DMCA Does Not Apply to U.S. Government

According to a recent court ruling, we are all subject to the provisions of the DMCA, but the government is not:

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.

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Posted on August 8, 2008 at 11:32 AM • 28 Comments

Comments

Kashmarek • August 8, 2008 12:04 PM

In all likelihood, the government, being that group controlled by the businesses who pay to get such regulations to match their desires, will then be able to pass such material along to anybody else for usage (i.e., those same businesses). Copyright, we don’t need no steenking copyrights!

Shane • August 8, 2008 12:43 PM

You know, there was a time when I’d say, “Wow, what a terribly convenient oversight of semantics.”

Nowdays it’s quite obvious it was simply clever word-play from an already blatantly lawless administration.

Bit by bit, so no one notices… I swear nearly every removal of government oversight and every knife to the throat of our civil liberties comes through the media like a little nonchalant pin-prick. At this rate we’ll have bled to death in no time.

It all adds up. This is just a glacial advance towards an immovable US SuperGovernmentCorpRegime™. I hope all the lower/middle class out there enjoy grabbing their ankles… I know I do!!

Joe Buck • August 8, 2008 12:49 PM

Despite the word “copyright”, under the US system copyright is not a right at all. The Constitution says “The Congress shall have power … To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”.

(Kind of like the way the nouns are all capitalized; seems we dropped that practice while the Germans kept it).

So Congress can write whatever rules it wants where copyright is concerned, though there are some constraints (particularly the fact that the US ratified the Berne Convention), and it is allowed to be “unfair” at least to some extent.

D • August 8, 2008 12:52 PM

This is a hold-over from common law. The sovereign has immunity from legal action unless the sovereign consents to being sued. The consent must be explicit. Essentially, Congress needs to write something in the DMCA that waives immunity. This is Congress’s issue.

As for comments about this administration, while I’m not fan of the current administration, Clinton signed the DMCA in 1998. The current administration has nothing to do with this law.

Eric Norman • August 8, 2008 12:59 PM

I thought that copyright didn’t apply to gummit documents; they’re born in the public domain. Perhaps that’s only certain documents or works? Or did DMCA change this?

Stephen Smoogen • August 8, 2008 1:45 PM

@Eric Norman

No I think it is one of those common fallacies that people have that all US government documents are in the public domain. There are several subsets of documents that are not in the public domain either because the copyright was transferred to the US Government (works by contractors, etc) or works by certain departments are copyrighted.

At this point I think the exceptions list is large enough that you can assume it is copyrighted unless told otherwise :/

Angel one • August 8, 2008 1:58 PM

This ruling actually has nothing to do with the DMCA or any other copyright rule. The US government cannot be sued unless it says “okay, you can sue us for this”. As the court said:

The United States, as [a] sovereign, ‘is immune from suit save as it consents to be sued.

Although there are clearly many places (even within copyright law) where the US government has waived that protection and can be sued, the court simply ruled that this was not one of those cases. The US government can’t be sued (generally) for any similar infraction. Period. It has nothing to do with copyright law.

Angel one • August 8, 2008 2:00 PM

Eric Norman: I believe you misunderstood the events. The US government was being attacked because a government employee violated someone else’s copyright. This has nothing to do with government produced works.

Jason • August 8, 2008 2:01 PM

For some reason, I expected this article to be about the use of copyrighted songs at Guantanamo Bay.

Tim • August 8, 2008 2:06 PM

Wait a second, since when is Uncle Sam not an individual person? Sure sounds like one person to me! ; )

Jason R. Coombs • August 8, 2008 2:35 PM

“because … the phrasing of the statute does not mention organizations, the DMCA cannot be applied to the US government…”

The way I read this phrase, it says that the DMCA cannot be applied to any organization.

Am I wrong?

Philip • August 8, 2008 2:52 PM

Jason (“The way I read this phrase, it says that the DMCA cannot be applied to any organization.”):

I read it as meaning specific government organizations, not organizations as in companies. I’m fairly sure that when the DMCA refers to persons it is referring to legal persons, not just actual individual people, and so includes companies, corporations, etc.

Brian Greer • August 8, 2008 2:53 PM

It applies to entities recognized as people under the law. This means real people, as well as corporations (and similar business entities).

moz • August 8, 2008 3:31 PM

@James

Only where the person making the accusation is “in a position to induce” the college into a DMCA violation. This person was more than a bit careless about making sure his bosses approved of the way he planned to do what he planned to do.

As is so often the case, there’s much less to this than meets the eye.

Brian Carnell • August 8, 2008 4:04 PM

Navid..yes, please, read the ruling. The DMCA does not apply at all to the gov’t — the government in this case reverse engineered the software and removed expiring registration provisions from the software, and the court ruled very clearly that the gov’t is exempt from the DMCA.

Copyright law does apply, however, except for a number of exemptions that Congress has laid out (which you mistakenly claim are DMCA exemptions — they’re not). The court ruled in this particular case, those exemptions were applicable (specifically in this case a government employee created software that had to use government resource to test, freely distributed it to other government employees to use, and then once it was being used widely said “oh, hey, I’m going to form a company and charge you for this now, and if you don’t pay me I’ll sue.”)

Brian Carnell • August 8, 2008 4:08 PM

And in case anyone else can’t read, here’s the relevant portion in the ruling regarding the DMCA from the last page of the linked ruling:

“Because a claim for a violation of the DMCA is not, as Blueport argues, a subset of claims for copyright infringement, the CFC was correct to hold that the waiver of sovereign immunity in § 1498(b) does not extend to claims against the Government pursuant to the DMCA.
Accordingly, the CFC was correct to dismiss Blueport’s DMCA claims for lack of jurisdiction.”

rubberman • August 8, 2008 4:24 PM

What is going to happen now is that a lot of companies will not license any proprietary software product to the US Govt, and will probably start disallowing downloads of evaluation copies from anyone@anywhere.gov… I wonder what Microsoft thinks about this, because they will surely start seeing their income from government accounts start to dry up.

Davi Ottenheimer • August 8, 2008 5:08 PM

“Corporations are people, too!”

That’s the problem. They really should not be treated as such. They should be allowed privileges, but no rights. Rights should be reserved for people.

The modern American treatment of corporations came out of post-Civil War lawless and corrupt practices. From 1866 onward, following the stupid mistake of a judge who allowed a court reporter to insert his opinion into the official record, it has been tough to pin down and put the robber barons back in the bottle.

http://www.straightdope.com/columns/030919.html

Oil, Finance, and Transportation industries among others in America have all been totally f*$ckd by giant corporations fighting to gather all the rights of a singular person, while avoiding any kind of accountability that a real person would face.

President Grover Cleveland explained the problem in his 4th Annual Message to Congress on December 3, 1888

“Corporations, which should be carefully restrained creatures of the law and the servants of the people, are fast becoming the people’s masters.”

Kind of like Asimov’s laws of robots, they need to live within the rules, as dictated by humans, not the other way around.

http://en.wikipedia.org/wiki/Three_Laws_of_Robotics

Should free speech, for example, be a right of corporations, artificial entities created by states, or only extended to individual and real people? In other words is commercial speech to be treated as free speech or should it be regulated more strictly to guard against harm?

Here is a case on the matter:

http://www.law.ucla.edu/volokh/nike.htm

If America rules that commercial speech is free speech, than does it seem plausible that even phishing and spam corporations would have their tactics protected by the courts as a form of expression?

Here is an excellent essay about America’s founding fathers their warnings on this very issue:

http://www.thevoicenews.com/News/2003/0111/Front_page/002.html

“…with an audacity and willingness to take on overwhelming multinational corporate power similar to that displayed by the Founders, the elders of Porter Township said that: ‘Corporations shall not be considered to be ‘persons’ protected by the Constitution of the United States or the Constitution of the Commonwealth of Pennsylvania within the Second Class Township of Porter, Clarion County, Pennsylvania.'”

Anonymous • August 9, 2008 3:22 AM

The difference between a person and a corporation is that the corporation has no soul to damn. The only way to punish it is by leaving it with stranded costs and this has carrying costs. A corporation can bleed and die and some do. It takes many cuts.

Peter Pearson • August 9, 2008 12:09 PM

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

Veteran cynics will note that Congress has routinely exempted itself from onerous legislation, including Civil Rights Acts, OSHA, and Social Security.

averros • August 10, 2008 3:05 PM

Government, being a sole holder of the legal right to initiate violence, is above the law.

What a surprise.

Personally, I’d take the “Divine Right of Kings” anytime over the democratic “Right To Kill if you got enough Fools Voting For You.” At least the right or kings was moderated by the doctrine of Two Swords – and by the need to preserve the country for heirs.

total surprise • August 10, 2008 3:33 PM

I’m shocked I say shocked! After ensuring our freedoms and safety with the Patriot ACt, Fatherland security, wiretapping exclusions and renditions both ordinary and extraordinary the government does not expect the DMCA to apply to it?

paul • August 11, 2008 11:35 AM

I think this is great. All we need is a government entity willing to start distributing circumvention devices.

SumDumGuy • August 11, 2008 3:31 PM

Here’s what a well-respected lawyer specializing in copyright issues, William Patry, had to say about this ruling:

Congress abrogated the federal government’s sovereign immunity for copyright infringement in 28 USC 1498(c), but a DMCA anti-circumvention violation is not an infringement action; instead, chapter 12 of title 17 is a sui generis right, like semiconductor chips, bootlegging, and vessel boat hull protection. There is no express abrogation of sovereign immunity for DMCA violations, and thus the US government is free to – and appears quite happy to – engage in activity, which if done by individuals or companies, would be illegal, perhaps even criminal. The hypocrisy in the US government’s conduct is breathtaking given USTR’s vigorous efforts to peddle the DMCA internationally. Where are the IIPA, BSA, and other “pro-IP” groups on this scandalous treatment of creators? Will they now press for an amendment to 1498(b) to include violations of the DMCA?

In other words, the government is NOT allowed to violate copyright due to 28 USC 1498(c) but they are allowed to violate the DMCA, which at best is counter-intuitive and hypocritical.

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