Willam Patry on U.S. government use of copyrighted works

William Patry, The U.S. Government and Copyright. The Patry Copyright Blog, May 4, 2005.

Until 1960, the doctrine of sovereign immunity seemed to preclude recovery against the United States for infringement. This changed on September 6, 1960 when [the Congress passed] an act [PL 86-726] creating a new Section 1498(b) in title 28. This waiver of sovereign immunity came with attached strings: one can only recover “reasonable and entire recovery for such damages, including minimum statutory damages,” no injunctive relief is available, nor attorney’s fees. Moreover, corporations owned or controlled by the federal government, contractors and subcontractors, as well as “any person, firm, or corporation acting for the Government and with the authorization or consent of the Government” must be sued in the Court of Federal Claims, with the same limitations on relief. Authorization may be express (as in a contractual clause), extrinsic (as where evidence demonstrates the government’s intention to assume liability), or implied (e.g., when the government makes the infringement by the contractor inevitable due to the conditions placed on the contractor). The reference to minimum statutory damages should scare off copyright owners from thinking they can get the enhanced amounts of up to $150,000 per work. In short, monetary recovery is slight, injunctive relief and attorney’s fees impossible; litigation against the federal government is not an attractive option. (These provisions do not apply to actions against state governments, but there one has intractable sovereign immunity problems).