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Sovereign immunity blocks DMCA suit against Air Force

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Federal software contractors take note: A federal appeals court in the US recently ruled that a software owner couldn't sue the government for copyright infringement and anti-circumvention violations after the US Air Force refused to pay for a software license and cracked controls built into the software to control unauthorized use.

The owner of the rights to the software sued the Air Force in federal court, alleging copyright infringement and violations of the Digital Millennium Copyright Act, but the Court of Appeals for the Federal Circuit held that the principle of sovereign immunity blocked the claims entirely.

The software in question was developed by a member of the Air Force, Sergeant Mark Davenport, in his spare time in order to modernize the manpower database in use by the air service. He wrote the program at home, but always intended to use it in Air Force manpower applications.

As the process of developing the software continued, Davenport began distributing executable versions to his colleagues for testing purposes. He always kept the source code on his home computer, though. At some point in the process, Davenport added an automatic expiration date to the software that required the additional users to install the most recent version upon expiration.

Eventually, the program became popular in the Air Force's manpower community, the senior brass approved of its use and Davenport received a promotion. Everything looked great, but then the Air Force – apparently concerned that it had become too dependent on Davenport for support for the program – demanded his source code. Davenport refused.

In response, the Air Force demoted him, cut his pay and excluded him from certain advisory groups. Davenport still didn't turn over the source, however, and instead assigned all his rights in the program to the Blueport Company.

Blueport attempted to negotiate a license with the Air Force, but the Air Force refused and contracted instead with another company to replicate the program and modify the object code to avoid the auto-expiration feature. Not so happy with that outcome, Blueport sued the Air Force for copyright infringement and DMCA violations.

The courts slammed the door shut on the lawsuit almost immediately, however, after determining that principles of sovereign immunity barred the suit from going forward. Sovereign immunity basically states that the United States is immune from lawsuits, except in areas where it has given its consent to be sued.

The US has waived sovereign immunity in many areas – including copyright infringement – but it often does so with limitations or provisos. The court of appeals found one such proviso applicable here, and used it to terminate the copyright component of the suit.

Because Davenport was in a position to induce the use of the software in question, the court argued, he couldn't then turn around and sue for violation of his copyrights. This does seem to make a little bit of sense, since otherwise a government employee could induce infringement of his personal copyrights, then sue the government and make a nice little profit.

In this case, though, the issues aren't quite so open and shut – Davenport was perfectly happy to let the Air Force use the software until they began demanding his source, demoted him when he didn't turn it over, and then hired someone else to reverse engineer the program from the object code. Still, the court said, any ambiguity in the scope of sovereign immunity is construed in favor of the sovereign, so the plaintiff here was out of luck.

Even more interestingly, the court found that the DMCA contains no waiver of sovereign immunity whatsoever. As a result, the portion of the lawsuit pertaining to the circumvention of the expiration feature was also jettisoned.

At first glance, this might also seem to make a lot of sense. The government might need to bypass locks on software for purposes of national security, to further a criminal investigation, or to access information from legacy systems after companies stop supporting them.

The lack of any kind of sovereign immunity waiver, however, also lets the government get away with non-essential circumventions. Government programmers, for example, could un-expire trial versions of software, thus avoiding having to pay for the full version and saving their departments money on pricey software license fees.

Congress could have easily waived sovereign immunity when drafting the DMCA and still kept provisos in place to deal with the national interests above, but chose not to do so. Maybe Congress just likes free software, too. ®

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