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

Supreme Court briefDec 4, 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 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

Counsel for Amicus Curiae

TABLE OF CONTENTS

TABLE OF AUTHORITIES ......................................... iii

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

INTRODUCTION AND SUMMARY OF

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

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

II.

III.

The Court Should Decide the Scope and

Applicability of the Discovery Rule In

this Case................................................................... 5

There is no uniform “discovery

accrual rule applied by the circuit

courts.” ......................................................... 6

Assuming the existence of a

uniform discovery rule creates

the risk of confusion. ................................ 10

The Discovery Rule Either Does Not

Apply, or Applies Very Narrowly, to

the Copyright Act................................................. 12

Statutes of limitations do not

include discovery rules unless

they say so. ................................................ 12

If any discovery rule exists, it

applies only in cases of fraud. ................. 15

The discovery rule is bad policy. ............ 17

Even Assuming There Exists a

Discovery Rule, Petitioners Should

Prevail. ................................................................... 22

CONCLUSION ................................................................ 24

iii

TABLE OF AUTHORITIES

CASES

Bay Area Laundry & Dry Cleaning

Pension Trust Fund v. Ferbar Corp. of

California, Inc., 522 U.S. 192 (1997) .................... 12

Board of Regents of University of New York

v. Tomanio, 446 U.S. 478 (1980) ........................... 18

Bridgeport Music, Inc. v. Rhyme Syndicate

Music, 376 F.3d 615 (6th Cir. 2004) ........................ 8

Chicago Building. Design, P.C. v.

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

(7th Cir. 2014) ............................................................ 8

Comcast of Illinois X v. Multi-Vision

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

2007) ............................................................................ 8

Community for Creative Non-Violence v.

Reid, 490 U.S. 730 (1989) ....................................... 20

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

(10th Cir. 2013) .......................................................... 8

Festo Corp. v. Shoketsu Kinzoku Kogyo

Kabushiki Co., 535 U.S. 722 (2002) ...................... 20

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

(1994) ........................................................................ 20

Gabelli v. SEC, 568 U.S. 442 (2013) ..................... 13, 19

Graham County Soil & Water Conservation

District v. United States ex rel. Wilson,

545 U.S. 409 (2005) .................................................. 12

Green v. Brennan, 578 U.S. 547 (2016) ...................... 12

Guaranty Trust Co. of New York v. United

States, 304 U.S. 126 (1938) ..................................... 19

Hotaling v. Church of Jesus Christ of

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

1997) ............................................................................ 8

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

46 (2d Cir. 2003) ...................................................... 21

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

(1997) ........................................................................ 19

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

F.4th 231 (5th Cir. 2023), petition for

cert. filed, 92 U.S.L.W. 3112 (U.S. Nov.

2, 2023) (No. 23-474) ................................................. 9

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

(2010) ........................................................................ 16

Oracle America, Inc. v. Hewlett Packard

Enterprise Co., 971 F.3d 1042 (9th Cir.

2020) .......................................................................... 17

Order of Railroad Telegraphers v. Railway

Express Agency, 321 U.S. 342 (1944) ................... 19

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

U.S. 663 (2014) ........................................... 4, 6, 12, 23

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

F.3d 120 (2d Cir. 2014) ............................................. 9

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

479 (9th Cir. 1994) ..................................................... 8

Rotella v. Wood, 528 U.S. 549 (2000).................... 18, 19

Rotkiske v. Klemm, 140 S. Ct. 355 (2019) ........3, 13-18

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

(1st Cir. 2006) ............................................................ 8

Seven Arts Filmed Entertainment Ltd. v.

Content Media Corp. PLC, 733 F.3d

1251 (9th Cir. 2013) ................................................. 10

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

2020) ................................................................ 4, 23, 24

Stan Lee Media, Inc. v. Walt Disney Co., 774

F.3d 1292 (10th Cir. 2014) ...................................... 10

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

1983) ............................................................................ 8

TRW Inc. v. Andrews, 534 U.S. 19 (2001) ..... 15, 16, 18

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

(1979) ........................................................................ 18

Wallace v. Kato, 549 U.S. 384 (2007).......................... 12

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

(11th Cir. 2020) .............................................7-8, 9, 10

William A. Graham Co. v. Haughey, 568

F.3d 425 (3d Cir. 2009) ......................................... 6, 7

William A. Graham Co. v. Haughey, 646

F.3d 138 (3d Cir. 2011) ............................................. 7

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

1996) .......................................................................... 20

STATUTES

12 U.S.C. § 1715z-4a(d) ................................................ 14

15 U.S.C. § 78r(c) .......................................................... 14

15 U.S.C. § 78u-6(h)(1)(B)(iii)(I)(bb) .......................... 14

15 U.S.C. § 1711(a)(2) ................................................... 14

15 U.S.C. § 3006(c) ........................................................ 14

15 U.S.C. § 6104(a) ........................................................ 14

17 U.S.C. § 504(c) .......................................................... 21

17 U.S.C. § 507(a) .........................................................6-7

17 U.S.C. § 507(b).................................................. 3, 7, 12

18 U.S.C. § 2520(e) ........................................................ 14

18 U.S.C. § 2710(c)(3) ................................................... 14

26 U.S.C. § 7431(d)........................................................ 15

28 U.S.C. § 1658(b)(1) ................................................... 15

42 U.S.C. § 9612(d)(2)(A) ............................................. 15

OTHER AUTHORITIES

6 Patry on Copyright § 21:38, Westlaw

(database updated Sept. 2023) .............................. 20

Pamela Samuelson & Tara Wheatland,

Statutory Damages in Copyright Law: A

Remedy in Need of Reform, 51 Wm. &

Mary L. Rev. 439 (2009) ......................................... 22

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

for copyright claims. The Court should hold that an

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.

injury rule, not a discovery rule, applies to determine

when a copyright claim has accrued. Alternatively, if a

discovery rule does exist, it applies only in cases where

the plaintiff can demonstrate fraud. Even if the Court

assumes that a broader discovery rule exists, it should

hold 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 hold that either no

discovery rule, or a very narrow discovery rule, applies

to the Copyright Act. The Court’s rephrased question

presented assumes the existence of a “discovery accrual

rule applied by the circuit courts.” However, there is no

uniform “discovery accrual rule applied by the circuit

courts.”

Although some courts of appeals have

recognized some version of a discovery rule, courts differ

on both the scope and the justification for the rule.

Moreover, the legal analysis governing the lookback

period for damages is intertwined with the legal analysis

governing the scope and justification for the discovery

rule. As such, the Court’s decision would provide clearer

guidance if it decided the discovery rule’s scope rather

than assuming the existence of a uniform “discovery

accrual rule applied by the circuit courts.”

If the Court decides the discovery rule’s scope, it

should hold that no discovery rule exists. 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.

To the extent a discovery rule exists, it should be

limited to fraud cases. See Rotkiske, 140 S. Ct. at 361

(noting the “existence of decisions applying a discovery

rule in ‘fraud cases’”). The Court should repudiate a

discovery rule that invariably delays accrual until

discovery of the infringement.

Certain lower court decisions include loose language

endorsing a broad discovery rule, but those cases are

poorly reasoned. Some rely on outmoded interpretive

principles; others reflexively cite out-of-circuit 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 text is clear without resort to the policy

consequences of a broad discovery rule. But those

consequences likewise would weigh against a discovery

rule—and would certainly weigh against a discovery

rule that applied outside the fraud context. Statutes of

limitations ensure certainty and protect against stale

claims, a problem in any context and especially in the

If the Court elects to assume the existence of a broad

discovery rule, it should still reverse the Eleventh

Circuit. The Court should follow the path of Sohm v.

Scholastic Inc., 959 F.3d 39 (2d Cir. 2020), which held

that regardless of the discovery rule’s scope, the

lookback period for damages under the Copyright Act is

three years. This Court’s decision in Petrella v. MetroGoldwyn-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. As the Second Circuit held in

Sohm, Petrella resolves the question presented even if

some version of the discovery rule still exists.

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 Court rephrased the question presented

to include a reference to the “discovery rule applied by

the circuit courts.” Notwithstanding the rephrased

question presented, the Chamber respectfully urges the

Court to decide the scope and justification for the

discovery rule in this case. Specifically, the Court should

hold that the discovery rule either does not exist under

the Copyright Act, or is limited to cases of fraud. Such

a ruling would ensure clarity for lower courts and would

prevent mischief and evasion of this Court’s decision.

If the Court declines to resolve that question, it

should hold that even assuming the Copyright Act

includes a discovery rule, Petrella forecloses

Respondents’ efforts to recover damages for stale

claims.

The Court Should Decide the Scope and

Applicability of the Discovery Rule In this

Case.

The Court granted certiorari limited to the following

question: “Whether, under the discovery accrual rule

applied by the circuit courts and the Copyright Act’s

statute of limitations for civil actions, 17 U. S. C. §507(b),

a copyright plaintiff can recover damages for acts that

allegedly occurred more than three years before the

filing of a lawsuit.” As rephrased by the Court, the

question presented appears to assume the existence of a

uniform “discovery accrual rule applied by the circuit

courts,” and appears to ask whether the lookback period

for copyright damages stretches back beyond three

years under that assumption.

Resolving this case in that manner, however, may

result in a lack of clarity for lower courts. First, the

courts of appeals differ substantially on the scope and

justification for the “discovery accrual rule applied by

the circuit courts.” Second, the legal analysis in this case

may depend on the discovery rule’s scope and

justification. As such, the Chamber urges the Court to

decide the discovery rule’s scope and justification,

rather than taking the discovery rule as a given.

A. There is no uniform “discovery accrual rule

applied by the circuit courts.”

In Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S.

663 (2014), this Court stated: “Although we have not

passed on the question, nine Courts of Appeals have

adopted, as an alternative to the incident of injury rule,

a ‘discovery rule,’ which starts the limitations period

when ‘the plaintiff discovers, or with due diligence

should have discovered, the injury that forms the basis

for the claim.’” Id. at 670 n.4 (quoting William A.

Graham Co. v. Haughey, 568 F.3d 425, 433 (3d Cir.

2009)). That dictum may have been the basis for the

Court’s assumption in its rephrased question presented

that there exists a uniform “discovery accrual rule

applied by the circuit courts.” But notwithstanding the

dictum in Petrella, no such uniform rule exists. There is

significant disagreement among lower courts about

what the discovery rule is and where it comes from.

Begin with the lower-court decision cited in

Petrella—the Third Circuit’s Haughey decision. In that

case, the Third Circuit did hold that “the discovery rule

governs the accrual of claims under the Copyright Act.”

568 F.3d at 428. The Third Circuit’s reasoning, however,

was baffling. The Third Circuit reasoned that the

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. 568

F.3d at 433-37. But the fact that Section 507(a) uses

different language from 507(b) does not justify adopting

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

507(b).

Two years later, in a follow-up decision in the same

case, the Third Circuit clarified that, regardless of its

prior loose language, there is no “discovery accrual rule”

in the Copyright Act. See William A. Graham Co. v.

Haughey, 646 F.3d 138, 150 (3d Cir. 2011) (stating that

“the discovery rule” should not “be read to alter the date

on which a cause of action accrues”). The court reasoned:

“In order to defer accrual, the discovery rule would have

to add an additional component to the substantive

definitions of the claims to which it applies. That simply

cannot be right. Rules regarding limitations periods do

not alter substantive causes of action.” Id. Instead, the

Third Circuit held that “the discovery rule must instead

be one of those legal precepts that operate to toll the

running of the limitations period after a cause of action

has accrued.” Id.

Other circuits have continued to characterize the

discovery rule as an accrual rule, while offering varying

accounts about where it comes from:

•

Some circuits have applied the discovery rule

in copyright cases based on a general

presumption that the 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. Multi-Vision 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).

•

The Ninth Circuit has applied the discovery

rule to the Copyright Act based on its citation

of a district court case that concerned

fraudulent concealment, without any

justification for a version of the discovery

rule that applies in the non-fraud context.

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)). The Sixth

and Fourth Circuit 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 LatterDay Saints, 118 F.3d 199, 202 (4th Cir. 1997)

(citing Roley, 19 F.3d at 481).

•

The Second Circuit has vaguely adverted to

“the text and structure of the Copyright Act”

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).

and “[p]olicy considerations.” Psihoyos v.

John Wiley & Sons, Inc., 748 F.3d 120, 124–

25 (2d Cir. 2014).

•

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

65 F.4th 231 (5th Cir. 2023), petition for cert.

filed, 92 U.S.L.W. 3112 (U.S. Nov. 2, 2023)

(No. 23-474), the Fifth Circuit 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.

In addition to offering varying justifications for the

discovery rule, courts of appeals have differed on its

scope. Of particular relevance to this case, courts have

disagreed on how to apply the discovery rule in the

context of ownership disputes. In the decision below,

the Eleventh Circuit applied Webster v. Dean Guitars,

955 F.3d 1270 (11th Cir. 2020), which held that holding

that “where the ‘gravamen’ of a copyright claim is

ownership, the discovery rule dictates when a copyright

plaintiff’s claim accrues.” Pet. App. 7a (quoting Webster,

955 F.3d at 1276). “Under the discovery rule, a

limitations period starts, ‘when the plaintiff learns, or

should as a reasonable person have learned, that the

defendant was violating his ownership rights.’” Id.

(quoting Webster, 955 F.3d at 1276).

But other courts of appeals do not superimpose a

discovery rule onto the statute of limitations in

Webster expressly

recognized that it was enlarging a circuit split on this

issue. As Webster explained, the “First, Second, Fifth,

and Seventh Circuits have held that copyright

ownership claims accrue ‘when the plaintiff learns, or

should as a reasonable person have learned, that the

defendant was violating his rights.’” 955 F.3d at 1275

(citing cases). The court adopted that approach as “most

consistent with our existing precedent.” Id. at 1276. The

court recognized, however, that “[t]he Sixth and Ninth

Circuits have held that a copyright ownership claim

accrues when ‘there is a “plain and express repudiation”

of ownership by one party as against the other.’” Id. at

1275 (citing cases). The court also pointed to Ninth

Circuit case law holding that “where the gravamen of a

freestanding ownership claim would be time-barred, any

infringement claims are also barred.” Seven Arts

Filmed Ent. Ltd. v. Content Media Corp. PLC, 733 F.3d

1251, 1255 (9th Cir. 2013). Thus, in the Sixth and Ninth

Circuits, the discovery rule would likely not have applied

to this case.

B. Assuming the existence of a uniform

discovery rule creates the risk of confusion.

In view of widespread disagreement over the

discovery rule’s justification and scope, the Court should

Although Webster did not cite it, Tenth Circuit precedent aligns

with Sixth and Ninth Circuit precedent. Stan Lee Media, Inc. v.

Walt Disney Co., 774 F.3d 1292, 1300 n.4 (10th Cir. 2014).

not merely assume the existence of the discovery rule

and decide the case under that constraint. Instead, it

should examine that issue, and hold either that no

discovery rule exists or that the discovery rule applies

only in cases of fraud.

Of course, the Court frequently resolves cases while

assuming, without deciding, that a particular legal rule

exists. In this case, however, the Court should hesitate

to follow that path because it may cloud the Court’s

analysis and yield confusion for lower courts.

The Chamber’s concern is that respondents will

attempt to define the discovery rule in a manner that

inevitably leads to the conclusion that the lookback

period for copyright damages stretches beyond the

Specifically, respondents may endorse a version of the

discovery rule under which the limitations clock for any

infringement occurring outside the three-year

limitations period starts at the time of discovery, yet the

plaintiff may recover all damages for that infringement.

If respondents define the discovery rule in that manner,

then, by definition, the plaintiff could recover damages

occurring outside the three-year limitations period.

That argument should lose—but explaining why it

should lose may require explaining why respondents’

understanding of the discovery rule is wrong.

As such, the Chamber urges the Court to explain

that the discovery rule either does not apply at all to

infra Part II. That said, even if the Court says nothing

about the discovery rule, it can and should resolve this

case in petitioners’ favor. See infra Part III.

II.

The Discovery Rule Either Does Not Apply, or

Applies Very Narrowly, to the Copyright Act.

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. To the extent a discovery rule

exists, it applies only in cases of fraud—which are not

alleged here.

A. 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 (citation omitted). 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.” 140 S. Ct. 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,

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

however, includes no such provision, and the Court held

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).

Under Rotkiske’s analysis, this case is remarkably

easy. Because the Copyright Act does not expressly

recite a discovery rule, none exists. The Court’s analysis

should begin, and end, there.

B. If any discovery rule exists, it applies only

in cases of fraud.

The Supreme Court has sometimes applied an

“equitable doctrine that delays the commencement of

the statute of limitations in fraud actions.” Rotkiske, 140

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”).

S. Ct. at 361. Under that doctrine, “equity tolls the

statute of limitations in cases of fraud or concealment; it

does not establish a general presumption applicable

across all contexts.” TRW, 534 U.S. at 27; see id. at 37

(Scalia, J., concurring in judgment) (noting “historical

This rule

exception for suits based on fraud”).

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.

In the Chamber’s view, the fraud-discovery rule

never applies to copyright lawsuits, because copyright

infringement actions are not “fraud actions.” Rotkiske,

140 S. Ct. at 361. Deceitful conduct is not an element of

a copyright infringement action; indeed, infringement

routinely occurs out in the open.

At most, the fraud-discovery rule applies in

might involve fraud if the plaintiff alleges the defendant

The Supreme Court has also applied the discovery rule in the

context of “latent disease and medical malpractice,” TRW, 534 U.S.

at 27, but it is difficult to imagine how any copyright case would ever

involve latent disease or medical malpractice.

fraudulently deprived the plaintiff of his rights under

the Copyright Act; this might happen, for example, if the

defendant deceived the plaintiff into giving up his

ownership interest. Alternatively, a copyright claim

might involve fraud if the plaintiff alleges that the

defendant fraudulently concealed the cause of action.

See, e.g., Oracle Am., Inc. v. Hewlett Packard Enter. Co.,

971 F.3d 1042, 1048 (9th Cir. 2020) (stating that, under

fraudulent concealment doctrine, Copyright Act

limitations period could be tolled if plaintiff shows “both

that the defendant used fraudulent means to keep the

plaintiff unaware of his cause of action, and also that the

plaintiff was, in fact, ignorant of the existence of his

cause of action” (quotation marks omitted)).

The Court need not decide the metes and bounds of

such a doctrine (if it exists at all). In this case, the parties

stipulated that respondents would not offer evidence of

fraud for purposes of tolling the statute of limitations.

C.A. Supp. App. 659-660, ECF No. 37. As such, the

Court should hold that whatever the scope of any fraudbased discovery rule, it does not apply here.

C. 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, Westlaw (database

rewritten to include a discovery rule, it 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—liability that may be for

conduct occurring many years ago. 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-5a.

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). Thus, 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. Moreover, 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.”).

The availability of statutory damages counsels for a need

to curb potentially indefinite copyright liability.

III.

Even Assuming There Exists a Discovery

Rule, Petitioners Should Prevail.

If the Court elects to assume the existence of a broad

discovery rule, it should still reverse the Eleventh

Circuit. Petrella could not have been clearer: the

relief of any kind for 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. Petrella’s reasoning is dispositive:

whether there is a discovery rule or not, the damages

lookback period stretches three years and no further.

The Second Circuit’s Sohm decision guides the path

to ruling in petitioners’ favor while remaining silent on

the discovery rule. In Sohm, the Second Circuit began

by holding that, under binding circuit precedent, “the

discovery rule applies for statute of limitations purposes

in determining when a copyright infringement claim

accrues under the Copyright Act.” 959 F.3d at 50. The

Second Circuit did not explain or endorse this holding,

but merely characterized it as circuit precedent that the

court was required to follow based on stare decisis. Id.

The court then held, however, that regardless of

whether some version of the discovery rule was still

extant, Petrella required limiting damages to a threeyear lookback period. As the court explained: “Despite

not passing on the propriety of the discovery rule in

Petrella, the Supreme Court explicitly delimited

damages to the three years prior to the commencement

of a copyright infringement action.” Id. at 51. The

Second Circuit reasoned that “Petrella’s plain language

explicitly dissociated the Copyright Act’s statute of

limitations from its time limit on damages.” Id. at 52.

Rejecting the plaintiff’s insistence that Petrella’s

language was dicta, the Second Circuit explained that

“[t]he Petrella Court partially based its determination

that laches was inapplicable to actions under the

takes account of delay’ by limiting damages to the three

years prior to when suit is filed.” Id. “Therefore, the

three-year limitation on damages was necessary to the

result in Petrella and thus binding precedent.” Id.

Synthesizing Petrella and Second Circuit precedent on

the discovery rule, the court held that it “must apply the

discovery rule to determine when a copyright

infringement claim accrues, but a three-year lookback

period from the time a suit is filed to determine the

extent of the relief available.” Id.

The Second Circuit’s reasoning guides the path

toward ruling in petitioners’ favor, even assuming the

existence of a broad discovery rule. The Court can hold

that the discovery rule governs when a claim accrues,

but Petrella governs what damages may be obtained.

The practical effect of such a ruling may be that the

discovery rule has limited effect—and perhaps, in a

future case, the Court could decide that it does not exist

at all. Nonetheless, such a ruling would allow the Court

to follow the plain text of the Copyright Act in a manner

that is compatible with the rephrased question

presented. If the Court takes the discovery rule as a

given, such a ruling would resolve this case in a manner

most faithful to the statutory text.

CONCLUSION

The judgment of the Eleventh Circuit should be

reversed.

Respectfully submitted,

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

Counsel for Amicus Curiae

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.