Property, intangible

a blog about ownership of intellectual property rights and its licensing

In Service of the Government

Wired reports about a prisoner who sued the government for copyright infringement for its sale of desk-blotter calendars he created as part of his assigned work duties while incarcerated. Suits for copyright infringement against the government are controlled by 28 U.S.C. § 1498(b):

Hereafter, whenever the copyright in any work protected under the copyright laws of the United States shall be infringed by the United States. . . the exclusive action which may be brought for such infringement shall be an action by the copyright owner against the United States in the Court of Federal Claims . . . : 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[.]

Mr. Walton argued that employee and service are synonymous in the statute, that other cases have held that prisoners are not employees, so therefore his claim is not barred. The Court of Appeals for the Federal Circuit, affirming the Court of Claims, begged to differ:

To the contrary, we conclude that Congress intended the two terms to have different, although related, meanings. One may have a “service” relationship with the federal government that does not constitute an “employment” relationship. Without attempting to define the precise limits of “service,” we conclude it covered Walton’s relationship with Federal Prison Industries Inc. while working for it on the federal calendar as a federal prisoner.

Case dismissed for lack of jurisdiction. Walton v. United States.

© 2009 Pamela Chestek

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