Air Force cracks software, carpet bombs DMCA

Last week, a US Court of Appeals upheld a ruling on software piracy. The organization doing the piracy, however, happened to be a branch of the US government, and the decision highlights the significant limits to the application of copyright law to the government charged with enforcing it. Most significantly, perhaps, the court found that because the DMCA is written in a way that targets individual infringers, the government cannot be liable for claims made under the statute. HangZhou Night Net

The backstory on the case involved, Blueport v. United States, borders on the absurd. It started when Sergeant Mark Davenport went to work in the group within the US Air Force that ran its manpower database. Finding the existing system inefficient, Davenport requested training in computer programming so that he could improve it; the request was denied. Showing the sort of personal initiative that only gets people into trouble, Davenport then taught himself the needed skills and went to work redesigning the system.

Although Davenport did his development on a personal system at home, he began to bring beta versions of his code in for testing, and eventually started distributing his improved system within his unit, giving the software a timed expiration. A demonstration to higher-ups led to a recommendation for his immediate promotion, but that was followed by demands that the code for his software be turned over to the USAF.

Davenport responded by selling his code to Blueport, which attempted to negotiate a license with the Air Force, which responded by hiring a company to hack the compiled version by deleting the code that enforced the expiration date. Blueport then sued, citing copyright law and the DMCA.

DMCA: We'll enforce it, but won't abide by it

The Court of Federal Claims that first heard the case threw it out, and the new Appellate ruling upholds that decision. The reasoning behind the decisions focuses on the US government's sovereign immunity, which the court describes thusly: "The United States, as [a] sovereign, 'is immune from suit save as it consents to be sued . . . and the terms of its consent to be sued in any court define that court’s jurisdiction to entertain the suit.'"

In the case of copyright law, the US has given up much of its immunity, but the government retains a few noteworthy exceptions. The one most relevant to this case says that when a government employee is in a position to induce the use of the copyrighted material, "[the provision] does not provide a Government employee a right of action 'where he was in a position to order, influence, or induce use of the copyrighted work by the Government.'" Given that Davenport used his position as part of the relevant Air Force office to get his peers to use his software, the case fails this test.

But the court also addressed the DMCA claims made by Blueport, and its decision here is quite striking. "The DMCA itself contains no express waiver of sovereign immunity," the judge wrote, "Indeed, the substantive prohibitions of the DMCA refer to individual persons, not the Government." Thus, because sovereign immunity is not explicitly eliminated, and the phrasing of the statute does not mention organizations, the DMCA cannot be applied to the US government, even in cases where the more general immunity to copyright claims does not apply.

It appears that Congress took a "do as we say, not as we need to do" approach to strengthening digital copyrights.

A sad footnote to this story is that we became aware of it through the blog of copyright lawyer William Patry, only to see Patry shut down the blog late last week. Patry says that a major factor in his decision was frustration with the current state of copyright law and with the aggressive stupidity that he felt typified a number of responses to his musings on the law.

But Patry also cites the inability of many to separate his personal thoughts on copyright from those he voices through his duties as Google's Senior Copyright Counsel. Given that Google (and many other companies) offer many significant announcements through their blogs, and Patry is notable in part due to his employer, this sort of confusion seems inevitable; still, it's unfortunate that it has brought a (temporary?) end to such a learned and public voice on copyright issues.