Case 1:13-cv-00323-MBH Document 14 Filed 04/25/14 Page 1 of 16
`
`JAMES L. DRIESSEN,
`
`Plaintiff,
`
`v.
`
`fi,',ii".1i1&l
`U i*"u tU' b ii\r r^fr
`lJn tbo @nfte! $tstts tourt of fe[trsl @lufnpllED
`No. 13-323C
`April25,2014
`APR 2 5 2014
`U.S. COURT OF
`FEDERAL CLAIMS
`* Pro Se Plaintiff; Motion to
`* Dismiss; Lack of Subject Matter
`* Jurisdiction; Failure to State a
`* Claim; Intellectual Property;
`. Copyright;lmplied-in-Fact
`. Contract.
`
`UNITED STATES,
`
`Defendant.
`
`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.
`
`HORN. J.
`
`ORDER
`
`FINDINGS OF FACT
`
`EIc se plaintiff James L. Driessen filed a complaint in the United States Court of
`Federal Claims' stating" [t]his is a declaratory action asking the court to declare that
`' Plaintiff filed his complaint naming the Library of Congress, James Hadley Billington, in
`his position at the Library of Congress, the United States Copyright Office, Maria A.
`Pallante, and Robert Kasunic, in their positions with the United States Copyright Office,
`as defendants. In this court, however, the only proper defendant is the United States,
`which plaintiff did not name as a defendant. Rule 10(a) of the Rules of the United States
`Court of Federal Claims (RCFC) (2013) states that "[t]he title of the complaint must
`name all the parties. . . , with the United States designated as the party defendant."
`RCFC 10(a); see also 28 U.S.C $ 1a91(a)(1) (Supp. V 2011). The United States
`Supreme Court has indicated for suits filed in the United States Court of Federal Claims
`and its predecessors, "[i]f the relief sought is against others than the United States the
`suit as to them must be ignored as beyond the jurisdiction of the court." United States v.
`Sherwood,312 U.S.584,588 (1941) (citation omitted). Stated differently, "the onlv
`proper defendant for any matter before this court is the United States, not its officers,
`nor any other individual." Stephenson v. United States,58 Fed. Cl. 186, 190 (2003)
`(emphasis in original); see also United States v. Sherwood, 312 U.S. at 588; Hover v.
`United States, 113 Fed. Cl. 295, 296 (2013) ("As an initial matter, it is well settled that
`
`

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`Case 1:13-cv-00323-MBH Document 14 Filed 04/25/14 Page 2 of 16
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`Plaintiff 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 laMul 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,['] to provide means for permissive
`registration of any exclusive copyright." (emphasis in original). Further, plaintiff requests
`the court to "[r]emand the Plaintiffs 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 firslsales 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. S 408, establish procedures for a
`preferred service provider to file an application for supplementary registration on
`behalf of consumers .
`." The petition for rulemaking also ouflined 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 the
`the United states is the only proper defendant in the united states court of Federal
`Claims."); Warren v. United States, 106 Fed. Cl. S07, 5'10-11 (2012) (,,1t is weil settled
`that the united states is the only proper defendant in the court of Federal claims.");
`Mav v. United states, 80 Fed. c|.442,444 ("Jurisdiction, then, is limited to suits against
`the United States."), affd, 293 F. App'x 775 (Fed. Cir. 2008).
`2 The Copyright Office is directed by the Register of Copyrights, who reports to the
`Librarian of Congress. See 17 U.S.C. g 701(a), (d) (2006).
`3 The petition for rulemaking was signed on behalf of Vibme by the president of Vibme,
`Maguerite A. Driessen. According to the website for Driessen Law, which can be
`accessed at http://www.driessenlaw.com (last visited Apr. 24,2014), Marguerite A.
`Driessen is listed as of counsel to Driessen Law, as well as a ,,Drieisen Law
`Consultant," and an Associate Professor of Law, Brigham young University, J. Reuben
`clark Law school. The website further indicates Ms. Driessen is "not a utah attorney."
`The court noes that although Maguerite A. Driessen is listed as the president of Vibme,
`in his complaint, Mr. Driessen alleges that "[p]laintiff has previously petitioned the
`[Copyright] Office on behalf of his Company (Vibme LLC) for rulemaking."
`
`

`
`Case 1:13-cv-00323-MBH Document 14 Filed 04/25/14 Page 3 of 16
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`consumer." 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 WATVER OR SUSPENSTON OF RULES (OR CONSOLTDATTON MOTTON tN THE
`ALTERNATIVE) RE: DOCKET 20'11-07." (emphasis and capitalization in originat). 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. g 1201(a)(1)(C)," or, in the alternative, that the office
`"suspend the section 1 201 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.a 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 1 06A 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.copvriqht.qov/reports/studies/dmca/dmca studv.
`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 firsfsale of online digital
`media. Moreover, as explained in the Section 104 Report to Congress,
`4 The request for reconsideration was filed on behalf of Vibme bv Mr. Driessen in his
`capacity as attorney for Vibme.
`
`

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`Case 1:13-cv-00323-MBH Document 14 Filed 04/25/14 Page 4 of 16
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`because the transfer of a copy or phonorecord online implicates the
`reproduction right, the first sale doctrine is generally inapplicable. See,
`http:i/www.copvriqht.qov/reportsistudies/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,s
`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
`such authorized coov of the work, of which it is known that there are millions.
`(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 resoonded 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
`plaintiffls 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.
`
`5 Black's Law Dictionary defines the first-sale doctrine as "[t]he rule that the purchaser
`of a physical copy of a copyrighted work, such as a book or CD, may give or sell that
`copy to someone else without infringing the copyright owner's exclusive distribution
`rights. With regard to that physical copy, the copyright owner's distribution right is said
`to be exhausted. 17 USCA 109(a)." Black's Law Dictionary 711 (gth ed.2009); see
`also Kirtsaenq v. John Wilev & Sons. lnc., 133 S. Ct. 1351, 1363 (2013) (discussing the
`common-law origin of the first sale doctrine).
`6 Plaintiff included the cover page of his patent, as well as a typewritten explanation of
`all the claims to this court as an exhibit to his response to defendant's motion to
`dismiss. According to plaintiff, the patent granted on May 7,2013, US Patent No.
`8,438,111, covers a technology that purports to perform "impairment, serialization, and
`recordation" of physical media copies.
`
`

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`Case 1:13-cv-00323-MBH Document 14 Filed 04/25/14 Page 5 of 16
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`DtscusstoN
`
`Plaintiff filed his complaint in this court plo se. When determining whether a
`complaint filed by a pro se plaintiff is sufficient to invoke review by a court, pro se
`plaintiffs 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, 9a (2007);
`Huqhes v. Rowe,449 U.S. 5,9-10 (1980); Estelle v. Gambte,429 U.S. 97, 106 (1976),
`reh'o denied, 429 U.S. 1066 (1977). Defendant argues, citing Holtz v. Rockefeller & Co.,
`lnc.,25B F.3d 62, 82n.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.' 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 "'subjeclmatter jurisdiction, because it invorves a
`court's power to hear a case, can never be forfeited or waived."' Arbauqh v. y & H
`Coro., 546 U.S. 500, 514 (2006) (quoting United States v. Cotton, 535 U.S. 625, 630
`(2002)). "[F]ederal courts have an independent obligation to ensure that they do not
`exceed the scope of their jurisdiction, and therefore they must raise and decide
`jurisdictional questions that the parties either overlook or elect not to press." Henderson
`gx rel. Henderson v. Shinseki, 131 S. Ct. 1197, 1202 (2011); see also nertzt6rp. t,.
`Friend, 559 u.s. 77, 94 (2010) ("courts have an independent obligation to determrne
`whether subject-matter jurisdiction exists, even when no party challenges it." (citing
`Arbauqh v. Y & H Corp., 546 U.S. at 514)); Special Devices. Inc. v. OEA. Inc., 269 F.3a
`1340, 1342 (Fed. cir. 2001) ("[A] court has a duty to inquire into its jurisdiction to near
`and decide a case." (citing Johannsen v. Pav Less Druq Stores N.W.. Inc., g1g F.2d
`160, 161 (Fed. Cir. 1990))); View Enq'q. Inc. v. RoboticVision Svs., Inc., 11S F.3d 962,
`963 (Fed. cir. 1997) ("[c]ourts must always look to their jurisdiction, whether the parties
`raise the issue or not."). "The objection that a federal court lacks subjecfmatter
`jurisdiction . . . may be raised by a party, or by a court on its own initiative, ai any srage
`in the litigation, even after trial and the entry of judgment." Arbauqh v. y & H Coip., 546
`U.S. at 506; see also Rick's Mushroom Serv.. Inc. v. United States, S2l F.3d i33g,
`'1346 (Fed. Cir. 2008) ("[A]ny party may challenge, orthe court may raise sua sponte,
`subject matter jurisdiction at any time." (citing Arbauqh v. y & H corp., s46 U.s. at 506;
`Folden v_ United States, 379 F.3d 1344, 1354 (Fed. Cir.), reh'q and reh'q en oanc
`9enied (Fed. Cn. 2004), cert. denied, 54S U.S. 1127 (2005); anO fanninc,, pf,ittips &
`Molnarv. West, 160 F.3d 717,720 (Fed. Cir. 1998))); pikulin v. Uniied States, gZ fed.
`' lt appears that plaintiff was part of a law firm bearing his name, Driessen Law, in
`Lindon, Utah. see Driessen Law, available at http://www.driessenlaw.com flast visited
`Apr. 24, 2014\. According to the information available on the website, however.
`"Driessen law firm is dissolved" and is "taking no new cases." See id.
`
`

`
`Case 1:13-cv-00323-MBH Document 14 Filed 04/25/14 Page 6 of 16
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`Cl.71,76, appeal dismissed,425 F. App'x 902 (Fed. Cir. 2011). In fact, "[s]ubject
`matter jurisdiction is an inquiry that this court must raise sua sponfe, even where . . .
`neither party has raised this issue." Metabolite Labs., Inc. v. Lab. Corp. of Am.
`Holdinqs, 370 F.3d 1354, 1369 (Fed. Cir.) (citing Textile Prods.. Inc. v. Mead Corp., 134
`F.3d 1481, 1485 (Fed. Cir.), reh'q denied and en banc suqqestion declined (Fed. Cir.
`1998)), reh'q and reh'q en bancdenied (Fed. Cir.2004), cert. qranted in part,546 U.S.
`975 (2005), cert. dismissed as imorovidentlv oranted, 548 U.S. 124 (2006). .The
`objection that a federal court lacks subject-matter jurisdiction . . . may be raised by a
`party, or by a court on its own initiative, at any stage in the litigation, even after trial and
`the entry of judgment." Arbauoh v. Y & H Coro., 546 U.S. at 506; see also Centr. pines
`Land Co., L.L.C. v. United States, 697 F.3d 1360, 1364 n.1 (Fed. Cn.2012) ("An
`objection to a court's subject matter jurisdiction can be raised by any party or the court
`at any stage of litigation, including after trial and the entry of judgment."); Rick's
`Mushroom Serv.. Inc. v. United States,521 F.3d 1338, 1346 (Fed. Cir.2008) (.tAlny
`party may challenge, or the court may raise sua sponte, subject matter jurisdiction at
`any time." (citing Arbauqh v. Y & H Coro., 546 U.S. at 506; Folden v. United States, 379
`F.3d 1344, 1354 (Fed. Cir.), reh'q and reh'q en banc denied (Fed. Cir.2b%), cert.
`denied, 545 U.S. 1127 (2005); and Fanninq. Phiilips & Molnar v. West, 160 F.3d VL
`QQfea Cir. 1998))); Pikulin v. United States,97 Fed. Ct.71,76, appeat dismissed,
`425 F. App'x 902 (Fed. Cn.2011).
`
`Pursuant to the RCFC and the Federal Rules of Civil Procedure, a plaintiff need
`only state in the complaint "a short and plain statement of the grounds for the court,s
`jurisdiction," and "a short and plain statement of the claim showing that the pleader is
`entitled to relief." RCFC 8(aX1), (2) (2013); Fed. R. Civ. p. B(aX1), (2) (2014); see arso
`Ashcroft v. lqbal, 556 U.S. 662, 677-78 (2009) (citing Beil Ail. Coro. v. Twombtv, Sba
`u s. 544, 555-57, 570 (2007)). "Determination of jurisdiction starts with tfie complaint,
`which must be well-pleaded in that it must state the necessary elements of the plaintiff's
`9la1r1 1n!e091dent of any defense that may be interposed.'; Holrev v. united states,
`124 F.3d 1462, 1465 (Fed. cir.) (citing Franchise Tax Bd. v. consti Laborers Vacation
`Trust,463 U.S. 1 (1983)), reh'q denied (Fed. Cir. tgSZ); See@
`9omm. v. United states, 97 Fed. cl. 203, 208 (2011); Gonzalez-MccauttevJnv. c,ro-
`lnc. v. United states, 93 Fed. cl. 710, 713 (2010). "conclusory allegations of law ano
`unwarranted inferences of fact do not suffice to support a claim." g1ag[lgyf__qhrc!
`corp., 136 F.3d 1317, 1322 (Fed. cir. 1998); see also Mczeal v. sprint NErtel corpl
`501 F.3d_1354, 1363 n.9 (l9A C1 2007) (Dyk, J., concurring in part, dissenfiryin part;
`(quoting c. wright and A. Miiler, Federal practice and procedlre g tzao 1sa eoizoo+yy.'
`"A plaintiffs factual allegations must'raise a right to relief aOove tne speculative level'
`and cross 'the line from conceivable to plausible."' Three s consultinq v. United states,
`]04 Fed Cl. 510, 523 (2012) (quoting BeltAl. Corp. v. Tw@,
`No. 2012-5104,2014WL 1394969 (Fed. Cir. npr.41 lU+ es stated in Ashcroft v.
`lqbal, "[a] pleading that offers 'labels and conclusions' or 'a formulaic recitation-Ji tiE
`elements of a cause of action will not do.' sso u.s. at s55. Nor does a complaint suffice
`if it tenders 'naked assertion[s]' devoid of 'further factual enhancement."' Ashcroft v.
`lqbal, 556 U.S. at 678 (quoting Bell Afl. Corp. v. Twomblv, SS0 U.S. at 555).
`
`

`
`Case 1:13-cv-00323-MBH Document 14 Filed 04/25/14 Page 7 of 16
`
`When deciding a case based on a lack of subject matter jurisdiction or for failure
`to state a claim, this court must assume that all undisputed facts alleged in the
`complaint are true and must draw all reasonable inferences in the non-movant's favor.
`See Erickson v. Pardus, 551 U.S. 89, 94 (2007) ("ln addition, when ruling on a
`defendant's motion to dismiss, a judge must accept as true all of the factual allegations
`contained in the complaint." (citing Bell Atl. Corp. v. Twomblv, 550 U.S. at 555-56 (citing
`Swierkiewicz v. Sorema N. A.,534 U.S.506,508 n.1 (2002)))); Scheuerv. Rhodes,416
`U.S. 232, 236 (1974) ("Moreover, it is well established that, in passing on a motion to
`dismiss, whether on the ground of lack of jurisdiction over the subject matter or for
`failure to state a cause of action, the allegations of the complaint should be construed
`favorably to the pleader."), abroqated on other qrounds by Harlow v. Fitzqerald, 457
`U.S.800 (1982), recoqnized by Davis v. Scherer,468 U.S. 183, 190 (1984); United Pac.
`lns. Co. v. United States,464 F.3d 1325, 1327-28 (Fed. Cir. 2006); Samish Indian
`Nation v. United States,419 F.3d 1355, 1364 (Fed. Cir.2005); Boise Cascade Corp. v.
`United States, 296 F.3d 1339, 1343 (Fed. Cir.), reh'o and reh'q en banc denied (Fed.
`Cn.2002), cert. denied, 538 U.S. 906 (2003).
`
`The Tucker Act grants jurisdiction to this court as follows:
`
`The United States Court of Federal Claims shall have jurisdiction to render
`judgment upon any claim against the United States founded either upon
`the Constitution, or any Act of Congress or any regulation of an executive
`depaftment, or upon any express or implied contract with the United
`States, or for liquidated or unliquidated damages in cases not sounding in
`tort.
`
`28 U.S.C. S 1491(a)(1). As interpreted by the United States Supreme Court, the Tucker
`Act waives sovereign immunity to allow jurisdiction over claims against the United
`states (1) founded on an express or implied contract with the United states, (2) seeking
`a refund from a prior payment made to the government, or (3) based on federal
`constitutional, statutory, or regulatory law mandating compensation by the federal
`government for damages sustained. see united States v. Navaio Nation, s56 u.s. 297,
`289-90 (2009); United States v. Mitchell,463 U.S. 206,216 (1983); see also Greenlee
`Cnty..,Ariz. v. Unlted States, 487 F.3d 871, B7S (Fed. Cir.), ICh! and 19h! CLberc
`dgligd (Fed. Cn. 2007), cert. denied, 552 U.S. 1142 eo}il: patmer v. UniteC Stateq
`168 F.3d 1310, 1314 (Fed. Cir. 1999).
`
`"Not every claim invoking the constitution, a federal statute, or a regulation is
`cognizable under the Tucker Act. The claim must be one for money damages against
`the united states. . . ." United states v. Mitchell, 463 u.s. at 216; see ilso United
`States v-White Mountain Apache Tribe, 537 U.S. 465,472 (2003); Smith \,. United
`States, 709 F.3d 1114, 1116 (Fed. Cir.), cert. denied, 134 S. Ct. 2S9 (2013)i
`R.adioShack Coro. v. United States,566 F.3d 1358, 1360 (Fed. Cir.2009); Rick;s
`Mushroom serv.. Inc. v. United states, szl F.3d at 1343 ("[p]laintiff must . . . identify a
`substantive source of law that creates the right to recovery of money damages against
`the united states."). In ontario Power Generation. Inc. v. United states, the United
`
`

`
`Case 1:13-cv-00323-MBH Document 14 Filed 04/25/14 Page 8 of 16
`
`States Court of Appeals for the Federal Circuit identified three types of monetary claims
`for which jurisdiction is lodged in the United States Court of Federal Claims. The court
`wrote:
`
`The underlying monetary claims are of three types. First, claims
`alleging the existence of a contract between the plaintiff and the
`government fall within the Tucker Act's waiver. Second, the Tucker
`Act's waiver encompasses claims where "the plaintiff has paid money over
`to the Government, directly or in effect, and seeks return of all or part of
`that sum." Eastport S.S. lCorp. v. United States, 178 Ct. Cl. 599' 605-06']
`372 F.2d [1002,] 1007-08 [(1967)] (describing illegal exaction claims as
`claims "in which the Government has the citizen's money in its pocket"'
`(quoting Claop v. United States,127 Ct Cl 505, 117 F. Supp 576' 580
`(1954)) . . . . Third, the Court of Federal Claims has jurisdiction over those
`claims where ,'money has not been paid but the plaintiff asserts that hejs
`nevertheless entitled to a payment from the treasury." Eastport S'S , 372
`F.2d at 7 . Claims in this third category, where no payment has been
`madetothegovernment,eitherdirectlyorineffect,requirethatthe
`..particu|arprovisionof|awre|iedupongrantsthec|aimant,express|yorby
`implication, a right to be paid a certain sum." ld ; see also Te-stan [Y'
`United staiesl ,izqu.s.l3s2,l4o1-02 [1976] (.Wherethe United states is
`the defendant and the plaintiff is not suing for money improperly exacted
`or retained, the basis of the federal claim-whether it be the constitution, a
`statute,oraregu|ation-doesnotcreateacauseofactionformoney
`damagesun|ess,astheCourtofC|aimshasstated'thatbasis.initse|f..
`can tiirly be interpreted as mandating compensation Uf I"^F9:F|
`'Governmentforthedamagesustained."'(quotingEastportSS'372F'2d
`at 1009)). This category is commonly referred to as claims brought under
`a "money-mandating" statute.
`ontario PowerGeneration. lnc. v. United states,369_F.3d 1298, 1301 (Fed. cir.2004);
`, 104 Fed Cl l01, 106(2012)
`
`Toprovethatastatuteorregulationismoney-mandating,a,p|aintiffmust
`demonstraie that an independent sourde of substantive law relied upon "'can fairly be
`inierpreteo as mandating compensation by the F_ederal Government."' United States v'
`f..t"ulio N"tion,556 U.Slat29b (quoting Unite€tatesv. Tes-tan,424 U.S. at.400); see
`, 537 U S at 472; United States v'
`:
`, 533 F 3d.1374' 1383
`G-O. Cir. 2008), cert. OedCd, -sSS US.11SS (ZOO9) The source _of law granting
`monetary relief must Oe OG-tinct from the Tucker Act itself. See United,Slateg Y Navaio
`1a! , 5so U.s. at 290 (The Tucker Act does not create "substantive rights; [it is simply
`provision[] that operate[s] to waive sovereign immunity for claims
`pieiniseO on other sources of law (e.g., itatutes or contracts)."). "'lf the statute is not
`"firrisoictionul
`.on"V-."nO"ting, the Court of fiO6rat Claims lacks jurisdiction, and the dismissal
`should be for lac-k of subiect matter jurisdiction."' Jan's Helicopter serv" lnc. v' Fed'
`
`

`
`Case 1:13-cv-00323-MBH Document 14 Filed 04/25/14 Page 9 of 16
`
`Aviation Admin., 525 F.3d 1299, 1308 (Fed. Cir.2008) (quoting Greenlee Cntv.. Ariz. v.
`United States, 487 F.3d at 876); Fisher v. United States, 402 F.3d 1167, 1173 (Fed. Cir.
`2005) (The absence of a money-mandating source is "fatal to the court's jurisdiction
`under the Tucker Act."); Peoples v. United States, 87 Fed. Cl. 553, 565-66 (2009).
`
`The United States Court of Federal Claims has limited jurisdiction in copyright
`cases and may hear cases only when the copyright owner brings an infringement action
`against the United States. See 28 U.S.C. S 1498(b) (2006). Pursuant to 28 U.S.C. S
`1498(b),6 the United States includes "a corporation owned or controlled by the United
`States, or. . . a contractor, subcontractor, or any person, firm, or corporation acting for
`the Government and with the authorization or consent of the Government." 28 U.S.C. S
`1498(b). Section 1498(b) "codifies a limited waiver of sovereign immunity for copyright
`infringement claims against the government and establishes this court as the exclusive
`forum to hear such claims." Blueport Co.. LLP. v. United States, 76 Fed. Cl.702,711
`(2007), atf d,533 F.3d 1374 (Fed. Cir. 2008), cert. denied, 555 U.S. 1153 (2009); see
`also Gavlord v. United States,678 F.3d 1339, 1340 (Fed. Cir.2012); Aviation Software,
`lnc. v. United States, 101 Fed. Cl.656, 662(201't); Bovle v. United States,44 Fed. Cl.
`60, 62-63 (1999) ("[T]he 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." (quoting 28 U.S.C. S 1498(b)), affd,200 F.3d 1369 (Fed. Cir.2000).
`
`A valid copyright infringement action must be based on both "'(1) ownership of a
`valid copyright and (2) copying of constituent elements of the work that are original."'
`Cohen v. United States, 105 Fed. C|.733,74041 (2012) (quoting Feist Publ'ns. Inc. v.
`Rural Tel. Serv. Co.,499 U.S.340,361 (1991)), aff'd,528 F. App'x 996 (Fed. Cir.
`2013); see also Roberson v. United States, No. 13-844C, 2014WL 1004310, at.5 (Fed
`Cl. Mar. 14,2014). The above-captioned case is not a copyright infringement action
`brought by the owner of a valid copyright. Instead, plaintiffs complaint alleges that the
`Copyright Office refused to register his exclusive rights. Mr. Driessen seeks a
`declaratory judgment and asks the court for four types of relief:
`
`a. Declare Plaintiff is a lawful purchaser and owner of content media, and
`that as a lawful ourchaser and owner of a content media material
`object, Plaintiff has excluslve rights to laMul enjoyment, including
`displaying, viewing, and transmission of the same for home viewing,
`within the bounds of copyright law;
`
`o 28 U.S.C. S 1498(b) states in part, "whenever the copyright in any work protected
`under the copyright laws of the 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 Government, 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 . . . ."
`
`

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`Case 1:13-cv-00323-MBH Document 14 Filed 04/25/14 Page 10 of 16
`
`b. Declare that there is no physical or ethereal length of cord which too
`long which [sic] could prohibit such lawful enjoyment, as mentioned
`above, within any distance;
`c. Declare that Congress has authorized the Office through the Library of
`Congress, to provide means for permissive registration of any
`exclusive copyright; and
`
`d. Remand the Plaintiff's request for registration of his exclusive rights to
`the 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.
`
`(emphasis in original).
`
`Plaintiff has not based his claims on a provision of law over which this court has
`jurisdiction. Plaintiff's alleged basis for his claims is Article l, $ 1 of the Constitution,
`which vests general legisiative powers in Congress. See U.S. Const Art. l, S 1t
`Plaintiff also ielies on Title 17 of the United States Code, which, plaintiff alleges, the
`Copyright Office can use to support the rulemaking he requested. Plaintiff asserts that
`,'ttlh6 Copyright Office has been given sufficient direction from Congress through Title
`ii . . . tor providing registration of exclusive viewing and transmission rights .
`'"
`Plaintiff contends that Congress legislated Title 17 through its Article I authority to
`mandate the copyright office's rulemaking. Although the complaint does not reference
`a specific section of Title 17, plaintiff attaches Vibme's first petition to the copyright
`office for his proposed new type of registration, which claims that there is "a new and
`pressing need for the [Copyright] Office to reconsider the legitimate registration of
`specifiCownership for consumers who purchase existing first sales rights under $109 of
`the United States copyright code (Title 17 of the united states code)." The court
`notes, however, that the first-sale doctrine, as reflected in 17 U.S C. 5109 (2006)' does
`not provide a purchaser, such as the plaintiff with an exclusive right, but instead applies
`to the copyright owner. see Kirtsaenq v. John wilev & sons. lnc., 133 S. Ct._at 1354-
`SO. Theiefore, 17 U.S.C. g 109 does not apply to plaintiff. Additionally, the Copyright
`Office has the discretion to reject petitions, which it did when rejecting Vibme's petition
`for rulemaking, and those decisions are not reviewable in this court. See Gavlord v.
`United States,678 F.3d at 1340; Walton v. United States,551 F.3d 1367' 1371 (Fed'
`Cir. 2009).
`
`Defendant notes that "[n]owhere in plaintiffls complaint does he allege that any
`copyright owner in the digital media that he has sought to register has ever threatened
`nim-witn suit for copyright infringement in relation to his use of the media that alleges
`[sic] he has lawfully'purchased l' Moreover, as discussed above, under 28 U.S C S
`iaS;StO), the Court of Federal Claims has jurisdiction only in cases of
`-copyright
`infringement against the United States. See Gavlord v. United states, 678 F.3d