Amicus Curiae Brief — Warner Chappell Music, Inc., et al., Petitioners v. Sherman Nealy, et al.

Supreme Court briefJun 5, 2023

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No. 22-1078

IN THE

Supreme Court of the United States

__________

WARNER CHAPPELL MUSIC, INC.

AND ARTIST PUBLISHING GROUP, LLC,

Petitioners,

SHERMAN NEALY AND MUSIC SPECIALIST, INC.,

Respondents.

__________

On Petition for a Writ of Certiorari

To the United States Court of Appeals

For the Eleventh Circuit

__________

BRIEF OF THE CHAMBER OF COMMERCE OF THE

UNITED STATES OF AMERICA AS AMICUS

CURIAE IN SUPPORT OF PETITIONERS

__________

JORDAN L. VON BOKERN

KEVIN R. PALMER*

U.S. CHAMBER

LITIGATION CENTER

1615 H Street, NW

Washington, DC 20062

ADAM G. UNIKOWSKY

Counsel of Record

JENNER & BLOCK LLP

1099 New York Ave., NW

Suite 900

Washington, DC 20001

(202) 639-6000

aunikowsky@jenner.com

*Admitted in

Massachusetts only.

Practicing under the

ALLISON N. DOUGLIS

supervision of members of JENNER & BLOCK LLP

the D.C. Bar.

1155 Avenue of the Americas

New York, NY 10036

Counsel for Amicus Curiae

TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................... ii

INTEREST OF AMICUS CURIAE ............................. 1

INTRODUCTION AND SUMMARY OF

ARGUMENT .......................................................... 2

ARGUMENT ...................................................................... 4

II.

The Discovery Rule Does Not Apply To

The Copyright Act’s Statute Of

Limitations. ............................................................. 4

Statutes Of Limitations Do Not

Include Discovery Rules Unless

They Say So. ................................................ 5

Lower-Court

Decisions

Rewriting The Copyright Act To

Include A Discovery Rule Are

Unpersuasive. ............................................. 9

The Discovery Rule Is Bad

Policy. ......................................................... 11

This Court’s Review Is Warranted. .................. 16

This Court Should Resolve

Whether The Copyright Act

Includes A Discovery Rule. .................... 17

Regardless Of Whether The

Court Resolves The Availability

Of The Discovery Rule, This

Court’s Review Is Warranted. ............... 18

CONCLUSION ................................................................ 19

TABLE OF AUTHORITIES

CASES

Bay Area Laundry & Dry Cleaning

Pension Trust Fund v. Ferbar Corp. of

California, Inc., 522 U.S. 192 (1997) ...................... 5

Board of Regents of University of New York

v. Tomanio, 446 U.S. 478 (1980) ........................... 12

Bridgeport Music, Inc. v. Rhyme Syndicate

Music, 376 F.3d 615 (6th Cir. 2004) ...................... 10

Carbone v. Brown University, 621 F. Supp.

3d 878 (N.D. Ill. 2022) ............................................. 18

Chicago Building Design, P.C. v.

Mongolian House, Inc., 770 F.3d 610

(7th Cir. 2014) .......................................................... 10

Community for Creative Non-Violence v.

Reid, 490 U.S. 730 (1989) ....................................... 14

Comcast of Illinois X v. Multi-Vision

Electronics, Inc., 491 F.3d 938 (8th Cir.

2007) ............................................................................ 9

Cooper v. NCS Pearson, Inc., 733 F.3d 1013

(10th Cir. 2013) .......................................................... 9

Festo Corp. v. Shoketsu Kinzoku Kogyo

Kabushiki Co., 535 U.S. 722 (2002) ...................... 14

Fogerty v. Fantasy, Inc., 510 U.S. 517

(1994) ........................................................................ 14

Gabelli v. SEC, 568 U.S. 442 (2013) ....................... 5, 14

iii

Graham County Soil & Water Conservation

District v. United States ex rel. Wilson,

545 U.S. 409 (2005) .................................................... 5

Green v. Brennan, 578 U.S. 547 (2016) ........................ 5

Guaranty Trust Co. of New York v. United

States, 304 U.S. 126 (1938) ..................................... 13

Hotaling v. Church of Jesus Christ of

Latter-Day Saints, 118 F.3d 199 (4th Cir.

1997) .......................................................................... 10

Jorgensen v. Epic/Sony Records, 351 F.3d

46 (2d Cir. 2003) ...................................................... 15

Klehr v. A.O. Smith Corp., 521 U.S. 179

(1997) ........................................................................ 13

Martinelli v. Hearst Newspapers, L.L.C., 65

F.4th 231 (5th Cir. 2023) .................................. 11, 17

Merck & Co. v. Reynolds, 559 U.S. 633

(2010) .......................................................................... 8

Order of Railroad Telegraphers v. Railway

Express Agency, 321 U.S. 342 (1944) ................... 13

Petrella v. Metro-Goldwyn-Mayer, Inc., 572

U.S. 663 (2014) ............................................. 3, 4, 5, 19

Psihoyos v. John Wiley & Sons, Inc., 748

F.3d 120 (2d Cir. 2014) ........................................... 11

Roley v. New World Pictures, Ltd., 19 F.3d

479 (9th Cir. 1994) ................................................... 10

Rotella v. Wood, 528 U.S. 549 (2000).................... 12, 13

Rotkiske v. Klemm, 140 S. Ct. 355

(2019) .................................................. 2, 6, 7, 8, 11, 12

Santa-Rosa v. Combo Records, 471 F.3d 224

(1st Cir. 2006) ............................................................ 9

Snyder-Hill v. Ohio State University, 48

F.4th 686 (6th Cir. 2022), petition for

cert. filed, 91 U.S.L.W. 3237 (U.S. Mar.

16, 2023) (No. 22-896) ............................................. 18

Sohm v. Scholastic, Inc., 959 F.3d 39 (2d Cir.

2020) .................................................................... 17, 19

Starz Entertainment, LLC v. MGM

Domestic Television Distribution, LLC,

39 F.4th 1236 (9th Cir. 2022) ................................. 17

Taylor v. Meirick, 712 F.2d 1112 (7th Cir.

1983) ............................................................................ 9

TRW Inc. v. Andrews, 534 U.S. 19 (2001) ............. 8, 12

United States v. Kubrick, 444 U.S. 111

(1979) ........................................................................ 13

Wallace v. Kato, 549 U.S. 384 (2007)............................ 5

Webster v. Dean Guitars, 955 F.3d 1270

(11th Cir. 2020) .......................................................... 9

William A. Graham Co. v. Haughey, 568

F.3d 425 (3d Cir. 2009) ........................................... 10

Wu v. Bitfloor, Inc., 460 F. Supp. 3d 418

(S.D.N.Y. 2020) ....................................................... 18

Zuill v. Shanahan, 80 F.3d 1366 (9th Cir.

1996) .......................................................................... 14

STATUTES

12 U.S.C. § 1715z-4a(d) .................................................. 7

15 U.S.C. § 78r(c) ............................................................ 7

15 U.S.C. § 78u-6(h)(1)(B)(iii)(I)(bb) ............................ 7

15 U.S.C. § 1711(a)(2) ..................................................... 7

15 U.S.C. § 3006(c) .......................................................... 7

15 U.S.C. § 6104(a) .......................................................... 7

17 U.S.C. § 504(c) .......................................................... 15

17 U.S.C. § 507(a) .......................................................... 10

17 U.S.C. § 507(b).............................................. 2, 4, 5, 10

18 U.S.C. § 2520(e) .......................................................... 7

18 U.S.C. § 2710(c)(3) ..................................................... 7

26 U.S.C. § 7431(d).......................................................... 7

28 U.S.C. § 1658(b)(1) ..................................................... 7

42 U.S.C. § 9612(d)(2)(A) ............................................... 7

OTHER AUTHORITIES

6 William F. Patry, Patry on Copyright

§ 20:18, Westlaw (database updated

Mar. 2023) ............................................................ 9, 17

6 William F. Patry, Patry on Copyright

§ 21:38, Westlaw (database updated

Mar. 2023) ................................................................ 14

Pamela Samuelson & Tara Wheatland,

Statutory Damages in Copyright Law: A

Remedy in Need of Reform, 51 Wm. &

Mary L. Rev. 439 (2009) ......................................... 16

INTEREST OF AMICUS CURIAE

The Chamber of Commerce of the United States of

America is the world’s largest business federation. It

represents approximately 300,000 direct members and

indirectly represents the interests of more than three

million companies and professional organizations of

every size, in every industry sector, and from every

region of the country. An important function of the

Chamber is to represent the interests of its members in

matters before Congress, the Executive Branch, and the

courts. To that end, the Chamber regularly files amicus

curiae briefs in cases, like this one, that raise issues of

vital concern to the nation’s business community.

The Chamber and its members have a strong interest

in ensuring that statutes of limitations are enforced as

Congress has written them and in a way that provides

clarity and predictability. The Eleventh Circuit’s

decision allows copyright plaintiffs to seek damages for

alleged violations of the Copyright Act well outside the

exposing the Chamber’s members to unanticipated

financial liability.

The Chamber submits this brief to urge the Court to

provide much-needed guidance on the limitations period

Counsel of record for all parties was notified of amicus’s intent to

file this brief by ten days prior to the due date for this brief.

Pursuant to this Court’s Rule 37.6, amicus states that this brief was

not authored in whole or in part by counsel for any party, and that

no person or entity other than amicus, its members, or its counsel

made a monetary contribution intended to fund the preparation or

submission of this brief.

for copyright claims. The Court should hold that an

injury rule, not a discovery rule, applies to determine

when a copyright claim has accrued. Even if it does not

reach the question of whether a discovery rule exists,

the Court should limit the effect of the discovery rule by

holding that plaintiffs cannot recover damages based on

acts occurring more than three years before they file

suit.

INTRODUCTION AND SUMMARY OF

ARGUMENT

The Chamber agrees with Petitioners that the

plaintiff from obtaining damages based on acts that

occurred more than three years before a lawsuit,

regardless of when the plaintiff discovered those acts.

The Chamber urges the Court to reach that conclusion

by holding that no discovery rule applies to the

“this case would allow the Court to reach [that] question

if it were so inclined, and it is encompassed within the

question presented.” Pet. 14 n.*.

The Copyright Act imposes a three-year statute of

limitations: “[n]o civil action shall be maintained under

the provisions of [the Act] unless it is commenced within

three years after the claim accrued.” 17 U.S.C. § 507(b).

“Three years” means three years, not three years plus a

potentially infinite period prior to the plaintiff’s

discovery of the infringement.

In Rotkiske v. Klemm, 140 S. Ct. 355 (2019), this

Court held that because the Fair Debt Collection

Practices Act’s statute of limitations does not expressly

recite a discovery rule, no discovery rule exists. That

reasoning resolves this case. The Copyright Act does

not recite a discovery rule, and courts should follow the

plain text of the Copyright Act rather than rewriting it.

Numerous lower courts have held that the Copyright

Act’s statute of limitations includes a discovery rule, but

those cases are poorly reasoned. Some rely on outmoded

interpretive principles; others reflexively cite out-ofcircuit authority while offering no independent analysis;

still others offer no reasoning at all. No lower court has

offered an intelligible account of how a discovery rule

can be reconciled with the Copyright Act’s text.

The policy consequences of a discovery rule do not

matter. The text is clear. But if policy consequences

mattered, they would weigh against a discovery rule.

Statutes of limitations ensure certainty and protect

against stale claims—a problem in any context and

especially in the copyright context.

This Court should grant certiorari and hold that the

even if the Court declines to resolve that question, this

case is still well worth deciding.

There is an indisputable and deepening circuit split

on the availability of damages for acts occurring more

than three years before the filing of a complaint, and the

Eleventh Circuit is on the wrong side of that split. This

Court’s decision in Petrella v. Metro-Goldwyn-Mayer,

Inc., 572 U.S. 663 (2014), holds that “a successful plaintiff

can gain retrospective relief only three years back from

the time of suit” and that “[n]o recovery may be had for

infringement in earlier years.” 572 U.S. at 677. This

reasoning was central to Petrella’s holding that the

doctrine of laches was unnecessary in the copyright

context, because “the copyright statute of limitations,

§ 507(b), itself takes account of delay” by limiting the

ability to sue over conduct outside the limitations period.

Id. Certiorari is necessary to correct the Eleventh and

Ninth Circuits’ incorrect conclusion that a plaintiff may

recover retrospective relief dating back more than three

years before filing suit.

ARGUMENT

As Petitioners correctly explain, the Eleventh

Circuit erred in holding that plaintiffs can obtain

damages based on acts occurring over three years before

filing suit. The Chamber agrees with Petitioners that,

even assuming the Copyright Act includes a discovery

rule, Petrella forecloses Respondents’ efforts to recover

damages for stale claims. The Chamber further agrees

with Petitioners that this Court’s review is warranted to

review the circuit conflict on that question.

In the Chamber’s view, Respondents’ damages claim

fails for a more fundamental reason: no discovery rule

exists under the Copyright Act at all. The Court should

grant certiorari and announce that holding expressly.

The Discovery Rule Does Not Apply To The

The Copyright Act’s limitations clock begins on the

date of injury, not on the date of discovery. By its terms,

the Copyright Act requires a civil action to be

commenced “within three years after the claim accrued.”

17 U.S.C. § 507(b). A claim accrues when the plaintiff

has a complete cause of action. That occurs on the date

of injury, as “each violation” gives rise to a “new wrong”

from which the statute of limitations separately runs.

Petrella, 572 U.S. at 671. No lower court has provided a

sound basis to engraft an atextual discovery rule onto

the Copyright Act.

Statutes Of Limitations Do Not Include

Discovery Rules Unless They Say So.

The Copyright Act’s statute of limitations makes no

reference to a discovery rule. As this Court has made

clear, that means there is no discovery rule.

The Copyright Act requires a civil action to be

commenced “within three years after the claim accrued.”

17 U.S.C. § 507(b). This Court has recognized that “[a]

claim ordinarily accrues ‘when [a] plaintiff has a

complete and present cause of action.’” Petrella, 572

U.S. at 670. Indeed, this Court has described this

principle repeatedly as the “standard” or “default” rule.

Green v. Brennan, 578 U.S. 547, 554 (2016); Wallace v.

Kato, 549 U.S. 384, 388 (2007); Graham Cnty. Soil &

Water Conservation Dist. v. United States ex rel.

Wilson, 545 U.S. 409, 418–19 (2005); Bay Area Laundry

& Dry Cleaning Pension Tr. Fund v. Ferbar Corp. of

Cal., Inc., 522 U.S. 192, 201 (1997); see also Gabelli v.

SEC, 568 U.S. 442, 448 (2013) (recognizing that this

“standard rule” has “governed since the 1830s”).

A copyright plaintiff has a complete and present

cause of action when the defendant violates the

Petitioners allegedly began infringing Respondents’

present cause of action. Hence, by its unambiguous

terms, the Copyright Act requires a claim to be brought

within three years of that violation. The date the

plaintiff discovers the violation is irrelevant.

The Eleventh Circuit did not doubt the seemingly

obvious proposition that the limitations clock starts

when the defendant infringes.

But it took the

counterintuitive view that the clock starts twice. In the

Eleventh Circuit’s view, there are “two recognized rules

for determining” when the limitations clock begins: “the

discovery rule and the injury rule.” Pet. App. 7a-8a.

That holding was wrong. Nothing in the Copyright Act

suggests the clock might start at two different times.

The clock starts at one time: the date of “accrual,” which

means the date of infringement.

This Court’s recent decision in Rotkiske v. Klemm,

140 S. Ct. 355 (2019), confirms that the Copyright Act

does not include a discovery rule. In Rotkiske, the Court

held that the Fair Debt Collection Practices Act’s

statute of limitations does not include a discovery rule.

By its terms, the statute’s limitations clock starts on

“the date on which the violation occurs.” See id. at 360

(quoting 15 U.S.C. § 1692k(d)). The Court held that

because this statute does not explicitly recite a

discovery rule, no discovery rule exists. As the Court

explained, “[i]t is a fundamental principle of statutory

interpretation that ‘absent provision[s] cannot be

supplied by the courts.’” Id. at 360–61 (quoting Antonin

Scalia & Bryan A. Garner, Reading Law: The

Interpretation of Legal Texts 94 (2012)). This is because

“[t]o do so ‘is not a construction of a statute, but, in

effect, an enlargement of it by the court.’” Id. at 361

(quoting Nichols v. United States, 578 U.S. 104, 110

(2016)). The Court further explained that “[a]textual

judicial supplementation is particularly inappropriate

when … Congress has shown that it knows how to adopt

the omitted language or provision.” See id. The Court

cited numerous examples of statutes of limitations

expressly reciting that the clock starts on the date of

discovery. The Fair Debt Collection Practices Act,

however, includes no such provision, and the Court held

See Rotkiske, 140 S. Ct. at 361 (citing 12 U.S.C. § 3416; 15 U.S.C.

§ 1679i; 15 U.S.C. § 77m (1976 ed.); 19 U.S.C. § 1621 (1976 ed.); 26

U.S.C. § 7217(c) (1976 ed.); and 29 U.S.C. § 1113 (1976 ed.)). There

are many other examples of statutes of limitations with express

discovery rules. See, e.g., 12 U.S.C. § 1715z-4a(d) (tethering

limitation period to “6 years after the latest date that the Secretary

discovers any use of a property’s assets and income in violation of

the regulatory agreement”); 15 U.S.C. § 78r(c) (“one year after the

discovery of facts constituting the cause of action and … three years

after such cause of action accrued”); 15 U.S.C. § 78u6(h)(1)(B)(iii)(I)(bb) (“3 years after the date when facts material to

the right of action are known or reasonably should have been

known”); 15 U.S.C. § 6104(a) (“3 years after discovery of the

violation”); 15 U.S.C. § 1711(a)(2) (“three years after discovery of

the violation or after discovery should have been made by the

exercise of reasonable diligence”); 15 U.S.C. § 3006(c) (“3 years after

the discovery of the alleged violation”); 18 U.S.C. § 2520(e) (“two

years after the date upon which the claimant first has a reasonable

opportunity to discover the violation”); 18 U.S.C. § 2710(c)(3) (“2

years from the date of the act complained of or the date of

discovery”); 26 U.S.C. § 7431(d) (“2 years after the date of

discovery”); 28 U.S.C. § 1658(b)(1) (“2 years after the discovery of

the facts constituting the violation”); 42 U.S.C. § 9612(d)(2)(A) (“3

years after … [t]he date of the discovery of the loss and its

connection with the release in question”).

that it was not authorized to rewrite that statute to

include one. See id.

Rotkiske’s reasoning tracks Justice Scalia’s analysis

in his concurrence in the judgment in TRW Inc. v.

Andrews, 534 U.S. 19 (2001).

As Justice Scalia

explained, the discovery rule is “bad wine of recent

vintage.” Id. at 37 (Scalia, J., concurring in judgment).

Under the “traditional rule,” “[a]bsent other indication,

a statute of limitations begins to run at the time the

plaintiff has the right to apply to the court for relief.” Id.

(internal quotation marks omitted). “That a person

entitled to an action has no knowledge of his right to sue,

or of the facts out of which his right arises, does not

postpone the period of limitation.” Id. (quotation marks

omitted).

To be sure, the Supreme Court has in some cases

applied an “equitable doctrine that delays the

commencement of the statute of limitations in fraud

actions.” Rotkiske, 140 S. Ct. at 361. This rule

recognizes that “something different [is] needed in the

case of fraud, where a defendant’s deceptive conduct

may prevent a plaintiff from even knowing that he or she

has been defrauded.” Merck & Co. v. Reynolds, 559 U.S.

633, 644 (2010). “Otherwise, the law which was designed

to prevent fraud could become the means by which it is

made successful and secure.” Id. (internal quotation

marks omitted). The fraud-discovery rule is the

exception that proves the rule. If a discovery rule

existed in every case, then the special fraud-discovery

rule would be irrelevant. Thus, when there is no fraud,

there is no discovery rule.

Under Rotkiske’s analysis, this case is remarkably

easy. Because the Copyright Act does not expressly

recite a discovery rule, none exists. The Copyright Act

is not a fraud statute, so the fraud-discovery rule does

not apply. The Court’s analysis should begin, and end,

there.

Lower-Court Decisions Rewriting The

Rule Are Unpersuasive.

Although several lower-court cases have read a

discovery rule into the Copyright Act, those cases are

incorrect. As a leading copyright treatise has explained,

undiscovered violations of the Copyright Act “bear no

resemblance” to the limited situations where this Court

has recognized that a discovery rule may be appropriate.

6 William F. Patry, Patry on Copyright § 20:18, Westlaw

(database updated Mar. 2023).

No circuit has offered a persuasive rationale for

injecting the discovery rule into the Copyright Act.

Some circuits have applied the discovery rule in

discovery rule applies in federal-question cases. See,

e.g., Webster v. Dean Guitars, 955 F.3d 1270, 1276 (11th

Cir. 2020); Cooper v. NCS Pearson, Inc., 733 F.3d 1013,

1015–16 (10th Cir. 2013); Comcast of Ill. X v. MultiVision Elecs., Inc., 491 F.3d 938, 944 (8th Cir. 2007);

Santa-Rosa v. Combo Recs., 471 F.3d 224, 227–28 (1st

Cir. 2006); Taylor v. Meirick, 712 F.2d 1112, 1117–18 (7th

Cir. 1983).

As Rotkiske makes clear, no such

presumption exists.

The Ninth Circuit has applied the discovery rule to

the Copyright Act based on the fraud discovery rule,

apparently not realizing that this is a separate doctrine

that does not apply absent allegations of fraud. Roley v.

New World Pictures, Ltd., 19 F.3d 479, 481 (9th Cir.

1994) (citing Wood v. Santa Barbara Chambers of

Commerce, Inc., 507 F. Supp. 1128, 1135 (D. Nev. 1980),

which concerned fraudulent concealment). The Sixth

and Fourth Circuits have followed the Ninth Circuit’s

errant decision with no meaningful analysis. See

Bridgeport Music, Inc. v. Rhyme Syndicate Music, 376

F.3d 615, 621 (6th Cir. 2004) (citing Roley, 19 F.3d at

481); Hotaling v. Church of Jesus Christ of Latter-Day

Saints, 118 F.3d 199, 202 (4th Cir. 1997) (citing Roley, 19

F.3d at 481).

The Third Circuit has adopted the discovery rule

based on its suggestion that the Copyright Act’s

criminal statute of limitations in 17 U.S.C. § 507(a) (“5

years after the cause of action arose”) and its civil

statute of limitations in 17 U.S.C. § 507(b) (“three years

after the claim accrued”) signifies congressional intent

to treat the two differently. William A. Graham Co. v.

Haughey, 568 F.3d 425, 433–37 (3d Cir. 2009). This

reasoning is baffling. The fact that Section 507(a) uses

different language from 507(b) does not justify adopting

The Seventh Circuit more recently signaled that Petrella may

have abrogated its application of the discovery rule. See Chi. Bldg.

Design, P.C. v. Mongolian House, Inc., 770 F.3d 610, 618 (7th Cir.

2014).

a rule that appears in neither Section 507(a) nor Section

507(b). For its part, the Second Circuit gestured at other

courts’ analysis of “the text and structure of the

Third Circuit’s Haughey decision. Psihoyos v. John

Wiley & Sons, Inc., 748 F.3d 120, 124–25 (2d Cir. 2014).

However, the Second Circuit did not articulate what

aspects of the text or structure of the Copyright Act or

what policy considerations supported its decision.

The Fifth Circuit’s reasoning is weakest of all. In

Martinelli v. Hearst Newspapers, L.L.C., 65 F.4th 231

(5th Cir. 2023), the court deemed itself bound by circuit

precedent to apply the discovery rule in a copyright

case, but did not mince words on how weak that

precedent was. As the Fifth Circuit recounted, its

circuit precedent “did not explain why the discovery rule

applied,” but instead merely cited an unpublished

opinion that also offered no explanation. Id. at 236 & n.2.

The large volume of cases adopting a discovery rule

should not deter the Court from stepping in. The lower

courts have gone astray, and this Court should right the

ship.

The Discovery Rule Is Bad Policy.

The Court should not leave in place the erroneous

discovery rule on the basis of already-repudiated policy

justifications. As the Rotkiske Court explained, it is not

the judiciary’s “role to second-guess Congress’ decision”

on whether to include a discovery rule. 140 S. Ct. at 361.

Observing that “[t]he length of a limitations period

reflects a value judgment concerning the point at which

the interests in favor of protecting valid claims are

outweighed by the interests in prohibiting the

prosecution of stale ones,” the Court explained that “[i]t

is Congress, not this Court, that balances those

interests.” Id. (internal quotation marks omitted). The

judiciary’s role is to “simply enforce the value judgments

made by Congress.” Id. Justice Scalia made a similar

point in TRW: regardless of whether judges believe that

applying a discovery rule in a particular case may be

“humane,” it is Congress “whose job it is to decide how

‘humane’ legislation should be—or (to put the point less

tendentiously) to strike the balance between

remediation of all injuries and a policy of repose.” 534

U.S. at 38 (Scalia, J., concurring in judgment).

But if policy consequences mattered to this textual

argument, the argument against the discovery rule

would get even stronger.

“Statutes

limitations

are

not

simply

technicalities,” but instead “have long been respected as

fundamental to a well-ordered justice system.” Bd. of

Regents of Univ. of N.Y. v. Tomanio, 446 U.S. 478, 487

(1980). Limitations periods further critical interests in

fairness, stability, and predictability and mitigate the

burdens and arbitrariness associated with stale claims.

See Rotella v. Wood, 528 U.S. 549, 555 (2000) (“[T]he

basic policies of all limitations provisions [are] repose,

elimination of stale claims, and certainty about a

plaintiff’s opportunity for recovery and a defendant’s

potential liabilities.”); Tomanio, 446 U.S. at 487

(“[T]here comes a point at which the delay of a plaintiff

in asserting a claim is sufficiently likely either to impair

the accuracy of the fact-finding process or to upset

settled expectations that a substantive claim will be

barred without respect to whether it is meritorious.”);

United States v. Kubrick, 444 U.S. 111, 117 (1979)

(“These enactments are statutes of repose; and although

affording plaintiffs what the legislature deems a

reasonable time to present their claims, they protect

defendants and the courts from having to deal with cases

in which the search for truth may be seriously impaired

by the loss of evidence, whether by death or

disappearance of witnesses, fading memories,

disappearance of documents, or otherwise.”); Order of

R.R. Telegraphers v. Ry. Express Agency, 321 U.S. 342,

348–49 (1944) (“Statutes of limitation … are designed to

promote justice by preventing surprises through the

revival of claims that have been allowed to slumber until

evidence has been lost, memories have faded, and

witnesses have disappeared.”); Guar. Tr. Co. of N.Y. v.

United States, 304 U.S. 126, 136 (1938) (“The statute of

limitations is a statute of repose, designed to protect the

citizens from stale and vexatious claims, and to make an

end to the possibility of litigation after the lapse of a

reasonable time.”).

In particular, this Court has been wary of doctrines

that threaten to “lengthen[] the limitations period

dramatically,” recognizing that they “conflict[] with a

basic objective—repose—that underlies limitations

periods.” Klehr v. A.O. Smith Corp., 521 U.S. 179, 187

(1997); accord Rotella, 528 U.S. at 554–55. Indeed, in

situations where Congress has expressly enacted a

discovery rule in a limitations provision, it has “often

couple[d] that rule with an absolute provision for

repose,” which allows a potential defendant to have some

certainty notwithstanding the potential for claims to be

brought outside the initial limitations period. Gabelli,

568 U.S. at 453.

These goals are no less applicable in the copyright

context. In fact, it is “peculiarly important” that

as possible” because “copyright law ultimately serves

the purpose of enriching the general public through

access to creative works.” Fogerty v. Fantasy, Inc., 510

long time, so stability of title has great economic

importance.” Zuill v. Shanahan, 80 F.3d 1366, 1370 (9th

Cir. 1996). So, “like any property right, its boundaries

should be clear” in order to “enable[ ] efficient

investment.” Festo Corp. v. Shoketsu Kinzoku Kogyo

Kabushiki Co., 535 U.S. 722, 730–31 (2002). Indeed,

Congress’s “paramount goal” in revising the Copyright

Act has been to “enhanc[e] predictability and certainty

of copyright ownership.” Cmty. for Creative NonViolence v. Reid, 490 U.S. 730, 749 (1989).

Statutes of limitations serve a crucial role in ensuring

predictability and certainty of copyright ownership.

Under the Copyright Act as written, if a claim has not

been brought within three years of the alleged violation,

all stakeholders can be secure in the knowledge that it

will never be brought. The need for repose is especially

pressing because copyright law imposes strict liability.

See 6 Patry on Copyright § 21:38. As such, if the

is entirely possible that a copyright defendant may incur

liability after investing in a work that it legitimately

believes it had the right to exploit. This case is

illustrative: Respondents did not file their copyright

infringement suit until over a decade after Mr. Nealy’s

business partner held out a separate entity as authorized

to license the musical rights. Pet. App. 4a.

Statutes of limitations also ensure fair trials in

factual questions for which witness memories must be

fresh. For example, a copyright defendant may need to

present evidence that it lacked access to the plaintiff’s

work. See, e.g., Jorgensen v. Epic/Sony Records, 351

F.3d 46, 51–56 (2d Cir. 2003). A defendant sued over

decades-old infringements will face a formidable

challenge in the courtroom.

Finally, the prospect of statutory damages for

enforcement of statutes of limitations. See 17 U.S.C.

§ 504(c) (providing for $750 to $30,000 in statutory

damages per work infringed, even where infringement

was not committed willfully). In cases where plaintiffs

must prove actual damages, plaintiffs often have an

incentive to bring suit swiftly. A plaintiff who has

suffered actual harm typically wants to remedy that

harm sooner rather than later. Moreover, the passage of

time makes it harder to prove actual harm with the

requisite level of precision. The longer the time that has

passed since the violation, the harder it is to reconstruct

the position the plaintiff would have occupied if no

violation had occurred.

But where plaintiffs are authorized to obtain

statutory damages, the incentive to bring suit quickly

weakens. The Copyright Act’s statutory damages

provision has “long been intended to compensate

plaintiffs in situations in which it was difficult for a

sustained … or when it would be too expensive … to

prove damages or profits in comparison with the amount

that could be recovered.” Pamela Samuelson & Tara

Wheatland, Statutory Damages in Copyright Law: A

Remedy in Need of Reform, 51 Wm. & Mary L. Rev. 439,

499 (2009). But this also means that a plaintiff who newly

discovers a claim outside the limitations period has a

heightened incentive to press forward with litigation

despite not having felt the impact of the infringement in

an appreciable way. See id. at 481 (“One unfortunate

practice utilized in several recent cases has been to jump

straight to the statutory maximum, even when the

infringement caused little or no actual harm to the

plaintiff and brought the defendant little or no profit.”).

Moreover, the plaintiff does not have to worry about the

difficulty of proving actual harm many years after the

violation. Indeed, the plaintiff will benefit from delay—

as years pass, the defendant may lose the evidence it

needs to defend itself, but the plaintiff need not worry

about losing the evidence it needs to prove its damages.

The availability of statutory damages counsels for a need

to curb potentially indefinite copyright liability.

II.

This Court’s Review Is Warranted.

The Court should grant certiorari in this case and

hold that the Copyright Act lacks a discovery rule. Even

if the Court declines to reach that question, it should still

grant certiorari to resolve the circuit split that the

Eleventh Circuit identified, and reverse the Eleventh

Circuit’s errant judgment.

This Court Should Resolve Whether The

Rule.

As Petitioners correctly state, “this case would allow

the Court to reach the [discovery rule] question if it were

so inclined, and it is encompassed within the question

presented.” Pet. 14 n.*.

Although there is no conflict among the courts of

appeals on the availability of the discovery rule, this

Court’s review is nonetheless warranted. The circuit

precedents adopting the discovery rule are wholly

unpersuasive, particularly in light of Petrella and

Rotkiske. Yet, now that most courts of appeals have

addressed the question, a circuit split is unlikely to

emerge. Lower courts today reflexively apply the

discovery as a matter of circuit precedent, even though

those precedents are poorly reasoned. See, e.g., Pet.

App. 9a–15a; Martinelli, 65 F.4th at 237–39, 242–43;

Starz Ent., LLC v. MGM Domestic Television Distrib.,

LLC, 39 F.4th 1236, 1241–42 (9th Cir. 2022); Sohm v.

Scholastic, Inc., 959 F.3d 39, 49–50 (2d Cir. 2020). As the

Patry treatise has noted, lower courts will continue

applying the discovery rule not for any good reason, but

instead based on “sheer precedent” “until the Supreme

Court holds otherwise.” 6 Patry on Copyright § 20:18.

It is time for this Court to hold otherwise. This case

provides an opportunity for the Court to get the law

right on a consequential issue.

Not only will granting certiorari allow the Court to

correct lower courts’ errors regarding the Copyright

Act, it will allow the Court to resolve broader confusion

regarding the discovery rule. Even after Rotkiske,

courts continue to apply a discovery rule uncritically in

numerous contexts. See Snyder-Hill v. Ohio State

Univ., 48 F.4th 686, 700 (6th Cir. 2022) (collecting cases

applying discovery rule following Rotkiske), petition for

cert. filed, 91 U.S.L.W. 3237 (U.S. Mar. 14, 2023) (No. 22896); Carbone v. Brown Univ., 621 F. Supp. 3d 878, 891–

92 (N.D. Ill. 2022) (applying discovery rule to antitrust

claims and distinguishing Gabelli and Rotkiske); Wu v.

Bitfloor, Inc., 460 F. Supp. 3d 418, 425 (S.D.N.Y. 2020)

(applying pre-Rotkiske decision treating discovery rule

as the default when the statute is silent to apply

discovery rule under Commodities Exchange Act (citing

Levy v. BASF Metals Ltd., 917 F.3d 106, 108 (2d Cir.

2019))). The Court should hold, once and for all, that

statutes of limitations do not include the discovery rule

unless they say so.

Regardless Of Whether The Court

Resolves The Availability Of The

Discovery Rule, This Court’s Review Is

Warranted.

Even if the Court declines to resolve whether the

discovery rule is available, this case is still worthy of

Supreme Court review. As Petitioners persuasively

explain, there is a clean circuit split on the question

presented that is emphatically worth resolving.

Further, ruling in Petitioners’ favor would bring the law

more closely into alignment with what the Copyright

Act’s plain text requires.

Adopting Petitioners’ position would also vindicate

this Court’s reasoning in Petrella. Petrella could not

have been clearer: the Copyright Act’s three-year

limitations period “bars relief for any kind of conduct

occurring prior,” a “successful plaintiff can gain

retrospective relief only three years back from the time

of suit,” and “[n]o recovery may be had for infringement

in earlier years.” 572 U.S. at 667, 677. The fact that the

statute of limitations “itself takes account of delay,” id.

at 677, in turn renders laches unnecessary and cushions

the potential practical harms of the Copyright Act’s

rolling limitations period.

As the Second Circuit appropriately recognized,

notwithstanding the continued validity of the discovery

rule in that Circuit, “Petrella’s plain language explicitly

dissociated the Copyright Act’s statute of limitations

from its time limit on damages.” Sohm, 959 F.3d at 52.

The Court should similarly apply that plain language and

reverse the Eleventh Circuit.

CONCLUSION

The petition for writ of certiorari should be granted.

Respectfully submitted,

JORDAN L. VON BOKERN ADAM G. UNIKOWSKY

Counsel of Record

KEVIN R. PALMER

JENNER & BLOCK LLP

U.S. CHAMBER

1099 New York Ave., NW

LITIGATION CENTER

Suite 900

1615 H Street, NW

Washington, DC 20001

Washington, DC 20062

(202) 639-6000

aunikowsky@jenner.com

ALLISON N. DOUGLIS

JENNER & BLOCK LLP

1155 Avenue of the Americas

New York, NY 10036

Counsel for Amicus Curiae

June 2023

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.