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

Supreme Court briefDec 4, 2023

Ask Donna

What actually matters in this document.

Text

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 Recording Industry Association of America

as Amicus Curiae in Support of Petitioners

BENJAMIN G. BAROKH

ELAINE J. GOLDENBERG

Counsel of Record

350 South Grand Avenue

50th Floor

Los Angeles, CA 90071

(213) 683-9100

Benjamin.Barokh@mto.com

601 Massachusetts Avenue

Suite 500E

Washington, DC 20001

(202) 220-1100

Elaine.Goldenberg@mto.com

MUNGER, TOLLES & OLSON LLP

Counsel for Amicus Curiae

TABLE OF CONTENTS

Page

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

INTRODUCTION ........................................................ 2

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

II.

This Court Should Acknowledge Or, At

A Minimum, Take Care Not To Cast Any

Doubt On The Applicability Of Equitable

Tolling Where Detection Of Copyright

Infringement Within Three Years Is

Practically Impossible ....................................... 4

Equitable Tolling Applies To

Section 507(b) ......................................... 4

Equitable Tolling Plays A Critical

Role In Addressing Copyright

Cases In Which Discovery Of

Infringement Within Three Years

Is Impossible As A Practical

Matter ..................................................... 8

Petitioners Correctly Explain That The

Discovery Rule Can Apply To

Determining The Timeliness Of A

Circumstances That Do Not Exist Here

But May Exist In Certain Infringement

Cases ................................................................ 13

CONCLUSION .......................................................... 16

TABLE OF AUTHORITIES

FEDERAL CASES

Page(s)

Arellano v. McDonough,

598 U.S. 1 (2023) .......................................... 4, 7, 11

Authors Guild v. OpenAI Inc.,

No. 1:23-CV-08292 (S.D.N.Y. Sept. 19, 2023) ..... 10

Bailey v. Glover,

88 U.S. 342 (1874) ................................................ 15

Boechler, P.C. v. Comm’r of Internal Revenue,

596 U.S. 199 (2022) ................................................ 6

California Public Employees’ Retirement System

v. ANZ Sec., Inc.,

137 S. Ct. 2042 (2017) .......................................... 14

Gabelli v. SEC,

568 U.S. 442 (2013) .......................................... 6, 15

Holland v. Florida,

560 U.S. 631 (2010) ................................................ 5

Holmberg v. Armbrecht,

327 U.S. 392 (1946) .............................................. 15

Johnson v. Railway Express Agency, Inc.,

421 U.S. 454 (1975) .............................................. 14

Lozano v. Montoya Alvarez,

572 U.S. 1 (2014) .................................................... 4

iii

Menominee Indian Tribe of Wisconsin v. United

States,

577 U.S. 250 (2016) .......................................... 4, 12

Merck & Co. v. Reynolds,

559 U.S. 633 (2010) ................................................ 4

Nat’l R.R. Passenger Corp. v. Morgan,

536 U.S. 101 (2002) ................................................ 5

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

572 U.S. 663 (2014) ........................................ 5, 7, 8

Rotella v. Wood,

528 U.S. 549 (2000) ............................................ 5, 6

Rotkiske v. Klemm,

140 S. Ct. 355 (2019) .......................................... 4, 5

Starz Ent., LLC v. MGM Domestic Television

Distrib., LLC,

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

Thomson Reuters Enter. Ctr. GmbH

v. ROSS Intel. Inc.,

529 F. Supp. 3d 303 (D. Del. 2021) ...................... 10

TRW, Inc. v. Andrews,

534 U.S. 19 (2001) .......................................... 14, 15

United States v. Beggerly,

524 U.S. 38 (1998) .................................................. 7

United States v. Brockamp,

519 U.S. 347 (1997) ................................................ 7

Urie v. Thompson,

337 U.S. 163 (1949) .............................................. 15

FEDERAL STATUTES

17 U.S.C. 507(b) ................................ 2-4, 6-8, 12-14, 16

FEDERAL LEGISLATIVE MATERIALS

S. Rep. No. 85-1014 (1957) ................................ 8, 9, 11

OTHER AUTHORITIES

Christopher Zirpoli, Cong. Rsch. Serv., LSB10922,

Generative Artificial Intelligence and Copyright

Law (Sept. 29, 2023),

https://tinyurl.com/bd5pny9p ............................... 10

Comments of the Am. Ass’n of Indep. Music and

Recording Indus. Ass’n of Am., Inc. (U.S.

https://www.regulations.gov/comment/COLC2023-0006-8833 .................................................... 10

U.S. Patent and Trademark Office, Public Views on

Artificial Intelligence and Intellectual Property

Policy (Oct. 2020), https://www.uspto.

gov/sites/default/files/documents/USPTO_AIReport_2020-10-07.pdf ..................................... 9, 10

INTEREST OF AMICUS CURIAE 1

Amicus curiae is the Recording Industry Association of America (RIAA).

RIAA is a nonprofit trade organization that supports and promotes the creative and financial vitality

of recorded music and the people and companies that

create it in the United States. RIAA’s several hundred

members—ranging from major American music

groups with global reach to artist-owned labels and

small businesses—make up the world’s most vibrant

and innovative music community. RIAA members create, manufacture, and/or distribute the majority of all

legitimate recorded music produced and sold in the

United States. They also are the copyright owners of,

or owners of exclusive rights with respect to, sound recordings embodying the performances of some of the

most popular and successful recording artists of all

time. In support of its members, RIAA works to protect the intellectual property and First Amendment

rights of artists and music labels, and monitors and

reviews state and federal laws, regulations, and policies.

The question presented in this case is important to

RIAA and its members. Participants in the music industry such as music labels and music publishers regularly enforce their copyrights in the federal courts. At

the same time, those participants are regularly subject

to suit by others asserting copyright violations.

1 Pursuant to Supreme Court Rule 37.6, amicus affirms that no

counsel for a party authored this brief in whole or in part and that

no person or entity other than amicus and its counsel made a

monetary contribution intended to fund the preparation or submission of this brief.

INTRODUCTION

The Copyright Act requires that a civil action for

infringement be “commenced within three years after

the claim accrued.” 17 U.S.C. 507(b). As a result of

recent technological developments, however, copyright

infringement can now sometimes happen in a figurative black box, without any possible way to detect it in

that limited amount of time.

This case does not directly present a question about

equitable tolling of the three-year limitations period in

Section 507(b), as respondents have forfeited that issue. But equitable tolling is important to address

“black box” copyright infringement situations—for instance, situations in which copying of protected works

is carried out by a computer system, such as a generative artificial-intelligence system, that simply uses

those works as grist for content creation without ever

giving any sign that copying has occurred or disclosing

which works have been copied. Accordingly, this Court

should make clear that equitable tolling, which is appropriate only in extraordinary circumstances and is

distinct from the discovery rule, applies to Section

507(b)’s limitations period in the context of “black box”

the Court does not take that step, then—at a minimum—the Court should take care not to cast doubt on

the applicability of equitable tolling in those circumstances and should expressly reserve the issue,

thereby ensuring that it is open for consideration in a

future case and that there is no basis for misunderstanding this Court’s decision to foreclose such consideration.

As for the discovery rule that is the subject of the

parties’ dispute, amicus agrees with petitioners that

the rule can apply to Section 507(b) only in circumstances that do not exist in this case and that it is crucial not to adopt a broad-based discovery rule that

would regularly allow stale claims reaching back beyond the three-year period that Congress chose. Such

a rule would be harmful to members of the recording

industry, who would otherwise be forced to defend

against “zombie” disputes that should have been

raised, if at all, many years—and sometimes many

decades—ago, before memories have faded and critical

evidence has disappeared. To further ensure that

“black box” copyright infringement does not go unremedied, however, this Court may wish to preserve for future consideration the question whether the narrow

version of the discovery rule described by petitioners—

which plainly does not cover the claims at issue in this

case—might extend to cover that particularly and unusually hidden type of infringement. Like fraud, latent injury, and medical malpractice, “black box” infringement involves a form of concealment that is part

and parcel of the injurious act on which a plaintiff’s

claim is premised.

ARGUMENT

I. This Court Should Acknowledge Or, At A Minimum, Take Care Not To Cast Any Doubt On

The Applicability Of Equitable Tolling Where

Detection Of Copyright Infringement Within

Three Years Is Practically Impossible

A. Equitable Tolling Applies To Section

507(b)

1. Equitable tolling “pauses the running of, or

‘tolls,’ a statute of limitations when a litigant has pursued his rights diligently but some extraordinary circumstance prevents him from bringing a timely action.” Arellano v. McDonough, 598 U.S. 1, 6 (2023) (citation omitted); see, e.g., Menominee Indian Tribe of

Wisconsin v. United States, 577 U.S. 250, 255 (2016);

Lozano v. Montoya Alvarez, 572 U.S. 1, 10-11 (2014).

The “extraordinary circumstance[] * * * that caused

a litigant’s delay must” also “have been beyond [the litigant’s] control.” Menominee Indian Tribe, 577 U.S. at

256-257 (citations omitted).

That doctrine is narrower than, and distinct from,

a discovery rule under which the time to sue is measured from discovery of an underlying wrongdoing. A

discovery rule “delays accrual of a cause of action until

the plaintiff has ‘discovered’ it.” Merck & Co. v. Reynolds, 559 U.S. 633, 644 (2010) (emphasis added). As

this Court has recently explained, particularly as to a

statute of limitations that is triggered by accrual of a

claim, the discovery rule represents “not a construction of [the] statute” of limitations but rather “an enlargement of it.” Rotkiske v. Klemm, 140 S. Ct. 355,

361 (2019) (citation omitted). In contrast, equitable

tolling stops the limitations-period clock after a claim

has already accrued. Rather than enlarging the text

of a statute of limitations that is based on the time of

accrual, equitable “[t]olling” is “a rule of interpretation

tied to that limit.” Petrella v. Metro-Goldwyn-Mayer,

Inc., 572 U.S. 663, 681 (2014). And because equitable

tolling applies only in extraordinary cases, its effect on

a congressionally selected limitations period is modest.

See Rotella v. Wood, 528 U.S. 549, 561 (2000) (“The

virtue of relying on equitable tolling lies in the very

nature of such tolling as the exception, not the rule.”);

Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,

113 (2002) (equitable tolling is to be “applied sparingly”).

Consistent with that “distin[ction] between the accrual of the plaintiff’s claim and the tolling of the statute of limitations,” this Court has frequently recognized that equitable tolling may be appropriate even if

a discovery rule does not apply. Holland v. Florida,

560 U.S. 631, 647 (2010) (citation omitted); see Petrella, 572 U.S. at 678 (“statutes of limitation are not

controlling measures of equitable relief” (citation omitted)). For example, in Rotkiske, the Court refused to

read a general discovery rule into the Fair Debt Collection Practices Act, stating that doing so would represent “[a]textual judicial supplementation.” 140 S.

Ct. at 361. But the Court nevertheless explained that

its decision did not rule out application of the “traditional equitable tolling doctrine” (or other “equitable

doctrines”). Id. at 361 & n.3.

The same is true of Rotella v. Wood, 528 U.S. 549

(2000), in which this Court rejected a form of discovery

rule in the RICO context. See id. at 555-560. In that

case, the Court declined to “soften[]” an “accrual rule”

by allowing a “pattern discovery feature” that would

undercut the RICO statute’s policies and “extend the

potential limitations period for most civil RICO cases

well beyond the time when a plaintiff’s cause of action

is complete.” Id. at 558. But the Court was careful to

“not unsettle the understanding that federal statutes

of limitations are generally subject to equitable principles of tolling,” explaining that “where a pattern remains obscure in the face of a plaintiff’s diligence in

seeking to identify it, equitable tolling may be one answer to the plaintiff's difficulty.” Id. at 560-561; see,

e.g., Gabelli v. SEC, 568 U.S. 442, 447 n.2 (2013) (addressing applicability of a discovery rule while noting

that the government had disclaimed any reliance on

“equitable tolling principles” to extend the statute of

limitations for seeking civil penalties from securitieslaw violators).

2. The Copyright Act provides that “[n]o 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). That provision is

“presumptively subject to equitable tolling.” Boechler,

P.C. v. Comm’r of Internal Revenue, 596 U.S. 199, 209

(2022). Because such tolling is a “traditional feature

of American jurisprudence,” this Court has regarded it

as “a background principle against which Congress

drafts limitations periods”—a principle that “Congress” does not “alter * * * lightly.” Id. at 208-209.

Here, there is “nothing” in the Copyright Act “to rebut the presumption” that the limitations period set

forth in Section 507(b) is subject to equitable tolling.

Boechler, 596 U.S. at 209. Section 507(b) does not include an already exhaustive list of equitable exceptions—or, indeed, any equitable exception that might

suggest that Congress considered the range of possible

applications of equity to the limitations period and decided to accept some of those applications but not others. See, e.g., Arellano, 598 U.S. at 8; United States v.

Brockamp, 519 U.S. 347, 350 (1997). The provision

does not provide an “unusually generous” length of

time in which to bring suit. E.g., United States v.

Beggerly, 524 U.S. 38, 48-49 (1998). And neither Section 507(b) itself nor the Copyright Act more generally

has any other textual feature that would be inconsistent with pausing the running of the statute of limitations in unusual circumstances in which no other

result would be equitable.

In addition, both precedent and legislative history

support the conclusion that the limitations period in

Section 507(b) is subject to equitable tolling. In Petrella, the Court rejected laches as inconsistent with

Section 507(b), but discussed equitable tolling favorably and described it as “a rule of interpretation” that

“is read into every federal statute of limitation.” 572

U.S. at 681 & n.17. And the dissent in Petrella noted,

without any criticism of the majority’s statement in

that regard, that the majority had “preserv[ed] doctrines that lengthen the period for suit when equitable

considerations” warrant, including “equitable tolling.”

Id. at 695 (Breyer, J., dissenting).

The legislative history confirms that Congress expected equitable tolling to apply to the Section 507(b)

limitations period. The Senate Report addressing the

amendment to the Copyright Act that added Section

507(b) acknowledges that federal courts “generally[]

recognize” certain “equitable situations [i]n which the

statute of limitations is generally suspended,” and the

Report rests on that recognition as a basis for declining

to “specifically enumerat[e]” such situations in the

statute itself. S. Rep. No. 85-1014, at 3 (1957), as reprinted in 1957 U.S.C.C.A.N. 1961, 1963 (explaining

that the House Judiciary Committee reached the same

conclusion); see ibid. (noting various situations in

which equity would be expected to suspend the running of the limitations period, such as “the disabilities

of insanity or infancy,” that have long been understood

to justify equitable tolling); Petrella, 572 U.S. at 681

n.17 (mentioning “a party’s infancy or mental disability” as basis for equitable tolling); 13 American and

English Encyclopaedia of Law 739-745 (1890) (same).

More generally, the legislative history evinces a recognition that the typical case in which the three-year

statute of limitations applies is one in which there is

“an adequate opportunity for the injured party to commence his action” because “generally the person injured receives reasonably prompt notice or can easily

ascertain any infringement of his rights,” S. Rep. No.

85-1014, at 2—thus leaving open the possibility of equitable tolling in truly extraordinary circumstances in

which the injured person, despite diligence and

through no fault of his own, has been unable to ascertain the existence of infringement.

B. Equitable Tolling Plays A Critical Role

In Addressing Copyright Cases In

Which Discovery Of Infringement

Within Three Years Is Impossible As A

Practical Matter

1. Section 507(b) was enacted in 1957. As the legislative history reflects, Congress thought that copyright infringement occurring at that time would be

carried out openly. The Senate Report discussing Section 507(b) states, for instance, that given “present

practices in the publishing industry” the chances of

“fraudulent concealment” of infringement are low.

S. Rep. No. 85-1014, at 2 (emphasis added). It also

states that when a copyright is infringed “generally

the person injured receives reasonably prompt notice

or can easily ascertain any infringement of his rights.”

Ibid.

involving the recording industry—is usually still carried out in that open way. But that is not inevitably

true. Given technological advancements that make

copying easier and, in some cases, completely undetectable, today it is sometimes impossible for copyright

owners to learn of infringement of their works—no

matter how diligent they are and no matter how strenuously they investigate. See generally, e.g., Starz Ent.,

LLC v. MGM Domestic Television Distrib., LLC, 39

F.4th 1236, 1246 (9th Cir. 2022) (“evolution of technology” can make copyright infringement “easier to commit” and “harder to detect” (citation omitted)).

The starkest example of such “black box” copyright

infringement is the “ingest[ing]” and copying of copyrighted works by certain computer systems whose operators obtain the works from the internet or other

electronic sources. See U.S. Patent and Trademark

Office, Public Views on Artificial Intelligence and Intellectual Property Policy, at 24 (Oct. 2020), https://

www.uspto.gov/sites/default/files/documents/USPTO_

AI-Report_2020-10-07.pdf. Those generative “artificial intelligence” systems are “trained” on copyrighted

content to generate still more content in response to a

prompt. Ibid. There is no question that the ingesting

process—involving vast data lakes of copyrighted material—constitutes copyright infringement, because

“almost by definition” it “involve[s] the reproduction of

entire works or substantial portions thereof.” Ibid.;

see Christopher Zirpoli, Cong. Rsch. Serv., LSB10922,

Generative Artificial Intelligence and Copyright Law,

at 3 (Sept. 29, 2023), https://tinyurl.com/bd5pny9p

(“This training process involves [computer systems]

making digital copies of existing works”); Thomson

Reuters Enter. Ctr. GmbH v. ROSS Intel. Inc., 529 F.

Supp. 3d 303, 313 (D. Del. 2021) (denying motion to

dismiss a copyright infringement claim where defendant had “downloaded significant amounts of allegedly

copyrighted material” and “leveraged” it “to develop its

platform” (citation omitted)).

As to that type of copying, however, copyright owners are almost always in the dark for extended periods

of time about whether copying has occurred at all, let

alone which (if any) of their copyrighted works has

been copied. When a copyright infringer copies or performs a work without authorization, there is usually

some public record of that fact that can be ferreted out

by someone, such as an unauthorized copy of a novel

available for sale; an unauthorized performance of a

play put on in a public space; or an unauthorized playing of a song over the loudspeakers at a public event.

But the ingesting and copying process carried out by

an artificial-intelligence system generally takes place

entirely within the system itself, without an available

record of exactly which works have in fact been copied,

and often without outputs that could alert a copyright

owner to the infringement. See, e.g., Complaint ¶ 79,

Authors Guild v. OpenAI Inc., No. 1:23-CV-08292

(S.D.N.Y. Sept. 19, 2023), Dkt. No. 1 (alleging that the

defendant “does not disclose or publicize with specificity what datasets” its algorithms “were ‘trained’ on”);

Comments of the Am. Ass’n of Indep. Music and Re-

cording Indus. Ass’n of Am., Inc., at 29-30 (U.S. Copyright Office Dkt. No. 2023-6), https://www.regulations.

gov/comment/COLC-2023-0006-8833. In that situation, it may well be impossible as a practical matter for

“the person injured” to “receive[] reasonably prompt

notice” of “any infringement of his rights.” S. Rep. No.

85-1014, at 2.

2. Equitable tolling is an appropriate way to address that scenario, which satisfies all of the elements

of the demanding equitable-tolling test.

First, where copyrighted material is secretly ingested and copied in electronic form without any public

visibility—as is typically the case in the “training” of

an artificial-intelligence system—even the most diligent copyright owner likely will not be able to discover

that infringement for a lengthy period. See Arellano,

598 U.S. at 6. That is not a circumstance in which the

limitations period if the owner had just tried harder

and investigated more thoroughly.

Second, the unusual and practically complete undetectability of “black box” copyright infringement is

an extraordinary circumstance. See Arellano, 598 U.S.

at 6. That type of infringement is very different than

run-of-the-mill infringement, which leaves a publicly

available trail that a diligent copyright owner usually

can follow. See pp. 8-9, supra. Such hidden infringement was not within the contemplation of Congress at

the time the three-year statute of limitations was enacted, and it is extraordinary in its technological novelty and sophistication. That will remain true even

if—as technology continues to evolve—copying by com-

puter systems for purely intra-system “training” purposes, rather than for public-facing sale or performance, becomes more frequent.

Third, the extraordinary circumstance at issue is

plainly beyond a copyright owner’s control. See Menominee Indian Tribe, 577 U.S. at 256-257. Computer

systems that scour the world for copyrighted works to

be added to hidden data lakes and then draw from

those lakes to generate content are controlled by third

parties that operate without transparency, thus preventing a copyright owner from knowing about infringement of any particular work.

This case does not directly present the question

whether equitable tolling applies to the limitations period set forth in Section 507(b), as respondents have

forfeited that issue and placed full reliance on a discovery-rule theory. See Pet. Br. 44 n.9. But equitable

tolling plays a critical role in copyright cases, especially given the developments in technology that have

occurred since Congress enacted Section 507(b)—and

the importance of that role will only continue to grow

as the relevant technology becomes more sophisticated

and new technology appears. In that context, equitable tolling strikes a balance: it permits lengthening of

the three-year limitations period only in unusual

cases, while still allowing dismissal of clearly belated

claims that might survive under a broader-based discovery rule.

Accordingly, it is important to copyright owners, including RIAA’s members, that—in the course of discussing the discovery rule in this case—this Court not

cast doubt on the use of equitable tolling in the context

of copyright infringement that is effectively undetectable within three years of the infringing act. This

Court could avoid doing so either by (a) affirmatively

recognizing in its decision that the three-year limitations period is subject to equitable tolling in cases in

which infringement is impossible to discover within

three years of its occurrence, or (b) at a minimum, expressly reserving that issue for a future case so that

nothing in the Court’s decision is misunderstood as rejecting the use of equitable tolling in those circumstances.

II. Petitioners Correctly Explain That The Discovery Rule Can Apply To Determining The

Timeliness Of A Copyright Suit Only In Certain Limited Circumstances That Do Not Exist Here But May Exist In Certain Infringement Cases

Amicus agrees with petitioners that this Court

should reject a broad-based discovery rule for copyright infringement claims or, at minimum, should impose a constraining equitable exception on such a rule

that enforces a three-year limitation on retrospective

relief, so as to avoid regularly extending the three-year

statutory limitations period to encompass stale claims

and deprive parties of repose. See Pet.Br.15-30, 41-44.

Rather, as petitioners correctly state, a discovery rule

can apply to Section 507(b) only in highly limited circumstances that do not encompass this case. See id.

at 33-41. In addition to acknowledging the applicability of equitable tolling to the Section 507(b) limitations

period, this Court may wish to preserve the question

whether that narrow form of the discovery rule should

be extended to cover “black box” copyright infringement of the type discussed above.

1. Petitioners ably explain why a broad-based discovery rule like the one that respondents urge is inconsistent with the text of Section 507(b). In addition, this

Court’s adoption of such a rule would be deeply harmful to RIAA and its members, who sometimes bring

claims. To be sure, the three-year limitations period

in Section 507(b) may be extended as a matter of equity in certain circumstances. See, e.g., pp. 8-13, supra. But allowing an extension of that three-year period whenever a plaintiff can claim that he failed to discover copyright infringement until after that period

was over would deprive members of the recording industry of much-needed repose.

A key purpose of the three-year statute of limitations is enforcing “a policy of repose.” TRW, Inc. v. Andrews, 534 U.S. 19, 38 (2001) (Scalia, J., concurring in

the judgment); see Johnson v. Railway Express

Agency, Inc., 421 U.S. 454, 463-464 (1975) (explaining

that imposition 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”). That ensures that potential defendants do not

face an “interminable threat of liability.” California

Public Employees’ Retirement System v. ANZ Sec., Inc.,

137 S. Ct. 2042, 2049-2050 (2017).

The interminable threat of liability posed by this

Court’s adoption of respondents’ broad-based discovery rule would be highly burdensome to members of

the recording industry. Such a rule would give rise to

a tremendous amount of business uncertainty, as it

would create a serious ongoing possibility that copy-

right infringement claims—perhaps many infringement claims, perhaps seeking enormous amounts of

money or other onerous relief—might crop up at any

time based on long-ago conduct, including conduct

many decades in the past. Moreover, after a certain

period of time has gone by, defending against such

claims can become very difficult. “[E]vidence has been

lost, memories have faded, and witnesses have disappeared.” Gabelli, 568 U.S. at 448 (citation omitted).

Financial records have been destroyed, or simply cannot be reconstructed. Copyrights have been transferred to new owners—or even transferred multiple

times. Royalties have been paid and, in many cases,

spent. All of that makes a broad-based discovery rule

simply untenable for RIAA’s members.

2. As petitioners correctly explain, however, there

is a historical basis for a narrow, equity-based discovery rule that applies only “in cases of fraud or concealment.” TRW, 534 U.S. at 27; see id. at 37 (Scalia, J.,

concurring); Pet. Br. 32-39. This Court has applied a

fraud-focused discovery rule in Bailey v. Glover, 88

U.S. 342 (1874), and Holmberg v. Armbrecht, 327 U.S.

392 (1946), among other cases. And this Court later

expanded that rule to cover cases of latent disease and

medical malpractice—i.e., injuries that are concealed

in the sense that a plaintiff simply cannot discover

them for a period of time because they have not yet

manifested themselves. See, e.g., Urie v. Thompson,

337 U.S. 163, 169-170 (1949).

Like an injury concealed by fraud, or an injury that

fails to manifest at all for a number of years, “black

box” infringement is extremely difficult to discover because it involves a form of concealment that is essentially inherent in the nature of the bad act itself.

There is thus at least some likelihood that the Court

will decide in the future that the analogy between that

particular kind of infringement and fraud, latent injury, and medical malpractice is close enough that the

narrow form of the discovery rule should be understood to cover such infringement, without accepting

the destabilizing broad-based discovery rule advanced

by respondents in this case.

Preserving that possibility would be beneficial to

affect the outcome here. There is no dispute that, far

from being concealed or impossible to detect, the alleged infringement in this case was fully public. That

alleged infringement involved a “smash hit” with large

amounts of publicity, air play, and sales. E.g., Pet. Br.

8, 39-40 & n.8. Nothing could be further from infringement that is hidden entirely from view and therefore

fully shields an infringer’s bad acts from even the most

diligent copyright owner.

CONCLUSION

This Court should reverse the judgment of the

court of appeals and, regardless of the outcome of the

case, either (a) affirmatively recognize in its decision

that the three-year limitations period is subject to equitable tolling in cases in which infringement is impossible to discover within three years of its occurrence,

or (b) at minimum, refrain from casting doubt on and

expressly reserve for future consideration whether equitable tolling applies to the limitations period in Section 507(b) so as to relieve a plaintiff from the strictures of the three-year limitations period when detecting copyright infringement during that period was impossible. In addition, the Court may wish to leave

open the possibility that the narrow “fraud” form of the

discovery rule might encompass infringement that is

impossible to discover within three years.

Respectfully submitted,