How about a private ftp server with an easy to guess user and password combination such as anonymous/anonymous or maybe admin/admin. Or perhaps you leave the door to your house(dorm room) unlocked and someone makes a copy of your data without your express permission. We can cut this line of argument as thin as we want to...and still not have avoided the inevitable situation of having to watch something go to court to create precedent.
End of the day, The US government is in a unique position in that it can redefine the rules for itself at the drop of a hat. Already there are clauses in the US code which set statutory limits on damages the federal government can pay as well to a US citizen who makes an infringement claim. And in fact those clauses actually define a concept of willful intent to set the damage aware(so yes intent does come into play to some extent). However compared to the cost of the lost munition itself, the maximum capped damage award is really not that big of a cost. I fully expect that if the issue of munitions (or generally captured US military equipment) comes up for discussion in a court room Congress will feel the urge to carve this out as an explicit fair-use case without losing much sleep over it.
The DoD is doing the bulk of protecting itself by demanding contractors hand over ownership of any proprietary code to the Defense Department instead of holding on to it as a contractor. Which is interesting...
But the real question I have, and I'm sure this will actually be put to the test at some point is the following. Is the federal government really one entity or does distribution clauses latch when one governmental agency hands code to another agency? Is the Defense department itself one entity? Handing code between the Navy and the Airforce..does that latch the distribution clause? They have their own separate logistics and r&d budgets..managed as separate from a day-to-day logistics pov. If they share it with Homeland...is it distribution? I'm really not sure that the federal government can be view as one entity for the purposes of distribution. I'm not even sure the DoD should be view that way...considering how compartmentalized and resource competitive each agency inside the DoD is with the others.