1. Home
  2. |Insights
  3. |Stopped in its Tracks: The Government’s Failure to Track Software Use Constitutes Infringement Under 28 U.S.C. § 1498

Stopped in its Tracks: The Government’s Failure to Track Software Use Constitutes Infringement Under 28 U.S.C. § 1498

Client Alert | 1 min read | 03.09.21

In Bitmanagement Software GmbH v. United States, the Federal Circuit vacated and remanded a decision by the Court of Federal Claims (COFC) that found the Navy was not liable for copyright infringement even though it was undisputed that the Navy made 429,604 copies of Bitmanagement’s BS Contact Geo software when it only paid for 119 copies. The COFC reasoned that the Navy was not liable because it had an implied-in-fact license that permitted it to make copies. The Federal Circuit’s majority agreed the Navy had an implied-in-fact license, but that the COFC’s analysis should not have stopped there; rather, the COFC should have also considered whether the Navy complied with the terms of that implied license. The Navy did not. According to the Court, the implied license was conditioned on the Navy’s use of a license-tracking software at the time of copying to monitor usage by limiting the number of simultaneous users of Bitmanagement’s software. However, the Navy failed to use that license-tracking software. The Court held that the Navy’s copying outside of the scope of the implied license created liability for infringement. In a concurring opinion, Judge Newman reached the same conclusion; however, she disagreed as to the existence of an implied license, simply finding that the Navy’s “massive copying” infringed Bitmanagement’s copyright.

The case was remanded to the COFC for the calculation of a reasonable royalty for the Navy’s actual usage in excess of the licensed number of copies, which the burden is on the Government to prove.

Insights

Client Alert | 3 min read | 09.15.25

Senate Finance Committee Looking to Take White River to the Train Station, Confirms DOJ Investigation into Tribal Tax Credits

On August 19, 2025, the U.S. Senate Committee on Finance (“Senate Finance Committee”) sent Paul Atkins, Chairman, U.S. Securities and Exchange Commission (“SEC”) a letter calling on the SEC to investigate White River Energy Corp (“White River”). In the letter, the Senate Finance Committee confirmed a criminal investigation into White River related to the sale of so-called “tribal tax credits” that according to both Congress and the IRS, do not exist. The letter further states that White River allegedly earned millions of dollars selling these credits and has not been forthcoming with investors regarding the existence of the criminal investigation. According to the Senate Finance Committee, White River has failed to file financial disclosure documents with the SEC since March 15, 2024, missing six consecutive reporting periods. The letter instructs White River to disclose the existence of the DOJ criminal tax investigation, and calls on the SEC to take action if White River fails to do so....