Free Post Trial Brief - District Court of Federal Claims - federal

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No. 02-1622C (Judge Lawrence J. Block)

In the United States Court of Federal Claims
BLUEPORT COMPANY LLC Plaintiff, v. THE UNITED STATES, Defendant.

PLAINTIFF'S POST TRIAL BRIEF

KURT M. RYLANDER Attorney at Law MARK E. BEATTY Attorney at Law RYLANDER & ASSOCIATES PC 406 West 12th Street Vancouver, Washington 98660 Tel: (360) 750-9931 Fax: (360) 397-0473 Attorneys for Plaintiff

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COMES NOW Plaintiff and submits this, its Post Trial Brief, in accordance with the Court's Order dated August 10, 2006. SPECIFIC QUESTIONS 1. Are the defenses set out in 28 U.S.C. § 1498(b) jurisdictional in nature? Is the burden, therefore, on plaintiff to show that the defenses are not applicable and that jurisdiction is appropriate, or is the burden on defendant to show that the defenses are applicable and bar plaintiff's claim. Since cases addressing the jurisdictional nature of 28 U.S.C. § 1498(b) are limited, the parties should draw comparisons with other jurisdictional statutes in making their arguments. This direction addresses three issues: (1) are the defenses jurisdictional? (2) who has the burden of proof on the defenses? (3) must the Court address the defenses before any other item? The presentation of the defenses in 1498(b) is very similar to the presentation of the discretionary function exception to jurisdiction in the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2680. The treatment of that exception guides this Court on how the 1498(b) defenses should be treated here. The discretionary function exception is jurisdictional. United States v. Gaubert, 499 U.S. 315, 113 L.Ed. 2d 335 (1991)). However, the government bears the burden of proving the discretionary function exception. Prescott v. United States, 973 F.2d 696, 701-02 (9th Cir. 1992) Laurence v. United States, 851 F. Supp. 1445, 1450 (N.D. Cal. 1994) (citing Prescott); see also Autery v. United States, 992 F.2d 1523, 1526 (11th Cir. 1993), cert. denied 114 S. Ct 1829 (1994); Carlyle v. United States, 674 F.2d 554, 556 (6th Cir.1982); Stewart v. United States, 199 F.2d 517, 520 (7th Cir.1952). All circuits to address the issue have concluded that the burden of proving the discretionary function exception lies with the government. Prescott, 973 F.2d at 701 (9th Cir. 1992); Carlyle, 674 F.2d at 556 (6th Cir.1982); Stewart , 199 F.2d 517, 520 (7th Cir.1952); Autery, 992 F.2d at 1526 (11th Cir. 1993). "Only after a plaintiff has successfully invoked jurisdiction

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by a pleading that facially alleges matters not excepted by § 2680 does the burden fall on the government to prove the applicability of a specific provision of § 2680." Carlyle, 674 F.2d at 556 quoted in Prescott, 973 F.2d at 702 n. 4. In Prescott, the court addressed, among other things, the burden of proof on the jurisdictional defense, the discretionary function, under the Federal Tort Claims Act. Under the FTCA, the plaintiff can only invoke jurisdiction if the complaint is outside of the exceptions of Section 2680, which includes the discretionary function exception. Id. at 701-702. This does not require the plaintiff to disprove every exception. Id. Instead, the plaintiff may not invoke jurisdiction by pleading matters that plainly fall within the exception. Id. If the plaintiff ahs facially plead matters that do not fall within the

exception, the burden falls upon the government to prove the applicability of a specific provision. Id.; accord Carlyle, 674 F.2d at 556; Martinez v. United States, 740 F. Supp. 399, 401 (D.S.C. 1990); Berman v. United States, 565 F. Supp. 1353, 1404-05; contra. Waymire v. United States, 629 F. Supp. 1396, 1397 D.Kan. 1986); Porter v. United States, 619 F. Supp. 137, 142 (S.D. Ohio 1985). The Ninth Circuit explained: "Because an exception to the FTCA's general waiver of immunity, although jurisdictional on its face, is analogous to an affirmative defense, we believe the Sixth and Seventh Circuits correctly placed the burden on the United States as the party which benefits from the defense. Today, we follow these two circuits and adopt the rule as set forth by the Sixth Circuit in Carlyle. We thus hold explicitly that the United States bears the burden of proving the applicability of one of the exceptions to the FTCA's general waiver of immunity. As the Seventh Circuit reasoned in Stewart, placing the burden on the plaintiff would `impose upon the plaintiff the burden of proving [thirteen] negative averments. Such a result would border on the preposterous.'" Prescott, id. at 702 (citing Carlyle and Stewart) (block quote in original). The Ninth Circuit in Prescott specifically examine the Supreme Court's decision in Gaubert. In Gaubert, the Supreme Court appeared to impose the burden on the tort plaintiff to show

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that the government's conduct is not protected under the discretionary function exception. "For a complaint to survive a motion to dismiss, it must allege facts which would support a finding that the challenged actions are not the kind of conduct that can be said to be grounded in the policy of a regulatory regime." Gaubert, 111 S. Ct. at 1274-75. The Ninth Circuit, in Prescott, held that Gaubert does not conflict with its ruling that the government bears the burden of proof because Gaubert requires plaintiffs only to allege facts sufficient to state a claim under the FTCA, but does not deal specifically with the burden of proof issue. Prescott, 973 F.2d at 702 n. 4. The Tenth Circuit has questioned the approach taken in Prescott, but has not made a formal ruling on the issue. Kiehn v. United States, 984 F.2d 1100, 1105 n. 7 (10th Cir. 1993). Moreover, a separate doctrine further underscores placing the burden of establishing the defenses on the Government. Where the government's challenge to jurisdiction implicates the elements of the plaintiff's cause of action, i.e., where the "jurisdiction is so intertwined with the merits that its resolution depends on resolution of the merits", the trial court should find that jurisdiction exists and deal with the challenge as a direct attack on the merits of the plaintiff's case, for purposes of judicial economy. Williamson v. Tucker, 645 F.2d 404, 415-16 (5th Cir. 1981), cert denied 454 U.S. 897, 70 L.Ed.2d 212 (1981); Careau Group v. United Farm Workers, 940 F.2d 1291, 1293 (11th Cir. 1991); Eaton v. Dorchester Dev., Inc., 692 F.2d 727, 734 (11th Cir. 1982); Allen v. United States, 527 F. Supp. 476, 486-88 (D. Utah 1981); Schalk v. Associates Anesthesiology Practice, 316 F. Supp. 2d 244, 248-49 (D. Maryland 2004); United States v. North Carolina, 180 F.3d 574, 580-81 (4th Cir. 1999); Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039-40 (9th Cir. 2004)

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2.

Address each of the 28 U.S.C. § 1498(b) defenses that are relevant in this matter. Specifically whether Mr. Davenport: (a) influenced or induced the government's use of the AUMD program; (b) prepared the AUMD program as part of his official functions; (c) used government time, material and facilities to create the AUMD program. The parties are specifically asked to explore the nature and extent of an employer's rights in copyrighted materials produced by an employee during the period of the employee's employment. Are there analogous situations whose law might be helpful, such as employment law, covenants not to compete, etc., that may shed light on this issue? If so, how? Plaintiff has met the burden of proof to overcome the § 1498(b) defenses,

regardless of whether they are jurisdictional or merely affirmative defenses. evidence presented at trial by Plaintiff established that:

The

(1) Mark Davenport was a junior enlisted person not in a position to order or influence decisions on the adoption of his AUMD software, nor the derivative work MARS; (2) Mark Davenport did not induce the Air Force to use the AUMD or MARS software, but its use spread by actions of his superiors and word of mouth due to superior performance; (3) software programming was never a type of work that was part of Mark Davenport's official functions or duties; and, (4) Mark Davenport did not use government time, materials or facilities to create the AUMD software. A. Davenport was not in a position to order, influence, nor induce the use of AUMD or MARS. As a junior enlisted person Davenport was never in a position to order, influence or induce the use of his software. Mark Davenport was a Technical Sergeant

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in the Air Force, a Manpower Specialist, paygrade E-6 1 , when he created the AUMD programs at issue in this suit in May of 1998. Trans., pp.91, 470. Davenport retired at the same paygrade in May 2001 after twenty years of service. Trans., p429; Pl. Exh. 94. The most junior Manpower Specialists were paygrade E-5, only one paygrade below Davenport. Trans., pp 63, 465, 471. His official position during that time was a Manpower Data Manager in the Pacific Air Force Command (PACAF). Trans., p74-5. At no time during his Air Force career was Davenport a reporting senior over anyone, nor was he a direct supervisor over anyone. Trans., p75. Davenport did not possess contracting authority to issue or modify contracts, although he was occasionally responsible for monitoring existing contracts. Trans., p82; Pl. Exh. 101. Statutory construction is an issue of law for the court. "Statutory construction must begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose." Engine Mfrs. Ass'n v. South Coast Air Quality Mgt. Dist., 541 U.S. 246, 252-3 (2004) (citing Park `N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 194, (1985)) (using WEBSTER'S SECOND NEW INTERNATIONAL DICTIONARY (1945) to define words of statute according to their ordinary meaning). Nothing in the text of 28 U.S.C. § 1498 indicates other than the ordinary meaning for the terms "order, influence, or induce." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY, UNABRIDGED (1981) defines "order" as (in relevant part): "2a: to issue commands : COMMAND... b: to give or place an order."
1

The rank structure of the Air Force progresses from enlisted personnel through commissioned officer ranks. Enlisted ranks are: E-1 Airman Recruit; E-2 Airman Apprentice; E-3 Airman; E-4 Sergeant; E-5 Staff Sergeant; E-6 Technical Sergeant; E-7 Master Sergeant; E-8 Senior Master Sergeant; E-9 Chief Master Sergeant. Officer ranks proceed as: O-1 Second Lieutenant; O-2 First Lieutenant; O-3 Captain; O-4 Major; O-5 Lieutenant Colonel; O-6 Colonel; O-7 Brigadier

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WEBSTER'S at 1588. Similarly, "influence" is defined as: "1: to affect or alter the conduct, thought, or character of by indirect or intangible means: SWAY... 2: to have an effect on the condition or development of : determine partially : MODIFY... 3 obs: INDUCE, INFUSE..." WEBSTER'S at 1160. And "induce" is defined as: "1a: to move and lead (as by persuasion or influence)...: prevail upon: INFLUENCE, PERSUADE... [1b]: to inspire, call forth, or bring about by influence or stimulation..." WEBSTER'S at 1154. "Induce" is further defined by synonym: "syn: PERSUADE, PREVAIL: INDUCE may indicate overcoming indifference, hesitation, or opposition, usu. by offering for consideration persuasive advantages or gains that bring about a desired decision... PERSUADE may suggest a winning over by an appeal, entreaty, or expostulation addressed as much to feelings as to reason... PREVAIL may be used in situations in which strong opposition or reluctance is overcome by sustained argument and entreaty..." WEBSTER'S at 1154. The clear implications of the ordinary meanings of "order,

influence, or induce" are therefore to require a position of decision making authority, or to actively exert pressure to overcome opposition. All the evidence presented at trial demonstrates that Davenport did not do this ­ in fact quite the opposite was demonstrated. These words should not be interpreted to deny compensation to low level government employees for work outside their expected duties, for which they have not received compensation through salary or benefits commensurate with the work. Ironically, the Air Force officially agrees with Plaintiff's interpretation. The Air Force has had the opportunity to evaluate and explain its position concerning this very language previously in the context of 28 U.S.C. § 1498(a) (a subsection with an identical provision). In Matter of Government Acquisition of License

General; O-8 Major General; O-9 Lieutenant General; O-10 General. The most junior officer (2d Lt.) outranks the most senior enlisted (CMS).

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to Employee's Invention, B-199,026, 60 Comp. Gen. 248, 1981 WL 22453 (Comp. Gen. Feb. 11, 1981), in response to an inquiry about the propriety of a licensing agreement between an Air Force employee (Mr. Jeffers) and the Air Force, the Comptroller General stated that a licensing agreement would not be proper if the employee was in a position to order, influence or induce use of an invention, but that if the "employee can be insulated from decision to use patented device...the Air Force may enter into the licensing agreement. Id. at 248. The Comptroller General explained: "The purpose of Section 1498 is to prevent an employee who is in a position to order, influence or induce the government to use his invention and thus infringe his patent from successfully suing the government for patent infringement. *** The issue as we see it is whether the inventor can be insulated form the decision making process. We have no objection to his assisting in the testing and use of the invention if he is in no way in a position to determine whether, or how many, items involving his patent are procured." Id. at 251. Just as Mr. Jeffers' case, above, Davenport was never in a decision making position where he could determine, or even affect, the outcome of a decision to adopt or reject a license for the AUMD software. At no time was Davenport in a position to order anyone to use the AUMD software. He was not even the ranking enlisted person in his work group, much less of sufficient rank to give orders to Manpower Specialists throughout the Air Force. Davenport provided copies personally to those he worked with when requested, but was not in charge of those he provided copies to and did not force or even encourage them to do so. The reason AUMD became widely used was that it was so effective, not because Davenport promoted it. Glendon Hendricks, a Defense witness described AUMD as "Very slick. Very good." Trans., p. 890. In fact, the testimony was that it was

Davenport's superiors and other senior officers who actually promoted the distribution of

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AUMD due to its superior qualities. Col. Manning testified: "Q [Mr. Rylander]: Now, to your knowledge, at any time when Technical Sergeant Davenport was in your chain of command was he trying to get people to use the program who didn't want to? A [Col. Manning]: No, he was not.

Q: A witness has suggested that at some point because of these programs the PACAF at Hickam became sort of a call center for everybody who wanted to use the AUMD programs. Is that your recollection? A: Yes. Sergeant Davenport developed the tool, and then as people were interested he would provide it to them, and he would maintain the currency of the tool for them so that they would have the most current software and capability. So he would maintain it from our office and allow others to use it in that fashion." *** Q [The COURT]: I want to ask you about distribution, about how it was distributed and why this program was distributed based on your knowledge. A [Col. Manning]: Why it was distributed would be that people saw value in the program in that it was able to provide information within minutes and/or seconds that would normally have taken about a day to a half-day to acquire.... *** THE COURT: Okay. The Pacific Command is pretty big. THE WITNESS: That's correct. THE COURT: Okay. How did people learn about it? How did they know about it? THE WITNESS: You would probably have -THE COURT: Based on your knowledge. THE WITNESS: That's correct, and again as you work in the course of a normal day, our technicians are interacting with our bases, and they are pulling data, and interaction with the base manpower function, and would say, you know, we have a tool up here that pulls this data, and as we work

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your issues do you see any conflict. So I think the word spread that this tool was being used as technicians talk to one another on a daily basis throughout the command. Also, there was a manpower conference that was typically done annually, and a colonel as a matter of fact at training command learned of this tool, and asked Sergeant Davenport to come to the conference and brief it to all the colonels that were at this conference because he was so impressed by it..." Trans., pp. 504-7. Maj. Meaker, a Defense witness, corroborated the fact that

Davenport's seniors, his chain-of-command, were the source of pushing distribution of the AUMD software, not Davenport. When asked how he knew that use of AUMD was widespread by the time he left PACAF, Maj. Meaker responded: "Well, when I left there, I, of course, knew the program, trusted the program, and I tried to implement it as much as possible when I was in my last job, the requirements branch. I tried to get every technician to know about it, to be able to build their what we call manpower change requests using the system. And I think Mr. Davenport was also somewhat helpful or ambitious into getting this out for folks to use it as much as possible, and so designed the program so that people, instead of putting manpower change requests on paper and submitting it into someone's in basket, could actually send an e-mail that once it was approved could be uploaded into, and make the changes directly to the Command Manpower Data System. So it was a, you know, I had direct oversight over people who were using this. And I know it was my intention to get as many of the technicians using this program as possible. And it wasn't because of any benefit I saw, other than it was a better system, a cleaner system. You needed less people, you'd do more work with less, you'd get stuff done faster. You know, everything a manager might like in a software improvement. **** Q What do you mean by Mr. Davenport being aggressive in getting the program out? THE WITNESS: That might be bad terminology on my part. I want to find a word that suggests he was very receptive, and very helpful in getting things changed, you know. Mr. Davenport was very smart, and often he got to thinking he was smarter -- he came across, or he let other

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people know. So when you came up with an idea, he'd say hey, I think we can do that. And he'd already been thinking of that idea. But he wasn't a supervisor, so he may not have pushed it, you know, been aggressive, but he'd certainly been helpful in getting changes implemented." Trans., pp. 794-6 (emphasis added). Being "helpful" to senior officers who are trying to distribute your software is not to "order, influence, or induce." This was a pull-system, where people requested from Davenport, not a push-system where Davenport campaigned for implementing AUMD. Mr. Hendricks' testimony did not contradict this. Any knowledge that Mr. Hendricks had relating to how the AUMD software came to be distributed was not certain at best, and based on second hand knowledge and assumptions. Even where Davenport presented the programs at the San Antonio "conference of Colonels," it was at the direction of his superiors or the requests of others, not at his own initiative or request, and so acts of inducement or influence cannot be attributed to him. Col. Manning testified that TSgt Davenport was "invited" to a Manpower annual conference by a Col. Jensen from the Air Education and Training Command (AETC), but that as a junior enlisted person Davenport was not in a position to refuse the invitation. Trans., pp. 508-11. Col Jensen had requested Davenport's presentation because Col. Jensen had seen the software in operation and was impressed by its efficiency ­ not because Davenport had contacted the Colonel. Trans., pp. 506-7.

Davenport also testified that he made presentations on AUMD at several air bases during visits scheduled for training on MDS, but only at the request of the recipients and not of his own initiative. There was also testimony regarding Davenport's participation in the Manpower

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User Group, or "MUG." Davenport testified that the MUG was merely a group that passed requests or wish lists up to the decision makers. Trans., pp. 115-16. At some point it appears that MUG evaluated AUMD to determine if it should be adopted as an official program ­ this was rejected. Trans., pp. 116-18; Pl. Exh. 110c. However, if MUG did evaluate Davenport's AUMD software, then Davenport was not a part of that ­ he was not even aware that this had happened. Trans., pp. 116-20; Pl. Exh. 110C; Pl. Exh. 138. Mr. Hendricks' testimony did not contradict Davenport's testimony on these points. Clearly, this would not amount to "influence" or "inducement". B. AUMD was not prepared as a part of the official functions of Davenport. Whether a copyrighted work was prepared as a part of the official functions of a government employee is a question of fact that must be established by evidence. The analysis of the "official functions" defense is analogous to, but narrower than, the analysis of the "work made for hire" doctrine in the Copyright Act. 17 U.S.C. § 101 (definition of work made for hire: "a work prepared by an employee within the scope of his or her employment.") The Supreme Court has held that courts should look to common law agency principles, as delineated in the RESTATEMENT (SECOND) OF AGENCY § 228, to determine whether a person is an "employee" under 17 U.S.C. § 101, based on the assumption that Congress intended to use the term according to its ordinary meaning. See Community For Creative Non-Violence v. Reid, 490 U.S. 730, 739-40 (1989). However, courts have not looked to general principles of agency law to interpret the term "official functions" used in 28 U.S.C. § 1498. See Herbert v. U.S., 36 Fed. Cl. 299, 305-6 (1996) (research scientist employed by Veterans Administration to do research); Meyers v. U.S., 177 F.Supp. 952, 955 (C.Cl. 1959) (aeronautical engineer in

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design bureau assigned to research and development tasks); Rogallo v. U.S., 475 F.2d 1, 2-3 (4th Cir. 1973) (aeronautical engineer employed by the Government at a research center for aerospace research and development). The simple reason is that common law agency principles are not needed in this context because the government ­ especially in the case of the Air Force ­ provides clear definitions of an employee's "official functions." Congress, in enacting § 1498(b), could have made reference to the work for hire definition provided in the Copyright Act just as Congress had referenced "infringement" and "statutory damages set forth in Section 504(c) of Title 17" in the same subsection. See 28 U.S.C. §1498(b). Congress however, chose to use more narrow and specific language than "scope of employment" by referring to works "prepared as a part of the official functions of the employee." 28 U.S.C. § 1498(b). Civilian employees in business may tend to have undefined or poorly defined duties, necessitating a more general approach. For government employees this is not the case, even for military members. The Air Force publishes detailed training and performance requirements for its members. See Pl. Exhs. 60, 63A & 63B (defining duties and responsibilities for Manpower AFSC's); Pl. Exhs. 59 (defining requirements for "V" prefix on AFSC); Pl. Exhs. 65 & 66 (Career Field Education and Training Plans for Manpower field). These publications are considered official Air Force policy by Air Force personnel, and are used for planning, budgeting, training, and manpower distribution purposes. "This Career Field Education and Training Plain (CFETP) is a comprehensive education and training document that identifies life-cycle education/training requirements, training support resources, and minimum core task requirements for this specialty. The CFETP will provide personnel a clear career path to success and will instill rigor in all aspects of career field training."

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Pl. Exh. 65, at Part I, ¶ 1 (Pl. Exh. 66 uses identical language). CMS Dant explained the CFETP as the "job description" for the Manpower field. Trans., p. 480. We should therefore look to the Air Force's own policies to define the "official functions" of a Manpower Specialist, paygrade E-6, in the Air Force, not common law principles. The leading case on this issue is Herbert v. U.S., 36 Fed.Cl. 299, (Fed. Cl. 1996). Herbert is more telling in the differences than any similarities. In Herbert, the Plaintiff was a member of the Committee on Dietary Allowances (the Kamin Committee) specifically empanelled to produce the 10th Edition of the Recommended Daily Allowances (10th RDA) that the Government had contracted the National Academy of Sciences to produce. Herbert v. U.S., 36 Fed.Cl. 299, 302 (Fed. Cl. 1996). Dr.

Herbert's primary duties were "research, teaching, and patient care" as the director of the Hematology and Nutrition Laboratory at the Bronx Veterans Administration Hospital, a Federal facility. Herbert at 305. Dr. Herbert's supervisors testified at trial that his specific duties included "conducting research in his field of expertise and publishing the results." Herbert at 305. The court found that even if the specific research task had not been assigned by the Government, the fact that Herbert's primary duties included research, the subjects of which could be chosen at his discretion, meant that any research which was even related to his employment at the VA was part of his official functions. Herbert at 306. The Herbert court emphasized the fact that Herbert's

colleagues viewed their own work on the Kamin Committee as part of their official government duties. Herbert at 306. Not only was Herbert a research scientist in the employment of the VA, but Herbert's work on the Kamin Committee was under a government contract specifically intended to generate the RDA guidelines which Herbert

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produced, and which were the subject of the infringement action.

Herbert at 306,

(quoting 28 U.S.C. § 1498(b)) (emphasis original). "Plaintiff knew that the 10th RDA project was funded by the government, through contract with the Academy." Id. at 306. In addition to all of this, the Herbert court specifically found that Herbert's superior performance evaluations, awards and promotions were based in large part on his research work generally, and his work for the Kamin Committee in particular. Id. at 305. The present cases is easily and markedly distinguishable. The evidence

presented at trial demonstrated conclusively that Davenport was a data operator, and that his duties did not in any way involve computer programming or research. Each and every witness with knowledge of Davenport's official duties at trial testified that they did not consider software programming part of Davenport's duties, and that they considered Davenport's AUMD software to be his personal work. 2 Additionally, the Air Force

denied Davenport training in programming based on his official functions. (1) Davenport's superiors did not consider programming part of his duties. CMS Dant's testimony was particularly noteworthy. CMS Dant is one of the most senior enlisted personnel in the Manpower community, with over 21 years of experience in the field, and is now the Enlisted Career Field Manager for the Manpower community ­ i.e. he is responsible for producing the CFETP and other

Keohane's Expert Report, Def. Exh. 44, throws out an opinion relating to official functions. However, Keohane has no expertise in this area, his voire dire did not indicate any experience in military personnel matters, and Defendant represented in response to Plaintiff's objections to this portion of Keohane's report that Defendant would not rely on Keohane's opinion in this matter as evidence. Beyond this, Keohane made the same error that the Air Force made in denying Plaintiff's administrative claims ­ he looked at the C-CS specialty code job duties, which the Air Force uses to classify computer programmers. Thus, the Court may not even consider his opinion, and if it does then his opinion must be given no weight.

2

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documents defining the duties and responsibilities of Manpower Specialists. Trans., pp 475, 479-80. CMS Dant, therefore, possesses a uniquely authoritative perspective on the expected duties of other enlisted personnel in the Manpower community. "Q [Mr. Rylander]: Are you a supervisor for a number of manpower user career codes now? A [CMS Dant]: I'm not a direct supervisor. My function right now is I am ­ my career field, the manpower career field's enlisted career field manager. My responsibility is directing the training, the usage, the proper usage, proper training of all manpower enlisted folks in the Air Force. So I have what the military would refer to as general supervisory role over all of them, but I do not directly supervise or write performance reports or anything like that on these folks." Trans., pp. 474-5 "Q: ... You're one of those individuals who actually would be in charge of creating a high-level document like a CFETP? A: Correct.... It's the Career Field Education and Training Plain, and every Air Force specialty has one for that specialty, and bottom line it's a list of tasks that an enlisted person in that particular specialty should be able to do to be a fully functioning military member in that specialty. Q [THE COURT]: So it's the military equivalent of a job description? A: Yes, sir.

Q [Mr. Rylander]: Now, in your experience... in the manpower career field in the last 21 years and as a chief master sergeant, in the 1998-1999 time frame would it have been your expectation that someone in a 3U51 or 3U71 or 3U91 career code, "V" or otherwise, would write software programs to be used by Manpower? A: Q: No. No. And why is that?

A: Because as long as I've been in the career field, we have an activity ­ it's slowly going away down at Gunter Annex in Montgomery, Alabama, and those folks are the ones who have been charged with developing computer programs and things of that nature, and they are the

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ones who developed Command Manpower Data System, the Manpower Data System, and the other systems that we've used while I've been in the career field." Trans., pp. at 479-81. CMS Dant also specifically refuted the notion that the "V" prefix added to TSgt Davenport's Manpower AFSC ("V3U071") incorporated computer programming into the type of work that he was expected to perform: "Q [Mr. Rylander]: ... By adding that [V] to the prefix for a 3U071, does that convert that person into someone who would be a programmer for the Air Force? A [CMS Dant]: Not necessarily. It just means someone who can help manage data systems, the Manpower Data System. At each major command we have a ­ normally have a shop that runs the data system for that major command, for that MAJCOM. Most of those folks who end up in those positions have that `V' prefix, and it doesn't mean that they are programmers, it means the existing program that's normally produced by the folks at Gunter, they help operate the system." Trans.. p. 482. Also telling is Dant's testimony regarding his own programming skills (or lack thereof): A [CMS Dant]: "... So many times I had suggestions or things that I thought would make the program [AUMD] more user friendly, and I would bring those to him [Davenport]. Q [Mr. Rylander]: program that yourself? A: Q: A: Q: A: Q: A: Q: Okay, and is there a reason why you didn't

I didn't' have the technical ability. Did you not know how to program? Oh, absolutely not. What about today? Oh, no, no. They didn't train you to do that? No. Now, did Technical Sergeant Davenport adopt every

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suggestion that you made to him? A: No. No."

Trans., pp. 472-3. There was no hesitation in CMS Dant's response ­ he didn't know how to program and he was never expected to know how to program. This is a senior enlisted person with twenty-four years of Air Force service, twenty-one of those years in the Manpower career field. In fact, CMS Dant is rather unusual in that he has such longstanding experience in the Manpower field. See Trans., pp. 465-66. Not only was programming not a part of Davenport's official duties, but none of his superiors ever ordered Davenport to produce the programs, nor would they have felt it was their place to do so. When asked why "it would not have been appropriate for me [Dant] to direct him to do those types of things," CMS Dant responded: "Because this was something that I knew because on numerous occasions when I asked him that, at times he would frustrate me because he would say, hey, that's a good idea. I'll work on it this weekend. You know, things that I thought might be quick fixes that he could do right now, and he would say, yeah, I'll take a look at it later. I can't do it here. I'll do it this weekend or tonight, or something along those lines. "So I had the complete impression that this was something he was doing at home on his time, and it would not have been appropriate for me even in a supervisory or military capacity to try to direct him to do something to it." Trans., p. 474. Even the Government's own witnesses, Maj. Meaker and Glendon Hendricks, supported the Plaintiff's case. Maj. Meaker testified that he did not believe it was his place to direct Davenport, then a Technical Sergeant of paygrade E-6, to add features or fix problems related to the AUMD software, because it was considered Davenport's personal work. Maj. Meaker merely "asked", and TSgt Davenport was free to decline: "... if he said no, you know, this was never something that I saw as something that he

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had to do. And I always did it asking him, you know, do you think you can make this change, or is it too hard." Trans., p. 805. If the commissioned officers in Davenport's direct chain of command believed a project was part of an enlisted person's official duties they would have had no hesitation in directing him to perform those duties. Mr. Hendricks, a Defense witness, did not contradict this testimony. Although Mr. Hendricks testified that many personnel donated their work to the Air Force as part of various projects, he did not testify that this was a requirement. Further, he related that these were projects initiated at the Air Force's request, and that these efficiency improvement projects were then turned over to an "programming shop" to develop into software for distribution. "Q [Mr. Bolden]: shop? A [Mr. Hendricks]: We had a small cadre of programmers that were trained programmers starting out in BASIC, COBOL, FORTRAN. And then they were brought up under the new system. They could do HTML which is one of the last ones that we used before I left. Any of the modern languages we sent them to school to do those different things. And our requirements of programming outgrew our capability we went out to the outside resources and contracted contractors to take this system and put it into code and standardize it and give us the documentation." Trans., p. 853. Mr. Hendricks referred again, later, to the fact that personnel within the Air Force Manpower community were specifically designated and trained to do computer programming work. Trans., p. 858. Mr. Hendricks' testimony therefore And what do you mean by your programming

emphasizes the fact that Davenport's work was not part of his official duties: the AUMD was initiated by Davenport without direction; Davenport did all programming; Davenport was not listed as a computer programmer by the Air Force; other software development projects were developed by "engineering shops" with personnel trained in software;

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when the Air Force decided to develop a derivative program from AUMD they selected a software development contractor ­ not a Manpower Specialist from the Air Force. CMS Lucky was listed as a Defense witness on the issue of Davenport's official job functions but was not called by Defendant, although present in the courthouse. The Court should infer that his testimony would have been harmful to the Government or they would have called him, because he was a witness listed by the Government, and as a member of the Armed Forces in the unique control of the Government,. A.B. Dick Co. v. Burroughs Corp., 798 F.2d 1392, 1400 FN9, 230 USPQ 849, 855 FN9 (Fed. Cir. 1986) ("When a party knows of witnesses on a material issue and they are within his control to produce, if the party chooses to not call the witnesses, the fact finder may draw the inference that the testimony would have been unfavorable."); Hughes v. U.S., 71 Fed.Cl. 284, 304 (Fed. Cl. 2006). (2) Defendant denied Davenport's requests for programmer training. Davenport's requests for programming training were denied by the Air Force, which is further support that programming was not part of Davenport's official functions. Davenport testified that he requested training on multiple occasions, through different supervisors, but was denied each time because, as explained by CMS Ralph Jones (at the time a Senior Master Sergeant (SMS)), Davenport was a Manpower person, not a programmer, and since programming was not part of his AFSC the Air Force would not spend the money. These denials occurred when Davenport was

assigned to Gunter Annex (later Gunter Air Force Base) as a Manpower functional assisting the development of the MDS system. Trans., p. 72-3. Davenport's testimony on this is credible because it is corroborated by CMS Jones' later emails which

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expressed frustration that Davenport had developed an alternative program and was running his own "data shop" in competition with the official Air Force system. Trans., p. 894; Def. Exh. 7 ("In addition, I am concerned that you have assumed the unenviable role of operating in essence an ad hoc reports and query `hobby shop' for the Manpower Community." Pl. Exh. 7, p. G000104.) Davenport went ahead and taught himself how to program by purchasing software and books with his own money, and spending his personal off-duty time learning to program: "Just a hobby. I liked it. I enjoyed it." Trans., p. 74. Davenport was motivated to write AUMD in order to learn to program, and chose a practical realworld application to make it a more effective learning tool. "Q [Mr. Beatty]: the program? And was that part of your motivation for writing

A [Davenport]: Yes. To learn, the knowledge. I have a -most people define it a sickness, but I love working with databases, and the more I could get, the more I wanted to get. Q. You could have done programming exercises from the textbooks. Why didn't you just use those to learn Access as a learning tool? A. I don't find it as easy to learn, you know, like grabbing something like the textbooks. When you get into them, they talk about building a phone book and, you know, doing simple tasks like that, and I don't learn well that way. I need a practical application to apply and come out with some real results; otherwise, I feel like I'm wasting my time. Q. So was part of this then a personal motivation just to learn the programming skills on your own? A. Trans., p. 93. Davenport learned anyway, on his own initiative, his own time, with his own money ­ now the Air Force wants to claim he was a programmer all along and take Yes, sir."

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possession of his hard work for free. The Air Force wants it both ways ­ the law says they cannot do that. (3) Davenport's high marks were not based on AUMD. The Government's own witness, Maj. Meaker, testified that Davenport would have received the highest marks regardless of his work on AUMD ­ because he was a stellar performer. Trans., p. 801. This is distinguished from Herbert, where the court found it important that Herbert's supervisors testified that his high performance evaluations and advancement were predicated on his research work and his work for the Kamin Committee ­ the subject of the infringement claim - in particular. Herbert, 36 Fed.Cl. at 306. (4) Even under agency law principles, AUMD was not within Davenport's "scope of employment." The "work made for hire doctrine" of the Copyright Act (17 U.S.C. § 101) is similar to, although not strictly analogous with, the "official functions" analysis under section 1498. Courts look to the common law of agency to determine the scope of employment in such circumstances. Roeslin v. Dist. of Columbia, 921 F.Supp. 793, 797-8 (D.D.C. 1995); Quinn v. City of Detroit, 988 F.Supp. 1044, 1051 (E.D. Mich. 1997) (citing Roeslin and Miller v. C.P. Chemicals, Inc., 808 F.Supp. 1238 (D.S.C. 1992)). RESTATEMENT (SECOND)
OF

AGENCY § 228, which the Supreme Court relied upon in

Community for Creative Non-violence, supra, defines scope of employment: "(1) Conduct of a servant is within the scope of employment if, but only if: (a) it is within the kind he is employed to perform; (b) it occurs substantially within the authorized time and space limits; and (c) it is actuated, at least in part, by a purpose to serve the master."

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(emphasis added). All three elements must be present to deny the Plaintiff. Both Roeslin and Quinn are especially instructive in the present case, if the Court looks to work-made-for-hire as analogy, because both involved government workers ­ albeit city workers. In Roeslin the court found the copyrighted software, written by an economist with a college degree working on salary, was not a work made for hire. "[D]eveloping computer software is not the kind of work plaintiff was employed to perform. Plaintiff was hired as a labor economist, not as a computer programmer. There is no reference in his job description to computer programming; nor was his supervisor aware of whether plaintiff had any programming skills when he was hired. Plaintiff was hired to improve certain aspects of the CES survey [relating to employment statistics] and develop projections based on that survey. He was not hired to create a computer program that would assist the entire office and receive, process, and transmit the survey results." Roeslin, 921 F.Supp. at 799. Similarly, in Quinn the court found that the first and second prongs of the Restatement test were not present. "Quinn was an attorney and a manager for the City's Law Department. His job description did not require him to create computer software, his employer never requested him to develop software, Quinn had no prior computer programming experience and in fact, the City had its very own computer programming department to do programming of the type Quinn decided on his own to do." Quinn, 988 F.Supp. at 1051. Quinn specifically distinguished this from Miller, where all three prongs were found present. Particularly, the Quinn court noted that in Miller, the employee "was a supervisor responsible for organizing and updating a laboratory at CP Chemical, Inc." Quinn, 988 F.Supp. at 1050. Additionally the court noted that, "In Miller, the employee was specifically requested by his employer to computerize the quality control laboratory of which he was in charge..." Quinn, 988 F.Supp. at 1051. Both Quinn and Roeslin, and Miller as well, are basically in accord with cases such as Herbert, Meyers, and Rogallo which interpreted section 1498. In each of these cases

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infringement claims were denied where the plaintiffs were engineers or scientists engaged for the purpose of research, Herbert, Meyers, Rogallo, or in supervisory roles, Miller, or assigned specifically to produce computer programs, Miller. However, claims were not denied where personnel were working outside of their job descriptions, Roeslin, Quinn, where they had never been tasked with that type of work, Roeslin, Quinn, and where they had actually been discouraged from learning and doing programming work, Roeslin. In this case, while Plaintiff concedes that Davenport's program was created primarily as a personal project to learn and develop programming skills, he was secondarily motivated to develop the programs in an effort to improve efficiency in the Manpower community. However, the first two prongs are completely lacking here.

Davenport, as established by all of the testimony at trial and the documentary evidence, was not a programmer nor was he expected or desired to be a software developer. The Air Force, and particularly the Manpower community, had its own separate programming shops. Davenport was discouraged from learning to program. Beyond this, the evidence at trial was conclusive that none of the work on AUMD was conducted during work hours, or using government time material or facilities (see discussion below). This was uncontradicted by Mr. Hendrickson's testimony. Beyond this, the weight given to whether an employee was motivated at least in part to serve the master must be tempered in the context of determining the writes of an author in this case. The test of agency/scope of employment was developed in large part to determine if the master or employer should be held liable by third parties for actions taken by the servant. In other words, the principle was that if the servant was

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honestly acting in what they believed to be the interests of the employer, and the employer was a beneficiary, then the employer should be liable to third parties for damages. The employee probably would not even have taken such actions or been put in such a situation if not for their status of employment ­ thus it would only be fair for the employer to assume liability. This is a far cry from the situation here, where an

employer is attempting to deny the employee a right of action based on the fact that an employee gratuitously and selflessly acted in the interests of the employer. The

employer should not be permitted to benefit from work by the employee for which he was neither compensated nor even encouraged to produce by that same employer. The idea that an employer owns all the personal output and energies of an employee no matter what is repellant to our sense of personal liberty and independence, enshrined in the 5th and 13th Amendments. Therefore, if the Court looks to work-made-for-hire law as an analogous guide in the present case, the conclusion is clear: Davenport's work would not be considered a work-made-for-hire. Blueport's claim is not be barred under either the narrower

standards of Section 1498, nor the broader standards of work-made-for-hire doctrine. In short, all of the evidence demonstrates that AUMD was not created as part of Davenport's official functions or duties. Nothing contradicts this. Regardless of who carries the burden of proof on this point, Plaintiff has produced substantial evidence and Defendant has produced no evidence to rebut, so this Court must find that AUMD was not created as part of Davenport's official functions or duties. C. Davenport did not use government time, material, or facilities to create AUMD. Whether government time, material, or facilities were used is a question of

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fact which must be established by evidence. Plaintiff produced substantial evidence at trial that no government time, material, or facilities were used in the preparation of the AUMD programs. Defendant produced no evidence to directly rebut this. (1) Davenport created AUMD exclusively through his own resources. Testimony at trial was that Davenport programmed AUMD only at home, on his personal time. Davenport was adamant on this point and his testimony was corroborated by senior Air Force personnel with direct knowledge of the circumstances. Again, this case is distinguishable from Herbert. There, the court found that Dr. Herbert conducted all of the relevant research and actually wrote the guidelines within government facilities ­ i.e. his office at the Bronx VA. Herbert, 36 Fed. Cl. at 306. The court did not find that Herbert did any creative work outside the physical boundaries of the government facilities. Id. And, again, the court looked specifically to the time "during their creation", i.e. the "preparation of his 10th RDA writings." Herbert, 36 Fed. Cl. at 307. Here, Davenport testified that he developed and tested his AUMD software at all times at home, without any government data, by creating a dummy database with fake data. Trans., pp. 99 & 100-102. Davenport did not have any connection to

government databases while developing the AUMD software at home. Trans., p. 99. The testimony of CMS Dant and Col. Manning both support Davenport's testimony, and nothing else contradicted this. The mere fact that Davenport used his general

knowledge gained through work to create the dummy database at home does not translate into use of government facilities or resources. Davenport's brain is not a government facility. Furthermore, this clearly excludes the development of the MARS software and infringing activities after May 15, 2000, using modified copies of AUMD,

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from the defenses, since these occurred when Davenport was either officially excluded from participation or after he had retired. Mr. Hendricks did not contradict Davenport's testimony regarding use of government time, material, or facilities. For one thing, Mr. Hendricks' recollection of dates versus computer programs was fuzzy at best. He recalled a Mr. Jerry Hayes calling him in 1997 to request a "data extract" to send to Mark Davenport, "And that's how we, how it worked out that knew [sic] that Mark was working on a program doing different things." Trans., p. 876. However, Mr. Hendricks was not sure of the year, and was not clear as to the use for this extract and the date indicates that if it was actually for any program developed by Davenport it was the "Net Worth" program ­ which Davenport donated to the Air Force. Trans., pp. 911; 89-90; Pl. Exh. 101 page 100030. Other witnesses corroborated Davenport's testimony that the AUMD did not come into existence until spring of 1998 at the earliest. Later Hendricks also confused

Davenport's IDEA suggestion to use ODBC drivers rather than the Oracle product, for cost savings, with Davenport's AUMD software. Trans., pp. 884-86 & 893. Other

evidence presented made clear that Davenport never submitted AUMD for an IDEA award, but rather he submitted an IDEA for using ODBC drivers in place of Oracle Discovery drivers. Trans., p. 134-5, 892-4; Def. Exh. 6. Hendricks also testified that he thought Davenport presented AUMD to a Manpower Users Group meeting, but he did not testify that he was present, and this was simply what he assumed. Trans., p. 883. Thus, his testimony on this point must be discounted. Col. Manning and CMS Dant testified directly on this point, and no other witnesses contradicted their testimony. CMS Dant testified that during his time working

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with Davenport he was in frequent and close contact with Davenport throughout the day: they worked in shoulder-high cubicles; their desks were within a 10-15 feet of one another; Dant passed by Davenport's desk approximately "30-40 times a day". Trans., p. 469. Col. Manning also testified that to his knowledge all of the development and programming of the AUMD software was done by Davenport at home and not on government computers: Trans., p. at 503. And later: Q Now, you indicate that people from the Air Force Manpower and Innovation Agency and the Gunter Design Center were calling and demanding that Technical Sergeant Davenport provide them with his programs. Q A Q Were they calling you, sir? No, they were not. Who were they calling?

A They were calling Sergeant Davenport direct and emailing him direct. They may have been sending emails to Chief Dant. I'm not aware. I specifically saw an email that went to Sergeant Davenport from the Gunter Design Center, so I specifically remember that one. Q Do you recall what it said?

A It basically requested that Sergeant Davenport provide the software to the Gunter Design Center. It was signed by a Senior Master Sergeant Ralph Jones, and the reason I remember that was it struck me as a bit strange that a senior master sergeant would be making that type of a request to a technical sergeant in another command without coming through the chain of authority. Q So this should have been something that would be colonel to colonel, or lieutenant colonel to lieutenant colonel? A Yes. Something as significant as we are talking about you would think would be brought up through the chain of command and over to probably the colonel or lieutenant colonel level. Q Did you indicate that people did not understand that Sergeant Davenport created the program on his own time after duty on his own computer? Did you ever take the opportunity to familiarize people with that fact?

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A Yes, that seemed to be a primary issue at the time. For some reason people that were not in the Pacific thought that he had to have developed this in the office on government computers, on government time. And being there in the Pacific with him, it was clear to me that that was not the case, so I was a bit puzzled as to why they would think that when they are in Alabama, and not in the Pacific. But that seemed to be a significant issue that they said, hey, this was developed in the office on government equipment, on government time, and therefore it's a government piece of property. And given I knew that it wasn't developed in that manner, it brought the question to bear as to what was true and what was false in this case." Trans., pp. 518-19. CMS Dant's testimony concurs with Col. Manning's recollections. "Because this was something that I knew because on numerous occasions when I asked him that, at times he would frustrate me because he would say, hey, that's a good idea. I'll work on it this weekend. You know, things that I thought might be quick fixes that he could do right now, and he would say, yeah, I'll take a look at it later. I can't do it here. I'll do it this weekend or tonight, or something along those lines. So I had the complete impression that this was something he was doing at home on his time, and it would not have been appropriate for me even in a supervisory or military capacity to try to direct him to do something to it." Trans., p. 474. Later CMS Dant confirmed this again. Q Now, it indicates here you had a three-year period of working in close proximity to Mr. Davenport? A Right. Q And it is correct, to your knowledge, that you never saw him working or programming on the AUMD programs during the duty hours? A Correct. Q And it remains your belief it created it at home or while on vacation? A Yes. Yes, sir." Trans., p. 479. Again, the Government listed CMS Lucky as a witness concerning "whether government time, material, and/or facilities were used in the preparation of the AUMD program." CMS Lucky, a witness uniquely in the control of the Government, was

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present in the courthouse but not called by the Government. The Court should infer therefore, that his testimony would have been that NO government time, material, and/or facilities were used in the preparation of the AUMD program. (2) Suggestions by other personnel do not amount to government time, materials, or resources. Defendant made much of the fact that many Air Force personnel made suggestions for features were provided to Davenport and many of those features were incorporated by Davenport. However, these were suggestions were just that ­ suggestions. Each witness who testified to providing suggestions to Davenport also made clear that Davenport decided what features would be incorporated, and that Davenport did all the programming, and that Davenport did this programming on his own time rather than at work. CMS Dant testified that he made suggestions to Davenport, but that Davenport himself chose what to incorporate and rejected many of the suggestions, despite the fact that CMS Dant was Davenport's direct supervisor for "eight or nine months", Trans., p. 468, and Davenport "was still subordinate to me [Dant] in the chain of command" even after (then Master Sergeant - MSgt) Dant was superceded by Maj. Meaker as supervisor. Trans., pp. 471-73. Additionally, Defendant never once pointed out a

specific function or feature that was incorporated due to the input of any person other than Davenport himself. If such is the case, then it was Defendant's burden to establish what those were and how they related to protectable portions of the copyrighted work. Maj. Meaker's testimony corroborated this. Beyond this, even if some Air Force personnel provided suggestions for functions, it was Davenport who selected those features and Davenport who determined

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how to convert those functions into expressive content ­ which is what is protected under the Copyright Act. Based on all of the evidence presented at trial the only possible conclusions are: (1) that Davenport was not in a position to order, influence, or induce the

offending use of AUMD ­ and in fact he did not. (2) (3) That computer programming was not part of Davenport's official functions. That government time, materials, or facilities were not used in the

development of AUMD. (4) That even under common law analogy to work-made-for-hire doctrine,

AUMD was not within the scope of Davenport's employment. 3. Whether the protections of the copyrighted AUMD 2.1d extend to version AUMD 2.1f? The proper question is not merely whether the protections of 2.1d extend to 2.1f, but rather whether the protected elements of 2.1d alleged to have been copied were present in 2.1f in order to provide a comparison. The answer is yes. Gates Rubber Co. v. Bando Chem. Ind., Ltd., 9 F.3d 823, 832 (10th Cir. 1993). "[Infringement involves] two separate inquiries: (1) whether the defendant, as a factual matter, copied portions of the plaintiff's program; and (2) whether, as a mixed issue of fact and law, those elements of the program that have been copied are protected expression and of such importance to the copied work that the appropriation is actionable. 3 Melville B. Nimmer, NIMMER ON COPYRIGHT § 13.01[B], at 13-8 to 13-15 (1993) (hereinafter "NIMMER"); see Arnstein v. Porter, 154 F.2d 464, 472-73 (2d. Cir. 1946)." Id. See also Kepner-Tregoe, Inc. v. Leadership Software, Inc., 12 F.3d 527, 532-33 (5th Cir. 1994) (affirming copyright infringement based on derivation from third party copies of licensed extracts of copyrighted work); cert den'd 513 U.S. 820 (1994); CMAX/Cleveland, Inc. v. UCR, Inc., 804 F.Supp. 337 (M.D.Ga. 1992) (finding

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infringement from copying and derivation from lawfully obtained copies of software). Kepner and CMAX are instructive on this issue. In Kepner the issue was

whether a computer program developed by using algorithms and methods described in licensed training manuals, along with the explanations for such, could infringe the copyrights of the software from which the manuals were derived. The answer was YES ­ it did not matter whether the copied content came from the original work or a licensed derivative of the original work ­ it was still copying portions of the original. "LSI, however, insists that K-T never demonstrated that LSI literally copied the specific materials that were licensed to K-T. But LSI's dogged insistence is nonsensical. Even if LSI did lift the offending expression from third party sources, its reproduction of that expression for commercial purposes may be infringing. Language copied from those third party sources was itself copied or derived from K-T's Licensed Materials, and its legality depends on copyright law. In other words, even if LSI copied a copy of K-T's Licensed Materials, such copying may still constitute infringement. Copying a copy of copyrighted materials is a cognizable contravention of the Copyright Code" Kepner, 12 F.3d at 532. In the present case, Defendant seeks to escape liability by claiming somehow that if they copied the screens from version 2.1F rather than 2.1D then this did not infringe the copyright of 2.1D. Davenport testified that the 2.1D and F were virtually identical, the only difference being additional Visual Basic code in 2.1F. There was some dispute at trial as to how much code was added, but this is essentially irrelevant. Plaintiff has conceded that the Visual Basic code was not directly copied ­ it was reverse engineered by comparison of operations. However, the screens and the data tables ­ the heart and soul of the AUMD programs ­ were directly copied (even Defendant's expert agreed on this point). Trans., pp. 148, 1038-1042; Pl. Exh. 111, ¶ 2.4. The screens from 2.1D and F are the same. Trans., pp. 171-193. Therefore,

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comparison of the screens in 2.1F provides the exact direct comparison for the screens in 2.1D ­ the registered software version. The screens are the issue ­ they are the essence of the program, providing the look and feel, the interface for the ordinary observer, and the main expressive content of the program. The Visual Basic code is just the plumbing. See discussion of substantial similarity below). CMAX also provides a telling analogy. In CMAX the defendants decided to use copies of software they had obtained lawfully to create a replacement program when their relationship with the software supplier soured. The court there held that the fact that Defendant UCR copied only portions of the copyrighted software, including the screens and data structures, did not negate infringement. CMAX, 804 F.Supp. at 356-7. Other courts are in agreement that infringement may be found through copying only a portion of the protected work ­ so long as that portion encompasses protected expression. See e.g. Gates Rubber, above. Copyright inheres at the moment that creative expression is fixed in a tangible medium of expression. 17 U.S.C. § 102(a). Therefore, the mere publication or

distribution of a work which lawfully contains all or part of a registered copyrighted work, along with proper copyright notice, does not extinguish the underlying copyright in the original work. Thus, if a subsequent publication includes both the original