IP Rights Fairy Tale

Not very long ago, in a land not at all far away, there was a little company called Blueport. It held the copyright on a piece of software that the US Air Force liked using for logistics. Blueport protected its software with a time bomb—a bit of code that made the software self-destruct when the license expired. That date was approaching, and Blueport wanted to negotiate a new license with the USAF—and you know, get paid.

Instead, it got a bit of the ol’ shock and awe. The Air Force not only didn’t pay up, it paid big contractor SAIC ($2.5 million in lobbying in 2007) to reverse engineer Blueport’s program and disable the time bomb. The Air Force also paid SAIC to rewrite the program, and by rewrite I mean simply cut and paste any of the original code that seemed useful.

Unsurprisingly, Blueport sued. The facts of the case were never disputed—the government not only violated copyright, it turned the DMCA out on a street corner. But the Air Force had an ace up its sleeve—the “Uh uh, no you don’t” defense. It asked the judge to throw out the case based on sovereign immunity. Sovereign immunity is a legal principle that states that no one can sue the government unless the government gives them permission. In the 18th century, when the country was just a wee whippersnapper, we passed the 11th amendment to create sovereign immunity.

It doesn’t have anything to do with who’s right, just who’s allowed to sue. The government can waive immunity, but nothing in the DMCA or copyright law says, “Yeah, OK, we’ll play by these rules too.”

At the same time this was occurring, the government was arresting people for DMCA violations, using trade negotiations to force DMCA laws on other nations, and generally moralizing about the whole thing a lot.

But that was that. The government cannot ever be sued for violating its own DMCA or infringing on copyright. So there are your rights when dealing with the government—a pretty grim little fairy tale.

Quinn Norton writes about copyright for Wired News and other publications. Her work has ranged from legal journalism to the inner life of pirate organizations.