Driessen v. United States

• Decision Date: 25 April 2014
• Docket Number: No. 13-323C,13-323C
• Parties: JAMES L. DRIESSEN, Plaintiff, v. UNITED STATES, Defendant.
• Court: Court of Federal Claims

JAMES L. DRIESSEN, Plaintiff, v. UNITED STATES, Defendant.

No. 13-323C

United States Court of Federal Claims

April 25, 2014

Pro Se Plaintiff; Motion to

Dismiss; Lack of Subject Matter

Jurisdiction; Failure to State a

Claim; Intellectual Property;

Copyright; Implied-in-Fact

Contract.

James L. Driessen, Lindon, UT, pro se.

John Fargo, Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C., for the defendant. With him was Stuart F. Delery, Assistant Attorney General, Civil Division, Department of Justice.

ORDER

HORN, J.

FINDINGS OF FACT

Pro se plaintiff James L. Driessen filed a complaint in the United States Court of Federal Claims¹ stating" [t]his is a declaratory action asking the court to declare thatPlaintiff is the owner of the exclusive right in copyright and thereby oblige the Copyright Office (hereafter 'Office') to perform a permissive registration under the copyright code." Plaintiff requests the court declare that he is "a lawful purchaser and owner of content media," and therefore, is entitled to "exclusive rights to lawful enjoyment, including displaying, viewing, and transmission of the same for home viewing, within the bounds of copyright law" and declare that there is "no physical or ethereal length of cord which [sic] too long which could prohibit such lawful enjoyment . . . within any distance." (emphasis in original). Plaintiff also alleges "that Congress has authorized the [Copyright] Office through the Library of Congress,[²] to provide means for permissive registration of any exclusive copyright." (emphasis in original). Further, plaintiff requests the court to "[r]emand the Plaintiff's request for registration of his exclusive rights to the [Copyright] Office, with proper instruction to the Office, ordering the Office to develop and implement the rules and fees for such permissive registration as required by law."

According to Mr. Driessen, Vibme, LLC (Vibme)³ petitioned the Copyright Office and requested the Copyright Office commence rulemaking to establish a new system of registration using the "Circle Section" registration mark, which would address "consumer. . . ownership rights in first-sales of online digital media." The petition for rulemaking requested that the Copyright Office "clearly establish that consumers have ownership rights in first-sales of online digital media," and, "if it is determined that ownership rights for cloud media storage are mechanical or compulsory, then pursuant to its existing authority under 17 U.S.C. § 408, establish procedures for a preferred service provider to file an application for supplementary registration on behalf of consumers . . . ." The petition for rulemaking also outlined the reasons plaintiff suggested for creating a new system of registration, including "consumer demand for digital ownership - at least as it is marketed at present - is beginning to disappear." The petition for rulemaking stated "[i]t seems difficult to even understand the industry impetuous [sic] behind these perceived efforts to hide ownership from theconsumer." The petition for rulemaking also argued that, "[t]he personal media collection (as a concept) could actually assist in creating better bandwidth optimization." The petition for rulemaking describes the potential consequences of not granting his petition, stating, "consumers feel they are left with no choice but to seek to satisfy that demand outside of industry channels." The petition for rulemaking warned, "[i]f, however, we allow the fears and prejudices of industry content producers to dictate our path, the personal media collection will disappear as physical media sources become obsolete . . . ." The petition for rulemaking further warned that "attempts to deprive citizens of ownership have had grave, even violent consequences."

Vibme then submitted a second petition to the Copyright Office titled "PETITION FOR WAIVER OR SUSPENSION OF RULES (OR CONSOLIDATION MOTION IN THE ALTERNATIVE) RE: DOCKET 2011-07." (emphasis and capitalization in original). As explained by the Copyright Office, in a letter to Maguerite A. Driessen, Vibme "requested that the Copyright Office consolidate the rulemaking with [the] office's rulemaking pursuant to 17 U.S.C. § 1201(a)(1)(C)," or, in the alternative, that the office "suspend the section 1201 rulemaking until the conclusion of the rulemaking" requested in Vibme's prior petition. In the same letter to Maguerite A. Driessen, the Copyright Office denied the petitions for rulemaking. Subsequently, in a third petition, Vibme requested reconsideration of its proposals and a final notice.⁴ A final decision by the Copyright Office denying the two petitions, as well as the request for reconsideration, was set forth in a subsequent letter to Mr. Driessen. As the Copyright Office noted in that final decision:

Under the copyright law, the exclusive rights in copyrighted works are set forth in sections 106 and 106A of the copyright law. Limitations to those exclusive rights are set forth in sections 107 through 122 of the copyright law. The first sale doctrine, which permits the owner of physical copies to transfer possession of the copy, is set out in section 109 of the copyright law. Section 109 clarifies that the first sale right is a limitation on the exclusive right of distribution. The first sale doctrine does not limit the exclusive right of reproduction. As the Office stated in its Section 104 Report to Congress, a report mandated by the Digital Millennium Copyright Act, the first sale doctrine is inapplicable when the disposition of a copy or phonorecord of a work implicates the reproduction right, as is the case when a copy or phonorecord of a work is transmitted over the Internet. See, http://www.copvriaht.gov/reports/studies/dmca/dmca study. html. Thus, from the perspective of the Copyright Office, a fundamental premise in your rulemaking request is flawed.

. . .

Nowhere in section 109 is the Copyright Office authorized to establish a registration system for ownership rights in the first-sale of online digital media. Moreover, as explained in the Section 104 Report to Congress,because the transfer of a copy or phonorecord online implicates the reproduction right, the first sale doctrine is generally inapplicable. See, http://www.copyriqht.gov/reports/studies/dmca/dmca study.html.

In absence of express authorization from Congress, the Copyright Office finds no discretion to consider the matters advanced in your petitions. This decision constitutes final agency action on your requests.

Thereafter, Mr. Driessen filed an application to register his "material objects" with the Copyright Office. In his complaint plaintiff indicates that he "requested that the [Copyright] Office would grant the registration of exclusive first sale distribution rights,⁵ with the fair use time-shifting, space-shifting, and place-shifting rights, joined with the transmitting for the private home viewing right from an authorized copy of. . . material objects." Plaintiff requested the Copyright Office to protect the following "media material objects:" "The Dark Side of the Moon (music album CD) - quantity 2," "Short Circuit (motion picture DVD) - quantity 2," and "The Outlaw Josey Wales (motion picture Bluray) - quantity 2." Plaintiff claimed that his company's patented technology helps make these specific copies "fully distinguishable from each other and from any other such authorized copy of the work, of which it is known that there are millions."⁶ (emphasis in original). According to plaintiff, he "requested that the [Copyright] Office would determine procedures, policies, and fees for such registration, but was ignored," and, subsequently, was "finally denied a request for rulemaking."

After filing his various petitions and applications at the Copyright Office, plaintiff filed suit in the United States Court of Federal Claims. Defendant responded with a motion to dismiss for lack of subject matter jurisdiction and for failure to state a claim. Specifically, defendant claims that this court does not have jurisdiction to consider plaintiff's request for non-monetary requested relief, which is not a claim based on to a money mandating statute. Defendant also argues that plaintiff's claims should be dismissed for failure to state a claim upon which relief can be granted.

DISCUSSION

Plaintiff filed his complaint in this court pro se. When determining whether a complaint filed by a pro se plaintiff is sufficient to invoke review by a court, pro se plaintiff's are generally entitled to liberal construction of their pleadings. See Haines v. Kerner, 404 U.S. 519, 520-21 (requiring that allegations contained in a pro se complaint be held to "less stringent standards than formal pleadings drafted by lawyers"), reh'q denied, 405 U.S. 948 (1972); see also Erickson v. Pardus, 551 U.S. 89, 94 (2007); Hughes v. Rowe, 449 U.S. 5, 9-10 (1980); Estelle v. Gamble, 429 U.S. 97, 106 (1976), reh'q denied, 429 U.S. 1066 (1977). Defendant argues, citing Holtzv. Rockefeller & Co., Inc., 258 F.3d 62, 82 n.4 (2d Cir. 2001), that plaintiff, who is an attorney, should not be allowed the more lenient pro se status which is typically accorded to a non-attorney, pro se plaintiff. The court notes that plaintiff, although not a member of this court's bar, is a member of the Utah bar.⁷ The court agrees that a pro se plaintiff who is also a licensed attorney should not be accorded the extra protections allowed to one who is not trained in the law, especially in this case because, according to the information on the law firm website, Mr. Driessen "has become a recognized expert in the field of intellectual property."

It is well established that '"subject-matter jurisdiction, because it involves a court's power to hear a case, can never be forfeited or waived.'" Arbauqh v. Y & H Corp., 546 U.S. 500, 514 (2006) (quoting United States v. Cotton, 535 U.S. 625, 630 (2002)). "[F]ederal courts have an...