MOTION TO DISMISS FOR LACK OF SUBJECT MATTER
 
JURISDICTION GRANTED IN PART, DENIED IN PART: October 27, 2011
 
CBCA 2361
 
ABSOLUTE SOFTWARE, INC., 
Appellant, 
v. 
DEPARTMENT OF COMMERCE, 
Respondent. 
Mark R. Vernazza of Edwards Angell Palmer & Dodge, LLP, Boston, MA, counsel 
for Appellant. 
Mark Langstein, Richard Brown, Michael Bogomolny, Shraddha Upadhyaya, and 
Erin N. Frazee, Office of General Counsel, Department of Commerce, Washington, DC,
 
counsel for Respondent.
 
Before Board Judges POLLACK , McCANN , and KULLBERG .

McCANN , Board Judge.
 
Respondent has moved to dismiss all counts of appellant’s complaint for lack of 
subject matter jurisdiction.  For the following reasons we grant the motion in part and deny 
the motion in part. 
Background 
On or about August 9, 2007, Absolute Software, Inc. (appellant or Absolute) and the 
Department of Commerce (respondent or DOC) entered into contract number 

 
           
         
           
             
              
           
              
           
     
             
             
            
              
               
            
             
         
        
            
        
               
        
            
             
               
       
            
              
           
    
2 CBCA 2361 
DG133R07SE3872. Under this contract Absolute was to provide, among other things, 
licensing, software assurance, technical support, and consultative services for the 
SmartTRAC Surveillance System and the United States Vessel Monitoring System. Absolute 
proceeded with performance, and on April 10, 2010, submitted a claim to the contracting 
officer. That claim was denied on February 14, 2011. Absolute timely appealed that 
decision to the Civilian Board of Contract Appeals on March 25, 2011. 
On April 29, 2011, Absolute filed its complaint. In its complaint Absolute alleges that 
DOC breached the contract, breached the end user licenses, infringed Absolute’s copyright, 
and misappropriated Absolute’s trade secrets. 
Discussion 
DOC has moved to dismiss Absolute’s complaint on the grounds that this Board lacks 
jurisdiction over copyright infringement claims. It contends that all counts in the complaint 
are really nothing more than claims for copyright infringement and are, accordingly, beyond 
the jurisdiction of this Board. In determining jurisdiction, the Board must accept as true all 
undisputed facts asserted in the complaint and draw all reasonable inferences in favor of the 
appellant. Henke v. United States , 60 F.3d 795, 797 (Fed. Cir. 1995). 
In count I, Absolute alleges that one of DOC’s bureaus, the National Oceanic and 
Atmospheric Administration (NOAA), which operates the National Marine Fisheries Office 
of Law Enforcement (OLE) (collectively NOAA/OLE), provided Absolute’s intellectual 
property, trade secrets, and/or other confidential information to third parties in violation of 
Federal Acquisition Regulation clause 52.227-19, Commercial Computer Software – 
Restricted Rights (Jun 1987), 48 CFR 52.227-19 (2006). Absolute also alleges in count I that 
NOAA/OLE provided Absolute’s intellectual property, trade secrets, and/or other 
confidential information to third parties in violation of the SmartTRAC end user licenses.
1 
In its motion to dismiss for lack of subject matter jurisdiction, DOC contends that 
count I is not a contract claim, but rather is nothing more than a copyright infringement 
claim, over which the Board lacks jurisdiction. 
Under the Contract Disputes Act, 41 U.S.C.A. §§ 7101-7109 (West 2011) (CDA), this 
Board has jurisdiction to decide contract claims. The jurisdiction of the Board arises from 
It is unclear whether Absolute is alleging that additional unspecified parts of 
the contract were violated. 
1 

 
                
                
            
           
                  
             
          
          
            
             
          
            
                 
              
           
                 
             
     
             
               
              
              
               
                
                 
                  
            
              
             
          
             
              
                
         
        
 
3 CBCA 2361 
the CDA. The Board has the jurisdiction to “decide any appeal from a decision of a 
contracting officer of any executive agency . . . relative to a contract made by that agency.” 
Id. § 7105(e)(1)(B). The CDA applies to all express or implied contracts entered into by an 
executive agency for the procurement of property other than real property; the procurement 
of services; the procurement of construction, alteration, repair, or maintenance of real 
property; or the disposal of personal property. Id. § 7102(a). The existence of a contract to 
which the Government and the contractor are parties is an essential prerequisite to Board 
jurisdiction. Presidio County, Texas v. General Services Administration , CBCA 1209, 
08-2 BCA ¶ 33,976; Inversa, S.A. v. Department of State , CBCA 440, 07-2 BCA ¶ 33,690. 
In count I, Absolute has alleged contract violations, over which this Board has 
jurisdiction. DOC’s contention that count I is nothing more than a copyright infringement 
claim lacks merit. DOC’s arguments regarding perceived similarities between Absolute’s 
copyright infringement claims set forth in count III, and its allegations of contractual 
violations in count I, are misplaced. An alleged violation of a contract or contract clause is 
simply not the same as an alleged infringement of a copyright under the copyright laws. 
In addition, little or no evidence has been presented by Absolute regarding 
count I. Accordingly, it is not possible for this Board to conclude at this point that the 
contract claims in count I are a simple repeat of Absolute’s copyright infringement claims 
set forth in count III. 
With regard to count II of the complaint, Absolute alleges NOAA/OLE permitted 617 
users to access the SmartTRAC software system over a period of two years in violation of 
the 2007 contract and the SmartTRAC end user licenses, which allowed for only fifty active 
users. Again, DOC’s contention that count II is nothing more than a copyright infringement 
claim lacks merit. Absolute has alleged a violation of the contract, and this Board has 
jurisdiction to decide whether such a violation took place. Further, at this point, it is unclear 
what the end user licenses say, how they fit in with the contract, and what effect they have 
on the contract. Until such is made clear, it would be premature for this Board to dismiss the 
claim for violation of end user licenses for lack of subject matter jurisdiction. 
In count III of the complaint, Absolute alleges that DOC infringed its copyright. It 
alleges that it has a valid copyright in the SmartTRAC software and that NOAA/OLE 
infringed Absolute’s copyright when it provided Absolute’s copyrighted materials to third 
parties. DOC alleges that this Board lacks jurisdiction to hear cases alleging copyright 
infringement. DOC is correct. “Boards of contract appeals do not have jurisdiction over 
claims that a contractor’s rights were violated under the Copyright Act . . . .” Data 
Enterprises of the Northwest v. General Services Administration , GSBCA 15607, 
04-1 BCA ¶ 32,539, at 160,949; see McKirchy & Co. , ASBCA 51824, 99-2 BCA ¶ 30,468, 
at 150,516. 

 
           
          
              
             
            
                
            
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4 CBCA 2361 
In count IV of its complaint, Absolute contends that the SmartTRAC software, 
including without limitation its source code, algorithms, and other related information, 
constitute its trade secrets. It alleges that DOC misappropriated its trade secrets by disclosing 
them without authorization to third parties. Absolute has not identified the law, rule, 
regulation, or contract provision upon which it relies to support this allegation. Accordingly, 
at this point, the Board is unable to decide whether it has jurisdiction over this count. 
Decision 
The motion is GRANTED with respect to count III; otherwise, it is DENIED . 
R. ANTHONY MCCANN 
Board Judge 
We concur: 
HOWARD A. POLLACK H. CHUCK KULLBERG 
Board Judge Board Judge