Copyright Infringement – Time Limits to Bring Claims
Federal statute – U.S. Copyright Law [General Rule]
No civil action shall be maintained under the provisions of this title unless it is commenced within three years after the claim accrued.
Damages that occur outside the three year window (but suit filed within three years)
In Polar Bear Prods., Inc. v. Timex Corp., 384 F.3d 700, 705–06 (9th Cir. 2004), the federal court noted:
In copyright litigation, the statute of limitations issue that often arises is that the plaintiff filed its copyright claim more than three years after it discovered or should have discovered infringement. Here, Timex makes a different, novel argument and asks us to rule that § 507(b) prohibits copyright plaintiffs from obtaining any damages resulting from infringement occurring more than three years before filing the copyright action, regardless of the date the plaintiff discovered the infringement. In Kling v. Hallmark Cards, Inc., 225 F.3d 1030, 1041–42 (9th Cir.2000), we left for another day precisely this argument; that day is now upon us. We conclude that § 507(b) permits damages occurring outside of the three—year window, so long as the copyright owner did not discover—and reasonably could not have discovered—the infringement before the commencement of the three–year limitation period. Because Polar Bear did not discover Timex’s infringement until within three years of filing suit, Polar Bear may recover damages for infringement that occurred outside of the three–year window.
Date of the last infringing act
When does a Plaintiff learn about Copyright Infringement? [The Discovery Rule vs. Injury Rule]
Defendant also moves to dismiss the Amended Complaint as time-barred. In the Eleventh Circuit, dismissal on statute of limitations grounds is appropriate “if it is apparent from the face of the complaint that the claim is time-barred.” La Grasta v. First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir.2004). The Federal Copyright Act states, “No civil action shall be maintained under the provisions of this title unless it is commenced within three years after the claim accrued.” 17 U.S.C. § 507(b).There are two tests for when the statute of limitations begins to run in copyright cases. The majority of federal courts use the “discovery rule. See Roger Miller Music, Inc. v. Sony/ATV Publ’g, LLC, 477 F.3d 383, 390–91 (6th Cir.2007); Polar Bear Prods., Inc. v. Timex Corp., 384 F.3d 700, 706–707 (9th Cir.2004); Gaiman v. McFarlane, 360 F.3d 644, 653 (7th Cir.2004); Lyons P’ship, L.P. v. Morris, 243 F.3d 789, 796 (4th Cir.2001); Stone v. Williams, 970 F.2d 1043, 1048 (2d Cir.1992). The minority follow the “injury rule.” See, e.g., Auscape Int’l v. Nat’l Geographic Soc’y, 409 F.Supp.2d 235, 242–48 (S.D.N.Y.2004). Under the discovery rule, a copyright infringement cause of action accrues when a copyright owner knew or should have known of the alleged infringement. Under the injury rule, the statute of limitations begins to run when the alleged infringement occurred.
The Eleventh Circuit has not explicitly adopted either the majority or the minority position in the civil copyright infringement context. However, in deciding a 42 U.S.C. § 1983 case, the Eleventh Circuit has held, “A federal claim is generally considered to accrue when the plaintiff knows or has reason to know of the injury which is the basis of the action.” Corn v. City of Lauderdale Lakes, 904 F.2d 585, 588 (11th Cir.1990).A concurring Eleventh Circuit opinion applied the discovery rule to an infringement action. Calhoun v. Lillenas Pub., 298 F.3d 1228, 1236 (11th Cir.2002) (Birch, J., concurring) (“The limitations period may be triggered when a plaintiff knows or, in the exercise of reasonable diligence, should have known about an infringement.”). Moreover, cases in the Southern and Middle Districts of Florida have applied the discovery rule in copyright infringement cases. Lorentz v. Sunshine Health Prods., Inc., No. 09–61529–civ, 2010 (S.D.Fla. Aug. 27, 2010); Thornton v. J Jargon Co., 580 F.Supp.2d 1261, 1284–85 (M.D.Fla.2008); Tingley Sys., Inc. v. HealthLink, Inc., 509 F.Supp.2d 1209, 1218 (M.D.Fla.2007).
Given the weight of authority supporting the discovery rule, and determining it to be the better practice, this Court applies the discovery rule to the instant case and finds that the statute of limitations period began to run when Plaintiff learned of or, in the exercise of reasonable diligence, should have learned of Defendant Arquitectonica’s alleged infringement.
“Should have learned,” means whether a reasonably prudent person in Plaintiff’s position would have become aware of the alleged infringement. McTigue, 531 F.3d at 44; Stone, 970 F.2d at 1048. “A reasonably prudent person is charged with a duty of diligence.” Luar Music Corp. v. Universal Music Group, Inc., 847 F.Supp.2d 299, 309 (D.P.R.2012) (citing McTigue, 531 F.3d at 44). A plaintiff is put on notice and the statute of limitations begins to run once a plaintiff “possesses information fairly suggesting some reason to investigate whether he may have suffered an injury at the hands of a putative infringer.”
See Sieger Suarez Architectural P’ship, Inc. v. Arquitectonica Int’l Corp., 998 F. Supp. 2d 1340, 1354–55 (S.D. Fla. 2014), appeal dismissed (Sept. 5, 2014)
What about ‘continuing’ copyright violations
Can copyright infringement actions be “tolled?
The copyright infringement statute of limitations may be equitably tolled if justified under the circumstances. See Wood v. Santa Barbara Chamber of Commerce, Inc., 705 F.2d 1515 (9th Cir.1983). See Kregos v. Associated Press, 795 F. Supp. 1325, 1330 (S.D.N.Y. 1992), aff’d, 3 F.3d 656 (2d Cir. 1993). In another case a federal court held:
The Doctrine of Equitable Tolling would be inappropriate to apply here given the facts as alleged. SeePodobnik v. United States Postal Service, 409 F.3d 584, 591 (3d Cir.2005)(noting that the doctrine of equitable tolling should be applied “sparingly” to stop a statute of limitations period from running). The Third Circuit has stated that there are three principle situations in which equitable tolling might be appropriate:(1) where the defendant has actively misled the plaintiff respecting the plaintiff’s cause of action;(2) where the plaintiff in some extraordinary way has been prevented from asserting his or her rights;or(3) where the plaintiff has timely asserted his or her rights in the wrong forum. Plaintiff has not alleged facts to support any of these circumstances, and thus there is no basis to equitably toll the limitations period in Plaintiff’s claim. Seeid. (“Appellant bears the burden of proving that the equitable tolling doctrine applies here.”). See Hunter v. Squirrel Hill Associates, L.P., 413 F. Supp. 2d 517, 521 (E.D. Pa. 2005).
Fraudulent Concealment may toll the statute of limitations
Copyright & Laches
Contact an Intellectual Property Law Firm
Our firm has helped many individuals and small and mid sized business bring and defend against claims of willful copyright infringement. This includes using a photo on a website, infringing against rights of publicity, allegations of software piracy by the business software alliance or SIIA, Autodesk, Microsoft, Siemens, Vero, Adobe, or other copyright rights holder. We handle a wide variety of federal copyright and trademark cases nationwide including Torrent illegal download defense. Call us at (877) 276-5084. We offer low flat rate fee for most non-litigation cases.
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