100 Fed. Cl. 461
Fed. Cl.2011Background
- Dr. Norman H. Cohen sued the United States (FEMA) for copyright infringement based on FEMA’s display of six of Cohen’s works on FEMA’s website, making them available to the public and FEMA personnel.
- Cohen retained Ivan Zatkovich as an expert; his initial report proposed two damages theories: lost profits from public access and lost royalties from FEMA employee use via licensing fees.
- A July 2009 supplemental report did not add new theories; it corrected totals but did not supplement with new damage theories for the public’s use.
- During a December 2009 deposition, Zatkovich testified about a licensing-use theory for the public that differed from his report, suggesting a methodology he had chosen not to include.
- Cohen later sought to rely on the deposition testimony and an affidavit (January 21, 2011) to support the public-use damages theory, prompting a motion to strike by the United States.
- The court ultimately granted in part and denied in part the United States’ motions: it struck the deposition-based value-of-use theory for the public and denied summary judgment on the public-use damages, while granting summary judgment on lost profits for non-infringed works and on future lost sales.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Damages for public access to works on FEMA site applicable? | Cohen seeks actual damages based on lost profits from public access. | GOVERNMENT argues only actual damages supported by evidence; value-of-use theory not properly disclosed. | Partially denied; factual disputes remain on causation and proof of damages. |
| Willful infringement and enhanced damages apply? | Willful infringement claimed; possible enhanced statutory damages. | Willful infringement not cognizable against the government under §1498(b). | Willful damages not awarded; government not liable for enhanced damages. |
| Statutory damages cap under §1498(b) applicable? | Statutory damages may be elected instead of actual damages; cap unclear. | Any statutory damages against government limited; questions remain pending election. | Statutory damages issues not decided; election to statutory damages not yet made. |
Key Cases Cited
- Data Gen. Corp. v. Grumman Sys. Support Corp., 36 F.3d 1147 (1st Cir. 1994) (injury measured by diminished market value and causation burden on plaintiff)
- Fitzgerald Publ’g Co. v. Baylor Publ’g Co., 807 F.2d 1118 (2d Cir. 1986) (lost profits framework and burden of proof in damages)
- Nim mer v. Orr, 200 F.3d 291 (5th Cir. 2000) (expert testimony and damages standards (cited for guidance))
- Wechsberg v. United States, 54 Fed.Cl. 158 (2002) (guidance on damages theory selection in copyright against government)
- Taylor v. Meirick, 712 F.2d 1112 (7th Cir. 1983) (pre-infringement vs. during-infringement sales comparison method)
- Stevens Linen Assocs., Inc. v. Mastercraft Corp., 656 F.2d 11 (2d Cir. 1981) (discussing methods to measure injury to market value in damages)
- Brooktree Corp. v. Advanced Micro Devices, Inc., 977 F.2d 1555 (Fed. Cir. 1992) (analogy for calculating actual damages and market injury)