
DMCA Does Not Apply to U.S. Government - soundsop
http://www.schneier.com/blog/archives/2008/08/dmca_does_not_a.html
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dominik
Patry's Copyright Blog (<http://williampatry.blogspot.com/>) also discussed
this case at length on August 2. Since Patry took the blog down temporarily
and is now putting it back up, I'm going to copy paste the relevant post here.

The Executive Branch of our government has been on an IP public relations
binge lately, strutting like a peacock and showing off its finest colors of
commitment to strong IP rights. Alberto Gonzalez has been paraded out much
like Johnny Depp without the eyeliner, vanquishing those pesky pirates. The
Office of United States Trade Representative (before Mr. Zoellick's recent
departure to Wall Street), strides the globe like the Colossus of Rhodes, mau-
mauing ("Mzungu Aende Ulaya — Mwafrika Apate Uhuru!") small and medium size
countries into agreeing to DMCA and even DMCA+ provisions. The Administration
is solidly on message: IP 'R U.S.

Except, perhaps when it comes to the Government's own conduct. In Blueport Co.
LLP v. United States, the Government successfully asserted a defense of
sovereign immunity against a charge that it had violated 17 USC Section 1201,
the DMCA's anti-circumvention provision. Federal Federal Claims Judge Lawrence
Block described the factual allegations:

The bare facts of the matter now before the court are quite simple. It
involves a copyrighted computer management information program and the alleged
attempts by the U.S. Air Force to circumvent technological safeguards designed
to protect the program. Plaintiff is a limited liability corporation,
organized in the State of Idaho. On March 6, 2000, plaintiff acquired all the
rights to a computer program entitled AUMD and AUMD Admin (“computer program”)
from Mr. Mark Davenport, who was then a Technical Sergeant in the Air Force.
Allegedly, the computer program greatly increased the efficiency with which
Air Force manpower resource requirement reports were generated. The computer
program contained an automatic expiration function, so that the program would
stop operating on a particular date. This feature was included in the program
to control licensing and to prevent unauthorized use beyond the license
expiration date. Plaintiff alleges, in essence, that Air Force personnel
unlawfully “hacked” into the computer program to alter the automatic
expiration function, to the Air Force's advantage.

The defense was not as one might have expected, that the work was ab initio
one of the United States government and therefore not protected by virtue of
Section 105, but that the governement cannot - ever - be sued for DMCA
violations because Congress did not expressly provide for express waiver of
such immunity. Plaintiff referred the court to a number of exemptions in
Section 1201 that refer to conduct by federal employees, exemptions that would
not make sense absent liability, but the bottom line was simple: without
express liability, the Government is free to be a DMCA scofflaw.

The ball is now in Congress's court.

