# Petition for Writ of Certiorari — Blueport Co., LLC v. United States (No. 08-546) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_0773%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2008 ## Text Supreme as U.S. 01 0 No.08- 08-546 OCT 22 2008 Iw tue OFFICE OF THE CLERK Supreme Court of the United States REELED EF BLUEPORT COMPANY LLC, Petitioner, UNITED STATES OF AMERICA, Respondent. ON PETITIONER VOR A WRIT OF CERTIORARI TO THE UNITED STATES Court OF APPEALS FOR HE FEDERAL CIRCUIT PETITION FOR A WRIT OF CERTIORARI Kurt M. RYLANDER RYLANDER & ASSOCIATES PC 406 West 12 Street Vancouver, WA 98660 (360) 750-9931 Attorneys for Petitioner 218993 g COUNSEL PRESS &O)) 274-3321 © ($00) 359-6859 a QUESTIONS PRESENTED FOR REVIEW (1) Did the Federal Circuit err in shifting the burden onto Plaintiff, after Plaintiff established prima facie jurisdiction, to disprove the defenses enumerated in 28 U.S.C. § 1498(b) thus further enhancing a split between circuit courts of appeal regarding treatment of jurisdictional defenses in suits against the Government? (2) Did the Federal Circuit commit legal error by construing the “order, influence, or induce” proviso of 28 U.S.C. § 1498(b) to not require any nexus between the Government acts alleged to infringe and the alleged position of influence or inducement? i TABLE OF CONTENTS Questions Presented for Review .............. I esc c ees esses sessevensss re Table of Cited Authorities ................... ed ccc ccceccvcvevaeves ee eeeeoereeeeseseeeeseeeeteeoeeeeeeeeeeveeeetseaeeeeee Statement of Facts and Procedural History . Reasons for Granting the Petition ............ A. There Is A Split In The Circuit Courts Over Whether Jurisdictional Defenses In Suits Against The Sovereign Are The Government’s Burden To Prove, Or The Plaintiff’s Burden To Disprove. ........ B. The Federal Circuit Misconsctrued The Section 1498(b) Defenses To Not Require A Nexus Between The Government’s Infringement And The Alleged Position To Order, Influence Or Induce. ......... 14 21 it Contents Page 1. Eliminating The Need For A Nexus Fundamentally Alters The Law Of Licenses As Related To The COUOTIONE, yw sk ici iv sec bieoees 23 2. The Federal Circuit Construction Conflicts With The Separability Of Rights Granted Under 17 U.S.C. ery eae eee eee cn ee 27 C. The Conjunction Of Erroneously Placing The Burden Of Proof On Plaintiff With A Ruling That Requires No Nexus Between The Acts Alleged To Infringe And Those Alleged To Establish The Defenses, Swallows The Section Whole ........... 28 eo rere rete Wena ne the: 29 iv TABLE OF APPENDICES Page Appendix A — Opinion Of The United States Court Of Appeals For The Federal Circuit EPOGIIOG SUF TD, BGS occ cckcccceccsessenss la Appendix B — Opinion Of The United States Court Of Federal Claims Dated May 7, 2007... 2la y TABLE OF CITED AUTHORITIES Page Cases Ariadne Fin. Servs. Pty. Ltd. v. U.S., 133 F.3d 874 (Fed.Cir. 1998) ...............-. 19 Autery v. U.S., 992 F.2d 1523 (11 Cir. 1993), cert. denied, 114 S. Ct 1829 (1994) ......... 14, 17 Blueport v. U.S., 533 Fi3d 1374 (Fed. Cir., July 25, 2008) .... passem Blueport v. U.S.. 76 Fed. Cl. 702 (Fed. Cl., May 07, 2007) .... passim Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 104 S. Ct. 1949, 80 L. Ed. 2d 502 (1984), reh’g denied, 467 U.S. 1267, 104 S. Ct. 3561, ee mF ek | ee 22 Carlyle v. U.S., 674 F.2d 554 (6th Cir. 1982) ................ 14-15 Carson v. Dynegy, Inc., 344 F.3d 446 (5* Cir. 2003) ................. 26 CMS Software Design Sys., Inc. v. Info Designs, Inc., 785 F.2d 1246 (5th Cir. 1986) ............... 26 vi Cited Authorities Page Columbia Pictures Industries, Inc. v. Redd Horne, Inc., 148 F.20 154 (Ge Gir. 1984) ................. 27 Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 1148S. Ct. 2396, ee OO ek 21 Corning Glass Works v. Brennan, 417 U.S. 188, 94S. Ct. 22238, Re oe RUPE ksi oe cee c vce sevcevas 21 Forshey v. Gober, 226 F:'3d 1299 (Fed. Cir. 2000) .............. 21 Frazer v. U.S., 288 F:3d 1347 (Fed. Cir. 2002) .............. 19 Haberman v. Finch, S08 Fo GS4 (2d Cir. 1960)... ow cc cece ceeness 21 Hopland Band of Pomo Indians v. U.S., 855 F2d 1573 (Fed. Cir. 1988) .............. 19 Irwin v. Dept. of Veterans Affairs, 498 U.S. 89, 111 S. Ct. 453, 112 L. Ed. 2d 435 (1990), reh’g denied, og A 2 | ee 18 Vii Cited Authorities Page John R. Sand & Gravel Co. v. U.S., __ US. _, 1288. Ct. 750, 100 L,. Bid. ZG GOT CR) Cw no oc ccc cence ces 19 Kendall v. U.S.., 107 U.S. 128, 28. Ct. 277, pe Se gk Ree ee 19 kiehn v. U.S., 984 F-2d 1100 (10* Cir. 1998S) ............... 17 Lulirama Ltd., Inc. v. Axcess Broadcast Svcs, Inc., 126 Foe Bre CF" Cr WS8T) nn wc cc ccc cwesss 26 Martinez v. U.S., S33 F.3d 1296 (Ped. Cir. 2008) .........0000. 19 MacLean v. U.S., 454 F'3d 1334 (Fed. Cir. 2006) .............. 19 Matter of Government Acquisition of License to Wmployee’s Invention, B-199,026, 60 Comp. Gen. 248, 1981 WL 22453 (Comp. Gen. Feb. 11,1981) .. 24 New York Times Co., Inc. v. Tasini, 533 U.S. 488, 121 S. Ct. 2381, 150 E.. Bd. Be A )Cw.n occ cc cece cecues 27 vill Cited Authorities Page Playmedia Sys. Inc. v. Am. Online, Inc., 171 F Supp. 2d 1094 (C.D. Cal. 2001) ....... 26 Prescott v. U.S., 973. F.2d G36 (OS™ Cir. 190Z) 2... cc eees 14, 15, 16,17 Respect, Inc. v. Fremgen, 897 F. Supp. 361 (N.D. Ill. 1995) ............ 27 Sharp v. U.S., 401 Febd 440 (6" Cir, B00) .. 2.5 cc ccc cedener 17 Smith v. U.S., $43 F. Supp. 160:(D.2.1. 1906) «40... 0c ese. 17 Stewart v. Abend, 495 U.S. 207, 110 S. Ct. 1750, 100 L.. Bed. 2G SGA (ISO) ow cs vs cccckvsuenses 27 Stewart v. U.S., 199 F.2d S17 (7th Cir. 1962) «2... hci cices 15, 16, 17 Strategical Demolition Torpedoe Co. v. U.S., 110 F. Supp. 264, 124 Ct. Ch. Ge Ce CA, EB) nce eee 20 Tcherepnin v. Knight, 389 U.S. 332, 88 S. Ct. 548, 19 2. Be. Bee GO CERT so cea ves ae ens 21 ix Cited Authorities Venture Coal Sales Co. v. U.S.., 370 F.3d 1102 (Fed. Cir. 2004) .............. 18-19 Zoltek Corp. v. U.S., 51 Fed. Cl. 829, 62 U.S.PQ.2d 1366 (2002) ... 15 Statutes re passim EE vse v rene sccccceseseeveceevees 27 EE EE) voce vcs vsescesececeseeecs 1 ED cc ces cess erevevecars passim re passim eS () ee ee 15 EE isc e case ec evsesvecessecnsss 19 DE go oc ese ese seecsans 14, 15, 19 Other Authorities H.R. Rep. 94-1476, 1976 U.S.C.C.A.N. 5659 .... = 27 1 Blueport LLC (“Blueport”) hereby petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Federal Circuit entered in this action on July 25, 2008. DECISIONS BELOW The decision of the United States Court of Appeals for the Federal Circuit affirming the judgment of the United States Court of Federal Claims is reported at 533 F.3d 1374 (J*ed. Cir, July 25, 2008) (Appendix A, la-20a). The judgment of the United States Court of Federal Claims is reported at 76 Fed. Cl. 702 (Fed. Cl., May 07, 2007) (Appendix B, 21a-101a). JURISDICTIONAL STATEMENT This Court has jurisdiction pursuant to 28 U.S.C. § 1254(1) as a petition for writ of certiorari from the July 25, 2008 final decision of the United States Court of Appeals for the Federal Circuit. CONSTITUTIONAL AND STATUTORY PROVISIONS INVOKED Section 1498(b) of Title 28 provides: (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 2 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: Provided, however, That this subsection shail 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: And provided further, That before such action against the United States has been instituted the appropriate corporation owned or controlled by the United States or the head of the appropriate department or agency of the Government, as the case may be, is authorized to enter into an agreement with the copyright owner in full settlement and compromise for the damages accruing to him by reason of such infringement and to settle the claim administratively out of available appropriations. 3 Except as otherwise provided by law, no recovery shall be had for any infringement of a copyright covered by this subsection committed more than three years prior to the filing of the complaint or counterclaim for infringement in the action, except that the period between the date of receipt of a written claim for compensation by the Department or agency of the Government or corporation owned or controlled by the United States, as the case may be, having authority to settle such claim and the date of mailing by the Governmer.t of a notice to the claimant that his claim has been denied shall not be counted as a part of the three years, unless suit is brought betore the last-mentioned date. STATEMENT OF THE CASE Blueport Company LLC (“Blueport”) filed this complaint November 18, 2002, against the Air Force for copyright infringement. The Air Force, impressed with two software programs created by a low ranking enlisted airman, Mark Davenport, collectively referred to as “AUMD”, asked Davenport to donate the program to the Air Force through the Air Force’s IDEA suggestion program. When he refused, the Air Force threatened Davenport with courts martial if he did not release the code. The Air Force then hired a government contractor, SAIC, to hack into AUMD to alter the built-in expiration date function, as well as changing the copyright management and authorship information, so the Air Force could use the programs while SAIC created an “exact replication” of AUMD in a system known as MARS (for Manpower Access Report System). 4 Davenport’s assignee, Blueport, filed an administrative claim, which was denied, and then Blueport brought suit alleging, inter alia, copyright infringement for creation, reproduction and distribution of the hacked versions of AUMD, and for creation, reproduction and distribution of the MARS programs. The Court of Federal Claims ruled after trial that Blueport bore the burden of disproving the Section 1498(b) defenses, and failed to carry that burden, published at 76 Fed. Cl. 702 (2007). The trial court, finding jurisdiction lacking, dismissed Plaintiff’s suit without addressing the merits and entered final judgment in favor of the Government from which an appeal was taken. The Federal Circuit affirmed the judgment, ruling that (1) despite contrary treatment of similar language in jurisdictional defenses of other statutes, and within the same section, that the burden of the Section 1498(b) defenses lay with the Federal employee plaintiff to disprove, and (2) the Section 1498(b) defenses did not require any nexus between the infringing acts and the acts alleged to establish the jurisdictional defenses. The Federal Circuit ruling effectively allows the Government to take an unlimited license in a person’s property without compensation if that person has ever been an employee of the Federal Government. In this ease, Mr. Davenport, while an enlisted member of the Air Force, created a pair of software programs on his own, granted the Air Force a limited permissive license to use that software that expressly and automatically terminated on clear expiration date. Blueport did not sue for infringement for the acts occurring during the D license period, but instead for (a) the Air Force hiring and directing SAIC to hack into and duplicate the software after the expiration date, and (b) the Air Force hiring and directing SAIC to make a duplicate derivate work of the software, known as MARS, during the period the Air Force used the hacked version of Blueport’s software. At the time of the infringing uses (the creation, copying and distribution of hacked versions of AUMD, and the creation, copying and distribution of the derivative work MARS - which was not even addressed by Federal Circuit), Mr. Davenport was not in a position to order, influence, or induce the infringing use, and in fact attempted - to no avail - to prevent the infringing use. Moreover, at the time of the infringing uses, the software was not even owned by Davenport, but had been assigned to Blueport. The Federal Circuit opinion erroneously reads into the statute “. .. except where he was ever in a position to order, influence, or induce any use...” The infringing use and position of influence should and must be wholly and indivisibly conternporaneous, i.e., have a nexus, to fall with in the Section 1498(b) defenses. Without a requirement for nexus the Government is granted a staggering authority to appropriate the property of Federal employees without compensation. The Federal Circuit’s opinion is inconsistent with the statute, and inconsistent with the Congressional intent to expand the rights of Federal employees while preventing self-dealing, not simply a means by which the Government may disregard employee’s rights by causing the exception to swallow the rue. 6 STATEMENT OF FACTS AND PROCEDURAL HISTORY In May of 1998, at the time Davenport wrote the AUMD programs, the Air Force Manpower Specialists used an Oracle Database system called Manpower Data System (MDS) housed on mainframe computers at Gunter Air Force base. FCJAX 133-4'. MDS was very unwieldy for manpower career specialists, who are not computer programmers but mere end users. I/d., 133-4. Manpower career specialists entered data into reports for inclusion in MDS by Gunter, and ran request for reports, which were delivered as print outs or on magnetic tapes from Gunter, requiring very long turnaround times. /d., 133-4, 346. The turn around could be days, and the cumbersome reports, when they came, included significant amounts of superfluous material. Id., 133-4, 228-9. Davenport was a junior enlisted man, a Manpower Specialist, pay grade E-6, when he created the AUMD programs at issue in May 1998. FCJAX 145, 304. He retired at the same pay grade three years later. /d., 284. His official position during that time was a Manpower Data Manager in the Pacific Air Force Command (PACAF). /d., 137. His job was to make sure the system data was updated in a timely manner, to provide data to Manpower groups with the local commands within the Pacific Air Force Command (PACAF), and to teach use of the database MDS system for generating reports and inputting data. /d., 138-9. He was an operator of existing computer programs. /d., 138. There was no requirement 1. FCJAX refers to the Federal Circuit Joint Appendix. 7 for programming in his job functions. /d., 138. He was never a reporting senior over other Air Force personnel, nor was he a direct supervisor over anyone. /d., 137. He did not possess contracting auti:ority to issue or modify contracts. /d., 141. Air Force enlisted personnel have official printed job descriptions that define the “official functions” of a Manpower Specialist in published Career Field Education and Training Plans (CF ETP) for the Manpower field.2 FCJAX 743-45, 747, 749, 752-3, 755, 793, 804. The CFETP is the “job description” for each listed career fie!d in the Air Force. /d., 309. There is an Air Force Manual (AF MAN) for each Air Force Specialty Code (AFSC). /d., 137. The “3U0” AFSC denoted the Manpower Career Field. Davenport’s AFSC was 3U071 during the pertinent time period — the “071” indicating his pay grade &-6. Davenport later requested and received a V prefix, making it V3U071. /d., 138, 239. Davenport's award of the “V” prefix was based on his skills in monitoring the computer applications—not any other basis for V prefix. /d., 141, 239. The V prefix does not apply to the Computer Programmer career field, which is an entirely separate AFSC, the “38C” AFSC. Id., 142, 143-4, 560, 804. No computer skills sets are listed or required for « Manpower Technician other than use of standard PC-)hased office programs. /d., 140. There is no programming requirement for the Manpower career field. /d., 140. CMS (Chief Master Sergeant) 2. In denying Blueport’s administrative claim, the Air Force mistakenly believed Mr. Davenport was a Communications- Computer Systems Career Field, AFSC 3Cxxx-series, rather than V3U071. FCJAX 93, 2™ Col., bottom paragraph. 8 Dant, the most senior enlisted Manpower Specialist in the Air Force with over twenty years experience in the Manpower field, testified that he did not know how to program, never did, and that programming was not a job requirement. /d., 305-6. Davenport retained that AFSC V3U071 rating until retirement. /d., 144. Computer programming was a type of work neither expected from Davenport, nor encouraged by the Air Force for Davenport or others in his career field. FCJAX 309-10. Davenport’s chain of command testified uniformly that his job description and his scope of employment did not include programming or writing any software for the Air Force. Id., 306-7, 309-10, 320-21, 344 346. Someone in Davenport’s career field would never be expected to write software programs for use by Manpower. /d., 306-7, 309-10. None of his superiors ever ordered Davenport to produce the programs, nor would they have felt‘it was their place to do so. /d., 306, 320-1, 346-7. Davenport requested programming training numerous times and he was denied each time. F'CJAX 136. He never received any training in programming from or through the Air Force. /d., 136, 280. Whenever he asked, the answer was always no because he wasn’t a programmer, and so it was not necessary for his job. Id., 280. Turned down by the Air Force, Davenport taught himself how to program by purchasing software and books with his own money, and spending his off- duty time learning to program. /d., 137, 146. Davenport created the AUMD software through his own initiative, time, and resources. FCJAX 308-9, 321. 9 Th. complex screen displays and user interface and the datapase table structures were original creations by Davenport. /d., 148-51, 195-6. He did this programming only at home, on his personal time, and he tested and debugged it at home, without any Government data, by creating a dummy database with fake data. /d., 149-51, 2384, 243, 246, 394, 306, 309, 321, 328-9. Davenport did not have a conrection to Government databases while developing the AUMD software at home. /d., 149. Connection to the MDS was not necessary. Id., 150. Davenport completed development of a working beta version of the AUMD program by about May 28, 1998. Id., 106 115. This. beta version included the user interface screens and the database table structure. /d., 234. Davenport never brought the source code from his home to work, and never copied the source code to his work computer. /d., 197 125. Each copy of AUMD software included a startup page which identified Mr. Davenport, and later Blueport, as the author/copyright owner and incorporated an expiration date which prevented operation of the software beyond the expiration date. Id., 184-5. AUMD’s substantial improvements over Air Force software made it very popular and it was passed around informally to members of various commands. FCJAX 306-9, 321-24. AUMD became widespread due to its superior performance and at the initiative and direction of Davenport’s superiors and others in the Manpower community, and not through promotion by Davenport. Id., 321-5, 341-2. Davenport did not encourage people to use the program. /d., 321-3 (“Q. Now, to your knowledge, at any time when Technical Sergeant Davenport was in your chain of command was he trying 10 to get people to use the program who didn’t want to? A [Col. Manning]. No, he was not.”). Maj. Meaker, a Government witness, corroborated the fact that Davenport’s seniors, his chain-of-command, were the source of pushing distribution of the AUMD software, not Davenport. /d., 341-2. Davenport supplied copies of AUMD at the personal request of recipients. /d., 317, 823. As a result of the widespread use due its popularity, people sent suggestions to Davenport for new features, but Davenport alone decided what features would be incorporated, and Davenport did this programming on his own time at home rather than at work. FCJAX 277, 303, 305-6, 309, 346. Persons in the Air Force requested Davenport on several occasions to make presentations of the AUMD software. FCJAX 179-81, 237-8, 324-5. Davenport did not initiate any presentations or training on the AUMD programs at any time. /d., 153. Demonstrating AUMD was not part of Davenport’s official functions. Jd., 237. Davenport was sent to at least three different Air Force bases to train manpower technicians in the Air Force’s official MDS system. /d., 237. During those trips the users requested that he demonstrate the AUMD programs which they had heard about by word of mouth. Id., 237. Davenport complied with their requests, but only after the official MDS training had been completed. Id., 237. At the San Antonio Manpower conference — referred to at trial as the “conference of colonels” — Davenport was directed to attend this conference and he would not have been present except for the request of senior officers and noncommissioned officers. /d., 156, 1] 580-1. Col. Manning testified that Davenport was “invited” to the “conference of colonels” by a Col. Jensen, but that as a junior enlisted person Davenport was not in a position to refuse the invitation. Jd., 322-5. Davenport’s former superiors and co-workers, all currently senior officers and senior non-commissioned officers in the Air Force, testified that they felt the AUMD software belonged to Davenport and that they had no rights or ownership to it. FCJAX 306, 320-1, 346-7. During 1999, the Air Force repeatedly asked Davenport to release the AUMD source code to the Air Force. Glendon Hendricks, head of MDS program, asked Davenport to submit nis program for consideration through the Air Forces IDEA program. FCJAX 171-2. Mr. Davenport declined. Jd. The Air Force then threatened Davenport with courts martial if Davenport did not immediately turn over the code. /d., 172-3. Again, Davenport stood fast and the Air Force backed down. Id. Davenport participated in a Manpower User Group (“MUG”), composed of end-users of the MDS system, which passed requests or “wish lists” up to the decision makers. FCJAX 157-8. During a meeting in February 1999, the MUG considered whether AUMD (referred to at the meetinz as the “MDS Preprocessor’) should be adopted as an official program, but the MUG rejected the proposal. Jd., 158-9, 559. Davenport, however, was not involved with the MUG evaluation, was not present, and was not even aware that the MUG had discussed the issue. /d., 158-9. The reason he didn’t know was 12 because his commanding officer determined to send a different person to the MUG meeting—Davenport had by then “essentially been excluded from the Manpower user group’s advisory authority.” /d., 160 (emphasis added). His commanding officer in PACAF felt that Davenport should not attend MUG meetings, or conferences at Gunter AFB. /d., 160. On January 11, 2000, the Air Force issued a solicitation for contractors to recreate the AUMD programs. The solicitation was republished on March 14, 2000. The new program was to be known as the MARS program, and was to duplicate the operation and user interface of AUMD. FCJAX 106 119. Davenport assigned all rights to Blueport, who in turn registered the AUMD software copyrights and assignment on March 9, 2000. FCJAX 105 113, 8. The Air Force refused to negotiate a license with Blueport, and Blueport was forbidden by the Government from bidding on a contract to duplicate Davenport’s AUMD. Id., 279-80. The Air Force selected Science Applications International Corporation (“SAIC”) on April 10, 2000, to duplicate the AUMD. FCJAX 106 20. Because the automatic expiration programmed into the AUMD prevented use of the programs after May 15, 2000, zd., 106 121, the Air Force also instructed SAIC to hack into the AUMD code to change the automatic expiration date, and alter the copyright management information so that the startup page showed the Air Force as the author and copyright owner. /d., 217 (“One of our software engineers essentially hacked into it.”); /d., 219, 622-3. 13 The Air Force t.1en posted the altered versions of AUMD on internet and intranet websites, where they were downloaded and used by commands throughout the Air Force, and were available for download by civilians outside the Air Force as well. /d., 196-203. Neither the alterations to the expiration function, nor the alterations to the copyright management information, nor the posting and distribution of copies of the AUMD software were authorized by Davenport or Blueport. /d., 107 124. The Air Force provided copies of the AUMD compiled source code to SAIC, and SAIC used this code to produce software, MARS, that is virtually identical, an “exact replication”, in relevant respects to the original AUMD software. FCJAX 177, 203, 206-9, 562-3, 588 (3.2.2.4), 599, 647 (12.5), 813. SAIC had access to the running AUMD software and in fact tested MARS by running AUMD and MARS side by side. /d., 205-6. The MARS and AUMD screens and interface are essentially identical, and the screens, which were exactly duplicated, include protectable creative expression — they are the heart and sole of the programs. /d., 177, 208, 206-9, 562-3, 588 ("3.2.2.4), 599, 647 (12.5), 813. The AUMD interface was the key to its acceptance and popularity. /d.,3:21, 339, 378. Blueport alleged infringement for (1) from May 15, 2000 and after, Government hacking, copying and distribution of the hacked AUMD programs, and (2) creation, copying and distribution of MARS. FCJAX 36-95. 14 REASONS FOR GRANTING THE PETITION A. There Is A Split In The Circuit Courts Over Whether Jurisdictional Defenses In Suits Against The Sovereign Are The Government’s Burden To Prove, Or The Plaintiff’s Burden To Disprove. Placing the burden on a plaintiff to disprove the negative jurisdictional defenses contradicts Congressional intent, and this error impacts literally every suit that could be asserted against the Government. Importantly, the Circuits have created a tangled patchwork, where even they don’t know how to evaluate a jurisdictional defense—and it largely depends on what Circuit they want to follow. Neither this Court nor, previously, the Federal Circuit, has ever addressed the allocation of the burden of proof on the Section 1498(b) defenses, which applies to suits against the Government for copyright infringement. Yet lower courts and the Circuit Courts of Appeals have addressed similarly worded defenses in statutes providing similar waivers of sovereign immunity, and the conflicting rulings have created a clear split in addressing such defenses in suits against the Government. For example, while the Discretionary Function Exception to the Federal Tort Claims Act, 28 U.S.C. § 2680, is jurisdictional, the Government, not the claimant, bears the burden of proof. See Prescott v. U.S., 973 F.2d 696, 701-02 (9"" Cir. 1992); Autery v. U.S., 992 F.2d 1523, 1526 (11 Cir. 1993), cert. denied, 114 S. Ct 1829 (1994); Carlyle v. U.S., 674 F.2d 554, 556 (6th 15 Cir.1982); Stewart v. U.S., 199 F.2d 517, 520 (7th Cir.1952). This allocation of burden comports with the statutory intent. “[P]lacing the burden on the plaintiff would ‘impose upon the plaintiff the burden of proving [thirteen] negative averments. Such a result would border on the preposterous.” Prescott, id. at 702 (citing and quoting Stewart, 199 F.2d at 520); Stewart, 199 F.2d at 519-20 (“The position which the Government urges upon us is inirnical to all reason, logic and common sense.”). Yet in the present case, in a statute with similar language, the Federal Circuit ruled completely contrary, i.e. that the low level Government employee bears the burden of proving multiple negative averments. This similarly “border[s] on the preposterous.” In another example, the jurisdictional defenses in Section 1498(c), again with similar language and even within the same statute in issue here, were construed as placing the burden of proof on the Government. Zoltek Corp. v. U.S., 51 Fed. Cl. 829, 62 U.S.P.Q.2d 1366 (2002) (ruling that the Government bears the burden of proof under Section 1498(c), which relates back to both Sections 1498(a) and 1498(b), on the issue of whether a claim arose in a foreign country). The Zoltek court found significant that Section 1498(c) was worded negatively. Id. at 833; see 28 U.S.C. §1498(¢) (“... this section shall not apply ...”). To that point, a comparison of Sections 1498(b) and 14933(c), as well as 28 U.S.C. § 2680, reveals the same Congressional intent: Section 1498(b) (“except where ... this subsection shall not confer a right of action”); Section: 1498(c) (“this section shall not apply”); § 2680 (“shall nct apply to”). Yet here again, the Federal Circuit ruled cornpletely contrary, that while the Section 1498(c) jurisdictional defense, with similar negative 16 wording, and which applies to Section 1498(b), was the Government’s burden, the Section 1498(b) defenses (which also happen to be far more nebulous), remain the Federal employee plaintiff’s burden. The Court of Federal Claims’ error, affirmed by the Federal Circuit in placing the burden of proof on Blueport to disprove the enumerated defenses in Section 1498(b), hi-lights the split between the Circuits regarding the burden of proof and burden shifting in claims for damages brought against the Government. The Court of Federal Claims acknowledged this Circuit split in addressing such provisos between Circuit Courts, as well as within the Federal Circuit and Court of Federal Claims, and the apparent inconsistency in Supreme Court itself. Blueport, 76 Fed.Cl. at 717-18 (describing the “two models” as the “hard view” and “soft view”, and noting that “Our [Federal] Circuit seems to be of two minds as to the issue of whether conditions to waivers of sovereign immunity are themselves jurisdictional.”). The Federal Circuit also acknowledged the split between Circuits regarding the interpretation of who carries the burden of proof on limitations to waivers of sovereign immunity. Blweport, 5383 F.3d at 1381 (“... the circuit courts are divided on whether these Federal Tort Claims Act cases are consistent with Supreme Court precedent .. .”). The Federal Circuit noted that the 9 and 7th Circuits have taken a view that enumerated defenses to a substantive waiver of sovereign immunity should be viewed as shifting the burden of proof to the Government, citing Prescott, 973 F.2d 696, and Stewart, 199 F.2d 517, while the noting other Circuits appear to have taken an opposite view, 17 citing as support Sharp v. U.S., 401 F.3d 440, 448 FN1 (6 Cir. 2005), Kiehn v. U.S., 984 F.2d 1100, 1105 FN7 (10 Cir. 1993), and Autery v. U.S., 992 F.2d 1523, 1526 n.6 (11" Cir. 1993). Blueport, 533 F.3d at 1381. Other courts have noted this split of authority as well, and have even disagreed as to which side the respective Circuits have come down on. Compare, Smith v. U.S., 948 F. Supp. 159, 168 (D.R.I. 1996) (discussing the Circuit split and finding that, in the absence of First Circuit authority, (“this court will follow the lead of the Sixth, Seventh, and Ninth Cireuits, and employ the burden shifting approach”... “the government bears the burden to establish the applicability of an FTCA exception . . .”) with Blueport, 533 F.3d at 1381 (Federal Circuit describing Sixth Circuit as disagreeing with Prescott and Stewart). The Faderal Circuit has come down on the side of the “hard view” — at least in this case. The Federal Circuit, although acknowledging the split and the similarities between the enumerated defenses in Section 1498(b) and the enumerated defenses in the ]*ederal Tort Claims Act, sought to avoid the question by simply stating that the Federal Tort Claims Act is a different statute and so not applicable in this case. Blueport, 533 F.3d at 1881. But the issue of exceptions to waivers of sovereign immunity goes beyond an individual statute, and the piecemeal approach heretofore creates confusion — it is not clear in a given case whether provisions worded as exceptions to a substantive waiver of sovereign immunity, or limitations on such waivers, are to be treated by courts as 18 analogous to enumerated affirmative defenses thereby placing the burden of proof on the Government, or burdens which a plaintiff must prove beyond a prima facze showing. The divergence is not a small issue, as it determines whether or not the plaintiff even receives his day in court. Clarity is needed to avoid injustice and wastage of judicial and party resources.* “Thus a continuing effort on our part to decide each case on an ad hoc basis, aS we appear to have done in the past, would have the disadvantage of continuing unpredictability without the corresponding advantage of greater fidelity to the intent of Congress.” /rwin v. Dept. of Veterans Affairs, 498 U.S. 89, 95, 111 S. Ct. 453, 112 L. Ed. 2d 435 (1990), reh’g denied, 498 U.S. 1075 (1991). Another problem with the lower courts’ approach to the Section 1498(b) defenses regarding the “hard view” versus the “soft view” described by the Court of Federal Claims, see Blueport, 76 Fed. Cl. at 717-18 (discussing) and Blueport, 533 F.3d at 1381 (affirming), is that the cases relied upon addressed questions of statutes of limitations in the context of waiver or estoppel, rather than burden of proof, as is the case here. See, e.g., Venture Coal Sales Co. v. U.S., 370 F.3d 1102, 3. The present case provides a good example of this wastage. The parties here conducted extensive expert discovery and depositions on infringement issues, and a week-long trial on the merits, before the Court of Federal Claims (for which the CFC travelled to Portland, Oregon), only to have the same court rule later that it did not have jurisdiction in the first place and so could not reach the merits. 19 1105 n. 2 (Fed.(Cir.2004) (affirming dismissal of the case as time barred under 28 U.S.C. § 2501); Ariadne Fin. Servs. Pty. Ltd. v. U.S., 1383 F.3d 874, 878 (Fed.Cir.1998) (dismissal on statute of limitations) MacLean v. U.S., 454 F.3d 1334, 1336 (Fed. Cir. 2006) (statute of limitations must be strictly construed); Hopland Band of Pomo Indians v. U.S., 855 F.2d 1573, 1576-77 (Fed. Cir. 1988)) (limitations period not capable of waiver or subject to an estoppel); Martinez v. U.S., 333 F.3d 1295 (Fed. Cir. 2003) (Section 2501’s limitations period subject to equitable tolling ); Frazer v. U.S., 288 F.3d 1347, 1353 (Fed.Cir.2002) (Section 2501’s limitations period); John R. Sand & Gravel Co. v. U.S., —- U.S. —, 128 S. Ct. 750, 169 L. Ed. 2d £91 (2008) (stare decisis establishes the statute of limitations in § 2501 is an element of subject matter jurisdiction not subject to waiver) (citing Kendall v. U.S., 107 U.S, 128, 2S. Ct. 277, 27 L. Ed. 437 (1883)). In the present case there is no issue of waiver, because the Government certainly raised the Section 1498(b) defenses. Rather, the issue is which party properly bears the burden of proof, and whether Blueport carried that burden. The Court of Federal Claims and Federal Circuit incorrectly applied a hard and fast rule that the Section 1498(b) defenses are jurisdictional and therefore the plaintiff bears the burden of proof (or dis-proof), rather than looking to the intent of Congress as to who should carry the burden. The Section 1498(b) defenses bear much stronger analogy to the treatment of statutes such as the “discretionary function” exception to the Federal Tort Claims Act, 28 U.S.C. § 2680, than to questions of whether time bars are subject to waiver or estoppel, and consistency requires they be treated similarly. 20 Moreover, the Federal Circuit ruling contradicts the remedial nature of the amendments to Section 1498, which expanded the rights of Federal employees to remove the unnecessarily draconian complete bar against claims by Federal employees. The enumerated defenses of Sections 1498(a) and (b) were intended as remedial measures expanding the rights of Federal employees, and should be interpreted in that light. Strategical Demolition Torpedoe Co. v. U.S., 110 F. Supp. 264, 266, 124 Ct. Cl. 492 (Ct. Cl. 1953) (citing transcript of hearings before the Subcommittee of the Committee on the Judiciary of the House of Representatives, considering H.R. 3975, in 1952) {noting that, although not retroactive, the provisos were intended to remedy unjust prior provisions denying Federal employee claims under any circumstances). Further, the Federal Circuit ruling is inconsistent with the legislative history of Section 1498(b). The legislative history shows that Section 1498(b) defenses were intended as affirmative defenses, with the burden of proof on the Government. In Strategical Demolition Torpedo Co., the court analyzed the legislative history of the 1952 amendments to Section 1498(a), relating to patents, which demonstrated that the burden lay with the Government to prove the exceptions after a plaintiff has made a prima facie showing — There could have been a recovery in his case unless the Government could have shown that the invention related to the duties of the Government employee co-patentee or unless he was in a position at or about the time the invention was used to influence its use. Id. at 267 (emphasis added). 21 The purpose enacting Section 1498 and the legislative history showing: the intent are important considerations, ignored by the Federal Circuit. Long precedent establishes the “familiar canon of statutory construction that remedial legislation should be construed broadly to effectuate its purposes.” Tcherepnin v. Knight, 389 U.S. 332, 336, 88 S. Ct. 548, 19 L. Ed. 2d 564 (1967). This canon frequently has been applied in interpreting Federal statutes conferring benefits and rights on employees. See Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 543, 114 S. Ct. 2396, 129 L. Ed. 2d 427 (1994) (Federal Employers’ Liability Act); Corning Glass Works v. Brennan, 417 U.S. 188, 208, 94 S. Ct. 2223,.41 L. Ed. 2d 1 (1974) (Equal Pay Act); Haberman v. Finch, 418 F.2d 664, 667 (2d Cir. 1969) (Social Security Act); Forshey v. Gober, 226 F:'3d 1299, 1303 (Fed. Cir. 2000) (applying same rule to veterans’ benefits statute). B. The Federal Circuit Misconstrued The Section 1498(b) Defenses To Not Require A Nexus Between The Government’s Infringement And The Alleged Position To Order, Influence Or Induce. The Federal Circuit misconstrued the Section 1498(b) defenses in denying Davenport’s cause of action based on the “order, influence or induce” defenses, regardless of whether the defense is jurisdictional or an affirmative defense. The Federal Circuit’s misconstruction has several perverse effects. ]‘irst, the failure to require a nexus effects a change in the law of license, such that any limited license granted by an employee to the Government inherently morphs into an irrevocable license, unrestricted in time and scope. In other words, there is no longer such a thing as a limited, revocable license to the Government. Second, the failure to require a nexus places Section 1498(b) in 22 conflict with the separability of rights in the Copyright Act, 17 U.S.C. § 106. Finally, the failure to require a nexus undermines the remedial intent of Section 1498 by creating an insurmountable barrier to any Federal employee seeking redress. When an employee actively opposes the Government’s use of their copyrighted software, yet the Government uses that software in spite of the employee’s opposition, the only logical conclusion is that the employee was not in a position to order, influence or induce the Government’s use. Here, Blueport alleges infringement from May 15, 2000 (the date of the AUMD program expiration dates, known in advance by the Air Force) and after by the Government through hacking, copying and distributing hacked copies of AUMD, and then, separately, through creation, copying and distribution of MARS. Davenport did not encourage this use. Indeed, he tried to stop the Government from using AUMD but he had no influence whatsoever. Had the Federal Circuit not eliminated the requirement of a nexus between infringing acts and position alleged to constitute influence or ability to induce, such a finding would obviously have been clear error. See Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 501 n.17, 104 S. Ct. 1949, 80 L. Ed. 2d 502 (1984), reh’g denied, 467 U.S. 1267, 104 S. Ct. 3561, 82 L. Ed. 2d 863 (1984). 23 1. Eliminating The Need For A Nexus Fundainentally Alters The Law Of Licenses As Related To The Government. The failure to require any nexus between the Government’s infringing acts and the employee’s alleged position of influence effectively renders any license granted to the Government by a Federal employee inherently unlimited. This upends the law relating to license, a result clearly not intended by Congress. The Air Force committed two distinct violations of Blueport’s rights, each violation involving separate acts which must be evaluated independently under Section 1498(b). First, after the permissive license expired according to its express terms on May 15, 2000, the Air Force had SAIC hack into the AUMD source code to override the built-in expiration date and create a new, hacked, version for copying and distribution. Second, the Air Force created a derivative work based on the AUMD software, called MARS, and then copied and distributed this derivative work. Davenport lacked any ability or position to influence, induce — and instead he actively tried to stop — the Air Force’s creation, copying and distribution of the hacked versions of the AUMD programs. He similarly lacked any ability or position to influence, or induce — and was powerless to stop — the creation of derivative work MARS by SAIC from his copyrighted software. Moreover, even if the Court concluded that copying and distributing the hacked versions of the AUMD programs fell within the “order, influence or induce” defense, it does not automatically follow that all unauthorized use, 24 including transformative use by creating other derivative works, is subject to the same defense. The Federal Circuit’s ruling lumps these distinct and separate acts and defenses together. The Government’s decision in the Matter of Government Acquisition of License to Employee’s Invention, B-199,026, 60 Comp. Gen. 248, 1981 WL 22453 (Comp. Gen. Feb. 11, 1981) (hereinafter “Comptroller’s Opinion”), demonstrates the nexus requirement. The Government in that case, evaluating the nearly identical provisions of Section 1498(a), determined that although the employee, Mr. Jeffers, was in a position to order, influence or induce, use of his patent, Section 1498(a) did not prohibit the Government from taking a royalty bearing license if the employee was properly shielded from the decision making process. Comptroller Opinion, 60 Comp. Gen. at 248. In other words, if the nexus between the Government’s use at issue and the employee’s position of influence is severed then the Section 1498(a) defense allowing the Government to appropriate a royalty-free license does not apply. /d., at 251. The Comptroller rejected the argument that Section 1498(a) permitted the Government to take a royalty-free license simply because an employee was in a position to order, influence or induce when there was clearly no nexus between the position of influence and the Government’s decision. Ironically, here, the Government argues exactly the opposite position. The Federal Circuit’s ruling in the present case eliminates this nexus requirement. The Federal Circuit’s opinion has the perverse result that if Mr. Jeffers had 295 refused to grant any license to the Government, if he had objected to and actively opposed granting a license, the Government would have had the right to take a compulsory license without compensation. Under the Federal Circuit’s construction, any limited, permissive license in a work becomes under Section 1498(b) an unlimited royalty free license for any use whatsoever — for the life of the copyright. Any permissive use waives all rights for all time. This astonishing reading of Section 1498(b) transforms Congress’ attempt at remedial legislation to grant Federal employees rights similar to other citizens into a weapon the Government may use to take the property of Federal workers without compensation. The “order, influence, or induce” defense necessarily relates to the time and nature of the infringing acts. This is not reading an “exception into the ‘order, influence, or induce’ proviso”, see Blueport, 533 F.3d at 1382, but rather is necessary to make the proviso consistent with other laws. The Federal Circuit’s ruling creates an insurmountable obstacle to any suit by a Federal employee. All employees are in a position to at least “influence, or induce” use of their work. However, even if they objected to the Government’s use, even if such use was completely non-permissive, if the employee were in such a theoretical position to “influence, or induce” any use whatsoever, at any time in their career, then they would be barred by the Federal Circuit. The requirement for nexus is congruent with the waiver of sovereign immunity under Section 1498(b). The purpose of the “order, influence or induce” defense 26 is to prevent self-dealing by Government employees, rather than being a corollary to work-for-hire or shop right doctrines. Comptroller’s Opinion, 60 Comp. Gen. at 250-1. The plain language of the statute bears this out. The trial court incorrectly analogized this Section 1498(b) defense to the “work made for hire” defense under the Copyright Act, and the Federal Circuit. apparently accepted the analogy in affirming the trial court’s opinion. The “order, influence or induce” defense does not bear such an analogy. There is no comparable element under the “work made for hire” doctrine to the “order, influence or induce” defense. Rather, the “order, influence or induce” defense is more accurately analogized to an implied license defense, to prevent self- dealing, and the Court should properly look to the law of implied license for guidance. An implied license defense requires a defendant to establish some nexus between the terms and limitations of the implied license and the infringing conduct such that the implied license would excuse the (otherwise) infringing conduct. See, e.g., Carson v. Dynegy, Inc., 344 F.3d 446, 451 n.5 (5" Cir. 2003) (citing Lulirama Ltd., Inc. v. Axcess Broadcast Svcs, Inc., 128 F.3d 872, 884 (5 Cir. 1997) and CMS Software Design Sys., Inc. v. Info Designs, Inc., 785 F2d 1246, 1248 (5th Cir. 1986)) (a defendant bears the burden of proving the existence of any license as an affirmative defense to infringement, and if such existed, whether the license was irrevocable). Moreover, a non-exclusive license is fully revocable as a matter of law where it is not supported by consideration. Lulirama, 128 F.8d at 884. Copyright licenses are interpreted narrowly. Playmedia Sys. Inc. v. Am. Online, Inc., 171 F. Supp. 2d 1094, 1099 (C.D. Cal. 2001). Copyright licenses are presumed to prohibit any use not expressly authorized. /d. at 1099. 27 2. The Federal Circuit Construction Conflicts With The Separability Of Rights Granted Under 17 U.S.C. § 106. The Federal Circuit ruling disenfranchises copyright owners from the individual rights granted in the Copyright Act, 17 U.S.C. § 106. The Copyright Act grants copyright owners separately articulated property rights, which may be assigned or licensed individually without automatic loss of the other rights. Stewart v. Abend, 495 U.S. 207, 220-221, 110 S. Ct. 1750, 109 L. Ed. 2d 184 (1990) (“An author holds a bundle of exclusive rights in the copyrighted work, among them the right to copy and the right to incorporate the work into derivative works”); New York Times Co., Inc. v. Tasini, 583 U.S. 488, 496, 121 S. Ct. 2381, 150 L. Ed. 2d 500 (2001) (“The 1976 Act rejected the doctrine of indivisibility, recasting the copyright as a bundle of discrete ‘exclusive rights,’ each of which ‘may be transferred ... and owned separately[.]”); H.R. Rep. 94-1476, 1976 U.S.C.C.A.N. 5659, 5738 (“Each of the five enumerated rights may be subdivided indefinitely and, as discussed below in connection with section 201 [codified at 17 U.S.C. § 201], each subdivision of an exclusive right may be owned and enforced separately.”) A limited license granted in one of the listed property rights does not automatically create a license in all. Respect, Inc. v. Fremgen, 897 F. Supp. 361, 364 (N.D. Ill. 1995) (citing Columbia Pictures Industries, Inc. v. Redd Horne, Inc., 749 F.2d 154, 158 (8d Cir. 1984); Columbia Pictures Industries, Inc. v. Redd Horne, Inc., 749 F.2d 154, 158 (37? Cir. 1984). 28 Here, the Government separately infringed Blueport’s copyright in the AUMD programs by creating the MARS programs, which were derivative works. The Federal Circuit’s opinion lumped together all of the rights and uses of the copyrighted works in violation of 17 U.S.C. § 106 such that any grant of even a limited license to copy and use the AUMD programs for a limited time morphs under 28 U.S.C. § 1498(b) into an unlimited license in time and scope conveying all of the individual rights granted under 17 U.S.C. § 106. The Federal Circuit’s opinion places Section 1498(b) in direct conflict with the Copyright Act and Supreme Court precedent. C. The Conjunction Of Erroneously Placing The Burden Of Proof On Plaintiff With A Ruling That Requires No Nexus Between The Acts Alleged To Infringe And Those Alleged To Establish The Defenses, Swallows The Section Whole. Federal employees will have no right of recourse for copyright infringement by the Government if the Federal Circuit’s rulings are allowed to stand. The language “. . . position to influence or induce .. .” is nebulous enough, but requiring an employee to disprove that defense, and then placing no requirement of a nexus between the acts alleged to infringe and the nebulous term “position”, destroys the entire purpose for Section 1498(a) and (b) in the first place, i.e., remedial measure designed to give to Federal employees the same rights in suit against the government that non-employees had. 29 CONCLUSION The Federal Circuit’s misconstruction of the defenses in 28 U.S.C. § 1498(b) highlights the split between the Circuit Courts of Appeal, and within the Federal Circuit itself, regarding whether the Government bears the burden of proving exceptions to substantive waivers of sovereign immunity. The Federal Circuit incorrectly construed the “order, influence or induce” exception in Section 1498(i) to not require any nexus to the Government’s infringing acts. This lack of required nexus effects a change in the law of limited licenses and conflicts with the separability of individual rights of copyright owners under 17 U.S.C. § 106. This lack of a required nexus also conflicts with the remedial nature of the Section 1498(b) provisos. Based upon the foregoing it is respectfully requested that this Court grant the writ of certiorari. Respectfully submitted, Kurt M. RYLANDER RYLANDER & ASSOCIATES PC 406 West 12" Street Vancouver, WA 98660 (360) 750-9931 Attorneys for Petitioner APPENDIX la APPENDIX A — OPINION OF THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT DECIDED JULY 235, 2008 UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT 2007-5140 BLUEPORT COMPANY, LLC, Plaintiff-Appellant, Vv. UNITED STATES, Defendant-Appellee. DECIDED: July 25, 2008 Before MICHEL, Chief Judge, CLEVENGER, Senior Circuit Judge, and GAJARSA, Circuit Judge. GAJARSA, Cireuit 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 2a Appendix A 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 3a Appendix A 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. 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 hy personally installing the program on 1. Source code is the text of a software prograin written in a human-readatle programming language. Microsoft Computer Dictionary 491 (5th ed.2002). Once written, source code is compiled into machine-readable object code that runs ona computer. /d. at 372. Software programmers usuaily 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). 4a Appendix A 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 personne] in its use. During this time, he continued tc 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 menpower officers at an annual conference and, according to one of Davenport’s superiors, “absolutely sold his audience” on the AUMD program. Davenport’s 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 Sa Appendix A 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 inthe 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 pyogrammers rnodified 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 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 2. The DMCA provides that “[n]o person shall circumvent a technological measure that effectively controls access to a work protected [by a copy1.ght] under this title.” 17 U.S.C. § 1201(a)(1)(A). 6a Appendix A 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 F3d 1345, 1353 (Fed.Cir.2006) (hereinafter John R. Sand & Gravel I), aff’d,_ _-:; U.S. __, 128 S.Ct. 750, 169 L.Ed.2d 591 (2008) (hereinafter John R. Sand & Gravel IT). “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, 68 S.Ct. 525, 92 L.Ed. 746 (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] sovereign, “7 Ta Appendix A ‘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, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976) (quoting United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (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, 116 S.Ct. 2092, 185 L.Ed.2d 486 (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, 77 S.Ct. 269, 1 L.Ed.2d 306 (1957))). $. 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 che 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 Sa Appendix A 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 position to order, influence, or induce use of the copyrighted work by the Government.” Jd. (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.” Jd. (emphasis added) (hereinafter “the official functions proviso”). Third, § 1498(b) confers no right of action “with respect to any 9a Appendix A copyrighted work ... in the preparation of which Government time, material, or faciiities 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 3 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—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. 10a Appendix A Brockamp, 519 U.S. 347, 352-54, 117 S.Ct. 849, 136 L.Ed.2d 818 (1997); United States v. Beggerly, 524 U.S. 38, 48-49, 118 S.Ct. 1862, 141 L.Ed.2d 32 (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 IT, 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); Beggerly, 524 U.S. at 48, 118 S.Ct. 1862 (“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 “(flollowing 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. 3. The Court also explained in John R. Sand & Gravel Il 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, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990)). However, that presumption is not applicable here, because Blueport’s suit was not dismissed for failure to comply with a statute of limitations. lla Appendix A 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 iridicates that they define the scope of the Government’s 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.” /d. (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, 1850 (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). }2a Appendix A 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, 116 S.Ct. 2092. 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, 96 S.Ct. at 953, the CFC 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) 13a Appendix A (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, 111 S.Ct. 1267, 113 L.Ed.2d 335 (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, narnely the FTCA, which is not at issue in this case. Second, the circuit courts are divided on whether these FTCA cases are consistent with Supreme Court precedent, in particular the Court’s decision in Gawbert. 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, 56 S.Ct. 780, 80 L.Ed. 1135 (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, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) (citing Turner » Bank of N. Am., 4 U.S. (4 l4a Appendix A Dall.) 8, 11, 1 L.Ed. 718 (1799)). Moreover, the Supreme Court has made clear that “the burden of establishing the contrary rests upon the party asserting jurisdiction.” Td. (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 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 15a Appendix A Force manpower community could access it. /d. 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. /d. 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. /d. 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, 77 S.Ct. 269 (explaining that the “limitations and conditions upon which the Government consents to be sued must be Strictly observed and exceptions thereto are not to be implied”). !6a Appendix A 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. IT. 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, 89 S.Ct. 1501, 23 L.Ed.2d 52 (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. 17a Appendix A § 1202(a) (providing that “[nJo person shall knowingly and with the intent to induce, enable, facilitate, or conceal infringement...” (emphasis added)); 17 U.S.C. § 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, 89 S.Ct. 1501. 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, 1806 (Fed.Cir.2008) (quoting Fisher v. United States, 402 F.3d 1167, 1172 (Fed.Cir. 18a Appendix A 2005) (en banc in relevant part)). “In the parlance of Tucker Act cases, that [statutory] source must be ‘money-mandating.’” Fisher, 402 F.3d 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, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983) (quoting Testan, 424 U.S. at 400, 96 S.Ct. 948). Moreover, a statute can be interpreted as money- mandating if it grants the claimant a right to recover damages either “expressly or by implication.” /d. at 217 n. 16, 1038 S.Ct. 2961 (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 19a Appendix A 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 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 anti- circumvention 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 MCA). 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. 20a Appendix A 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. 2la APPENDIX B — OPINION OF THE UNITED STATES COURT OF FEDERAL CLAIMS DATED MAY 7, 2007 UNITED STATES COURT OF FEDERAL CLAIMS No. 02-1622 C BLUEPORT COMPANY, LLP Plaintiff, v. THE UNITED STATES, Defendant. May 7, 2007 OPINION AND ORDER BLOCK, Judge. General Matthew B. Ridgway once observed that, “what throws you in combat is rarely the fact that your tactical scheme was wrong... but that you failed to think through the hard cold facts of logistics.” ' This is especially true for the United States Air Forces 1. Lt. Col, James C. Rainey, USAF Ret., Cindy Young, & Roger D. Golden, The Dimensions of Logistics, Air Force J. of Logistics, Fall 2006, at 84, 84, available at http:// www. aflma. hq. af. mil/ lgj/ 10 Dimensions. pdf. 22a Appendix B (“USAF”). For example, the few hundred aviators and ground special forces who initially engaged the Taliban and al Qaeda were the “teeth” in the recent Afghanistan campaign. These “teeth,” however, would have no bite without a “tail” of thousands of U.S. personnel flying reconnaissance, running ships, transporting supplies, processing intelligence, and moving information. It is this “tail” that allows the USAF to reach halfway around the world, commence almost immediate combat operations in an unexpected, austere theater and then succeed on an extremely chaotic battlefield.’ Making sure the USAF has the appropriate “teeth” and “tail” personnel is the responsibility of the Air Force Manpower Agency (“AFMA”). AFMA is a field operating agency® within the USAF and provides USAF leaders with the tools necessary to identify the essential manpower required for supporting USAF operations. “Manpower” is the term used to specifically refer to 2. Col. John Jogerst, USAF, What’s So Special about Special Operations? Lessons from the War in Afghanistan, Aerospace Power J., Summer 2002, at 98, 101, available at http:/ /www, airpower.maxwell. af.mil/airchronicles/apj/apj 02/sum02/ sum02.pdf. 3. Field operating agencies are subdivisions of the USAF that report directly to Headquarters, U.S. Air Force (“HQ USAF”). They are assigned a specialized mission that is restricted in scope when compared to the mission of a major command. Field operating agencies carry out activities under the operational control of HQ USAF. United States Air Force, Factsheet: The U.S. Air Force, http:// www. af. mil/ factsheets/ (follow “The U.S. Air Force” hyperlink) (last visited Feb. 9, 2007). 23a Appendix B personnel assigned to work in AFMA, who have been trained and assigned to deal exclusively with the technical study of how many spaces or positions are needed to perform specific tasks or functions throughout the USAF“ These “manpower personnel” in AFMA determine personnel requirements, develop programming factors, manage perforraance management programs, assist with the execution of competitive sourcing initiatives, and conduct special :studies.° All this is done with the final goal of making sure the USAF personnel are efficiently assigned and utilized. Frequently, AF'MA relies on computer databases and programs to help conduct its mission. For example, at one point most of the manpower data for the USAF was stored in a database called the Manpower Data System (“MDS”). Like many computer systems, the MDS had certain limitations. A computer program specifically written to increase the functionality of the MDS is the subject of the instant action. Written by a Technical Sergeant Davenport allegedly on his off-duty hours, the AUMD program allowed AFMA personnel to more easily access local databases storing all types of manpower 4. As Glendon Hendricks, a man who spent almost his entire military and civilian career in the manpower field, explained at trial, manpower determined the number of spaces necessary to perform work ancl then personnel would “match up faces [people] with the spaces.” Tr. 864. 5. “United States Air Force, Factsheet: Air Force Manpower Agency, http:// www. af. mil/ factsheets/” (foilow “Air Force Manpower Agency” hyperlink) (last visited Feb. 9, 2007). 24a Appendix B data, such as the number of particular positions at a local base and the number of personnel authorized to perform a particular task of work. The AUMD program also enabled AFMA personnel to print reports containing needed data quicker and also to create customized reports. The program preformed well and was soon used by AFMA personnel stationed around the world. To be sure, so impressed was the Air Force with the program, Technical Sergeant Davenport was asked to provide training and answer questions about the program at various bases in the United States and throughout the Pacific. Over the next year and a half, Davenport continued to revise and update the AUMD program with improving the program’s functionality with the input of AFMA colleagues and other USAF personnel. Occasionally, Davenport would release a new version of the AUMD program, which incorporated all the most recent changes. In all, Davenport produced ten versions of the AUMD program from May 1998 to January 2000. Seeing the AUMD’s success and wishing to profit from the program, Davenport and his uncle established the Blueport Company, LLP (“Blueport”) in February 2000—some twenty months after Davenport had produced the first version of the AUMD. Davenport then registered for a copyright for version 2.1d of the AUMD program in March 2000 and in the same month assigned all rights in the program to Blueport. Blueport, in turn, sought a licensing agreement with the USAF for the continued use of the AUMD program. 25a Appendix B Desiring tc own outright such a program rather than pursuing a licensing agreement, the USAF procured the services of a private contractor to “reverse engineer” the AUMD program, in order to recreate the AUMD’s functionality. As part of the process of recreating the computer prog ram’s functionality, the USAF instructed the contractor to “hack” ® into the AUMD program and disable the program’s automatic expiration date—the date when the program would automatically cease operation. Disabling the automatic expiration date allowed the USAF to continue using the AUMD program, while its contractor sought to write a new program to replace the copyright-protected AUMD. Jilted by the USAF, Blueport filed a two-count complaint with this Court. The first count is based on the alleged infringement of Blueport’s copyright by the United States. 28 U.S.C. § 1498(b). Specifically, Blueport maintains that the use by the USAF of the AUMD program after the expiration date constituted the infringement. Blueport also contends that the new computer program written by the contractor—the so- called MARS program—also constitutes unlawful infringement because this program of the USAF directly copied Blueport’s copyrighted AUMD program. Blueport contends in the complaint’s second count that 6. Hack (v): (a) to write computer programs for enjoyment; (b) to gain access to a computer illegally. Merriam-Webster OnLine Dictionary, http:// m-w.com/. See also Blueport Co., LLP v. United States, 71 Fed.Cl. '768, 770 n. 4 (2006) (noting the definition of “hack” as “To modify a program, often in an unauthorized manner, by changing the code itself.”). 26a Appendix B the disabling of the AUMD’s automatic expiration date violated the Digital Millennium Copyright Act of 1998 (“DMCA”). 17 U.S.C. § 1201 et seq. In an opinion issued on June 29, 2006, the Court granted the government’s summary judgment motion on the second count, holding that the United States Court of Federal Claims lacks jurisdiction under the DMCA to hear the claim. See Bluweport Company, 71 Fed.Cl. at 768. The Court then conducted a trial in Portland, Oregon, from July 24 to July 28, 2006, regarding issues related to the copyright infringement count of Blueport’s complaint. As explained fully below, because Blueport fails to make the requisite jurisdictional showing necessary for a copyright infringement claim against the United States, the Court holds for the defendant. See 28 U.S.C. § 1498(b). FACTUAL BACKGROUND‘ Information on work profiles for each unit in the USAF—how many airmen are required, at what rank and what level of training are necessary—used v0 be stored in a database known as the MDS, housed at Gunter Air Force Base in Alabama. CSPFF 4% 10. The MDS database was developed in the 1990s and replaced an antiquated system that had relied on magnetic tapes and punch cards to store information. Tr. 67. The data 7. Facts from this section are drawn from: Consolidated Statement of Proposed Findings of Fact (“CSPFF”); Trial Transcripts (“Tr.”); Plaintiff’s Trial Exhibits (“Pl.’s ‘Trail Ex.”); and Defendant’s Trial Exhibits (“Def.’s Trial Ex.”). 27a Appendix B in the MDS included skill profiles for each position in the USAF, as well as the training, rank and skill levels of all USAF personnel. /d. Manpower personnel constantly accessed the information stored in the MDS to manage the current and future personnel needs of the USAF. /d. Mark Davenport enlisted in the USAF in 1981, and after four years of service, began working in the manpower career field. /d. at 63. Around July of 1991, Davenport was transferred to Gunter, and soon thereafter, in 1992, began working on preparing the transition for manpower personnel to use the MDS system. Jd. at 68-69. During the beta testing® of the MDS, Davenport— then a Technica! Sergeant—observed that the system did not allow manpower personnel at local USAF bases throughout the Pacific Air Forces (“PACAF’”’)® to print 8. A beta test is a test of a computer product prior to the program’s genera! or commercial release. Beta testing is the last stage of testing, and normally can involve sending the product to beta test sites outside the program developers for real-world exposure. See Merriam-Webster OnLine Dictionary, http://m-w. com/. 9. The USAF is organized into major commands (“MAJCOM”) each representing a major Air Force subdivision and each having a specific pertion of the Air Force mission. Each MAJCOM is cirectly subordinate to HQ USAF MAJCOMs are interrelated and complementary, providing offensive, defensive, and support elements. In the United States, MAJCOMs are organized on a functional basis, while overseas (Cont'd) 28a Appendix B reports. /d. at 92. Instead, manpower personnel at local bases had to send their report requests via e-mail to PACAF headquarters at Hickam Air Force base in Hawaii and wait for other manpower technicians there to respond to the message with a copy of the requested report attached—a process that could take several hours. /d. Davenport also noticed that the official manpower report was a very cluttered document, containing significant amounts of superfluous information. /d. at 95-96. Seeking to find a way to alleviate these MDS shortcomings, Davenport began experimenting with writing his own computer program that would allow USAF manpower personnel to run and print their own customized reports. /d. at 98. At no time was Davenport ordered by his superiors to write such a program. (Cont’d) MAJCOMs are organized on a geographical basis. The USAF is currently organized into nine MAJCOMs (seven functional and two geographical) reporting to HQ USAF. United States Air Force, Factsheet: The U.S. Air Force, http://www.af.mil/ factsheets/ (follow “The U.S. Air Force” hyperlink) (last visited Feb. 9, 2007). PACAF is one of two geographical MAJCOMs in the USAF and represents the air component of the U.S. military in the Pacific. PACAF’s area of responsibility extends from the west coast of the United States to the east coast of Africa and from the Arctic to the Antarctic, covering more than one hundred million square miles. United States Air Force, Factsheet: Pacific Air Forces, http://www. af. mil/ factsheets/ (follow “Pacific Air Forces” hyperlink) (last visited Feb. 9, 2007). 29a Appendix B Id. at 91, 503, 518. Indeed, the USAF never provided Davenport with any formal computer programming training, despite repeated requests for such training. Id. at 69-70, 72-73. It appears that Davenport’s motivation was the desire to more efficiently access the MDS and to gain experience in writing his own computer program. /d. at, 93-94. Technical Sergeant Davenport entitled the program the AUMD prozram. CSPFF 9 6. The AUMD, created in Microsoft Access 97 using the Visual Basic programming language, actually consisted of two separate computer programs tailored for use with the MDS. /d. 191 11, 13; Tr. 97-98. The first program, known as the AUMD Admin, downloaded data stored in the MDS and incorporated that data into a local database. CSPFF 411; Tr. 97-98. The second program, known as the AUMD Master, allowed users to manipulate the data in the local MDS database into standard reports and user-customized reports. CSPFF 9 11; Tr. 97-98. This allowed manpower personnel to use their office computers to aczess the information they needed and print reports containing that information to their office printer. The AUMD program literally saved manpower personnel hours of time in printing reports, since requests to print reports no longer had to be sent to PACAF headquarters and the result sent back to the user. Tr. 92. 30a Appendix R The first “beta” version of the AUMD program took Davenport approximately two weeks to write, working in the evenings after returning home from work, and on the weekends. Tr. 92. This beta version was completed on or about May 28, 1998. CSPFF 4 15. Davenport then provided a copy of this “beta” program to his friend Master Sergeant William Luckie in June 1998, for review and comment. /d. §| 16. Davenport and Master Sergeant Luckie conducted the beta testing of the AUMD at their individual work stations during their working hours. /d.; Tr. 104. This was necessitated by the fact that the MDS was a closed database, only accessible from the USAF computers on USAF bases. Tr. 328-30. Thus, it was only by drawing data directly from the MDS that AUMD could create a local database which individual users could access to run customized reports. /d. at 328. While Master Sergeant Luckie was reviewing the AUMD program at his work station, one of his superiors saw him using it. Tr. 104. Recognizing the AUMD could address the shortfalls in the MDS, Master Sergeant Luckie’s superior asked Luckie to provide the other manpower personnel at his base with a copy of the program. /d. Shortly after this, Luckie began preparing an instruction manual on how to use the program. Td. at 315-16. 3la Appendix B Use of the AUMD quickly spread throughout the manpower personnel in the PACAF and the USAF in general. The rapid dissemination of the AUMD occurred as a result of manpower personnel from local bases coming to PACAF headquarters for conferences or transferring to new assignments. Jd. at 336. These personnel would see Davenport or other manpower technicians using the AUMD program. /d. Recognizing the benefits of the program, many of the visiting manpower personnel requested copies of the program to take back to their local bases. /d. The AUMD program spread so quickly that by July 1998, while traveling to several local bases in the PACAF, as part of his regular duties to provide instruction on the new MDS, Davenport was asked by manpower personnel to provide training on the AUMD program. Id. at 118, 334-36. During this time, Davenport continuously upgraded and refined tie AUMD program to improve its functionality and usefulness. Occasionally, Davenport would come across an interesting feature in another program that he would incorporate into the AUMD. /d. at 347. Significantly, Davenport began to receive numerous suggestions from USAF manpower personnel on how the AUMD program could be improved. /d. If Davenport considered a suggestion useful, he would incorporate it into the AUMD. J/d. at 415. 32a Appendix B By September 1998, Davenport had made enough changes to th AUMD program to warrant the issue of a new version of the program, version 1.0 AUMD."° Id. at 331-32. By this time, most of the USAF bases in PACAF were using the AUMD program. Jd. at 109-10. Also, in September 1998, Davenport was asked by his commanding officer to give a presentation on the AUMD program for senior AF MA officers at a manpower conference in San Antonio. Jd. at 111-12. This presentation was before the heads of the entire USAF manpower community, and Davenport’s talk was extremely well received. /d. 10. Ten total versions of the AUMD program would eventually be produced. Tr. 345. These versions and their release dates are as follows: Beta 0.9 May 1998 1.0 September 15, 1998 1.5 February 1, 1999 1.8 April 22, 1999 1.9 August 13, 1999 2.0a September 29, 1999 2.0b October 2, 1999 2.1d November 18, 1999 2.le January 2, 2000 2.1f January 5, 2000 Def.’s Trial Ex. 3; Tr. 345. 33a Appendix B After Davenport’s September 1998 presentation, use of the AUMD increased significantly. Jd. at 350. The earliest versions of the AUMD contained an “about screen” with Davenport’s personal e-mail and home telephone number. /d. at 347. However, after Davenport began receivinz calls regarding the AUMD program late at night, he changed the information on the “about screen” to list only his work e-mail and telephone number. /d. Davenport was soon overwhelmed with calls seeking support for the AUMD. /d. at 350. The situation became such that he could not both perform his regular duties and provide all the technical support being requested. /d. To alleviate the demands for his support with the program, Davenport began to work more closely with manpower data managers in other USAF commands. Id. While Davenport continued to provide user support for the AUMD program to manpower personnel in PACAF, manpower personnel in other MAJCOMs were instructed to first contact the manpower data manager in their MAJCOM headquarters for support before contacting Davenport. Jd. Davenport kept these manpower data managers appraised of changes to the AUMD program and appraised them of when new versions of the program would be issued. Jd. Additionally. to cut back on inquires from personnel using outdated versions of the AUMD program, Davenport incorporated an automatic expiration date into the program. /d. at 351-52. Upon expiration, the program ceased to function and a screen appeared 34a Appendix B instructing the user to contact the manpower data manager at their MAJCOM headquarters for the latest version of the AUMD program. /d. While everyone who worked with MDS agreed that the AUMD program was an extremely useful program, some officials in the USAF felt some unease at its widespread use. /d. at 891-92. This unease allegedly resulted from the USAF’s lack of possession of documentation revealing the program’s source codes!! 11. Computer software contains two types of code: machine readable object code and human readable source code. Object code uses the two digits 0 and 1 as on (0) and off (1) switches. All instructions and data in the software are reduced to series of these numerals. Since it is impractical for most people to reduce data and instructions to strings of 0’s and 1’s, computer programming languages have developed. Instead of using only 0’s and 1’s, these programming languages use numerous symbols and syntax to convey meaning—making them much easier for people to understand. These programming languages effectively enable people to write instructions and data in software. Source code is the text of software written in these programming languages. Software’s human readable source code commands are translated into machine readable object code commands which are executable by the computer. See Universal City Studios, Inc. v. Reimerdes, 111 F.Supp.2d 294, 305-06 (S.D.N.Y.2000) (giving a detailed description of object and source codes). Users of software cannot readily modify the machine readable object code since strings of 0’s and 1’s are difficult to comprehend. In contrast, the human readable source code is much easier to modify. For this reason software developers will often only provide the software users with the object code, insuring that the users continue to rely on the (Cont’d) 35a Appendix B or even explaining its workings. /d. at 891. As a result of this unease, concerns were raised that manpower personnel were becoming increasing reliant on performing their daily duties with a program over which the USAF had no control, particularly since it was supported and updated solely by Davenport. Jd. at 891- 92, 899. Concerns also grew that if anything should happen to Davenport—should he decide to retire, become sick, or be hit by the proverbial “Mack truck”— manpower personnel would be dependent on a computer program that no one was capable of supporting. /d. at 899, 902. As a result of these concerns, shortly after the September 1993 manpower conference in San Antonio, the USAF began requesting that Davenport provide the USAF with the: source codes to the AUMD program. id. at 397. Davenport, however, did not wish to turn over the source code to the USAF: /d. Davenport considered the AUMD program his personal program, since he believed he had initially conceived of the idea and created it at his home in his spare time. /d. He was also concerned at what might happen to the program once (Cont’d) software developers for changes in the software. Software developers will als? seek to copyright their source codes. And to further protect the software from being copied, software developers will often take technical steps to prevent others from trying to discern the source code from the basic object code. See Theodore C. McCullough, Understanding the Impact of the Digital Millenniun: Copyright Act on the Open Source Model of Software Development, 6 Marg. Intell. Prop. L.Rev. 91, 94 (2002). 36a Appendix B the USAF took over its operation. /d. Davenport believed that, in the past, when the USAF had taken over other computer programs developed independently by USAF personnel, the result was a loss of functionality due to the changes the USAF insisted on incorporating into the program. /d. He allegedly wanted to avoid repeat performance with the AUMD. /d. Throughout 1999, USAF officers repeatedly asked Davenport to turn over the source codes to the AUMD, to no avail. /d. at 901-02. Unable to obtain the source code from Davenport, the USAF determined its only option was to have a private contractor “reverse engineer” the program. /d. at 902. On January 11, 2000, the USAF issued a solicitation requesting bids from private contractors to recreate the AUMD program. CSPFF 119. At the same time, Davenport sought an avenue to financially benefit from the AUMD program. On February 7, 2000, Davenport and his uncle, Mr. Robert Gunter, formed Blueport. CSPFF 1 7. The two men hoped this company would provide them with a vehicle to sell a license to the USAF for use of the AUMD program. This formation occurred almost two years after the Beta version was released and after the program was widely used by Air Force Manpower divisions. /d. As part of his efforts to form Blueport, on March 3, 2000, Davenport submitted an application to the United States Copyright Office to obtain a copyright for the AUMD program. PIl.’s Trial Ex. 90. In exchange for a 37a Appendix B fifty percent share of Blueport, Davenport assigned all rights to the AUMD program to Blueport on March 6, 2000. CSPFF 4 8; Pl.’s Trial Ex. 108; Tr. 47, 61. Blueport’s copyright of the AUMD progran, titled “UMD Admin Program V.2.0A and Master Program V.2.1D,” was registered on March 9, 2000, as Registration No. TX 5-159-682. Jd. 11 3; Pl.’s Trial Ex. 139; Tr. 47-48. On March &1, 2000, Blueport approached the USAF about acquiring a license to the AUMD program. ‘Ir. 50-51; Pl.’s Trial Ex. 57, 105. Blueport indicated that the USAF’s rights to use the program would terminate on May 15, 2000, the expiration date of the latest version of the AUMD program. Tr. 51; Pl.’s Trial Ex. 57. Instead of entering into negotiations with Blueport, the USAF on April 10, 2000, selected Science Applications International Corporation (“SAIC”) to recreate the functionality of the AUMD program through reverse engineering. CSPFF 4% 20; Tr. 206. However, SAIC did not have time to complete its tasks before the latest, version of the AUMD would reach its expiration date of May 15, 2000. CSPFF 9 21. Mindful of the USAF’s intention to have a private contractor reverse engineer the AUMD, Davenport did not prepare any further versions of the AUMD program and was unwilling to assist the USAF in changing the automatic expiration of the version then in use. /d.; Tr. 900. Faced with the situation of being unable to use the computer program the manpower community had 38a Appendix B come to rely upon and not yet having an alternative program to replace it, the USAF instructed SAIC to hack into the AUMD program and change the automatic expiration date from May 15, 2000 to February 15, 2001. CSPFF {4 23; Tr. 234. This allowed the USAF to keep the AUMD program operational until SAIC created a replacement program—the MARS program. Tr. 905. On May 28, 2001, Blueport submitted to the Air Force Legal Services Agency an administrative claim for compensation for the USAF’s copyright infringement of the AUMD program. P1.’s Trial Ex. 107; CSPFF 9 28. On January 11, 2002, the Air Force Legal Services Agency denied Blueport’s administrative claim. Pl.’s Trail Ex. 104; Tr. 52-53. Blueport then filed its complaint with this Court on November 18, 2002. There are primarily four issues raised and responded to by the parties. For instance, the parties dispute whether the protections of the copyrighted AUMD version 2.1d extend also to latter non- copyrighted versions of the AUMD, specifically AUMD version 2.1f. It is further disputed whether the government held an implied license to use the AUMD program and whether any copying and adaptation of the AUMD program by the government was an essential step in utilizing the program, pursuant to 17 U.S.C. § 117. Another issue is whether the MARS program is substantially similar to the AUMD program and if the government's use of the AUMD program constituted “fair use” under 17 U.S.C. § 107. Finally, the issue of the jurisdiction of this court to adjudicate this action 39a Appendix B has been raised. This is predicated on certain criteria found in 28 U.S.C. § 1498(b), which acts as a waiver of sovereign immunity for copyright infringement actions against the United States. As explained in greater detail below, because the Court finds that these statutory criteria are mandatory jurisdictional requirements not met by plaintiff, it is not necessary to address the numerous other issues and arguments presented by this case. DISCUSSION Typically, for copyright infringement, a plaintiff must show ownership of a valid copyright and copying of the protected work. Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991). Under the Copyright Act, copyright ownership initially vests with the person who created the work. 17 U.S.C. § 201(a); Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 737, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989). Copyrights are presumptively valid and a certificate of copyright registration is considered prima facie evidence of a valid copyright. Herbert v. United States, 36 Fed.Cl. 299, 303 (1996) (citing 17 U.S.C. § 410(c)).” Here, it is undisputed that Davenport was the creator of the original AUMD program and that he has assigned 12. The same court issued two opinions in Herbert. The first decision denied the defendant’s motions for summary judgement. Herbert vu United States, 32 Fed.Cl. 293, 296-97 (1994) (hereinafter Herbert I). The second decision, issued two years later after a trial on the merits, dismissed plaintiff’s complaint. Herbert, 36 Fed.Cl. at 305-07 (hereinafter Herbert IT). 40a Appendix B his rights to plaintiff. CSPFF 94% 6, 8. Plaintiff, by producing the certificate of copyright registration for the AUMD program version 2.1d, asserts it has established ownership of a presumptively valid copyright. /d. Pl.’s Ex. 117, 139. But, we proceed not under the Copyright Act, but under 28 U.S.C. § 1498(b), which acts as a waiver of sovereign immunity and vests this Court with jurisdiction to adjudicate copyright infringement claims against the government. Section § 1498(b) contains explicit exceptions (characterized as “provisos” or “conditions” in this opinion) to the waiver—where the government was “induced” by plaintiff into using the copyrighted work or where the ownership of the copyright by plaintiff is placed at issue because it in essence constitutes what is termed “government work”’ under copyright jurisprudence. See Matthew Bender & Co. v. West Publ’g Co., 158 F.3d 674, 679 (2d Cir.1998) (holding that the works of the federal government, such as the text of judicial decisions, are not subject to copyright protection and may therefore be copied at will). As to the latter contingency, there can be no “presumption” of ownership for jurisdictional purposes under 28 U.S.C. § 1498(b) because, unlike the Copyright Act, the substantive factual issue of “government work” goes to the initial determination of the jurisdictional waiver of sovereign immunity itself. 4la Appendix B I. JURISDICTION OF THE COURT OF FEDERAL CLAIMS It is beyond doubt that the United States Court of Federal Claims “has jurisdiction only where and to the extent that the government has waived its sovereign immunity, and any waiver of sovereign immunity cannot be implied but must be unequivocally expressed.” Ledford v. United States, 297 F.3d 1378, 1381 (Fed.Cir.2002). There exists two categories of jurisdictional cases facing this court. In the majority of cases, the requirement of subject matter is fulfilled simply because the plaintiff has filed a well-pled complaint alleging the appropriate jurisdictional facts. E.g., Fisher v. United States, 402 F.3d 1167, 1173 (Fed.Cir.2005); Spruill v. Merit Sys. Protection Rd. , 978 F:2d 679, 686-88 (Fed.Cir.1992) (noting that well-pleaded allegations in the complaint are sufficient to overcome a challenge to subject matter jurisdiction). Plaintiff has met this “allegation” burden in the present case. If the validity of the jurisdictional facts alleged in the complaint are challenged, however, a second, yet rarer in practice, category of cases emerges whereby the court must consider relevant evidence in order to resolve the factual dispute. E.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (noting each jurisdictional “element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, 2.e., with the 42a Appendix B manner and degree of evidence required at the successive stages of the litigation.”). See, e.g., Reynolds v. Army and Air Force Exch. Serv., 846 F.2d 746, 747 (Fed.Cir.1988) (citing Land v. Dollar, 330 U.S. 731, 735, 67 S.Ct. 1009, 91 L.Ed. 1209 (1947)). Ultimately, in these cases, the plaintiff must prove jurisdiction by a preponderance of the evidence. Reynolds, 846 F.2d at 748; Zunamon v. Brown, 418 F.2d 883, 886 (8th Cir.1969) (“[Tjhe court may demand that the party alleging jurisdiction justify his allegations by a preponderance of evidence.”) (quoting McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936)); Hansen v. United States, 65 Fed.Cl. 76, 94 (2005). Because the factual predicate for jurisdiction has been challenged, the Court now proceeds to address this matter. A. The “Provisos” of 28 U.S.C. § 1498(b): Jurisdictional or Affirmative Defenses? An issue arose at trial whether the exceptions to a plaintiff’s right of action listed in § 1498(b) should be treated as jurisdictional, that is as conditioning the Court of Federal Claims’ limited copyright infringement jurisdiction, or merely as affirmative defenses. ‘Tr. 1064- 65. The genesis of the problem arises from the language of § 1498(b), for this section not only vests this Court with exclusive jurisdiction through a waiver of sovereign 43a Appendix B immunity,'* bu’ also sets out certain exceptions, provisos, to a copyright owner’s right of action: 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 part of the official functions of the employee, or in the 13. The first half of 28 U.S.C. § 1498(b) provides: Hereafter, whenever the copyright in any work protected under the copyright «ws 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, firra, 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: Ma Appendix B preparation of which Government time, material, or facilities were used... . 28 U.S.C. § 1498(b) (emphasis original). Thus, a government employee's right of action is denied in any one of three circumstances: (1) the employee was in a position to order, influence, or induce the use of the copyright work by the government; (2) the copyrighted work was prepared as part of employee’s “official function”; or (3) the copyrighted work was prepared using government time, material or facilities. “The use of the word ‘or’ in the statute indicates that satisfaction of any of these conditions is sufficient to deny a right of action.” Herbert I], 36 Fed.Cl. at 305 (examining the three exceptions listed in § 1498(b)). It is well understood that copyright jurisdiction differs for the federal district courts and the Court of Federal Claims. While the federal district courts are vested with jurisdiction to hear copyright infringement actions pursuant to 28 U.S.C. § 1338(a) (“The district courts shall have original jurisdiction of any civil action arising under any Act of Congress relating to patents, plant variety protection, copyrights and trademarks.”) the Court of Federal Claims jurisdiction is established by § 1498(b), which codifies a limited waiver of sovereign immunity for copyright infringement claims against the government and establishes this court as the exclusive forum to hear such claims. 28 U.S.C. § 1498(b) (“[T]he 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 45a Appendix B Claims... .”’). See Boyle v. United States, 200 F.3d 1369, 1373 (Fed.Cir.:2000) (“The plain language of [§ 1498(b)] states that the United States has waived sovereign immunity... .”). In federal district court, the private sector’s analogue to the second “official function” proviso in § 1498(b) is the Copyright Act’s “work made for hire” doctrine. 17 U.i5.C. §§ 101, 201(b). 1 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 5.13(b)(2) at 5-98 (2006) (“That formulation parallels the definition of ‘work made for hire’ consisting of ‘a work prepared by an employee within the scope of his or her employment.’ ”).'* This statutory exception to infringement liability has been treated as an affirmative defense by the federal district courts with the burden of persuasion placed on the defendant. See Medforms, Inc. v. Healthcare Mgmt. Solutions, Inc., 290 F3d 98, 105 (2d Cir.2002) (noting the federal district court dismissed the defendants’ affirmative defense that a computer program belonged to the employer under the “work made for hire” doctrine); Dolman v. Agee, 157 14. The “work made for hire” is an exception to the general rule that ownership vest with the author of the work, and instead vests with the author’s employer. See 17 U.S.C. § 201(b) (“In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.”); See also 17 U.S.C. § 101 (defining a “work made for hire” as “a work prepared by an employee within the scope of his or her employment....”). 46a Appendix B F.3d 708, 712 (9th Cir.1998) (agreeing with the federal district court that the defendant asserting the work made for hire defense failed to present the requisite credible evidence that the author’s work was done at the “instance and expense” of the employer). Of course, the issue of the waiver of sovereign immunity is not implicated in the Copyright Act, where infringement actions are between private parties. Consequently, the similarity between that Act’s exception and the conditions or provisos contained in § 1498(b) does not by itself negate the jurisdictional problem. That the conditions in § 1498(b) are jurisdictional can readily seen. That same section clearly waives the sovereign immunity of the United States for copyright infringement suits, as was noted above. The provisos in § 1498(b) can viewed as conditions to that waiver. In other words, the argument is that if Congress can open the door fully to lawsuits against the government, it certainly can only partly open that door. The argument favoring treating § 1498(b)’s exceptions as affirmative defenses is more complex. For instance, the Supreme Court, in Franconia Assocs. v. United States, 536 U.S. 129, 145, 122 S.Ct. 1993, 153 L.Ed.2d 132 (2002), noted that while the Tucker Act, 28 U.S.C. § 1491, constitutes a waiver of sovereign immunity, the Tucker Act’s six year limitations period, 28 U.S.C. § 2501,'° “should generally apply to the 15. 28 U.S.C.A. § 2501 provides in pertinent part that every “claim of which the United States Court of Federal Claims has jurisdiction shall be barred unless the petition thereon is filed within six years after such claim first accrues.” 47a Appendix B Government ‘in the same way that’ they apply to private parties,” citing Irwi [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_0773%3A1. Public record. Not legal advice.