Contact Us Today! (877) 276-5084

Attorney Steve® Blog

Software disputes with the government can trigger DMCA and copyright infringement claims

Posted by Steve Vondran | Jan 16, 2018 | 0 Comments

Copyright Case Briefs – Blueport Company, LLC v. USA (July 25, 2008), United States Court of Appeals, Federal Circuit


Blueport Co. (“Blueport”) brought this action against the United States for copyright infringement and violations of the Digital Millennium Copyright Act of 1998 (“DMCA”).


Blueport claimed that the U.S. Air Force infringed Blueport's copyright on a software program known as “the AUMD program.” The AUMD program was written by Air Force Technical Sergeant Mark Davenport. On March 6, 2000, Davenport assigned all his rights in the AUMD program to Blueport.

The “AUMD program” was conceived to update and redesign the Air Force Manpower Data System (“MDS”), a database containing manpower profiles for each unit in the Air Force. Davenport learned the computer programming skills necessary to write the AUMD program on his own time and with his own resources. Davenport then wrote the source code for the AUMD program while at home on his personal computer, intending that other Air Force manpower personnel would use it.

In June 1998, Davenport shared an early version of the program with a fellow coworker, and both tested the program on the MDS at work during regular business hours. Based on the results of this testing, Davenport made changes to the source code of the AUMD program on his home computer. Davenport did not at that time, or at any time thereafter, bring the AUMD program's source code to work or copy it onto Air Force computers.

Davenport shared the AUMD program with colleagues by giving them a computer disk containing the program or by personally installing the program on their computers. Later, Davenport posted the AUMD program on an Air Force web page so that Air Force manpower personnel could download it directly. He also provided AUMD training and continued to modify the program based on feedback he received.

Eventually, the Air Force became concerned with the AUMD program's dependence on Davenport. Davenport's Air Force superiors asked him to turn over the source code for the program, which Davenport always kept on his home computer. When he refused to turn over the source code, his superiors threatened him with a demotion and a pay cut, and excluded him from the Manpower User Group's advisory authority. It was then that Davenport assigned all his rights in the AUMD program to Blueport.

Rather than negotiate with Blueport, the Air Force contracted with Science Applications International Corporation (“SAIC”) to recreated the AUMD program. At the request of the Air Force, SAIC programmers modified the AUMD program's object code to extend its expiration date. This modification allowed Air Force manpower personnel to continue to use the AUMD program despite Davenport's refusal to provide the source code.


Blueport brought the present claims in 2002, suing the Government for copyright infringement and violations of the DMCA.  Specifically, Blueport argued that the Air Force infringed its copyright in the AUMD program. In addition, Blueport argued that the Air Force violated the DMCA by extending the expiration date in the AUMD program's object code—thus circumventing the measures taken by Blueport to prevent unauthorized use of the program. The CFC dismissed Blueport's claims for lack of jurisdiction on the ground that the Government had not waived its sovereign immunity for any of the claims. Blueport appealed.


Can sovereign immunity be impliedly waived? Does a company have standing to sue on behalf when its rights stem from a person who once fell within the three provisos which bar copyright infringement claims against the Government?


  • 1498(b) grants copyright owners a right of action for copyright infringement against the UnitedStates, subject to three provisos:
  • 1498(b) does not provide a Government employee a right of action “where he was in a position to order, influence, or induceuse of the copyrighted work by the Government.”
  • 1498(b) confers no right of action “with respect to any copyrighted work prepared by a person while in the employment or service of the UnitedStates, where the copyrighted work was prepared as a part of the official functions of the employee.”
  • 1498(b) confers no right of action “with respect to any copyrighted work … in the preparation of which Government time, material, or facilities were used.” 


On appeal, Blueport made three arguments challenging the CFC's dismissal of its copyright infringement claim. First, Blueport argued that the provisos in § 1498(b) are affirmative defenses that must be proven by the Government, rather than jurisdictional limitations that Blueport itself must overcome. Second, Blueport argued that even if the § 1498(b) provisos are jurisdictional, the Government has the burden to show that Blueport's claims are barred by one of the provisos. Third, Blueport argues that its copyright infringement claim does not fall within any of the §1498(b) provisos.

The Court disagreed on all three counts.

  • Limitation on Claims

The Court noted that whether a limitation on claims which may be brought against the government is jurisdictional – i.e., limits the scope of the Government's waiver of sovereign immunity—or is merely an affirmative defense that may be raised by the Government, depends on the language and context of the statute at issue. The Court held that the text and structure of § 1498(b) demonstrate that the three provisos to the waiver of sovereign immunity are jurisdictional limitations. First, the fact that these provisos are part of the same subsection as the general waiver of sovereign immunity for copyright infringement indicates that they define the scope of the Government's waiver, and not the Government's affirmative defenses. Second, the provisos themselves are phrased in terms of withholding a waiver of sovereign immunity for certain “rights of action.” The Court held that the most natural reading of § 1498(b) was that Congress had not waived sovereign immunity for any claim that falls within the scope of the § 1498(b) provisos. Rather, the Court interprets the provisos of § 1498(b) as carving out three classes of copyright infringement claims from the Government's general waiver of sovereign immunity for copyright infringement.

  • Governmental Burden of Proof 

To support its claim that the Government has the burden of proving that its claim is barred by one of the provisos, Blueport analogizes to cases in other circuit courts which imposed the burden on the Government to prove the exceptions to the waiver of sovereign immunity in the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2680. The Court notes that other circuit courts have declined to follow the cases cited by Blueport.

The Court agrees with the latter circuits. The Court notes that the cases cited by Blueport are interpreting the FTCA, which is not at issue in this case. It also noted that the circuits were divided over whether the FTCA cases were consistent with Supreme Court precedent, particularly precedent set in Gaubert. Third, the Court saw no reason to interpret 28 U.S.C. § 1498(b) contrary to the long-established practice of placing the burden of establishing jurisdiction on the party “who claims that the power of the court should be exerted in his behalf.” Finally, the Supreme Court has made it clear that “the burden of establishing the contrary rests upon the party asserting jurisdiction.” Therefore, the Court affirmed the CFC's ruling that Blueport had the burden of showing that its claims is not barred jurisdictionally by the § 1498(b) provisos.

  • Copyright Infringement Claim Does Not Fall Within Provisos

The Court held that because it agreed with the CFC that Blueport's claim was barred by the “order, influence, or induce” proviso, it did not need to address whether the claim was also barred by the remaining provisos.

Many of the facts found by the CFC demonstrated that Davenport was in a position to “order, influence, or induce use of the copyrighted work by the Government. Because Blueport's rights in the AUMD program were derived from Davenport, Blueport's claim is precluded.

The Court also rejects Blueport's claim that it may bring a copyright infringement claim against the Air Force for use of the AUMD program after Davenport loses his position of influence. Nothing in § 1498(b) suggests that a party who was in a position to influence the Government's use of a copyrighted work can later bring a claim against the Government for continued use of that work after he lost his position of influence. Moreover, it declines Blueport's invitation to read such an exception into the “order, influence, or induce” proviso.

  • Can Waiver be Inferred? 

Davenport also argues that a waiver of sovereign immunity for DMCA claims should be inferred. The Court rejects this because it is well-established that a waiver of sovereign immunity “cannot be implied but must be unequivocally expressed.” 


The Court here ruled on the issue of whether sovereign immunity can be impliedly waived by Congress, and analyzed the various provisos excepting instances where one may sue the government for copyright infringement.

This blog was written by Ms. Claudia Lin, U.S.C. law student.

Contact a Copyright Infringement Litigation Law Firm

We can help both Plaintiff copyright holders and those accused of infringement.  We have a strong background in copyright law and have extensive federal court experience.  Call (877) 276-5084 for a free initial consultation.

About the Author

Steve Vondran

Thank you for viewing our blogs, videos and podcasts. As noted, all information on this website is Attorney Advertising. Decisions to hire an attorney should never be based on advertising alone. Any past results discussed herein do not guarantee or predict any future results. All blogs are written by Steve Vondran, Esq. unless otherwise indicated. Our firm handles a wide variety of intellectual property and entertainment law cases from music and video law, Youtube disputes, DMCA litigation, copyright infringement cases involving software licensing disputes (ex. BSA, SIIA, Siemens, Autodesk, Vero, CNC, VB Conversion and others), torrent internet file-sharing (Strike 3 and Malibu Media), California right of publicity, TV Signal Piracy, and many other types of IP, piracy, technology, and social media disputes. Call us at (877) 276-5084. AZ Bar Lic. #025911 CA. Bar Lic. #232337


There are no comments for this post. Be the first and Add your Comment below.

Leave a Comment

Contact us for an initial consultation!

For more information, or to discuss your case or our experience and qualifications please contact us at (877) 276-5084. Please note that our firm does not represent you unless and until a written retainer agreement is signed, and any applicable legal fees are paid. All initial conversations are general in nature. Free consultations are limited to time and availability of counsel and will depend on the type of case you are calling about (no free consultations for other lawyers). All users and potential clients are bound by our Terms of Use Policies. We look forward to working with you!
The Law Offices of Steven C. Vondran, P.C. BBB Business Review