By Scott Cameron

The United States Government, which created the courts and a legal system to provide an avenue to seek redress for injury, is immune from suit in that system unless the Government agrees to be sued by waiving its immunity. This is commonly known as “sovereign immunity,” and allows many lawsuits to be dismissed at the pleading stage. On July 25, 2008, the U.S. Court of Appeals for the Federal Circuit issued an opinion regarding the scope of sovereign immunity as applied in a copyright infringement case. 

The Federal Government has waived its immunity for suits based on its infringing the rights of copyright owners. It is a rather limited waiver, however, and allows the Government to infringe much more freely than a private party. Last week’s Federal Circuit decision, Blueport Co., LLC v. United States, shows how easy it can be for a government employee to lose his rights to work he has created.

In Blueport, Air Force Technical Sergeant Mark Davenport was employed as a manager of the Air Force Manpower Data System, a database containing manpower profiles for the Air Force. He was also a member of the Air Force Manpower User Group, a group of manpower personnel that provided guidance on the use of the MDS. Davenport believed that the software used to run the MDS was not adequate, and set out to write his own software. The Air Force refused to train him on computer programming, so Davenport learned programming on his own, on his own time, and at his own expense. 

Davenport wrote a software program – the AUMD program – to use with the MDS. He wrote it on his own time at his home computer. He brought the finished program to work and installed it on his work computer, shared it with his co-workers, and posted it on the Air Force’s website so that Air Force manpower personnel could download and use it. He modified the program based on feedback he received, and added an automatic expiration to require users to download the newest version of the AUMD program. He even gave a presentation on the AUMD program to senior Air Force manpower officers at an annual conference. 

The Air Force decided it needed the AUMD program, and asked Davenport for the source code. Davenport refused to simply turn it over; it was his program, after all. The Air Force threatened him with demotion and a pay cut. Davenport responded by assigning all his rights to Blueport, who contacted the Air Force to negotiate a license agreement for the use of the AUMD program. The Air Force had other ideas, and went to SAIC to recreate the program. SAIC modified the AUMD program’s source code to extend the expiration date, which allowed Air Force personnel to continue to use the program. Davenport sued.

Common sense screams “This is not right!” Davenport wrote the program on his own, at his own expense, not using any government computers, so he should own the rights to it. The Air Force can’t just take it! That may be, but remember, it’s the Government, and since the Government makes the rules, it gets to decide which ones to play by. And in this case, it brought out the sovereign immunity rule.

Section 1498(b) of title 28, United States Code, contains the waiver of immunity for copyright infringement. As the Federal Circuit pointed out, it “grants copyright owners a right of action for copyright infringement against the United States, subject to three provisos.” First, there is no right of action where the employee “was in a position to order, influence, or induce use of the copyrighted work by the Government.” Next, there is no right of action where the employee prepared the work as part of his or her “official functions.” Finally, there is no right of action when “Government time, material, or facilities were used” in the creation. 

After first deciding that these three provisos are jurisdictional limitations and not affirmative defenses, the Court of Appeals agreed that Blueport’s claim was subject to the first proviso, in that Davenport “influenced or induced” the AUMD program’s use by the Air Force. “Davenport’s position as a member of the Air Force manpower community gave him access and authority to distribute the AUMD program freely to his colleagues.” Therefore, his claim was precluded by the first proviso, and the court did not reach the other provisos. The lower court had held that all three provisos each barred Blueport’s suit. The Government’s waiver of immunity is rather limited.

Blueport also sued for violations of the Digital Millennium Copyright Act of 1998, which provides that “no person shall circumvent a technological measure that effectively controls access to a work protected under” the Copyright Act. Blueport claimed that the modification of the expiration date violated this statute. The Federal Circuit didn’t reach the merits of this claim, however. Instead, it held that the Government has not waived its sovereign immunity for claims under the DMCA, and therefore is immune from suit. The court based its opinion on finding that the term “person” in the DMCA does not include the term “sovereign.” Likewise, section 1498(b) does not include a waiver for claims under the DMCA, and a waiver of sovereign immunity must be express, not implied. 

An interesting, although for Davenport unsatisfying, distinction can be drawn between this case and a case involving a “work for hire” under the Copyright Act. The copyright of a work for hire is owned by the employer, not the employee. The Government never claimed that it owned the copyright here. It just couldn’t be sued for infringing Davenport’s rights. The lesson to be learned is simple. If you are a government employee, and write a program (or book, manual, etc.) that will make your work place better or more efficient, think before you simply bring it to work and share it. You may be giving your employer a gift you didn’t intend to give.