[Infowarrior] - Court: DMCA doesn't apply to USG

[Richard Forno]

http://www.schneier.com/blog/archives/2008/08/dmca_does_not_a.html

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

     he 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.