United States Court of Appeals for the Federal Circuit ______________________

BITMANAGEMENT SOFTWARE GMBH, Plaintiff-Appellant

v.

UNITED STATES, Defendant-Appellee ______________________

2023-1506 ______________________

Appeal from the United States Court of Federal Claims in No. 1:16-cv-00840-EJD, Senior Judge Edward J. Damich. ______________________

Decided: January 7, 2025 ______________________

MARK CHRISTOPHER FLEMING, Wilmer Cutler Pickering Hale and Dorr LLP, Boston, MA, argued for plaintiff- appellant. Also represented by ZAKI ANWAR; BRENT GURNEY, Washington, DC.

SCOTT DAVID BOLDEN, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for defendant-appellee. Also represented by BRIAN M. BOYNTON, GARY LEE HAUSKEN; PATRICK C. HOLVEY, Criminal Division, United States Attorney's Office for the District of Columbia, United States Department of Justice, Washington, DC; SHIVAUN Case: 23-1506 Document: 44 Page: 2 Filed: 01/07/2025

2 BITMANAGEMENT SOFTWARE GMBH v. US

WHITE, Naval Facilities Engineering Systems Command, United States Navy, Washington, DC. ______________________

Before DYK, STOLL, and STARK, Circuit Judges. STARK, Circuit Judge. Bitmanagement Software GmBH (“Bitmanagement”) appeals the damages judgment it received in the United States Court of Federal Claims as compensation for copyright infringement committed by the United States Navy (“Navy”). The Court of Federal Claims determined that a hypothetical negotiation between the parties would have resulted in a license to Bitmanagement’s software at a cost of $154,400, which it ordered the Navy to pay Bitmanagement. Finding no abuse of discretion, we affirm. I Bitmanagement “develops software for rendering three-dimensional graphics.” Bitmanagement Software GmBH v. United States, 989 F.3d 938, 941 (Fed. Cir. 2021) (“Bit II”). At issue in this case is Bitmanagement’s “BS Contact Geo” software, which is useful in conjunction with a Navy software platform called SPIDERS 3D. Used together, BS Contact Geo and SPIDERS 3D create a virtual reality environment in which Navy employees can view images of Naval installations, bases, and facilities in three dimensions. In 2008, Bitmanagement, through a third-party reseller, provided the Navy with 100 “seat licenses” (also known as “PC licenses”) for BS Contact Geo. A “seat license” allows only “one installation of the software onto one computer per license.” Id. Hence, with 100 seat licenses, the Navy was permitted to install BS Contact Geo on 100 specific computers. In 2012, the parties switched the Navy from seat licenses to a “floating license.” A “floating license” allows Case: 23-1506 Document: 44 Page: 3 Filed: 01/07/2025

BITMANAGEMENT SOFTWARE GMBH v. US 3

the licensed user to access the software on a wide range of computers, so long as measures are taken to limit the simultaneous usage of the program to only the number of individual users permitted by the license. See id. at 943. The Navy’s first floating license with Bitmanagement allowed the Navy to install BS Contact Geo on as many computers as it wished but capped the maximum usage at 20 users at any one time. To ensure the Navy adhered to the cap in the floating license, Bitmanagement and the Navy agreed that the Navy would use a tracking application, called “Flexera.” As we explained when this case was before us previously: Flexera is a server-based program used to limit the number of simultaneous users of a “Flexera enabled” – or “FlexWrapped” – software based on th