Still Not Copyright: Para-Copyright Revisited–Blueport v. US

Another friendly reminder that not everything related to copyright is copyright.

By Ethan Ackerman

The Copyright Act is a curious critter. Litigants seem to keep finding ways to get unexpectedly drawn into it when they don’t want to and ways to fall short of it even when they want its cover.

This blog previously focused on one such near-but-not-copyright situation, Prince’s record album’s take down notice of a bootleg performance. The post pointed out that the take down notice was likely improper as there was probably no copyright infringement occurring, only the related para-copyright no-bootlegging right.

A Federal Circuit opinion, Blueport v. U.S., has basically affirmed that line of thinking, deeming the DMCA anti-circumvention provisions as a para-copyright. In a suit by a software development company against the Air Force, it held a para-copyright right (in this case, the anti-circumvention provisions of the DMCA) is not part of or the same thing as the Copyright Act, and thus can’t take advantage of the government’s copyright sovereign immunity waiver.

While news editorials are tempted to dismiss the case as “Maybe Congress just likes free software too,” William Patry’s ongoing coverage of the case digs a bit deeper. He points out both that the DMCA is outside of and not a part of the Copyright Act, but also the astute policy observation – it’s hypocritical to heavily push similar “copyright-plus” provisions abroad while not even complying with them domestically.

[Eric’s additional comment: On that point, I remember the 1990s debates over “softlifting,” the installation of software on more computers than the license permits. When the SPA (now the SIIA) would go to Congress to lobby against softlifting, they would routinely harp on the fact that the US government was one of the biggest softlifting abusers.]