II. Copyright Issues
The federal Copyright Act provides that “any work of the United States Government” cannot be copyrighted, so the government cannot withhold its own software on that basis, assuming it otherwise qualifies as an “agency record.”25 FOIA does not specifically exempt copyrighted materials, and the Copyright Act does not qualify as an Exemption 3 statute.26
For that reason, a private party that has some ownership interest in the agency’s software cannot rely on the Copyright Act to compel its nondisclosure; although, as discussed above, the existence of the copyright may be relevant in determining whether Exemption 4 applies.27 For possible arguments on this point, see the section on Exemption 4.
25 17 U.S.C. § 105.
26 St. Paul’s Benevolent Educ’l & Missionary Inst. v. United States, 506 F.Supp. 822, 830 (D. Ga. 1980). See also Weisberg v. U.S. Dep’t of Justice, 631 F.2d 824, 827-28 (D.C. Cir. 1980) (holding that copyrighted materials can be “agency records” under FOIA); Dep’t of Justice, FOIA Update: Copyrighted Materials and the FOIA, Vol. IV, No. 4 (1983).
27 St. Paul’s Benevolent Educ’l & Missionary Inst., 506 F.Supp. at 829.
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