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Did you know that the DMCA isn't applicable to the government ?

ars technica wrote: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.

[..]

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.

Just typical! Government of the corporation, by the corporation and for the corporation. @$#% the individual.

I'm generally a supporter of DRM and such, but having an exclusion in the DMCA for the government seems ridiculous. I can't really imagine any need for such an exclusion.

Democrats...

Foil, probably to avoid some red tape and legal hassles if the need were to arise where they needed to. Like that would ever really happen.

The government does what it wants anyway and there is nothing you can do about it unless your rich.
Income taxes are illegal under the 16th Amendment - But see what happens if you don't pay - woohoo baby

All I have to say is, this only really hurts the people who actually AREN'T pirates. At least, it doesn't hurt the pirates who are good enough not to get caught.

MD-1118 wrote:All I have to say is, this only really hurts the people who actually AREN'T pirates. At least, it doesn't hurt the pirates who are good enough not to get caught.

You Are SOOooooo busted!!!!

Why? If I were really 'busted' they would have hauled me away before now for sympathising with the Russians and Communism.

Here's the actual appellate case and its discussion of the original.

There are three key claims which are brought up in the blockquote on the 7th page of the pdf (marked 6).

The government can be sued for copyright infringement, but only if:

(1) the person suing wasn't in a position to \"order, influence, or induce the use of the copyrighted work\".

(2) the person suing didn't create the copyrighted material as part of his \"official function\", and

(3) the person suing didn't use government time, material, or facilities in developing the material.

If any of these three clauses fails, the government claims \"sovereign immunity\" -- no court has jurisdiction to allow you to bring a suit in such a case. The initial court (\"court of federal claims\") found that the lawsuit failed all three of these clauses. The appellate court agreed.

The key finding of the case is that the DMCA doesn't provide an alternate route to sue the government. It doesn't provide new property rights for copyright owners, it only provides new grounds for liability -- you still have to have a classical copyright infringement case that passes the 3 clauses above. If you have such a case, the DMCA lets you collect damages from \"persons\" who are accessories to the infringement, including those who haxed your copy protections, rather than just to the direct infringers. But it doesn't create a backdoor -- the government is not a \"person\" who can be named as an accessory to copyright infringement; they can either be sued directly (if you pass the 3 clauses above) or not at all.

Overall, the court's finding is simple: you can't sue the government for copyright infringement if you made your product on their time, with their equipment, or used your government position to get them to use it. In an already-viable copyright infringement case, DMCA allows you to collect damages from those who haxed your copy protections as well as the distributors and users... but DMCA requires an already-viable case.

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Now, why do these provisions exist?

The government works on inertia -- you can work on a modern military program and end up programming in Ada on a VAX. There's a definite danger in someone creating software for the government, getting it entrenched in the system, and then declaring that the government must pay them big money to keep using the software, knowing that the government must also pay big money to make the change and retrain personnel.

The three clauses above protect the government from this. Many corporations have similar clauses in their employment contracts, for the same reason.

Nicely done! Thanks Lothar.