Lightning Strikes Copyright Owner Twice

In July I did a post on the United States as a DMCA scofflaw for asserting sovereign immunity against a charge that it had violated the anti-circumvention provisions of Section 10201. Judge Block of the Federal Claims Court tossed out the charge on June 29, 2006, 71 Fed. Cl. 768 (2006). The suit involved a computer program written by an Air Force sergeant (Davenport) in his off-hours, and which he permitted the Air Force to use. (Blueport is the company the sergeant and his uncle set up to exploit the work). Rather than engage in a continuing license with Blueport, the Air Force hired a private contractor to reverse engineer it, but only after hacking into the original program and disabling its expiration date, in order to "buy" time while its private contractor completed the reverse engineered product.

On May 7th, Judge Bock issued a new opinion on Blueport's straight-up copyright claim, 2007 WL 1321740 (Fed. Cl. May 7, 2007). Once again, Judge Block ruled for the government on jurisdictional grounds, but not after conducting a five day trial. The basis for the court's ruling is a novel interpretation of 28 USC Sec. 1498(b):

b) 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 title 17, United States Code: Provided, That a Government employee shall have a right of action against the Government under this subsection except where he was in a position to order, influence, or induce use of the copyrighted work by the Government.

The relevant part is the proviso at the end. The proviso is intended to prevent those who are in a position to get the government to use their works from turning around and suing the government once they do so. That was hardly the case with Technical Sergeant Davenport. Davenport provided copies to members of the Air Force and provided technical assistance. Outrageously, Judge Block used Davenport's helpfulness as an indication that he either actively induced use or was in a position to. Indeed, as Judge Block acknowledged, "the parties do not dispute that Davenport's rank of Technical Sergeant prohibited him from ordering the use of" the program. Even more importantly, though, Davenport's beef was not with what happened during this period, but what happened afterwards, in disabling the time expiration, and putting out a competing product.

Judge Block's sympathy with the government is apparent, in my opinion, from the "Top Gun" introductory paragraphs, and that sympathy seems to have led him to clearly erroneous factual and legal conclusions. Round two to the scofflaws.