Federal Circuit Affirms Dismissal of Copyright Infringement Claims Against a Government Defendant for Lack of Jurisdiction Based on Sovereign Immunity

Holding:

In this appeal, the U.S. District Court for the Federal Circuit affirmed the Court of Federal Claims' ("CFC") dismissal of the claims of Blueport Co., LLC ("Blueport") against the United States Air Force as a government defendant. Blueport brought claims of copyright infringement and violations of the Digital Millennium Copyright Act of 1998 ("DMCA") against the United States Air Force for having infringed on Blueport's copyrighted software. The CFC dismissed Blueport's action for lack of jurisdiction because the CFC held that the government had not waived its sovereign immunity under 28 U.S.C. Section 1498(b). On appeal, the Federal Circuit sustained the CFC's findings, and rejected Blueport’s argument that the government needed to prove that its suit fell under one of the three exceptions to sovereign immunity stated under Section 1498(b). According to the Federal Circuit, the CFC lacks jurisdiction over any copyright infringement claim within the scope of the Section 1498(b) provisos. With regard to Blueport's DMCA claim, the Federal Circuit likewise found that the Air Force similarly had not waived its sovereign immunity for DMCA claims. In so doing, the Federal Circuit cited the rule that a waiver of sovereign immunity cannot be implied but must be unequivocally expressed.

Detailed Summary:

This is an action brought by Blueport against the United States Air Force (“Air Force”) for copyright infringement and violations of the DMCA, Pub. L. No. 105-304, 112 Stat. 2860 (Oct. 28, 1998), codified at 17 U.S.C. § 1201, et seq. The CFC dismissed Blueport’s claims for lack of jurisdiction on the ground that the Air Force, as a government defendant, had not waived sovereign immunity. Opinion, p.1. In the proceedings before the CFC, Blueport claimed that the Air Force infringed Blueport’s copyright in a software program known as “the AUMD program.” The AUMD program was written by Air Force Technical…

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