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What happens if the Federal Government infringes your copyright?

Nov 11th, 2017 | By | Category: Copyright Litigation

Copyright Infringement Lawyer –  Claims against the Government – Court of Federal Claims [28 U.S.C. 1498]

what is 28 u.s.c 1498

 Introduction

This blog discusses “The People’s Court” (the Court of Federal Claims) and what your legal options may be when the federal government or their agents infringe on your copyrights.   You may have a claim under Copyright Section 1498(b).  This blog provides a general overview of these types of claims.  In some cases a Plaintiff may not have to file their claims in the Court of Federal claims.

What is the Court of Federal Claims?

The Court of Federal Claims is established to assist people who have suffered financial injury due to copyright infringements (and also patent infringements) by the federal government.  This court also has jurisdiction over other governmental caused injuries such as government contract disputes, bid protests, oil spills, unjust conviction cases, vaccination injuries, and tax refund suits for example.

The Court is located at Howard T. Markey National Courts Building  717 Madison Place, NW, Washington, DC 20439.  Phone (202) 357-6400.

What law governs the Copyright Infringement Suits against the government?

According to their Court of Federal Claims website:

Copyright Section 1498(b)

Section 1498(b) governs the government’s use of copyrighted works:

Hereafter, whenever the copyright in any work protected under the copyright laws of the United States shall be infringed by the United States, by a corporation owned or controlled by the United States, or by a contractor, subcontractor, or any person, firm, or corporation acting for the Government and with the authorization or consent of the Government, the exclusive action which may be brought for such infringement shall be an action by the copyright owner against the United States in the Court of Federal Claims for the recovery of his reasonable and entire compensation as damages for such infringement, including the minimum statutory damages as set forth in section 504(c) of [the Copyright Act].

Under § 1498(b), federal employees may bring actions against the government except where:

(1) the employee “was in a position to order, influence, or induce use of the copyrighted work by the Government”;

or

(2) the copyrighted work “was prepared as a part of the official functions of the employee, or in the preparation of which Government time, material, or facilities were used.”

In Blueport Co. v. United States, the Federal Circuit held that these first two provisos are jurisdictional requirements and act as a limit on the scope and application of § 1498(b).74 Section 1498(b) also contains a third provision that before filing an action in the USCFC, the head of a government agency or a corporation owned or controlled by the states can enter into a settlement agreement with the copyright owner and “settle the claim administratively out of available appropriations.”

At first blush, there are a number of similarities between copyright infringement actions under § 1498(b) and patent infringement actions under § 1498(a). As with patent infringement, the government can only be subjected to monetary damages in the form of “reasonable and entire compensation.” Infringement of a copyright by a contractor must be “for the government” with the “authorization or consent” of the government in order to confer jurisdiction on the USCFC. There are also some stark differences between subsections (a) and (b). Unlike § 1498(a), which makes no reference to the term “patent infringement,” the cause of action under § 1498(b) is explicitly called “infringement,” implicating the definition of infringement under 17 U.S.C. § 106.76

Moreover, unlike patents that are exclusively a federal government property grant, there are two sources of copyright grants: the Copyright Act codified in title 17 of the United States Code and state common law. Under § 1498(b), the government has only waived sovereign immunity with respect to works “protected under the copyright laws of the United States,” meaning under the copyright laws codified in title 17.77 A copyright owner is subject to certain restrictions in the Copyright Act, most significantly the requirement that the copyright be registered with the Copyright Office before bringing suit as set forth in 17 U.S.C. § 411(a).

The USCFC has also seen copyright infringement actions related to software.  While software can be either patented or copyrighted, the FAR contains mandatory rights that a software license agreement must confer on the government,

“[n]otwithstanding any contrary provisions contained in the Contractor’s standard commercial license.” These FAR provisions are sweeping, and may be fatal to a claim of either patent or copyright infringement before the USCFC.

FAR 52.227-19(b) provides that the “commercial computer software” delivered pursuant to a government contract “may not be used, reproduced, or disclosed by the Government,” except that the commercial computer software may be:

(1) used or copied for use with the computer(s) for which it was acquired, including use at any government installation to which the computer(s) may be transferred;

(2) used or copied for use with a backup computer if any computer for which it was acquired is inoperative;

(3) reproduced for safekeeping or backup purposes;

(4) modified, adapted, or combined with other computer software;

(5) disclosed to and reproduced for use by support service contractors or their subcontractors;

and

(6) used or copied for use with a replacement computer

What about sovereign immunity?

This is an issue that needs to be closely examined BEFORE filing a copyright infringement suit.  You would not want to sue the government only to find out that they are immune to being sued.  This issue was addressed in the case of

In the Supreme Court of the United States

BLUEPORT COMPANY, LLC, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT

By enacting 28 U.S.C. 1498(b), Congress has waived the government’s sovereign immunity for certain claims of copyright infringement. When the federal gov ernment is alleged to have infringed a copyright, Section 1498(b) provides that “the exclusive action which may be brought for such infringement shall be an action by the copyright owner against the United States in the Court of Federal Claims.” 28 U.S.C. 1498(b).

Section 1498(b) waives the government’s sover eign immunity for claims that the United States has in fringed protected copyrights.

That waiver is subject to three express limitations set forth in Section 1498(b) itself.

First, a government employee may not sue the United States for copyright infringement “where he was in a position to order, influence, or induce use of the copyrighted work by the Government.” 28 U.S.C. 1498(b).

Second, Section 1498(b) confers no right of action “with respect to any copy righted work prepared by a person while in the employment or service of the United States, where the copy righted work was prepared as a part of the official functions of the employee.”

Third, Section 1498(b) confers no right of action “with respect to any copy righted work in the preparation of which Government time, material, or facilities were used.

The basic facts of this case deal with the following (I will be doing a full case brief on this so stay tuned):

“Petitioner alleges that the United States Air Force infringed petitioner’s copyright on a computer software program known as “the AUMD program.” The AUMD program was created by Air Force Technical Sergeant Mark Davenport. Ibid. After creating an initial version of the AUMD program at home, Sergeant Davenport shared copies of it with his co- workers posted it on an official Air Force web page, trained Air Force personnel to use it, id. at 4a; and demonstrated it to senior Air Force personnel at an annual conference, As the AUMD program became popular within the Air Force, Sergeant Davenport continued to improve it based on feedback from his co-workers.  As a result of the improvements, Sergeant Davenport released ten different versions of the AUMD program between May 28, 1998, and January 5, 2000.”

Appeals might find there way to the United States Supreme Court

If you apply for, and are denied compensation, appeals may be taken to a US federal court of appeals, and if denied, a petition to the United States Supreme Court via writ of certiorari.

Contact a Copyright Infringement Attorney

To have your case reviewed call us at (877) 276-5084.  Cases that must be brought before the Court of Federal Claims are subject to local rules of admission and approval of representation by the Court.

 

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