On Friday, the Supreme Court issued its decision in Warner Chappell Music, Inc. v. Nealy. This case involves the statute of limitations and relief measures stipulated in the Copyright Law. The Copyright Act stipulates that plaintiffs must file a lawsuit “within three years of the claim.” 17 USC §507(b). When does the claim arise? When did the infringement occur? Or when did the plaintiff discover the infringement? The circuit community is divided on the issue. Judge Kagan elaborated on the disagreement:
Under the Copyright Act, plaintiffs must file suit “within three years after the claim arose.” §507(b). Under the understanding of this limitation, the copyright claim “shall arise”[s]”When” the infringement occurred. Many of Neely’s claims were untimely under that rule because they alleged the infringement had occurred as early as a decade earlier, but under another view of the Act’s limitation clause, when A claim arises when “the plaintiff discovered or should have discovered it through due diligence.” found,” infringement. These violations were discovered within the past three years.
Until recently, I had never considered this question. I had never taken an intellectual property class in law school and knew very little about the subject. At least until recently.
In 2013, I published a blog post that included a copyrighted photo. I forgot about this article a long time ago. The post has been viewed about twenty times over the past decade. However, in 2023, someone representing the copyright holder discovered the post and sent me a demand letter. I immediately deleted the copyrighted photo, but the letter demanded damages.
My first reaction is that this claim must be barred by the statute of limitations. But I did some research and found that authorities are divided on when claims occur. After some thought, I reached a settlement that resolved all claims. Nonetheless, I am annoyed that courts have applied discovery rules to the Copyright Act. My blog post is open to the public, indexed by Google, promoted on my social media channels, and may soon be discovered as it is posted. No one is trying to hide this information. In the language of hostility and possession, public and notorious. (All my posts are infamous.)
I’m not the only one bothered by this rule. Warner Chappell Music’s petition for cert raises the following questions:
Whether the Copyright Act’s statute of limitations for civil actions (17 USC 507(b)) precludes retroactive relief for conduct that occurred more than three years before the suit was filed.
But the courts won’t resolve the issue. In effect, the court rewrote the question asked.
The issue on which this Court granted certiorari is “[w]Furthermore, under the circuit court’s applicable discovery accrual rule, a copyright plaintiff “may recover damages for conduct that allegedly occurred more than three years before the lawsuit was filed.” Same as above. The court replaced Warner Chappell’s question with this question, which contains a presumption that discovery rules govern the timeliness of copyright claims. We never decided whether this assumption was valid –IE, whether the copyright claim arose when the plaintiff discovered or should have discovered the infringement, rather than when the infringement occurred.look Petrella, 572 United States, p. 670, n. 4. But the issue was not properly raised here because Warner Chappell never challenged the Eleventh Circuit’s use of the following discovery rules.
Judge Kagan recommended in footnote 1 that the discovery rule issue be waived. She seemed angry:
Regardless of the limitations of the question reposed, Warner-Chappell’s brief before this Court focused almost entirely on the discovery rule itself…given that Warner-Chappell’s own petition for certiorari presented the broader evidence only in footnotes This choice is particularly surprising regarding the issue of discovery rules, which the footnote acknowledges was not raised below and was not the subject of the circuit court’s split. See pets. for certificates. 14,n. But even assuming that Warner Chappell’s petition urges us to express an opinion on the discovery rule, our reformulation of the issues raised should put an end to such debates.
We civilians must never forget who is responsible for how cases are prosecuted. This is not a lawyer. This is the Oracle on First Street.
If I had to guess, Warner generally benefits from the discovery rule that someone else infringed the group’s copyright and Warner didn’t find out until much later. But this case presents the opposite: the rights holder filed a lawsuit against a major record company. It makes sense that Warner is seeking only to limit damages without raising the issue of discovery rules in the lower court. But once the issue came to the Supreme Court, Warner sought clarification on the discovery rules. But no luck.
Justice Kagan’s majority opinion “supposes[d] It is not held that a claim is timely under that provision if it is brought within three years of the plaintiff’s discovery of the infringement, regardless of when the infringement occurred.
Instead, the court only addressed the issue of remediation. The court held that damages were not limited to the three years preceding the filing of the action. Instead, damages can be traced back to the original infringement. Kagan concluded: “There is no time limit on monetary damages. Therefore, a copyright owner who timely files a claim for infringement is entitled to damages regardless of when the infringement occurred.” In my case, if the Tribe published in 2013 If the article contains a copyrighted photo, then a claim can be made in time in 2023 and damages will be awarded for a full decade of infringement. (I still don’t know how to calculate damages for a blog post that’s been viewed about two dozen times over a decade, but I digress.) In short, a plaintiff can take advantage of the discovery rule but still seek damages that go back so far more than three years.
Justice Gorsuch dissented, joined by Justices Thomas and Alito. (Gorsuch had a busy day, reaching separate agreement on civil forfeiture Cali v. Marshall). Gorsuch accused the majority of sidestepping the key question of whether a discovery rule actually exists. If no rules are discovered, any questions about remedies become irrelevant.
The court discussed how the accrual discovery rule should operate under the Copyright Act. But doing so begs the logically preceding question: whether there is room in the bill for such a rule. Rather than address the issue, the court was careful to emphasize that its resolution must await future cases. The problem is that the bill will almost certainly not tolerate discovery rules. This fact will quickly render anything we say today about the details of how the rules operate a dead letter.
Gorsuch is absolutely right. To be clear, the court rewrote the question as presented to avoid ruling on the issue that divided the circuit, and then decided a secondary issue that would have been in issue had the court answered the primary question The problem. How about judicial minimalism?
Nonetheless, Justice Gorsuch offered the majority a qualified defense:
In a sense, the court’s decision to ignore this complex issue may be understandable. After all, none of the parties before us challenged the application of the discovery rules to the proceedings below, but merely added questions about how it should operate. See supra note, 5, n. 1. The Court can resolve the parties’ dispute as it does now, while leaving the preliminary question for another day to discuss whether there are discovery rules under the Act.
Here, Gorsuch would do what he often recommends – dismiss the case because it was granted summarily (a “DIG” in the lingo).
But if that’s a permissible practice, I don’t think it’s the smartest thing to do. There is nothing that requires us to work with these particular parties and spell out the details of the rule of law that they may assume but most likely do not exist. IMHO, I will not spend my time on this case, but will consider it to be perverse and wait for another person to directly raise the question of whether the Copyright Act authorizes the discovery rule. In my opinion, it’s better to answer an important question than to answer a question that is almost certainly not important.
As far as I know, Gorsuch will dig it. Helix Energy Solutions Group, Inc. v. Hewitt, camp v. united states, and Shoup v. Twyford
On the merits, Gorsuch explained that discovery rules generally apply only to “cases of fraud and concealment” and should not apply here. Consider an example of an attribute class.exist O’Keefe v. Snyder, the discovery rules apply to a claim for adverse possession of a stolen painting that was displayed in a private residence but could not be discovered. But in this case, the objectionable music was heavily publicized on radio, television and other media. If you had ears in 2008, you probably heard this song and its interlude:
Then again, the plaintiff is already in jail, so this is not a normal situation under the discovery rules. (Some states have statutes of limitations for adverse possession against inmates.) Again, I often hear from inmates who hear me on the radio, so it’s conceivable that Neely heard this song while incarcerated.
I hope the courts will address the discovery rule issue in the future – at least for the benefit of bloggers who have been in this game for over three years.
