued that it is entitled to at least $596,308,103 in unpaid licensing fees, so this could turn out to be an expensive error.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 4 Mar 2021 @ 1:36pm

    I guess the alien or foreign entity sponsoring the case is a rebel, military coward, and fugitive now....

    reply to this | link to this | view in chronology ]

    • identicon
      IOSEF STALIN, 7 Mar 2021 @ 1:33am

      Re:

      All military members join because they're submissive cowards who all want to fuck and suck their uncles old cock and sit on his lap like the bitch ass lames they are.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 4 Mar 2021 @ 2:01pm

    Ol' JPJ is probably having a fit over this.

    reply to this | link to this | view in chronology ]

  • icon
    sumgai (profile), 4 Mar 2021 @ 2:06pm

    There is a real problem here, and that is that the so-called 3rd party reseller hasn't been brought into the action at bar. Here we go:

    Planet 9, the reseller, had several interactions with the Navy, because as noted, Bitmanagement didn't do site licensing. The Navy ended up believing they were covered. Now, Bitmanagement is insisting that they have a beef with the Navy, when in fact it is with Planet 9. IOW, if you authorize someone to act on your behalf, you better either educate them thoroughly as to what they can and/or can't do in your name, or else you're going to end up mired down in lawsuits like this one.

    Even if Planet 9 did not actually issue a site license, they sure gave that impression to the Navy, so there'd better be some paperwork backing their position, or else the Navy is gonna.... sail on this one. Bitmanagement is then going to go after Planet 9 for disrupting their business practices and costing them valid income.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 4 Mar 2021 @ 2:50pm

    US Navy Pirates

    So just to make it clear, Bitmanagement and the Appeals Court is calling the US Navy a bunch of pirates.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 4 Mar 2021 @ 4:12pm

    At least the name is fitting rather than when the entertainment industries utilised it against the world and it's wife! Why us there no statutory damages being applisd for every license, as would have happened if the case was reversed and is applied as soon as it's some member of the public that is accused? The old rule for one and different rule for the other, i suppose!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 4 Mar 2021 @ 4:51pm

    Next week...The US discovers Oil in Bitmanagement HQ and has to bomb the everliving fuck out of their building to ensure Freedom!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 4 Mar 2021 @ 5:44pm

    Unsure if I should be playing my Limewire copy of either LazyTown's You Are a Pirate, or The Village People's In the Navy

    reply to this | link to this | view in chronology ]

  • icon
    Samuel Abram (profile), 5 Mar 2021 @ 1:48am

    Cory Doctorow's aphorism.

    Cory Doctorow once said that "Every Pirate becomes an Admiral". Well, now the Admirals are back to being pirates.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 5 Mar 2021 @ 11:33am

    Devil's advocate here: Are we sure the Navy was actually able to implement the license tracking software without compromising itself so that software could phone home? Did they have to disable it for that reason? Is there something more to the case than perhaps what's been described on the Torrentfreak post?

    It appears the embedded copy of the legal judgment is incorrectly linked, as it appears to be a copy of an unrelated case involving a music copyright dispute.

    reply to this | link to this | view in chronology ]


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