A US appellate division court has thrown out a DMCA claim against the Air Force (a former soldier wrote some software on his own time for the USAF, added in a time-bomb that made it stop working, and quit and sold the software’s copyrights to a company that sued the Air Force for defusing the time-bomb rather than buying a license) and has made it clear that the DMCA doesn’t apply to the US government at all.
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.