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                                                         No. l6-1094C
                                                    (Filed: March 10,2017)
                                                                                               FILED
*    ***** * *** *** *** *** * ***** *:i* *** ***'i1.                                         MAR   I 0 2017
                                                                      ,|

CARL RAYMOND AMOS,                                                                            U.S. COURT OF
                                                                                             FEDERAL CLAIMS

                                    Plaintiff,                        *
                                                                      *
                                                                      4


THE UNITED STATES,

                                    Defendant.

,(   **t   **,t *,i* * * {, * * ** * ** * ** * * * * * :l * ** * * * * *


                                                  OPINION AND ORDER

Damich, Senior Judge

        On September l, 2016, Plaintift Carl Raymond Amos, filed a complaint pro se
against the United States under claims for breach ofcopyright under 28 U.S.C. $ 1498,
violations of the Digital Millennium Copyright Act (DMCA) (17 U.S.C. $ 1203, 1204),
Lanham Act (15 U.S.C. $ 1125), as well as the Racketeer Influenced and Corrupt
Organizations Act (RICO) (18 U.S.C. $ 1962). On December 12,2016, Plaintiff
submitted an amended complaint. On January 6, 2017, Defendant filed a motion to
dismiss pursuant to Rule 12(b)(1), (6) of the United States Court of Federal Claims.

       In its motion to dismiss, Defendant argues that they did not waive its sovereign
immunity, the Plaintiff s claim is time baned, and Plaintiff did not state a claim upon
which relief can be granted. For the reasons set forth below, the Court GRANTS
Defendant's motion to dismiss.l

                    Statement of Facts

       A. The Contract
        On November 30, 2009, the Smithsonian Institution's Office of Contracting
entered into a contract with Freelon Group, Inc. for "[a]rchitectural and engineering
design services and construction of the National Museum of African American History

              '
       Plaintiff filed a motion to compel on December 20, 2016. The motion is
DENIED as MOOT in light of this opinion.



                                                                             ?01,r+ t   a00 00EE 1013 b851
and Culture." See Def.'s Mot. to Dismiss. Ex. A, Contract No. FlOCC10067, at A-1
(hereinafter "Ex. A"). The contract between Freelon and Defendant did not include an
authorization and consent clause lor copyright infringement.2 Def.'s Mot. to Dismiss at
3. The contract did include a provision entitled "No Infringement," which expressly
prohibited the Freelon Group. Inc. from "infring[ing] any . . . copyright, trademark, or
other intellectual property right (including trade secrets) . . . ." Ex. A at A-73 ($ H. t 1.4).

      B.    The Alleged Violations

        Plaintiffpleads that in 2009 and 2012-2013, he gave the Defendant notice that
"the selected Design Concept Submittal was the Plaintiff s IP." Pl.'s Amended
Complaint. I.l.c.. Plaintiff presented a list of thirty copyright registrations and further
submits a more detailed registration for copyright numbers: Y Au0005267 64
("Jwahmose"), registered Jlune22,200l, and VAu001225290 C'JWAHMOSE Pyramidal
and Collinear Building"), registered November 9, 20 I 5.r See Complaint (filed Sept. 1,
2016), Ex. C2. It is alleged that Freelon Group, Inc. and, transitively the Defendant,
violated these copyrights.

      II.       Discussion

         The Plaintiff alleges that the Defendant infringed on his copyright, as well as
violated the DMCA, Lanham Act, and RICO. Defendant maintains that: (l) it did not
waive sovereign immunity, (2) the Plaintiff s claim is time baned, (3) this Court lacks
jurisdiction to adjudicate the DMCA, Lanham, and RICO claims, and (4) Plaintiff failed
to properly state a claim upon which relief may be granted. Because the Court decides
 for the Defendant on arguments l-3, the Court will not address Defendant's fourth
argument.

      A.    Sovereign Immunity

         In Insurance Company of the l{est v. United Stales, the Federal Circuit held that
"a suit against the government cannot proceed absent a waiver ofsovereign immunity."
Ins. Co. o/ the lilest v. United States,243 F.3d 13 67, I 372 (Fed. Cir. 2001) (stating that
the waiver must be "unequivocally expressed.") (quoting United States v. Nordic Village,
[nc.,503 U.S. 30, 33 (1992)). The Supreme Court in United States v. Sherwood, held that
failure to obtain a waiver of sovereign immunity is a jurisdictional bar. United States v.
Sherwood,3l2 U.S. 584,586 (1941). See also Boyle v. UnitedStates,200 F.3d 1369,
1372 (Fed. Cir. 2000) ("[a] claimant has a claim against the United States only when the
United States has consented to be sued by means ofa waiver of sovereign immunity.").
Moreover, if a waiver to sovereign immunity is granted via statute, it must be strictly
construed in favor of the sovemment. See Sherwood.3l2 U.S. at 590. The Federal


            2
          The Contract between the parties did, however, include a provision for patent
infringement. Def.'s Mot. to Dismiss at 3.
        3
          Among the copyright allegations, Plaintiff submitted a broad range of violations
including those related to "Precious Metals.",See Complaint (filed Sept. l, 2016), Ex. C2.
Circuit has held that at all times it is the Plaintiffs burden to prove waiver ofsovereign
immunity. See Booth v. United Stqtes,990 F.2d 617,619 (Fed. Cir. 1993); see also
Rocovich v. United States, 933 F .2d 991, 993 (Fed. Cir. 1991) ("[a] party seeking the
exercise ofjurisdiction in its favor has the burden ofestablishing that such jurisdiction
exists.") (citing KVOS, Inc. v. Associated Press,299 U.S. 269, 278 (1936)).

       For waivers of sovereign immunity for copyright infringement, the appropriate
statute to reference is 28 U.S.C. $ 1498(b). The statute provides, inter alia, that:


       [W]henever the copyright in any work protected under the copyright laws
       ofthe 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 Govemment, 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 ofhis reasonable and entire compensation
       as damages for such inlringement.


28 U.S.C. S 1498(b).

       In the $ 1498 setting, waivers ofsovereign immunity can occur in three instances:

               (l) when the United States itself infringes a copyright, (2) when a
               corporation owned or controlled by the United States infringes, and
               (3) when a contractor, subcontractor, or any person, firm, or
               corporation, acting for the Govemment aad with its authorization
               or consent, infringes.

Boyle,200 F.3d at 1373. Only the third prong is relevant in this case, as Plaintiff has not
alleged that the Defendant itself (or corporation it owns or controls) infringed on a
copyright, but instead, alleged that a government contractor copied his work. To infringe
on a copyright, one must prove "(l ) ownership ofa valid copyright, and (2) copying of
constituent elements ofthe work that are original." Feist Publ'ns, Inc. v. Rural Tel. Serv.
Co.,499 U.S. 340, 361 (1991) (citing Harper & Row, Publrs. v. Nation Enters.,4'll U.S.
539, s48 (r98s)).

        Under Boyle, a plaintiff must also show that the contractor (in this case Freelon
Group, Inc.) was acting for the Defendant with its authorization or consent. Boyle,200 F .
3dat13'73. See also Auerbach v. Sverdrup Corp.,829 F.2d, 17 5, 179 (D.C. Cir. 1987)
(recognizing that the third prong "extends the waiver to third parties acting for the
govemment and with the govemment's 'authorization or consent."'), S. Rep. No. 1877,
86th Cong., 2d Sess. 3-4, reprinted in 1960 U.S. Code Cong. & Admin. News 3444,
3444-45 ("The language ofthe bill is to the effect that the exclusive remedy of the owner
ofthe copyright against the United States shall be only in those cases in which the
infringement was made with the authorization or gonsent of the Govemment. It would,
therefore, follow that all other infringements would not transfer liability to the U.S.
Government.").

        The mere existence ofa contract between the Defendant and Freelon Group Inc.,
is not enough to establish that authorization or consent was granted, but rather, a plaintiff
must show that the Defendant authorized the infringement of designs before immunity is
waived. Boyle,200 F.3d at 1373. ln order to prove waiver of immunity by authorization
and consent, there must be explicit acts or extrinsic evidence that show that the
govemment intended to accept liability for a specific act of infringement. Auerbach v.
Sverdrup Corp.,829 l:.2d, at 179. (emphasis added). Thus, "evidence of implied consent
might suffice." Zl According to Auerhach, evidence probative of implied consent could
include a ''contracting olficer['s] instructions," "specifications or drawings which
impliedly sanction and necessitate infringement," or "retroactive consent" given by the
government. Id. at 180 (internal citations omitted). Here, in the contract between the
Defendant and Freelon Group Inc. (Ex. A), there is no provision authorizing the
infringement ofcopyrights. Since there is no express provision, the Plaintiff would need
to show that the Defendant impliedly authorized the infringement. Plaintiffhas not met
this burden.

        Plaintiff alleges in his Responsea, that after he put the Smithsonian on notice to
his copyrights,

       the higher echelon management who were made aware but failed to
       intervene, only gave unstated approval or implied consent to infringe on
       other's valid registered copyrights and other IP. The Smithsonian
       Institution's actions did basically authorize the then bankrupt and
       insolvent Contractors to continue with their IP Heist in 2012-2016 and
       presently.

Pl.'s Resp. at 8. Notice to the Smithsonian ofcopyright infringement, however, does not
alter the fact that the contract language did not authorize Freelon Group to infringe, as the
Defendant points out. See Ex. A, at A-73 (stating that Freelon Group Inc., "will not
infringe any . . . copyright, trademark or other intellectual property right (including trade
secrets). . ."). Mere notice to the Smithsonian, a non-infringing party, about infringement
by another party, where the other party is contractually bound not to infringe, logically
cannot constitute implied authorization to infringe. Nor does it create a duty on the part
of the Smithsonian to prevent the infringement.

        In addition to notice, Plaintiff argues that the inclusion of an indemnification
clause constitutes implied authorization. Defendant maintains that the mere inclusion of
an indemnification clause "does not suggest a different conclusion," especially in light of


       a
        Plaintiff titles this document, "Motion to Compel and or Demand Defendant to
Produce Copyright Certificate(s) and Motion to Quash Defendant's Motion to Dismiss
With Plaintiff s Response and Rebuttal to Defendant's Motion to Dismiss" filed on
February 6,2017 (hereinafter "Pl.'s Resp.")
the express provision against copyright infringement. Def.'s Mot. to Dismiss at 9. The
contract between the Defendant and Freelon Group, Inc. provided that the contractor is
obligated to indemnify the Defendant against all claims, including, but not limited to,
"damages, losses, costs, liabilities, expenses (including settlement expenses), reasonable
attorney's fees andjudgments incurred by or asserted against" the Defendant. Ex. A, at
4.-65 ($ H.4.1). Indeed, to suggest the mere inclusion ofa robust indemnity provision
would negate the express language ofthe contract against copyright infringement and
provide authorization or consent by the govemment is illogical. Rather, this underscores
the Govemment's position that Freelon would be responsible for any copgight
infringement.

       The Court does not come to the conclusion that the Defendant waived its
sovereign immunity through an implied authodzation clause or the indemnification
clause. Simply stated, the Plaintiff failed to plead how Freelon Group, Inc. acted on
authorization by the Defendant, and, therefore; this Court must dismiss the claim for lack
ofjurisdiction.

    B.   Statute of Limitations

         In the alternative, the Govemment argues that the case must be dismissed as it is
time barred.

         Statute of limitations are jurisdictional requirements to file lawsuits, -/oftn R.
Sand  & Grovel Co. v. United States, 552 U.S. 130, 134 (2008), and it is the burden ofthe
plaintiff to establish jurisdiction. McNutt v. Ceneral Molors Acceplance Corp. of Ind.,
298 U.S. 178, 189 (1936). In copyright infringement cases, "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." 28 U.S.C. $ 1498(b).

         In his amended complaint, Plaintiff alleges that the copyright infringement began
accruing as early as 2009. Pl.'s Amended Complaint. I.1 .c. In Plaintiff s motion
however, he claims that his suit is not time barred because he registered his copyrights as
late as 2015. Contrary to Plaintiffs argument, the date one registers a copyright is not
the date which triggers the jurisdictional clock; instead, registration is only a prerequisite
to suing the govemment or any other infringer under 17 U.S.C. $ 411 (the Copyright
Act). The jurisdictional clock begins to run under federal copyright law when, "one has
knowledge ofa violation or is chargeable with such knowledge." Roley v. New llorld
Pictures, Ltd. , 19 F .3d 479, 481 (9th Cir. 1994). See also ll/eber v. Gffin Records, Inc.,
63 F. Supp. 2d 458,464 (S.D.N.Y. 1999) (quoting Merchant v. Levy,92 F.3d 51, 56 (2nd
Cir. 1996)) (a copyright claim accrues "when a plaintiff knows or has reason to know of
the inj ury upon which the claim is premised.").

        Plaintiff alleges that he had copyrights as early as 1994 on the JWAHMOSE
Pyramidal and Collinear Building, Jwahmose, and an additional thirty copyrights. He
then alleges that he informed the Smithsonian of copyright violations with regard to these
copyrights as early as 2009. This is the year, 2009, that the jurisdictional clock began to
run. The claims. therefore. would have had to have been filed no later than 2012.
Plaintiff did not hle the complaint in this matter until 2016. Thus, the case is time barred
and must be dismissed.

   C. This Court Lacks Jurisdiction for DCMA, Lanham Act, and RICO Claims
        In Plaintiffs original complaint, he alleged that the Defendant violated the
DCMA, Lanham Act, and RICO. In his response to the Defendant's motion to dismiss,
Plaintiff claims that he amended his complaint to seek "only remedy for Copyright
Infringement in the Honorable Court of Federal Claims." Pl.'s Response at 9. However,
after reviewing the amended complaint, Plaintiff is still alleging that Defendant violated
RICO. Just to remain unequivocally clear, this Court does not have subject matter
jurisdiction over any ofthese claims, therefore; they are dismissed. Stanwyck v, United
States,l27 Fed. Cl. 308, 313-15 (2016) (barring RICO claims in the USCFC), Iiber|.,
Ammunition, Inc. v. United Stares, 101 Fed. Cl. 581, 589-92 (201 1) (barring Lanham Act
 claims in the USCFC), Blueport Co., LLC v. United States,533 F'3d 1374, 1384 (2008)
 (baning DMCA claims in the USCFC).

    III.   Conclusion

       For the reasons set forth above, the Court GRANTS Defendant's motion to
dismiss. The Clerk is directed to enterjudgement accordingly.

        It is so ORDERED.


                                                              EDWARDTDAMICH
