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 CHAPPEL 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 MCHALE & SLAVIN, P.A.

AS AMICUS CURIAE IN SUPPORT OF

NEITHER PARTY

ANDREW D. LOCKTON

Counsel of Record

EDWARD F. MCHALE

MCHALE & SLAVIN, P.A.

2855 PGA Boulevard

Palm Beach Gardens, FL 33401

(561) 625-6575

alockton@mchaleslavin.com

Counsel for Amicus Curiae

December 4, 2023

QUESTION PRESENTED

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.

TABLE OF CONTENTS

QUESTION PRESENTED ...........................................i

TABLE OF CONTENTS ............................................ ii

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

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

SUMMARY OF ARGUMENT ..................................... 2

ARGUMENT .............................................................. 12

I. Under the Eleventh Circuit’s Webster Discovery

Rule and the Copyright Act’s Statute of Limitations, Respondent Should Not Be Able to Obtain

Relief for Infringements That Occurred More

Than Three Years Before This Suit Was Filed

Because Any Equitable Tolling Argument Was

Abandoned ......................................................... 12

II. To Resolve This Case and the Confusion in the

Lower Courts, the Court Should Hold That Copyright Infringement Claims “Accrue” Based on

the Occurrence of the Infringing Act, But That

General Equitable Tolling Principles Can Apply

to Toll the Limitations Period ........................... 19

CONCLUSION .......................................................... 25

iii

TABLE OF AUTHORITIES

Cases

Bay Area Laundry and Dry Cleaning Pension Trust

Fund v. Ferbar Corp. of Cal., 522 U.S. 192 (1997) . 4

Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.

1981)....................................................................... 13

Calhoun v. Lillenas Publ’g, 298 F.3d 1228 (11th Cir.

2002)....................................................................... 14

Corn v. City of Lauderdale Lakes, 904 F.2d 585

(11th Cir. 1990).................................................. 6, 14

Everly v. Everly, 958 F.3d 442

(6th Cir. 2020)................................ 13, 14, 21, 23, 24

Feist Pub’lns, Inc. v. Rural Tel. Serv. Co., 499 U.S.

340 (1991) .......................................................... 7, 13

Gabelli v. S.E.C., 568 U.S. 442 (2013) .......... 16, 23, 25

Graham County Soil & Water Conservation Dist. v.

United States ex rel. Wilson, 545 U.S. 409 (2005) .. 4

MSPA Claims 1, LLC v. Tower Hill Prime Ins. Co.,

43 F.4th 1259 (11th Cir. 2022) .............................. 16

Nealy v. Warner Chappel Music, Inc., 60 F.4th 1325

(11th Cir. 2023)............ 2, 7, 8, 9, 10, 11, 13, 14, 15,

16, 20, 21, 24

Petrella v. MGM, Inc., 572 U.S. 663 (2014) .. 11, 16, 21

Prather v. Neva Paperbacks, Inc., 446 F.2d 338 (5th

Cir. 1971) ........... 8, 11, 12, 16, 17, 18, 20, 22, 23, 24

Cases—cont.

Railroad Telegraphers v. Railway Express Agency,

Inc., 321 U.S. 342 (1944) ....................................... 25

SCA Hygiene Prods. Aktiebolag v. First Quality

Baby Prods., LLC, 580 U.S. 328 (2017) ................ 16

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

2020)................................................................. 5, 8, 9

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

LLC, 39 F.4th 1236 (9th Cir. 2022) .... 5, 8, 9, 20, 21

TRW Inc. v. Andrews, 534 U.S. 19 (2001)................... 4

Rotkiske v. Klemm, 140 S. Ct. 355 (2019) ... 2, 4, 11, 16

21, 22, 23

Webster v. Dean Guitars, 955 F.3d 1270 (11th Cir.

2020)........................................... 2, 6, 7, 8, 13, 14, 15

William A. Graham Co. v. Haughey, 568 F.3d 425

(3d Cir. 2009) ........................................................... 5

William A. Graham Co. v. Haughey, 646 F.3d 138

(3d Cir. 2011) ................................................... 5, 6, 8

Wilson v. Garcia, 471 U.S. 261 (1985) ...................... 25

Wood v. Carpenter, 101 U.S. 135 (1879) ................... 23

Wood v. Santa Barbara Chamber of Commerce,

Inc., 507 F. Supp. 1128 (D. Nev. 1980) ................. 23

Young v. United States, 535 U.S. 43 (2002) ... 4, 11, 17,

18, 22, 23, 24

Statutes and U.S. Codes

1909 Copyright Act,

17 U.S.C. §115(b) (1958 ed.)................................. 12

1976 Copyright Act,

17 U.S.C. §507(b)........... 1, 2, 3, 4, 5, 7, 8, 9, 10, 12,

15, 16, 18, 19, 20, 21, 25

28 U.S.C. §1658(a) ..................................................... 16

42 U.S.C. §1983 ..................................................... 6, 14

INTEREST OF AMICUS CURIAE

MCHALE & SLAVIN, P.A. is a Florida professional

association of intellectual property attorneys that represents parties in all aspects of intellectual property

protection, including both plaintiffs and defendants in

firm regularly litigate intellectual property cases in

trial and appellate courts, including the Eleventh Circuit, and also teach intellectual property courses.

Many of the firm’s cases have focused on issues related

to the “discovery rule”, including where acts of alleged

infringement only occurred more than three years before the suit was filed, an issue more common with images posted, and archived, on the internet. Consequently, attorneys at the firm have developed particular expertise in the nuances of the issues addressed by

the question upon which certiorari was granted.

One of the firm’s current cases pending at the

Court of Appeals for the Eleventh Circuit addresses

when copyright infringement claims “accrue” under 17

U.S.C. §507(b), which is presently an open question in

the circuit. See Affordable Aerial Photography v. Property Matters USA, LLC, Appeal No. 23-12563 (11th

Cir.). The briefing in that case was completed on November 20, 2023.

No counsel for any party authored this brief, in whole or in

part, and no entity or person, aside from amicus curiae and its

counsel, made any monetary contribution toward the preparation

or submission of this brief.

SUMMARY OF ARGUMENT

The rephrased question that this Court granted

certiorari to resolve asks: Whether, under the discovery accrual rule applied by the circuit courts and the

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. But as Petitioner discusses in its brief, there are different “discovery rules” applied by different courts. See Pet. Br. 3144; see also Rotkiske v. Klemm, 140 S. Ct. 355, 360

(2019) (Thomas, J.) (“The phrase ‘discovery rule,’ however, has no generally accepted meaning.”). And here,

the “discovery accrual rule” applied by the Eleventh

Circuit in the decision below did not address the accrual of the Respondent’s copyright infringement

claims, but rather whether the Respondent was separately time-barred from establishing ownership of the

copyrighted works at issue. Nealy v. Warner Chappel

Music, Inc., 60 F.4th 1325, 1330 (11th Cir. 2023); see

also Webster v. Dean Guitars, 955 F.3d 1270, 1275-77

(11th Cir. 2020).

Further, even understanding §507(b) as adopting

the occurrence rule—which is the only rule consistent

with this Court’s precedents—there are still situations

where a claim can be timely even if filed more than

three years after the claim accrued, e.g., under an equitable tolling doctrine. See Rotkiske, 140 S. Ct. at

363-64 and n.* (Ginsburg, J., dissenting from the opinion in part and from the judgment) (discussing

confusion in lower courts between the fraud-based discovery rule and equitable tolling doctrines). In cases

where equitable tolling principles can save an otherwise untimely copyright infringement claim, such a

plaintiff would be able to recover damages for acts that

allegedly occurred more than three years before the

filing of the lawsuit. But that plaintiff would bear the

burden of establishing entitlement to tolling.

As such, the question presented can be answered

in the affirmative: Under the discovery accrual rule

applied by the circuit courts and the Copyright Act’s

statute of limitations for civil action, 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. But that leaves lower

courts to wrestle with the same question, merely shifting the focus to trying to answer when can that plaintiff recover damages for acts occurring more than

three years before filing suit.

The better way to answer the question is: Under

§507(b), a copyright plaintiff cannot recover damages

for acts that allegedly occurred more than three years

before the filing of a lawsuit unless that plaintiff can

establish that she is entitled to equitable tolling.

Given the framing of the question presented, the

correct answer must concede that there are times that

a claim occurring (and accruing) more than three

years before filing an action can still be timely. Answering the question by articulating the limits of

§507(b) and the availability of general principles of equitable tolling avoids creating an absolute bar that

Congress did not intend when drafting §507(b) while

also clarifying when a claim can be timely filed more

than three years after it occurred, i.e., under general

principles of equitable tolling rather than by an overbroad and atextual “discovery rule” applied so as to alter the plain meaning of “accrue.”

The application of a broad discovery accrual rule as

a principle of statutory interpretation has been identified by this Court as “bad wine of recent vintage.” Rotkiske, 140 S. Ct. at 360 (quoting TRW Inc. v. Andrews,

534 U.S. 19, 37 (2001) (Scalia, J., concurring in judgment)). The Court has long recognized that “Congress

legislates against the ‘standard rule that the limitations period commences when the plaintiff has a complete and present cause of action.’” Ibid. (quoting Graham County Soil & Water Conservation Dist. v. United

States ex rel. Wilson, 545 U.S. 409, 418-19 (2005)

(Thomas, J.) (quoting Bay Area Laundry and Dry

Cleaning Pension Trust Fund v. Ferbar Corp. of Cal.,

522 U.S. 192, 201 (1997))). Similarly, Congress is presumed to draft limitations periods against the background principle that limtiations periods are customarily subject to equitable tolling unless it would be inconsistent with the relevant statutory text. Young v.

United States, 535 U.S. 43, 49-50 (2002) (Scalia, J.)

(referring to this background principle as “hornbook

law”).

Contrary to these bedrock principles, the Second

and Ninth Circuits (among others) have adopted a

broad discovery rule that transforms the plain text of

§507(b) to delay the accrual of a copyright infringement claim until the plaintiff knows, or should have

known, of the infringement. See, e.g., Sohm v. Scholastic, 959 F.3d 39, 49-51 (2d Cir. 2020); Starz Ent.,

LLC v. MGM Domestic TV Distrib., LLC, 39 F.4th

1236, 1239-41 (9th Cir. 2022). The Third Circuit initially appeared to adopt that same “discovery rule” for

Haughey, 568 F.3d 425, 433-37 (3d Cir. 2009), cert. denied sub nom. USA MidAtlantic, Inc. v. William A.

Graham Co., 588 U.S. 991 (2009) (“Graham I”), but

then rejected it.

On further reflection, while addressing prejudgment interest after a finding of copyright infringement, the Third Circuit changed course and held that

a copyright claim “accrues” the moment the infringing

act occurs but that the limitations period is tolled until

the plaintiff knows, or should have known, of the infringement. William A. Graham Co. v. Haughey, 646

F.3d 138, 151 (3d Cir. 2011), cert. denied sub nom. USI

MidAtlantic v. William A. Graham Co., 132 S. Ct. 456

(2011) (“Graham II”). The Third Circuit discussed the

“discovery rule” as sometimes being “characterized as

delaying the accrual of a cause of action” and other

times as “tolling the running of the limitations period.”

Id. at 148. Following this Court’s precedents for claim

“accrual” it then held “that the ‘accrual’ of a cause of

action occurs at the moment at which each of its

component elements has come into being as a matter

of objective reality” and that “[t]he federal discovery

rule then operates in applicable cases to toll the running of the limitations period.” Id. at 146-51. It did

not address what it considered “applicable cases.”

The Eleventh Circuit, however, has not adopted a

discovery rule for copyright infringement claims—that

remains an open question in the circuit. But it has

adopted a discovery rule that delays the accrual of

claims where there is no statute of limitations—and

therefore no statutory text to interpret. See, e.g., Corn

v. City of Lauderdale Lakes, 904 F.2d 585, 588 (11th

Cir. 1990) (applying a discovery rule to hold a §1983

claim “accrue[s] when the plaintiff knows or has reason to know of the injury which is the basis of the action”); Webster, 955 F.3d at 1275-77 (collecting cases of

Declaratory Judgment Act claims for copyright ownership or co-ownership and adopting one of the two discovery rules discussed therein).

It applied that discovery rule in Webster where the

“gravamen” of the copyright infringement claim was

ownership, i.e., where the plaintiff needed to establish

ownership of the work that had been licensed to the

defendant by a third party, holding that a plaintiff

must establish ownership of her work within three

years of when she learns, or should as a reasonable

person have learned, that her ownership rights were

being violated. 955 F.3d at 1275-76. Applying that

principle, the Eleventh Circuit held that because ownership is a necessary element of a copyright

infringement action, when the plaintiff is time-barred

from establishing ownership of the work the infringement claim necessarily fails. Id. at 1276-77; see also

Feist Pub’lns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340,

361 (1991) (O’Connor, J.) (“To establish infringement,

two elements must be proven: (1) ownership of a valid

the work that are original.”).

The Webster discovery rule, applied below, did not

address “accrual” of the copyright infringement

claims. Webster, 955 F.3d at 1275-77; Nealy, 60 F.4th

at 1330. The parties below stipulated “that this case

presents an ‘ownership dispute’ within the meaning of

the statute of limitations for copyright claims,” i.e.,

that the Webster discovery rule applied. Nealy, 60

F.4th at 1329-31. Based on that stipulation, a narrow

question was certified for interlocutory appeal asking:

“whether damages in this copyright action are limited

to a three-year lookback period as calculated from the

date of the filing of the complaint.” Id. at 1328. The

even narrower holding was merely that §507(b) governs the timeliness of copyright claims and the Copyright Act “does not impose a separate bar on retrospective relief for an otherwise timely claim.” Id. at 133435.

If this Court does not resolve when copyright infringement claims “accrue” under §507(b), answering

the question presented results in different outcomes

based on which “discovery accrual rule” is applied by

a given circuit.

Applying the Webster discovery rule, §507(b) still

prevents a copyright plaintiff from recovering damages for infringing acts that occurred more than three

years before filing the action, unless that plaintiff can

establish a basis for equitable tolling. See, e.g., Webster, 955 F.3d at 1275-77 (adopting a discovery rule for

claims seeking a declaration of copyright ownership or

co-ownership); Nealy, 60 F.4th at 1329-30 (a discovery

rule applies only to the type of claim that accrues once,

whereas an injury rule applies to the types of claims

where separate infringing acts result in separate

claims accruing, i.e., copyright infringement); Prather

v. Neva Paperbacks, Inc., 446 F.2d 338, 340-41 (5th

Cir. 1971) (holding that copyright infringement claims

are subject to tolling based on general equitable doctrines, and affirming dismissal of copyright claims as

untimely based on the last occurrence of an infringing

act where the plaintiff could not establish fraudulent

concealment of the cause of action to toll the limitations period).

Applying a different discovery rule, such as the

broad discovery rule that delays when copyright

claims accrue, see, e.g., Sohm, 959 F.3d at 49-51; Starz,

39 F.4th at 1239-41, or a discovery rule that automatically tolls the statute of limitations until “discovery,”

see Graham II, 646 F.3d at 150-51, would permit a

plaintiff to recover for infringing acts that occur outside of the Copyright Act’s statute of limitations. Such

discovery rules are contrary to the plain text of §507(b)

and contrary to this Court’s precedents for statutes of

limitations; they operate to create a special, copyrightspecific rule for claim accrual that this Court should

not endorse.

Separate from that inquiry, however, the Ninth

and Eleventh Circuits are correct that the Copyright

Act does not have a time limitation on damages that

is separate from the statute of limitations. See Starz,

39 F.4th at 1245-46; see also Nealy, 60 F.4th at 1334.

The Second Circuit erred when it held otherwise. See

Sohm, 959 F.3d at 51-52. That error, however, appears to reflect internal tension with being bound to

apply a broad discovery rule after Petrella. See Sohm,

959 F.3d at 49-51.

Given the limited certified question addressed by

the Eleventh Circuit below, it did pass on whether the

Respondent is barred from recovering retrospective relief for infringing acts that occurred more than three

years before this action was filed. It only addressed

whether the Copyright Act contained a time limitation

on damages that is separate from §507(b). See Nealy,

60 F.4th at 1334 (“Having established that Petrella itself does not impose a separate bar on retrospective

relief for an otherwise timely claim, we turn to the

We conclude it does not.”); see also Starz, 39 F.4th at

1245 (explaining that Petrella “did not create a damages bar separate from the statute of limitations”).

Under the Eleventh Circuit’s Webster discovery

rule, the Respondent is not barred from (potentially)

establishing ownership of the copyrighted works at issue and, therefore, is able to maintain a cause of action. See Nealy, 60 F.4th at 1331. Under the Eleventh

Circuit’s Webster discovery rule and §507(b), however,

if the Respondent is able to establish ownership of the

works, he is likely still barred from recovering damages for infringing acts that occurred more than three

years before filing suit because Respondent waived equitable tolling arguments. See Pet. Br. 44 n.9.

Though there is a genuine split between the Second

and Ninth Circuits, that split merely highlights the

need for this Court to address when copyright claims

“accrue” under §507(b). Resolving only the split between Sohm and Starz—whether the Copyright Act

contains a time limitation on damages separate from

the statute of limitations—does not affect the outcome

of this case. While those circuits have adopted an

atextual “discovery rule” governing accrual of copyright infringement claims, the Eleventh Circuit has

not. To resolve the present dispute, as well as provide

the necessary guidance to the lower courts, this Court

should clarify that copyright claims accrue under

§507(b) based on the occurrence of the infringing act,

but that the limitations period can be equitably tolled

if a plaintiff can establish a basis for tolling.

Rather than a “discovery accrual rule” copyright

claims are subject to general equitable doctrines,

where “once a defendant has shown that a claim is

time barred by the applicable statute of limitations, it

is incumbent upon the plaintiff, if he is to avoid the

bar, to come forward and demonstrate that for some

equitable reasons the statute should be tolled in his

case.” Prather, 446 F.2d at 340. This Court has similarly explained both that unless it would be inconsistent with the statutory text, Congress is presumed

to draft limitations periods against the background

principle of “hornbook law” that limitations periods

are subject to equitable tolling, Young, 535 U.S. at 44,

and that Congress legislates against the “standard

rule” that limitations periods commence when there is

a complete and present cause of action, Rotkiske, 140

S. Ct. at 360.

For copyright infringement claims, that means “a

that is, the infringement, occurs, no matter when the

plaintiff learns of it.” Nealy, 60 F.4th at 1330 (citing

Petrella v. MGM, Inc., 572 U.S. 663, 670 (2014)). To

establish a statute of limitations defense, the defendant’s burden is to show that the infringing act occurred

more than three years before the suit was filed. Prather, 446 F.2d at 339-41. The burden then shifts back

to the plaintiff to establish an equitable basis for tolling. Ibid.

This is the rule most consistent with the statutory

text, the presumptions we attribute to Congress, and

this Court’s precedents for statutes of limitations, it

also produces the fairest results. Most cases will survive a motion to dismiss unless the complaint forecloses a tolling argument. At summary judgment, the

defendant will need to establish that the infringing act

occurred more than three years before the suit was

filed, and then the burden would shift to the plaintiff

to show that there is a triable issue with respect to

tolling. At trial, if the defendant establishes that the

infringing act occurred more than three years before

the suit was filed, the plaintiff can only prevail if she

establishes a basis for tolling.

This protects defendants from being haled into

court for long-dead claims, particularly where the allegedly infringing act was public and temporary, occurring only outside of the Act’s three-year limitations

period.

ARGUMENT

Under the Eleventh Circuit’s Webster Discovery Rule and the Copyright Act’s Statute of

Limitations, Respondents Should Not Be

Able to Obtain Relief for Infringements That

Occurred More Than Three Years Before

This Suit Was Filed Because Any Equitable

Tolling Argument Was Abandoned.

The Eleventh Circuit has not yet construed §507(b)

and has not adopted a discovery rule for the accrual of

precedent from the Former Fifth Circuit has implicitly

held—albeit with respect to the 1957 amendment to

the 1909 Copyright Act, see 17 U.S.C. §115(b) (1958

ed.)—that a copyright infringement claim accrues

based on the occurrence of an infringing act but is subject to general principles of equitable tolling. Prather,

443 F.2d at 339-41; see also Bonner v. City of Prichard,

661 F.2d 1206 (11th Cir. 1981) (en banc) (adopting

precedential decisions of the Former Fifth Circuit).

Further, the decision below also indicated that copyright infringement claims “accrue” when the infringing act “occurs, no matter when the plaintiff learns of

it.” Nealy, 60 F.4th at 1330; see also id. at 1332-33

(contrasting infringement claims that apply an injury

rule to ownership “claims” that apply the Webster discovery rule).

The Eleventh Circuit adopted the Webster discovery rule to address copyright claims where the “gravamen” of the infringement claim is ownership, i.e.,

where a third party asserted ownership of the work

and licensed it to the defendant. 955 F.3d at 1275-77;

Nealy, 60 F.4th at 1329-31. Disputes where the plaintiff seeks to establish herself as the owner or co-owner

of the work have been referred to as copyright ownership “claims.” See Webster, 955 F.3d at 1275-76 (collecting cases seeking declarations of ownership); see

also Everly v. Everly, 958 F.3d 442, 463-68 (6th Cir.

2020) (Murphy, J., concurring) (discussing the problem of ownership “claims”).

But “ownership” is not a claim under the Copyright

Act; ownership is an element of a copyright infringement claim. See Feist, 499 U.S. at 361; see also Everly,

958 F.3d at 463-68 (Murphy, J., concurring) (discussing the problem of ownership “claims”). A claim seeking a declaration of “ownership” (or co-ownership) of a

copyrighted work is a claim under the Declaratory

Judgment Act, and therefore has no statute of limitations. See Webster, 955 F.3d at 1275-76 (collecting

cases); see also Everly, 958 F.3d at 463-68 (Murphy, J.,

concurring).

The Eleventh Circuit adopted the Webster discovery rule from claims seeking declarations of copyright

ownership or co-ownership rights. 955 F.3d at 127577. It rejected the “express repudiation test” and

adopted the “discovery rule” for accrual of an ownership “claim,” as that rule was most consistent with its

other precedents which apply a general discovery rule

for claims that do not have a statute of limitations.

See, e.g., Ibid.; Corn, 904 F.2d at 588 (applying a general “discovery rule” to §1983 claims).

But as the decision below highlighted, these types

of claims—seeking ownership rights—accrue only

once. Nealy, 60 F.4th at 1330, 1332-33. The Eleventh

Circuit reasoned that once a plaintiff is time-barred

from bringing a claim to establish ownership rights in

the work, then she cannot establish the necessary

ownership element to maintain an infringement claim.

Webster, 955 F.3d at 1277 (“when a copyright ownership claim is time-barred, ‘all those claims logically

following therefrom should be barred including infringement claims.’”) (quoting Calhoun v. Lillenas

Publ’g, 298 F.3d 1228, 1236 (11th Cir. 2002) (Birch, J.,

concurring)).

Thus, the Webster discovery rule is not a bar based

on the Copyright Act’s statute of limitations, but a

separate bar to establishing ownership of the asserted

work. 955 F.3d at 1275-76. If a plaintiff is charged

with knowledge that a third party was licensing the

work and claiming ownership of it, but waits more

than three years to bring an action for the purpose of

establishing her ownership of the work, she is forever

barred (in the Eleventh Circuit) from establishing

ownership of that work; any infringement claim based

on that work will then necessarily fail. Id. at 1275-77.

Below, the parties stipulated that the Webster discovery rule governed this case and certified a question

to the Eleventh Circuit as to whether there was a time

limit on damages separate from §507(b). Nealy, 60

F.4th at 1328-31. But the Webster discovery rule does

not address accrual under §507(b), 955 F.3d at 127577, and as a result of the parties’ stipulation, the decision below did not address accrual under §507(b), see

Nealy, 60 F.4th at 1328.

Accrual under §507(b), and whether a discovery

rule or occurrence rule applies, is technically an open

question in the Eleventh Circuit. 2 The plain text of

§507(b), as well as precedents of this Court and the

Eleventh Circuit, indicate that the Eleventh Circuit

should hold (when it finally addresses the question)

that copyright infringement claims “accrue when the

harm, that is, the infringement, occurs, no matter

2 As noted supra, amicus is counsel in a pending case at the

Eleventh Circuit, Affordable Aerial Photography, Inc. v. Property

Matters USA, LLC, Appeal No. 23-12563 (11th Cir.), which seeks

to resolve this open question.

when the plaintiff learns of it.” See Nealy, 60 F.4th at

1330; see also Prather, 466 F.2d at 339-41; MSPA

Claims 1, LLC v. Tower Hill Prime Ins. Co., 43 F.4th

1259, 1265-67 (11th Cir. 2022) (applying Rotkiske to

interpret “accrue” in 28 U.S.C. §1658(a) as adopting

the occurrence rule). As Petitioner correctly asserts,

§507(b) is properly interpreted as adopting the occurrence rule rather than an atextual discovery rule. See

Pet. Br. 15-24.

This Court’s precedent reflects that applying a

broad, atextual discovery rule to alter the meaning of

the verb “accrue”—but only for copyright cases—is error. See, e.g., Gabelli v. S.E.C., 568 U.S. 442, 448-49

(2013) (Roberts, C.J.); Rotkiske, 140 S. Ct. at 360-61;

Petrella, 572 U.S. at 670-71 (not passing on the question but articulating these long-standing principles);

SCA Hygiene Prods. Aktiebolag v. First Quality Baby

Prods., LLC, 580 U.S. 328, 337-38 (2017) (Alito, J.) (explaining the interpretation of statutes of limitations

generally). As Petitioner correctly addresses, under

the plain text of §507(b) copyright claims “accrue”

when they occur, not on the basis of a broad discovery

rule. Pet. Br. 15-24; see also Nealy, 60 F.4th at 1330

(explaining that non-ownership copyright infringement claims would “accrue[] when the harm, that is,

the infringement, occurs, no matter when the plaintiff

learns of it,” but are subject to the separate-accrual

rule).

Under Eleventh Circuit precedent, copyright

claims are subject to “general equitable doctrines,

[and] once a defendant has shown that a claim is time

barred by the applicable statute of limitations, it is incumbent upon the plaintiff, if he is to avoid the bar, to

come forward and demonstrate that for some equitable reasons the statute should be tolled in his case.”

Prather, 446 F.2d at 340. Similarly, this Court has

explained that “[i]t is hornbook law that limitations

periods are customarily subject to equitable tolling,

* * * unless tolling would be inconsistent with the text

of the relevant statute,” and “Congress must be presumed to draft limitations periods in light of this background principle.” Young, 535 U.S. at 49 (internal

quotations and citations omitted).

For copyright infringement, that means a defendant need only establish that the alleged infringing act

occurred outside of the limitations period, which then

shifts the burden to the plaintiff to establish a basis

for tolling. Prather, 446 F.2d at 339-41 (affirming dismissal of the plaintiff’s claim based on the occurrence

of the last infringing act and the finding that the

plaintiff could not establish entitlement to equitable

tolling for fraudulent concealment).

This is the rule most consistent with the text of the

statute and this Court’s precedents, and it produces

the fairest results. Under this rule, most cases will

survive a motion to dismiss unless tolling is foreclosed

by the pleadings. At summary judgment, the defendant will need to show that the infringing act occurred

more than three years before the suit was filed to shift

the burden to the plaintiff to show that there is a

triable issue with respect to tolling. At trial, if the defendant has established that the infringing act occurred more than three years before the suit, the

plaintiff will be required to establish a basis for tolling.

Against this backdrop, answering the question presented under the Webster discovery rule—as this case

would—and the Copyright Act’s statute of limitations,

a plaintiff will sometimes be able to recover damages

for infringing acts that occurred more than three years

before the lawsuit was filed. The “sometimes,” however, is not based on the Webster discovery rule, but

rather because copyright claims are subject to general

principles of equitable tolling. See, e.g., Prather, 446

F.2d at 339-41; Young, 535 U.S. at 44 (Congress legislates against the background principle that limitations periods are subject to equitable tolling).

Here, Respondents conceded that equitable tolling

cannot save their claims. Pet. Br. 44 n.9. Under the

Webster discovery rule, while Respondents may be

able to establish ownership of the asserted works, they

should still be barred by the application of §507(b)

from recovering damages for infringements that occurred more than three years before the suit was filed.

II. To Resolve This Case and the Confusion in

the Lower Courts, the Court Should Hold

That Copyright Infringement Claims “Accrue” Based on the Occurrence of the Infringing Act, But That General Equitable

Tolling Principles Can Apply to Toll the Limitations Period.

Answering the question presented will resolve the

split between the Second and Ninth Circuits, but without more, it is not likely to resolve this case or the confusion among the lower courts. The Second Circuit

held that Petrella created a time limitation on damages separate from §507(b); the Ninth Circuit held the

opposite. The question presented to resolve that split

asks only 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 an action. But if the Court answers that

a plaintiff “can” recover those damages, as it should, it

will only resolve that there is no separate damages bar

in the Copyright Act; it will not likely resolve this case

or the confusion among the lower courts.

Reading a broad discovery rule into the Copyright

Act’s statute of limitations is atextual, conflicts with

this Court’s precedents, and should not be endorsed.

But it is nevertheless still possible for a claim to be

timely under §507(b) even if it occurred (and accrued)

more than three years before a lawsuit was filed. See

Prather, 446 F.2d at 340 (general equitable tolling

principles apply to copyright claims). And when equitable tolling saves a copyright infringement claim that

would otherwise be untimely under §507(b), the Copyright Act does not provide a separate time limitation

on the plaintiff’s ability to recover damages for that

claim. However, the Respondent here abandoned equitable tolling arguments below, so this plaintiff will

not likely be able to recover damages. See supra, §I.

Though mired with confusing dicta referencing different discovery rules (and without articulating that

they were different rules), the narrow decision below

correctly held that neither Petrella nor the Copyright

Act “impose[s] a separate bar on retrospective relief

for an otherwise timely claim” under §507(b). See

Nealy, 60 F.4th at 1334-35; see also Starz, 39 F.4th at

1245 (“The Supreme Court did not create a damages

bar separate from the statute of limitations in Petrella.”). The decision below, however, did not resolve

when a claim is timely under §507(b). Supra, §I.

If the Court does not resolve the underlying question as to when copyright infringement claims “accrue” under §507(b), this case, and the confusion in the

lower courts, will not be resolved. If the Court holds

that a copyright plaintiff “can” recover damages based

on an infringing act that allegedly occurred more than

three years before the lawsuit was filed, that will only

mean that there is no separate damages bar—that answer alone will not clarify whether the recovery is possible because of a broad discovery rule or because

equitable tolling “can,” once established by the plaintiff, save a claim that would otherwise be untimely.

And as addressed supra, it will still be unlikely that

the Respondent will be able to recover damages for infringements that occurred more than three years before the action was filed.

This Court’s precedents indicates that a copyright

claim should accrue based on the occurrence of an act

of infringement. See Rotkiske, 140 S. Ct. at 360; see

also Petrella, 572 U.S. at 670-71; Nealy, 60 F.4th at

1330. The Court should not endorse the application of

a “special copyright rule” interpreting “accrue” as

adopting a “discovery rule” that is contrary to its plain

text. Compare Rotkiske, 140 S. Ct. at 360 with Starz,

39 F.4th at 1239-41; see also Everly, 958 F.3d at 45968 (Murphy, J., concurring) (discussing the errors in

applying a “discovery rule” to copyright infringement

claims and in considering ownership a “claim” under

the Copyright Act).

In addressing the question presented, the Court

should resolve the underlying confusion of the circuit

courts—the atextual discovery rule that is being applied to change the meaning of “accrue” in copyright

cases.

Holding that §507(b) adopted an occurrence rule

that is subject to equitable tolling if established by the

plaintiff, stays consistent with the plain text of

§507(b), this Court’s precedents, and the presumptions attributed to Congress in drafting statutes of

limtiations. See, e.g., Rotkiske, 140 S. Ct. at 360;

Young 535 U.S. at 44 (“It is hornbook law that limitations periods are customarily subject to equitable tolling, * * * unless tolling would be inconsistent with the

text of the relevant statute,” and “Congress must be

presumed to draft limitations periods in light of this

background principle.”) (internal quotations and citations omitted); Prather, 446 F.2d at 339-41 (holding

that general equitable principles apply to toll the limitations period of copyright claims, but that it is the

plaintiff’s burden to establish an equitable basis for

tolling).

Resolving this case and the Copyright Act’s statute

of limitations should be straightforward, and consistent with the plain text of the Copyright Act, history, and the Congressional presumptions used for interpreting statutes of limitations. It should also reflect the purpose and policy behind statutes of limitations:

Statutes of limitations are vital to the

welfare of society and are favored in the

law. They are found and approved in all

systems of enlightened jurisprudence.

They promote repose by giving security

and stability to human affairs. An important public policy lies at their foundation. They stimulate to activity and punish negligence. While time is constantly

destroying evidence of rights, they supply in its place a presumption which renders proof unnecessary. Mere delay, extending to the limit prescribed is a conclusive bar. The bane and antidote go together.

Wood v. Carpenter, 101 U.S. 135, 139 (1879); see also

Gabelli, 568 U.S. at 448-49 (citing Wood).

If plausible based on the text, Congress is presumed to have adopted an occurrence rule when drafting a statute of limitations. Rotkiske, 140 S. Ct. at 360.

And unless it would be inconsistent with the statutory

text, Congress is also presumed to draft limitations periods in light of the basic principles that they are subject to equitable tolling. Young, 525 U.S. at 49-50.

As the Former Fifth Circuit understood in 1971:

for fraudulent concealment, can toll the limitations period if the plaintiff can establish a basis for tolling.

Prather, 446 F.2d at 339-41. But following that decision, the Ninth Circuit in Roley started a trend of “discovery rules” that has led other courts astray from

these basic principles. See Everly, 958 F.3d at 461-62

(Murphy, J., concurring).

Roley created its “discovery rule” out of Wood v.

Santa Barbara Chamber of Commerce, Inc., 507 F.

Supp. 1128, 1135 (D. Nev. 1980), which itself was applying Prather’s holding regarding equitable tolling

for fraudulent concealment—not a “discovery rule”.

See Everly, 958 F.3d at 461-62 (Murphy, J., concurring); see also Wood, 507 F. Supp. at 1135 (citing Prather, 446 F.2d at 340).

The consequences of that new discovery rule have

filtered through most other circuits and now operate

to nearly obliterate the Copyright Act’s statute of limitations. Plaintiffs need only assert they did not know

about an alleged infringement, and a defendant is unlikely to be able to establish otherwise—the proof of

the plaintiff’s knowledge would likely be solely within

the plaintiff’s control. That result flips the burden

that would apply under general equitable tolling principles. See Prather, 446 F.2d at 340-41.

This Court should realign the application of copyright law in the lower courts based on the interpretation of the plain statutory text, precedent, history, and

Congressional presumptions.

should “accrue[] when the harm, that is, the infringement, occurs, no matter when the plaintiff learns of

it.” Nealy, 60 F.4th at 1330. But a plaintiff can save

an otherwise untimely claim if she can establish a basis for equitable tolling. See Prather, 446 F.2d at 34041; see also Young, 535 U.S. at 49-50.

Under this rule, a repeat “infringer,” such as Petitioner—assuming the Respondent proves ownership of

the works—will still be liable for infringing acts that

occurred within three years of a lawsuit. But those

whose infringing acts occurred—and ceased—more

than three years before the action was filed, where “evidence has been lost, memories have faded, and witnesses have disappeared,” will be spared. See Gabelli,

568 U.S. at 448 (quoting Railroad Telegraphers v.

Railway Express Agency, Inc., 321 U.S. 342, 348-49

(1944)). Those “wrongdoers are entitled to assume

that their sins may be forgotten.” Id. at 449 (quoting

Wilson v. Garcia, 471 U.S. 261, 271 (1985)).

CONCLUSION

For the foregoing reasons, amicus respectfully submits that the Court should answer the question presented by holding that a plaintiff cannot obtain relief

for infringing acts that occurred more than three years

before filing an action unless she can establish a basis

for equitable tolling. In so doing, the Court can resolve

the confusion in the lower courts by clarifying that

based on the occurrence of the alleged infringing act,

not based on a “discovery rule,” and that it is the plaintiff’s burden to establish entitlement to equitable tolling doctrines before one can be applied.

Respectfully submitted,