United States Court of Appeals for the Federal Circuit
2007-5140
BLUEPORT COMPANY, LLC,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
Kurt M. Rylander, Rylander & Associates, PC, of Vancouver, Washington, argued
for plaintiff-appellant.
Scott Bolden, Senior Trial Counsel, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, argued for defendant-appellee.
With him on the brief were Jeffrey S. Bucholtz, Acting Assistant Attorney General, and
John J. Fargo, Director.
Appealed from: United States Court of Federal Claims
Judge Lawrence J. Block
United States Court of Appeals for the Federal Circuit
2007-5140
BLUEPORT COMPANY, LLC,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
Appeal from the United States Court of Federal Claims in 02-CV-1622, Judge Lawrence
J. Block.
___________________________
DECIDED: July 25, 2008
___________________________
Before MICHEL, Chief Judge, CLEVENGER, Senior Circuit Judge, and GAJARSA,
Circuit Judge.
GAJARSA, Circuit Judge.
This is an action brought by Blueport Co. (“Blueport”) against the United States
for copyright infringement and violations of the Digital Millennium Copyright Act of 1998
(“DMCA”), Pub. L. No. 105-304, 112 Stat. 2860 (Oct. 28, 1998), codified at 17 U.S.C.
§ 1201, et seq. The Court of Federal Claims (“CFC”) dismissed Blueport’s claims for
lack of jurisdiction on the ground that the Government has not waived sovereign
immunity for any of Blueport’s claims. Because the CFC’s decision contains no
reversible legal error, we affirm.
BACKGROUND
In this case, Blueport claims that the Government—specifically 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.
When Davenport wrote the AUMD program, he was employed as a manager of
the Air Force Manpower Data System (“MDS”), a database containing manpower
profiles for each unit in the Air Force. In his capacity as an MDS Manager, Davenport
updated the MDS with new data and provided reports from the MDS to Air Force
personnel upon request. Davenport was also a member of the Air Force’s Manpower
User Group, a group of manpower personnel from each of the Air Force’s major
commands who provided guidance on the use of the MDS. Based on his experience
with the MDS, Davenport concluded that the software the Air Force used to run the
MDS was inefficient and began seeking ways to redesign the software program.
Davenport initially requested training in computer programming from the Air Force, but
his request was denied. Undeterred, 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 1 for the AUMD program while at
1
Source code is the text of a software program written in a human-readable
programming language. Microsoft Computer Dictionary 491 (5th ed. 2002). Once
written, source code is compiled into machine-readable object code that runs on a
computer. Id. at 372. Software programmers usually provide users with only the object
code in order to prevent users from modifying the program. Theodore C. McCullough,
Understanding the Impact of the Digital Millennium Copyright Act on the Open Source
Model of Software Development, 6 Marq. Intell. Prop. L. Rev. 91, 93-94 (2002).
2007-5140 2
home on his personal computer. Although he wrote the program solely at his home and
at his own initiative, Davenport’s intent in writing the program was 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.
After these initial tests, Davenport began sharing copies of the AUMD program
with other colleagues. At first, 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. As
the program became popular within the Air Force manpower community, Davenport’s
superiors asked him to train additional personnel in its use. During this time, he
continued to modify the program based on feedback he received and, as a result,
improved its functionality and eliminated programming errors. At some point, Davenport
added an automatic expiration date to each new version of the AUMD program so that
users were required to download the newest version when the older one expired.
In September 1998, Davenport gave a presentation to senior Air Force
manpower officers at an annual conference and, according to one of Davenport’s
superiors, “absolutely sold his audience” on the AUMD program. Davenport’s
2007-5140 3
performance report deemed him the “go to troubleshooter for [the] entire [Air Force]
manpower community . . . [and] the most knowledgeable database manager in [the]
career field.” The performance report concluded with a recommendation to promote
Davenport immediately.
Despite Davenport’s success in creating the AUMD program and his willingness
to share it, the Air Force eventually decided it was becoming too dependent on
Davenport for access to the program. Accordingly, Davenport’s superiors asked him to
turn over the source code for the program, which Davenport had 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.
Davenport then assigned all his rights in the AUMD program to Blueport.
Subsequently, Blueport attempted to negotiate a license agreement with the Air Force.
However, the Air Force refused Blueport’s offer and solicited other contractors to
recreate the AUMD program. The Air Force ultimately contracted with Science
Applications International Corporation (“SAIC”). 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.
In 2002, Blueport brought the present claims against the Government for
copyright infringement and violations of the DMCA. Specifically, Blueport argues that
the Air Force infringed its copyright in the AUMD program. In addition, Blueport argues
that the Air Force violated the DMCA by extending the expiration date in the AUMD
2007-5140 4
program’s object code—thus circumventing the measures taken by Blueport to prevent
unauthorized use of the program. 2 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 now appeals. This court has jurisdiction pursuant to 28
U.S.C. § 1295(a)(3).
DISCUSSION
In appeals from the CFC, this court reviews fact findings for clear error and legal
rulings without deference. John R. Sand & Gravel Co. v. United States, 457 F.3d 1345,
1353 (Fed. Cir. 2006) (hereinafter John R. Sand & Gravel I), aff’d, 128 S. Ct. 750 (2008)
(hereinafter John R. Sand & Gravel II). “A finding is ‘clearly erroneous’ when although
there is evidence to support it, the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been committed.” United States v.
United States Gypsum Co., 333 U.S. 364, 395 (1948). Although findings of fact relating
to jurisdictional issues are reviewed for clear error, the ultimate determination of the
CFC’s jurisdiction is a question of law that is reviewed de novo. John R. Sand &
Gravel I, 457 F.3d at 1354.
In this appeal, we are required to consider the scope and application of the
Government’s waiver of sovereign immunity for copyright infringement under 28 U.S.C.
§ 1498(b). We are also required to consider whether the Government has waived its
sovereign immunity for claims brought under the DMCA. In so doing, we bear in mind
two long-established principles of sovereign immunity. First, “the United States, as [a]
2
The DMCA provides that “[n]o person shall circumvent a technological
measure that effectively controls access to a work protected [by a copyright] under this
title.” 17 U.S.C. § 1201(a)(1)(A).
2007-5140 5
sovereign, ‘is immune from suit save as it consents to be sued . . . and the terms of its
consent to be sued in any court define that court’s jurisdiction to entertain the suit.’”
United States v. Testan, 424 U.S. 392, 953 (1976) (quoting United States v. Sherwood,
312 U.S. 584, 586 (1941)). Second, “a waiver of the Government’s sovereign immunity
will be strictly construed, in terms of its scope, in favor of the sovereign.” Lane v. Pena,
518 U.S. 187, 192 (1996); see also Martinez v. United States, 333 F.3d 1295, 1306
(Fed. Cir. 2003) (en banc) (“The ‘limitations and conditions upon which the Government
consents to be sued must be strictly observed and exceptions thereto are not to be
implied.’” (quoting Soriano v. United States, 352 U.S. 270, 276 (1957))).
I.
The waiver of sovereign immunity for copyright infringement in 28 U.S.C.
§ 1498(b) is, in relevant part, as follows:
Hereafter, whenever the copyright in any work protected under the
copyright laws of the United States shall be infringed by the United States,
. . . 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 . . . : 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:
Provided, however, That this subsection shall not confer a right of action
on any copyright owner or any assignee of such owner with respect to any
copyrighted work 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 in the preparation of which
Government time, material, or facilities were used . . . .
(Emphases added). Thus, § 1498(b) grants copyright owners a right of action for
copyright infringement against the United States, subject to three provisos. First,
§ 1498(b) does not provide a Government employee a right of action “where he was in a
2007-5140 6
position to order, influence, or induce use of the copyrighted work by the Government.”
Id. (emphasis added) (hereinafter “the order, influence, or induce proviso”). Second,
§ 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 United States, where the copyrighted
work was prepared as a part of the official functions of the employee.” Id. (emphasis
added) (hereinafter “the official functions proviso”). Third, § 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.” Id. (emphasis added) (hereinafter “the
Government time, material, or facilities proviso”).
The CFC held that Blueport’s copyright infringement claim against the
Government was separately barred by all three provisos in § 1498(b) and thus
dismissed the claim for lack of jurisdiction. On appeal, Blueport makes three arguments
challenging the CFC’s dismissal of its copyright infringement claim. First, Blueport
argues 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 argues 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. We disagree with Blueport on all three arguments and
will address each in turn.
A.
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—
2007-5140 7
or is merely an affirmative defense that may be raised by the Government, depends on
the language and context of the statute at issue. See John R. Sand & Gravel II, 128 S.
Ct. at 754-57; United States v. Brockamp, 519 U.S. 347, 352-54 (1997); United States
v. Beggerly, 524 U.S. 38, 48-49 (1998). For example, both the Supreme Court and this
court have examined the language and context of various statutes of limitations on
claims against the Government to determine whether the time limits they impose are
jurisdictional—and thus not subject to issue waiver by the Government or equitable
tolling. See, e.g., John R. Sand & Gravel II, 128 S. Ct. at 753-54 (reaffirming that the
statute of limitations for the Court of Federal Claims, 28 U.S.C. § 2501, is a jurisdictional
limitation that requires sua sponte consideration); 3 Beggerly, 524 U.S. at 48 ( “Equitable
tolling is not permissible where it is inconsistent with the text of the relevant statute.”);
Martinez, 333 F.3d at 1318 (noting numerous Federal Circuit cases and stating that
“[f]ollowing the Supreme Court’s lead, we have determined that certain statutes of
limitations are subject to equitable tolling and that others are not, depending on the
language and context of the particular limitation statute at issue”). Accordingly, we look
to the text of § 1498(b) to determine whether the limitations therein are jurisdictional.
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
3
The Court also explained in John R. Sand & Gravel II that, just as in suits
between private parties, there is a rebuttable presumption that equitable tolling applies
to suits against the United States. 128 S. Ct. at 755 (citing Irwin v. Dep’t of Veterans
Affairs, 498 U.S. 89, 95-96 (1990)). However, that presumption is not applicable here,
because Blueport’s suit was not dismissed for failure to comply with a statute of
limitations.
2007-5140 8
waiver, rather than the Government’s affirmative defenses. See § 1498(b). Indeed, the
provisos are part of the same sentence in which Congress granted the general waiver of
sovereign immunity for copyright infringement. See id. Second, the provisos
themselves are phrased in terms of withholding a waiver of sovereign immunity for
certain “rights of action.” The “order, influence, or induce” proviso states 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.” Id. (emphases added). Likewise, the “official
functions” proviso and the “Government time, material, or facilities” proviso state that
“this subsection shall not confer a right of action. . . .” Id. (emphasis added). Thus, the
most natural reading of § 1498(b) is that Congress has not waived sovereign immunity
for any claim that falls within the scope of the § 1498(b) provisos. Cf. Zoltek Corp. v.
United States, 442 F.3d 1345, 1350 (Fed. Cir. 2006) (construing 28 U.S.C. § 1498(a) as
not waiving sovereign immunity for infringement of a patented process where the
Government did not perform all steps of the process in the United States).
Accordingly, we interpret 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. This reading comports with the principle that any
uncertainty as to the scope of a waiver of sovereign immunity should be resolved by
construing the waiver narrowly, in favor of the sovereign. Lane, 518 U.S. at 192. It
follows that because “the terms of the Government’s consent to be sued in any court
define that court’s jurisdiction to entertain the suit,” Testan, 424 U.S. at 953, the CFC
2007-5140 9
lacks jurisdiction over any copyright infringement claim within the scope of the § 1498(b)
provisos.
B.
Blueport also argues that even if the three § 1498(b) provisos are jurisdictional,
the Government has the burden of proving that its claim is barred by one of the
provisos. In support, 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. See, e.g.,
Prescott v. United States, 973 F.2d 696, 702 (9th Cir. 1992) (“Because an exception to
the FTCA’s general waiver of immunity although jurisdictional on its face, is analogous
to an affirmative defense, we believe the Sixth and Seventh Circuits correctly placed the
burden on the United States as the party which benefits from the defense.”); Stewart v.
United States, 199 F.2d 517, 520 (7th Cir. 1952) (holding that the exceptions to the
waiver of sovereign immunity in the FTCA are affirmative defenses that must be raised
and proven by the government). Other circuit courts, however, have declined to follow
the cases cited by Blueport. See, e.g., Sharp v. United States, 401 F.3d 440, 443 n.1
(6th Cir. 2005) (noting that Prescott may conflict with the Supreme Court decision in
United States v. Gaubert, 499 U.S. 315 (1991) and declining to address whether the
plaintiff or the Government has the burden of proving the FTCA’s discretionary function
exception); Kiehn v. United States, 984 F.2d 1100, 1105 n.7 (10th Cir. 1993) (same);
Autery v. United States, 992 F.2d 1523, 1526 n.6 (11th Cir. 1993) (same).
We agree with the CFC that the cases cited by Blueport are unpersuasive. First,
these cases all interpret a statute, namely the FTCA, which is not at issue in this case.
2007-5140 10
Second, the circuit courts are divided on whether these FTCA cases are consistent with
Supreme Court precedent, in particular the Court’s decision in Gaubert. Third, we see
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.” McNutt v. Gen. Motors Acceptance Corp.,
298 U.S. 178, 189 (1936). Indeed, it is to be presumed that a cause of action lies
outside the limited jurisdiction of the federal courts. Kokkonen v. Guardian Life Ins. Co.
of Am., 511 U.S. 375, 377 (1994) (citing Turner v. Bank of N. Am., 4 U.S. (4 Dall.) 8, 11
(1799)). Moreover, the Supreme Court has made clear that “the burden of establishing
the contrary rests upon the party asserting jurisdiction.” Id. (citing McNutt, 298 U.S. at
182-83). Accordingly, the CFC correctly held that Blueport had the burden of showing
that its claim is not barred jurisdictionally by the § 1498(b) provisos.
C.
Finally, we consider whether Blueport has met its burden to show that its
copyright infringement claim does not fall within any of the § 1498(b) provisos. Because
we agree with the CFC that Blueport’s claim is barred by the “order, influence, or
induce” proviso, we need not address whether the claim is also barred by the remaining
provisos.
As noted, the “order, influence, or induce” proviso excludes claims by a
Government employee who “was in a position to order, influence, or induce use of the
copyrighted work by the Government” from the waiver of sovereign immunity for
copyright infringement. See § 1498(b). Here, the CFC found that Davenport’s position
as a member of the Air Force manpower community gave him access and authority to
2007-5140 11
distribute the AUMD program freely to his colleagues. Blueport Co. v. United States, 76
Fed. Cl. 702, 723 (2007). In particular, the CFC found that Davenport distributed the
AUMD program both by sharing individual copies with his colleagues and by posting the
program on an Air Force web page so that many more people in the Air Force
manpower community could access it. Id. The CFC also found that Davenport
demonstrated the AUMD program to senior Air Force manpower personnel and was
part of the Manpower User Group’s advisory authority. Id. at 723-25. These fact
findings are not clearly erroneous. In addition, the CFC concluded, based on these
findings, that Davenport was in a position to influence and induce the Air Force’s use of
the program. Id. We agree. Because Blueport’s rights in the AUMD program are
derived from Davenport, we agree with the CFC that Blueport’s copyright infringement
claim against the Government is precluded by the “order, influence, or induce” proviso.
Nevertheless, Blueport argues that even if Davenport was once in a position to
influence or induce the use of the AUMD program by the Air Force, he lost that position
when he was excluded from the Air Force’s Manpower User Group. On this basis,
Blueport argues that it may bring a copyright infringement claim for the Air Force’s use
of the AUMD program after Davenport lost this position of influence. We disagree.
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, we
decline Blueport’s invitation to read such an exception into the “order, influence, or
induce” proviso. See Soriano, 352 U.S. at 276 (explaining that the “limitations and
2007-5140 12
conditions upon which the Government consents to be sued must be strictly observed
and exceptions thereto are not to be implied”).
In sum, the CFC correctly determined that Blueport’s copyright infringement
claim falls within the “order, influence or induce” proviso of § 1498(b). Accordingly,
Blueport’s claim is outside the scope of the Government’s waiver of sovereign immunity
for copyright infringement claims, and the CFC was correct to dismiss the claim for lack
of jurisdiction.
II.
The CFC also dismissed Blueport’s DMCA claims against the Government on the
ground that the Government has not waived sovereign immunity for DMCA claims.
Before the CFC and on appeal, Blueport’s arguments against dismissal of its DMCA
claims amount to a contention that a waiver of sovereign immunity for DMCA claims
should be inferred. However, it is well-established that a waiver of sovereign immunity
“cannot be implied but must be unequivocally expressed.” United States v. King, 395
U.S. 1, 4 (1969).
The DMCA itself contains no express waiver of sovereign immunity. Indeed, the
substantive prohibitions of the DMCA refer to individual persons, not the Government.
See 17 U.S.C. § 1201(a)(1)(A) (providing that “[n]o person shall circumvent a
technological measure that effectively controls access to a work protected under this
title” (emphasis added)); 17 U.S.C. § 1201(a)(1)(B) (providing that “[t]he prohibition
contained in subparagraph (A) shall not apply to persons . . .” (emphasis added)); 17
U.S.C. § 1202(a) (providing that “[n]o person shall knowingly and with the intent to
induce, enable, facilitate, or conceal infringement . . .” (emphasis added)); 17 U.S.C.
2007-5140 13
§ 1203(c)(1) (providing that “a person committing a violation of section 1201 or 1202 is
liable for. . . .” (emphasis added)). As the CFC correctly observed, to hold that the
DMCA includes a waiver of sovereign immunity would “require construing the word
‘person’ to include the term ‘sovereign’.” Blueport Co. v. United States, 71 Fed. Cl. 768,
780 (2006). Blueport’s construction of the DMCA thus violates the rule that a waiver of
sovereign immunity must be express. See King, 395 U.S. at 4.
Blueport also argues that the Tucker Act, 28 U.S.C. § 1491(a)(1), provides a
general waiver of sovereign immunity that authorizes DMCA claims against the
Government. The Tucker Act gives the CFC jurisdiction over “any claim against the
United States founded either upon the Constitution, or any Act of Congress or any
regulation of an executive department, or upon any express or implied contract with the
United States, or for liquidated or unliquidated damages in cases not sounding in tort.”
28 U.S.C. § 1491(a)(1). This court has explained that “because the Tucker Act itself
does not create a substantive cause of action, ‘in order to come within the jurisdictional
reach and the waiver of the Tucker Act, a plaintiff must identify a separate source of
substantive law that creates the right to money damages.’” Jan’s Helicopter Serv., Inc.
v. Fed. Aviation Admin., 525 F.3d 1299, 1306 (Fed. Cir. 2008) (quoting Fisher v. United
States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (en banc in relevant part)). “In the
parlance of Tucker Act cases, that [statutory] source must be ‘money-mandating.’”
Fisher, 402 U.S. at 1172. A statute is money-mandating if it “‘can fairly be interpreted
as mandating compensation by the Federal Government for the damages sustained.’”
United States v. Mitchell, 463 U.S. 206, 216-17 (1983) (quoting Testan, 424 U.S. at
400). Moreover, a statute can be interpreted as money-mandating if it grants the
2007-5140 14
claimant a right to recover damages either “expressly or by implication.” Id. at 217 n.16
(citation omitted).
Here, the DMCA cannot be fairly interpreted as containing either an express or
implied right to recover money-damages from the Government. First, as discussed
above, the substantive prohibitions of the DMCA refer to persons, not the Government.
Second, the DMCA specifically grants jurisdiction over DMCA claims to federal district
courts, not the CFC. See 17 U.S.C. § 1203(a) (providing that “[a]ny person injured by a
violation of section 1201 or 1202 may bring a civil action in an appropriate United States
district court for such violation” (emphasis added)). This court has held that the CFC
lacks jurisdiction to adjudicate claims created by statutes, like the DMCA, which
specifically authorize jurisdiction in the district courts. See, e.g., Ledford v. United
States, 297 F.3d 1378, 1382 (Fed. Cir. 2002) (holding that 26 U.S.C. § 7432(a), which
states “such taxpayer may bring a civil action for damages against the United States in
a district court of the United States,” provides for jurisdiction in the district courts, not the
CFC); LeBlanc v. United States, 50 F.3d 1025, 1030 (Fed. Cir. 1995) (holding that 31
U.S.C. § 3730(h), which states that “[a]n employee may bring an action in the
appropriate district court of the United States for the relief provided in this subsection,”
does not provide jurisdiction in the CFC). Accordingly, we reject Blueport’s argument
that the CFC has jurisdiction over DMCA claims against the Government under the
Tucker Act.
Finally, Blueport argues that even if there is no waiver of sovereign immunity in
the DMCA or the Tucker Act, the waiver of sovereign immunity in § 1498(b) is sufficient.
The CFC properly rejected this argument. This court has held that the DMCA created
2007-5140 15
new claims for liability that are separate and distinct from claims for copyright
infringement. Chamberlain Group, Inc. v. Skylink Techs., Inc., 381 F.3d 1178, 1204
(Fed. Cir. 2004) (“The DMCA does not create a new property right for copyright
owners. . . . The anticircumvention and anti-trafficking provisions of the DMCA create
new grounds of liability.”); see also Storage Tech. Corp. v. Custom Hardware Eng’g &
Consulting, Inc., 421 F.3d 1307, 1318-19 (Fed. Cir. 2005) (discussing the relationship
between copyright infringement and violations of the DMCA). Because a claim for a
violation of the DMCA is not, as Blueport argues, a subset of claims for copyright
infringement, the CFC was correct to hold that the waiver of sovereign immunity in
§ 1498(b) does not extend to claims against the Government pursuant to the DMCA.
Accordingly, the CFC was correct to dismiss Blueport’s DMCA claims for lack of
jurisdiction.
CONCLUSION
For the foregoing reasons, the CFC’s decision dismissing Blueport’s claims
against the Government for lack of jurisdiction is
AFFIRMED.
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