The U.S. Court of Appeals for the Federal Circuit affirmed the Court of Federal Claims (CFC) dismissal, on sovereign immunity grounds, of copyright infringement claim and violations of the Digital Millennium Copyright Act of 1998 (DMCA). Blueport Company, LLC, v. United States, Case No. 07-5140 (Fed. Cir., July 25, 2008) (Gajarsa, J.).

A software program, the AUMD software program, was written by Air Force Technical Sergeant Mark Davenport when he was employed as a manager of the Air Force’s Manpower Data System (MDS). MDS is a database containing manpower profiles of each unit of the Air Force. Davenport, finding the existing MDS software to be inefficient, sought to improve it and requested computer program training from the Air Force. His request was denied.

On his own, Davenport learned programming skills and wrote the AUMD source code while at his home and on his home computer. He tested an early version AUMD at work on the MDS and during regular business hours. After making improvements, Davenport provided his MDS colleagues computer disks with AUMD object code versions. He posted an object code version of AUMD on a web site that the Air Force manpower community could download and use. As Davenport improved each AUMD version, he added an expiration date that required a user to download the new version when the old version expired.

Davenport successfully presented the AUMD program to a senior Air Force officer’s conference, where he encouraged his audience to use and adopt the AUMD. With adoption of the AUMD, the Air Force asked Davenport to turn over his source code. He refused and the Air Force excluded him from his work on the MDS.

He then assigned the AUMD program rights to Blueport, which unsuccessfully attempted to negotiate a license for use of the AUMD by the Air Force. To assure continued use, the Air Force engaged a contractor to modify the object code and extend its expiration date. Blueport then sued the Air Force for copyright infringement and for violation of the DMCA. After the CFC dismissed Blueport’s claims based on the Air Force’s sovereign immunity defense, Blueport appealed.

The Federal Circuit affirmed, noting that the United States, as sovereign, is immune from suit save as it consents to be sued, and that a waiver of sovereign immunity is to be strictly construed in terms of its scope in favor of the sovereign. Blueport argued that certain provisions of § 1498 were affirmative defenses to be proven by the government. Specifically, in connection with Blueport’s claim of copyright infringement, the Court reviewed the scope of the waiver of sovereign immunity in § 1498(b) and concluded that the provisos of § 1498(b)—that the copyright claimant is in a position to order, influence or induce use of the copyrighted work by the government; that the copyrighted 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; or that the preparation of the copyrighted work involved use of government time, material or facilities—simply carve out three classes from the scope of the government’s waiver of sovereign immunity for claims of copyright infringement, rejecting Blueport’s affirmative defense argument.

Rather, the Court concluded that Blueport, as copyright claimant, has the burden of showing that its claim is not jurisdictionally barred by § 1498(b). Here, the Court concluded that Davenport fell within the scope of the first proviso class where sovereign immunity was not waived because he had used his position to “influence” and “induce” use of the AUMD program by the Air Force. His later exclusion from the Air Force’s MDS did not create an exception to the first proviso class sufficient to waive sovereign immunity.

As to Blueport’s DMCA claim, the Federal Circuit held that a waiver of sovereign immunity “cannot be implied, but must be unequivocally expressed.” The Court found that the DMCA contains no waiver of sovereign immunity, as the DCMA refers only to individual persons—not the government. As to Blueport’s claim that the Tucker Act, 28 U.S.C. § 1491(a)(1), provides such a waiver of sovereign immunity, the Court stated that the Tucker Act does not create a substantive cause of action, and the claimant must identify a separate source of substantive law that creates the right to claim money damages.