Filewrapper-old

Federal Circuit addresses scope of immunity waiver for copyright and DMCA claims
July 27, 2008
In a decision Friday, the Federal Circuit affirmed a decision from the United States Court of Federal Claims dismissing a copyright holder's claims for lack of jurisdiction on the ground that the Government had not waived sovereign immunity. The suit arose from alleged copyright infringement and an alleged violation of the Digital Millennium Copyright Act of 1998 (DMCA). The Federal Circuit found that the CFC's decision did not contain any reversible legal error in determining that there was no waiver of sovereignty in either the copyright infringement claim or the claim of a violation of the DMCA. Specifically, the court held that because the author of the copyrighted software was, by virtue of his employment in the Air Force's Manpower User Group, in a position to "order, influence, or induce use" of the software by the Government, thereby placing the suit outside the scope of waiver provided in 28 U.S.C. § 1498(b). Further, the government has not waived immunity for DMCA claims. As a result, the court affirmed the dismissal of the case.More regarding Blueport Co. v. United States after the jump.Air Force Technical Sergeant Mark Davenport wrote a software program known as "the AUMD program" while working as a manager of the Air Force Manpower Data System (MDS). The MDS is a database containing manpower profiles for each unit in the Air Force, and Davenport's job included updating the MDS with new data and providing reports to Air Force personnel upon request. Because he thought the software at the time was inefficient, Sergeant Davenport decided to come up with new software to operate the database. After teaching himself the programming skills necessary to write the AUMD program, he wrote the software on his own time and with his own resources.Sergeant Davenport then shared the software with a coworker for testing, and took the results of this to fix some glitches in the program. Later, Davenport began sharing copies of the program with others in the Air Force by giving them a disk with the program on it, personally installing it on their computers, and later by posting it on the Air Force's website to allow others to download the program. As he was continuously updating the program, he added an automatic expiration date that would cause the user's version to stop working, requiring them to download the latest version.After much success, Davenport's superiors in the Air Force asked him to turn over the source code for the program, but he refused, despite being threatened with demotion and reduction in pay. Davenport assigned all his rights in the AUMD program to the plaintiff, Blueport. The Air Force refused to accept a license to use the program, and instead hired another firm (SAIC) to independently reproduce the software. SAIC modified Davenport's object code (he never turned over the source code) to circumvent the expiration date protocol he had included.Blueport sued the Government for copyright infringement in using the AUMD program, and for violations of the DMCA from hiring SAIC to manipulate the code to extend the expiration date. The Court of Federal Claims dismissed the claims for lack of jurisdiction on the ground that the Government had not waived its sovereign immunity. Blueport appealed.The Federal Circuit affirmed. The court first examined the scope of the Government's waiver of sovereign immunity for copyright infringement under 28 U.S.C. § 1498(b). That section grants copyright owners a right of action for copyright infringement against the United States, except in three circumstances:
  1. When a government employee "was in a position to order, influence, or induce use of the copyrighted work by the Government";
  2. When the work was "prepared by a person while in the employment or service of the United States, where the copyrighted work was prepared as a part of the official functions of the employee"; and
  3. When "Government time, material, or facilities were used" in preparation of the work.
While the CFC held Blueport's claim barred separately by all three provisos, on appeal, the Federal Circuit addressed only the first. As an initial matter, the court held the scope of the waiver to be jurisdictional, not an affirmative defense. This was based on two facts: First, the provisos are part of the same subsection as the general waiver of sovereign immunity for copyright infringement, showing they define the scope of the Government's waiver, rather than the Government's affirmative defenses; second, the provisos themselves are phrased in terms of withholding a waiver of sovereign immunity for certain "rights of action." Accordingly, the provisos were exceptions to the waiver of immunity and therefore jurisdictional, placing the burden on Blueport to show its claims fell within the scope of waiver.The court then held Blueport's claims fell outside the scope of the waiver. Because Sergeant Davenport's position gave him the ability to distribute the AUMD program freely to his colleagues, the court found that he was in a position "to order, influence or induce" the use of the program. As a result, the copyright claims were barred under the first proviso in § 1498, and the court did not address whether they were potentially also barred under the other two provisos.The Federal Circuit likewise affirmed the dismissal of Blueport's DMCA claims. The DMCA contains no express waiver of sovereign immunity, instead referring to individual persons, not the Government. The Tucker Act, 28 U.S.C. § 1491, also could not save Blueport's claims. The Tucker Act allows the CFC to have jurisdiction over any claim against the United States if the cause of action entitles the plaintiff to money damages. However, the DMCA does not expressly or impliedly give the right to recover money damages from the Government, so the Tucker Act did not apply. The court also rejected Blueport's argument that DMCA claims should be covered by the same immunity as copyright claims, noting that "the DMCA created new claims for liability that are separate and distinct from claims for copyright infringement." As a result, the court affirmed the CFC's dismissal of the DMCA claims for lack of jurisdiction.To read the full decision in Blueport Co. v. United States, click here.
Post has no comments.
Post a Comment




Captcha Image
Return to the Filewrapper Blog
  Newer Posts Older Posts  

Purpose

The attorneys of McKee, Voorhees & Sease, P.L.C. designed this blog as an informational and educational resource about intellectual property law for our clients, other attorneys, and the public as a whole. Our goal is to provide cutting-edge information about recent developments in intellectual property law, including relevant case law updates, proposed legislation, and intellectual property law in the news.

Disclaimer

McKee, Voorhees & Sease, P.L.C. provides this blog for general informational purposes only. By using this blog, you agree that the information on this blog does not constitute legal or other professional advice and no attorney-client or other relationship is created between you and McKee, Voorhees & Sease, P.L.C. Do not consider this blog to be a substitute for obtaining legal advice from a qualified, licensed attorney. While we try to revise this blog on a regular basis, it may not reflect the most current legal developments. We consciously refrain from expressing opinions on this blog and instead, offer it as a form of information and education, however if there appears an expression of opinion, realize that those views are indicative of the individual and not of the firm as a whole

Connect with MVS

Enter your name and email address to recieve the latest news and updates from us and our attorneys.

Subscribe to: MVS Newsletter

Subscribe to: Filewrapper® Blog Updates

  I have read and agree to the terms and conditions of McKee, Voorhees & Sease, P.L.C.

Captcha Image