Justia Government Contracts Opinion Summaries

In 2013, the Naval Facilities Engineering Command installed copyrighted graphics-rendering software created by German company Bitmanagement onto all computers in the Navy-Marine Corps Intranet. No express contract or license agreement authorized the Navy’s actions. In 2016, Bitmanagement filed suit, alleging copyright infringement, 28 U.S.C. 1498(b). The Claims Court found that, while Bitmanagement had established a prima facie case of copyright infringement, the Navy was not liable because it was authorized to make copies by an implied license, arising from the Navy’s purchase of individual licenses to test the software and various agreements between the Navy and the vendor.The Federal Circuit vacated and remanded for the calculation of damages. The Claims Court ended its analysis prematurely by failing to consider whether the Navy complied with the terms of the implied license, which can readily be understood from the parties’ entire course of dealings. The implied license was conditioned on the Navy using a license-tracking software, Flexera, to “FlexWrap” the program and monitor the number of simultaneous users. The Navy failed to effectively FlexWrap the copies it made; Flexera tracking did not occur as contemplated by the implied license. That failure to comply creates liability for infringement. View "Bitmanagement Software GMBH v. United States" on Justia Law

Gaylord created “The Column,” sculptures representing soldiers that are the centerpiece of the Korean War Veterans' Memorial on the National Mall. The Postal Service issued a stamp commemorating the 50th anniversary of the armistice, with a photograph of The Column, licensed from a photographer. USPS issued roughly 86.8 million of the stamps, sold retail goods with the image, and licensed the image to retailers, without seeking Gaylord's permission. In 2006, Gaylord sued under 28 U.S.C. 1498(b) for copyright infringement. The Federal Circuit held that Gaylord owned the copyright and that USPS was liable for infringement, but remanded for determination of damages. The Court of Federal Claims rejected a claim for a 10 percent royalty on about $30.2 million in revenue allegedly generated by the infringing use, as well as a claim for prejudgment interest, finding that neither 28 U.S.C. 1498(b), which waives sovereign immunity for copyright infringement, nor the copyright infringement statute, 17 U.S.C. 504, authorizes a royalty-based award for copyright infringement and that the proper measure of damages was the reasonable value of a license, between $1,500 and $5,000. The Federal Circuit vacated and remanded for determination of market value of the infringing use and award of prejudgment interest. View "Gaylord v. United States" on Justia Law