United States Government: DMCA Scofflaw?

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 government 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.