COHEN v. The UNITED States

• Decision Date: 14 April 2011
• Docket Number: No. 07-154 C,07-154 C
• Parties: NORMAN H. COHEN, Ed.D., Plaintiff, v. THE UNITED STATES, Defendant.
• Court: U.S. Claims Court

NORMAN H. COHEN, Ed.D., Plaintiff,

v.THE UNITED STATES, Defendant.

No. 07-154 C

United States Court of Federal Claims

E-Filed: April 14, 2011

Motion for Reconsideration; Standing to Sue the United States for Copyright Infringement Under 28 U.S.C. § 1498(b); United States Is Not Liable for Copyright Infringement by Third Parties Not Acting with the Government's Authorization or Consent; United States Cannot Be Held Liable for Secondary Copyright Infringement

Jonathan M. Cohen, Philadelphia, PA, for plaintiff.

Susan L.C. Mitchell, with whom were Tony West, Assistant Attorney General, and John J. Fargo, Director, Intellectual Property Section, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for defendant. David M. Ruddy, United States Department of Justice, Washington, DC, of counsel.

OPINION AND ORDER

HEWITT, Chief Judge

Before the court are the United States' Motion for Reconsideration (defendant's Motion or Def.'s Mot.), filed November 19, 2010, Docket Number (Dkt. No.) 61; Plaintiff's Response to Defendant's Motion for Reconsideration of the August 9, 2010 Opinion and Order (plaintiff's Response or Pl.'s Resp.), filed December 15, 2010, Dkt. No. 66; Defendant United States' Reply in Support of its Motion for Reconsideration (defendant's Reply or Def.'s Reply), filed December 22, 2010, Dkt. No. 67; Plaintiff's Sur Reply to Defendant's Motion for Reconsideration of the August 9, 201 0 Opinion and Order (plaintiff's Sur-Reply or Pl.'s Sur-Reply), filed December 30, 2010, Dkt. No. 68-1; and United States' Sur-Sur-Reply Addressing Newly Raised Issues in Plaintiff's Sur-Reply of December 30, 20010 [sic] (defendant's Sur-Sur-Reply or Def.'s Sur-Sur-Reply), filed January 11, 2011, Dkt. No. 70-1.

I. Background

Dr. Norman H. Cohen (Dr. Cohen or plaintiff) brought an action for copyright infringement against the United States government, acting through the Federal Emergency Management Agency (United States, FEMA, government or defendant). Civil Action Complaint (Complaint or Compl.), Dkt. No. 1, at ¶¶ 5, 10. Plaintiff contends that the United States infringed his copyrights in at least six¹ of his works when it displayed the works on FEMA's website, thereby making the works available to the public. Id. ¶¶ 5, 10-12. The government moved for partial summary judgment, contending, among other things, that plaintiff lacked standing to bring suit under 28 U.S.C. § 1498(b) (2006) for four works published by Human Resource Development Press, Inc. (HRD Press) and that plaintiff's period of recovery was limited to the seven-day period of time that FEMA had plaintiff's works on its website during the three-year statute of limitations period under 28 U.S.C. § 1498. United States' Mot. for Partial Summ. J., Dkt. No. 37, at 1.

In granting-in-part and otherwise denying defendant's motion, the court made two findings relevant to this dispute: (1) because the government did not put forward any evidence to dispute that Dr. Cohen is a beneficial owner of the four works published by HRD Press, the government failed to show that Dr. Cohen lacked standing to sue for infringement of the copyrights of those works, Cohen v. United States (Cohen or Opinion), 94 Fed. Cl. 165, 173-74 (2010), Dkt. No. 50; and (2) because plaintiff put forward evidence showing that "the cached versions of websites were available to the public after the government took down the infringing materials from its website," plaintiff "raised a genuine issue of material fact sufficient to defeat defendant's contention that recovery is limited to the period ending on March 15, 200[4]," id. at 175.

Defendant now moves the court to "reconsider Parts III-B and III-C of its August 9, 2010 [O]pinion that denied the government's motion for partial summary judgment as to the issues of ownership and the period of recovery" pursuant to Rules 54(b) and 59(a) of the Rules of the United States Court of Federal Claims (RCFC). Def.'s Mot. 1. For the following reasons, defendant's Motion is GRANTED-IN-PART and DENIED-IN-PART.

II. Legal Standards

A. Motion for Reconsideration

"The standards applicable to reconsideration of non-final decisions are set forth in Rules 54(b) and 59(a) of the [RCFC]." Alpha I, L.P. ex rel. Sands v. United States, 86 Fed. Cl. 568, 571 (2009). Rule 54(b) provides, in relevant part, that "any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities." RCFC 54(b). Rule 59(a) provides that rehearing or reconsideration may be granted as follows: "(A) for any reason for which a new trial has heretofore been granted in an action at law in federal court; (B) for any reason for which a rehearing has heretofore been granted in a suit in equity in federal court; or (C) upon the showing of satisfactory evidence, cumulative or otherwise, that any fraud, wrong, or injustice has been done to the United States." RCFC 59(a)(1).

"The decision whether to grant reconsideration lies largely within the discretion of the [trial] court." Yuba Natural Res., Inc. v. United States, 904 F.2d 1577, 1583 (Fed. Cir. 1990). "The court must consider such motion with 'exceptional care.'" Henderson Cnty. Drainage Dist. No. 3 v. United States (Henderson), 55 Fed. Cl. 334, 337 (2003) (quoting Fru-Con Constr. Corp. v. United States (Fru-Con), 44 Fed. Cl. 298, 300 (1999)). "A motion for reconsideration is not intended . . . to give an 'unhappy litigant an additional chance to sway' the court." Matthews v. United States, 73 Fed. Cl. 524, 525 (2006) (quoting Froudi v. United States, 22 Cl. Ct. 290, 300 (1991)). "Motions for reconsideration should not be entertained upon 'the sole ground that one side or the other is dissatisfied with the conclusions reached by the court, otherwise the losing party would generally, if not always, try his case a second time, and litigation would be unnecessarily prolonged.'" Fru-Con, 44 Fed. Cl. at 300 (quoting Seldovia Native Ass'n, Inc. v. United States, 36 Fed. Cl. 593, 594 (1996)), aff'd, 144 F.3d 769 (Fed. Cir. 1998).

The moving party must support its motion for reconsideration by a showing of exceptional circumstances justifying relief, based on a manifest error of law or mistake of fact. Henderson, 55 Fed. Cl. at 337 (citing Franconia Assocs. v. United States, 44 Fed. Cl. 315, 316 (1999)); Principal Mut. Life Ins. Co. v. United States (Principal), 29 Fed. Cl. 157, 164 (1993) (quoting Weaver-Bailey Contractors, Inc. v. United States, 20 Cl. Ct. 158, 158 (1990)), aff'd, 50 F.3d 1021 (Fed. Cir. 1995)). "Specifically, the moving party must show: (1) the occurrence of an intervening change in the controlling law; (2) the availability of previously unavailable evidence; or (3) the necessity of allowing the motion to prevent manifest injustice." Matthews, 73 Fed. Cl. at 526 (citing Griswold v. United States, 61 Fed. Cl. 458, 460-61 (2004)). Where a party seeks reconsideration on the ground of manifest injustice, it cannot prevail unless it demonstrates that any injustice is "apparent to the point of being almost indisputable." Pac. Gas & Elec. Co. v. United States, 74 Fed. Cl. 779, 785 (2006), aff'd in part and rev'd in part, 536 F.3d 1282 (Fed. Cir. 2008). In other words, "manifest" is understood as "clearly apparent or obvious." Ammex, Inc. v. United States, 52 Fed. Cl. 555, 557 (2002) (citing Principal, 29 Fed. Cl. at 164), aff'd, 384 F.3d 1368 (Fed. Cir. 2004).

B . Motion for Summary Judgment

A motion for summary judgment may be granted only when "there is no genuine issue as to any material fact and . . . the movant is entitled to judgment as a matter of law." RCFC 56(c)(1). A fact is material if it might affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Where the moving party has not disputed any facts contained in the non-movant's pleadings, the court assumes all well-pleaded facts to be true and draws all applicable presumptions and inferences from such facts in favor of the non-moving party. See Univ. of W. Va. Bd. of Trs. v. VanVoorhies, 278 F.3d 1288, 1295 (Fed. Cir. 2002); Banks v. United States, 69 Fed. Cl. 206, 209 (2006).

Failure by a non-moving party to raise a genuine issue of material fact results in the court's granting summary judgment in favor of the moving party. See RCFC 56(c)(1). "The party opposing the motion must point to an evidentiary conflict created on the record; mere denials or conclusory statements are insufficient." SRI Int'l v. Matsushita Elec. Corp. of Am., 775 F.2d 1107, 1116 (Fed. Cir. 1985) (en banc) (citing Barmag Barmer Maschinenfabrik AG v. Murata Mach., Ltd., 731 F.2d 831, 836 (Fed. Cir. 1984)). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 247-48 (emphasis omitted).

III. Discussion

Defendant argues that "[a]s to ownership, plaintiff has no cause of action against the government concerning the [four works published by HRD Press] because, although qualifying as a 'beneficial owner' under 17 U.S.C. § 501(b) [(2006)], he fails to qualify as a 'copyright owner' under 28 U.S.C. § 1498(b)." Def.'s Mot. 1. Defendant further contends that "as to the period for recovery, because § 1498(b) contains no waiver of sovereign immunity for the unauthorized and independent actions of third parties, the government is not liable for any infringement beyond March 15, 2004, when it removed the allegedly infringing materials from its server." Def.'s Mot. 1.

A. Plaintiff Has Standing to Sue the Government for Copyright Infringement Under 28 U.S.C. §...