The U.S. Government and Copyright

Can copyright owners sue the U.S. government for copyright infringement, if so where, and is it worth the effort? How does fair use apply to government reproduction?

You can sue the federal government pursuant to 28 USC 1498(b), you do it in the Court of Federal Claims, and it is rarely worth the effort. Fair use for federal government use was explored in an April 30, 1999 Office of Legal Counsel memorandum.

Until 1960, the doctrine of sovereign immunity seemed to preclude recovery against the United States for infringement. This changed on September 6, 1960 when President Kennedy signed into law an act creating a new Section 1498(b) in title 28. This waiver of sovereign immunity came with attached strings: one can only recover "reasonable and entire recovery for such damages, including minimum statutory damages," no injunctive relief is available, nor attorney's fees. Moreover, corporations owned or controlled by the federal government, contractors and subcontractors, as well as "any person, firm, or corporation acting for the Government and with the authorization or consent of the Government" must be sued in the Court of Federal Claims, with the same limitations on relief. Authorization may be express (as in a contractual clause), extrinsic (as where evidence demonstrates the government's intention to assume liability), or implied (e.g., when the government makes the infringement by the contractor inevitable due to the conditions placed on the contractor). The reference to minimum statutory damages should scare off copyright owners from thinking they can get the enhanced amounts of up to $150,000 per work. In short, monetary recovery is slight, injunctive relief and attorney's fees impossible; litigation against the federal government is not an attractive option. (These provisions do not apply to actions against state governments, but there one has intractable sovereign immunity problems).

In contrast to the very limited relief available in actions against the federal government, when the government is the copyright owner (by transfer only since Section 105 precludes initial ownership), the government will sue in the appropriate district court and is entitled to the full panoply of remedies granted. What's sauce for the goose is not sauce for the gander if the gander is the federal government.

What about fair use? Does the federal government get special breaks there too? This issue was explored in the famous Williams & Wilkins case, 487 F.2d 1345 (Ct. Cl. 1973), aff'd by an equally divided Court, 420 U.S. 376 (1975), and in an April 30, 1999 memorandum by the Office of Legal Counsel Memorandum written in large part by two outstanding lawyers who are now in private practice, Randy Moss and Marty Lederman (OLC Memorandum). Williams & Wilkins involved massive photocopying by government libraries. Over a dissent that called it the "Dred Scott" decision of copyright law, the Court of Claims excused the copying, and after oral argument the Supremes split four to four. Congress thereafter dealt with some of the issues in Section 108 of the 1976 Act.

Randy and Marty concluded in their Memo that there is no per se rule dictating that all federal government use is a fair use. In running through the fair use factors, they noted that with respect to the first factor, the government typically makes photocopies for "secondary" purposes; these are considered to be for the public benefit, and rarely for a profit making purpose. Certainly repackaging a copyrighted work and selling it at the GPO falls outside acceptable government and fair use, but why doesn't the avoidance of available licensing fees also impact on the equation?

It was the fourth factor, and the effect that the existence of licensing through the Copyright Clearance Center that particularly interested OLC, including the circularity problem discussed in yesterday's post. Following Campbell and Judge Leval's 1990 Harvard Law Review article ("Toward a Fair Use Standard," 103 Harv. L. Rev. 1105)(Randy clerked for Judge Leval) the OLC Memo argued that market harm is a matter of degree and that lost licensing fees should be germane only if the harm raises to the level of deterring the creation and publication of creative works. But how can one establish such a degree of harm, say in the case of scientific journals? And if one does prove that the creation and publication of creative works has been deterred, isn't is surely too late?

As a matter of abstract principle, though, the OLC Memo is very sound (except perhaps for its discussion of the relationship between Sections 107 and108, but that's a matter of friendly banter among us three), but in practice, the government routinely engages in systematic photocopying of the type condemned in Section 108 and in downloading of copyrighted works. It gets away with such conduct not because it is fair use but because it is not worth suing.

I highly recommended reading the OLC Memo in exploring the matter further, and in my fair use treatise I lay out my arguments on the relationship between Sections 107 and 108. Cf. the OLC memo footnote 12.