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

Supreme Court briefJan 12, 2024

Ask Donna

What actually matters in this document.

Text

No. 22-1078

================================================================================================================

In The

Supreme Court of the United States

---------------------------------♦--------------------------------WARNER CHAPPELL MUSIC, ET AL.,

Petitioners,

SHERMAN NEALY, ET AL.,

Respondents.

---------------------------------♦--------------------------------On Writ Of Certiorari To The

United States Court Of Appeals

For The Eleventh Circuit

---------------------------------♦--------------------------------BRIEF OF AMICUS CURIAE NATIONAL SOCIETY

OF ENTERTAINMENT & ARTS LAWYERS

IN SUPPORT OF RESPONDENTS

---------------------------------♦--------------------------------SCOTT ALAN BURROUGHS, ESQ.

Counsel of Record

DAVID M.S. JENKINS, ESQ.

DONIGER / BURROUGHS

247 Water Street, First Floor

New York, New York 10038

(310) 590-1820

scott@donigerlawfirm.com

STEVEN T. LOWE, ESQ.

LOWE & ASSOCIATES

8383 Wilshire Boulevard,

Suite 1038

Los Angeles, California

90211

(310) 477-5811

steven@lowelaw.com

Counsel for Amicus Curiae

National Society of

Entertainment & Arts Lawyers

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

TABLE OF CONTENTS

Page

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

INTERESTS OF AMICUS CURIAE....................

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

ARGUMENT ........................................................

II.

III.

The Copyright Act’s statute of limitations

runs from discovery of the infringement .....

Warner Chappell’s interpretation of the Act

contravenes the statute’s clear language ....

The Copyright Act contains no temporal

bar on damages ..........................................

IV.

No other Circuit applies a temporal damages

bar .............................................................. 13

The solutions to the foregoing problems

are the discovery and separate-accrual

rules ........................................................... 14

A. The discovery rule ............................... 15

B. The separate accrual rule.................... 17

VI.

This Court should affirm the Eleventh

Circuit’s decision ....................................... 19

CONCLUSION..................................................... 20

TABLE OF AUTHORITIES

Page

CASES

Alfa Laval, Inc. v. Flowtrend, Inc., No. CV H-142597, 2016 WL 2625068 (S.D. Tex. May 9,

2016) ..........................................................................7

Andy Warhol Found. for the Visual Arts, Inc. v.

Goldsmith, 598 U.S. 508 (2023) ................................2

Bay Area Laundry & Dry Cleaning Pension Tr.

Fund v. Ferbar Corp. of Cal., 522 U.S. 192, 118

S.Ct. 542, 139 L.Ed.2d 553 (1997) ............................4

Fourth Est. Pub. Benefit Corp. v. Wall-Street.com,

LLC, 139 S.Ct. 881, 203 L.Ed.2d 147 (2019) ..........12

Hardt v. Reliance Standard Life Ins. Co., 560

U.S. 242 (2010) ..........................................................3

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

F.4th 231 (5th Cir. 2023) ..................................... 8, 14

Massachusetts Museum of Contemp. Art Found.,

Inc. v. Buchel, 593 F.3d 38 (1st Cir. 2010) .................6

Media Rights Tech., Inc. v. Microsoft Corp., 922

F.3d 1014 (9th Cir. 2019) ................................... 17, 18

Nealy v. Warner Chappell Music, Inc., 60 F.4th

1325 (11th Cir. 2023) ............................... 5, 13, 14, 16

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

663 (2014) ............................1, 2, 5, 7, 9-11, 14, 18, 19

Reiter v. Cooper, 507 U.S. 258, 113 S.Ct. 1213,

122 L.Ed.2d 604 (1993) .............................................4

Rotella v. Wood, 528 U.S. 549, 120 S.Ct. 1075, 145

L.Ed.2d 1047 (2000) ..................................................8

iii

TABLE OF AUTHORITIES – Continued

Page

Rotkiske v. Klemm, 140 S.Ct. 355 (2019)............ 3, 4, 14

SCA Hygiene Products Aktiebolag v. First Quality Baby Products, LLC, 580 U.S. 328, 137

S.Ct. 954, 197 L.Ed.2d 292 (2017) .................... 10, 11

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

2020) ............................................................. 2, 3, 9-15

Starz Ent., LLC v. MGM Domestic Television

Distribution, LLC, 39 F.4th 1236 (9th Cir.

2022) ......................................................... 4, 11, 13-15

TRW Inc. v. Andrews, 534 U.S. 19, 122 S.Ct. 441,

151 L.Ed.2d 339 (2001) .............................................8

Unicolors, Inc. v. H&M Hennes & Mauritz, L. P.,

142 S.Ct. 941 (2022) .............................................. 1-3

Warner Chappell Music v. Sherman Nealy, No.

22-1078, 2023 WL 6319656 (U.S. Sept. 29,

2023) ..........................................................................5

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

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

STATUTES, RULES AND REGULATIONS

17 U.S.C. § 106 .......................................................... 6, 8

17 U.S.C. § 106(1) ..........................................................6

17 U.S.C. § 411 ..............................................................5

17 U.S.C. § 504 ........................................................ 3, 11

17 U.S.C. § 507 ............................................ 2, 3, 4, 7, 11

TABLE OF AUTHORITIES – Continued

Page

17 U.S.C. § 507(b) .......................................... 3, 8, 13, 14

17 U.S.C.A. § 501(a) ......................................................6

Supreme Court Rule 37.3 .............................................1

OTHER AUTHORITIES

3 Melville B. Nimmer & David Nimmer, Nimmer

on Copyright § 12.05[B][2][d][ii] (2021) .................10

Chris Willman, Music Streaming Hits Major

Milestone as 100,000 Songs are Uploaded

Daily to Spotify and Other DSPs, VARIETY,

Oct. 6, 2022, https://variety.com/2022/music/

news/new-songs-100000-being-released-everyday-dsps-1235395788/ ....................................... 15, 16

T.J. Thomson, Daniel Angus, Paula Dootson, 3.2

billion images and 720,000 hours of video are

shared online daily. Can you sort real from

fake?, https://theconversation.com/3-2-billionimages-and-720-000-hours-of-video-are-sharedonline-daily-can-you-sort-real-from-fake-148630 ......16

INTERESTS OF AMICUS CURIAE1

This Brief is filed in accordance with Supreme

Court Rule 37.3, as revised in 2023.

NATIONAL SOCIETY OF ENTERTAINMENT

& ARTS LAWYERS (“NSEAL”), previously

known as California Society of Entertainment

Lawyers, is a non-profit 501(c)(3) organization that

was founded in 2013. This national organization advocates for artists’ and entertainers’ rights and is comprised of attorneys across the United States who

represent authors, screenwriters, songwriters, musicians, and other creative professionals in the entertainment and arts industries. Its members have

litigated thousands of entertainment and art cases in

trial and appellate courts throughout the country, including many of the most important recent copyright,

art, and entertainment cases, and have advised scores

of creative professionals on litigation, licensing, and

intellectual property strategy. Its members have also

argued for and obtained crucial decisions at the appellate court level in cases involving artists’ rights and

entertainment law. The organization has submitted

amicus briefs in support of the prevailing party in

three previous cases in this court, viz., Petrella v.

Metro-Goldwyn-Mayer, Inc., 572 U.S. 663 (2014); Unicolors, Inc. v. H&M Hennes & Mauritz, L. P., 142 S.Ct.

No counsel for a party authored this brief in whole or in

part, and no counsel or party made a monetary contribution intended to fund the preparation or submission of this brief. No person other than amicus curiae, its members, or its counsel made a

monetary contribution to its preparation or submission.

941 (2022); and Andy Warhol Found. for the Visual

Arts, Inc. v. Goldsmith, 598 U.S. 508 (2023), all of which

involved important issues of copyright law, and all of

which reached conclusions consistent with the reasoning in NSEAL’s briefs.

---------------------------------♦---------------------------------

SUMMARY OF ARGUMENT

The statute of limitations set forth in 17 U.S.C.

§ 507 begins to run when an artist discovers, or reasonably should have discovered, an infringement of her

copyrights. And so long as an artist files her claim

within three years of that date, she may recover from

the infringer all damages from the infringement, regardless of when they were reaped. This rule provides

a reasonable opportunity for artists to actually discover the infringement, obtain counsel, consider the

burdens and benefits of federal court litigation, obtain

a copyright registration, and file claims to enforce their

rights. To hold otherwise would reward infringers who

successfully conceal their misconduct and would run

afoul of the Copyright Act, the Petrella2 analysis, and

decades of precedent.

Artists and those that rely on artistic content to

generate profit have long applied such a rule and it was

not until the relatively recent Sohm3 decision that any

court applied a temporal damages bar to a timely filed

Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663, 134

S.Ct. 1962, 1976, 188 L.Ed.2d 979 (2014).

Sohm v. Scholastic Inc., 959 F.3d 39 (2d Cir. 2020).

claim. Said approach deviated from longstanding principles of law and worked to deny or limit an artist’s

damages even when she filed her case within three

years of discovery. The Sohm approach unfairly penalizes artists and provides windfalls to infringers.

And it conflicts with the Copyright Act. If the

drafters intended to limit an artist’s damages in some

way in the statute, they would have placed that limitation in 17 U.S.C. § 504 (the section relevant to damages), rather than in the section relating to the

statutes of limitations, requiring interpretation here,

viz., 17 U.S.C. § 507.

For these reasons, as more fully explained below,

NSEAL strongly urges the Court to affirm the Eleventh Circuit’s decision.

---------------------------------♦---------------------------------

ARGUMENT

The Copyright Act’s statute of limitations

runs from discovery of the infringement

The Eleventh Circuit’s decision should be affirmed

based on the plain language of the Copyright Act. This

Court recently advised that in interpreting the Copyright Act, “we follow the text of the statute.” Unicolors,

Inc. v. H&M Hennes & Mauritz, L. P., 142 S.Ct. 941,

946 (2022), citing Hardt v. Reliance Standard Life Ins.

Co., 560 U.S. 242, 251 (2010). So, here, “we begin by

analyzing the statutory language.” Rotkiske v. Klemm,

140 S.Ct. 355, 360 (2019) (citation omitted). (“If the

statute is unambiguous, this first step of the interpretive inquiry is our last.” Id. (citation omitted)).

The Copyright Act unambiguously states that the

claim is timely so long as it is “commenced within three

years after the claim accrued.” 17 U.S.C. § 507(b). Section 507 includes no language at all referencing any

temporal damages bar or limitation. While the word

“accrual” may be less than pellucid, a claim ordinarily

“accrues” when “the plaintiff has a ‘complete and present cause of action.’ ” Starz Ent., LLC v. MGM Domestic Television Distribution, LLC, 39 F.4th 1236, 1239

(9th Cir. 2022), quoting Bay Area Laundry & Dry

Cleaning Pension Tr. Fund v. Ferbar Corp. of Cal., 522

U.S. 192, 201, 118 S.Ct. 542, 139 L.Ed.2d 553 (1997)

(citation omitted). And, “[u]nless Congress has told us

otherwise in the legislation at issue, a cause of action

does not become ‘complete and present’ for limitations

purposes until the plaintiff can file suit and obtain relief.” Bay Area Laundry & Dry Cleaning Pension Tr.

Fund, 522 U.S. at 201, citing Reiter v. Cooper, 507 U.S.

258, 267, 113 S.Ct. 1213, 1220, 122 L.Ed.2d 604 (1993)

(“While it is theoretically possible for a statute to create a cause of action that accrues at one time for the

purpose of calculating when the statute of limitations

begins to run, but at another time for the purpose of

bringing suit, we will not infer such an odd result in

the absence of any such indication in the statute.”)

Here, a copyright holder certainly cannot “file suit

and obtain relief ” until she discovers the claim at issue

and satisfies the copyright registration requirements

of 17 U.S.C. § 411. As such, Circuits have consistently

applied a “discovery” rule to copyright claims.

II.

Warner Chappell’s interpretation of the

Act contravenes the statute’s clear language

Warner Chappell attempts to distort the text of

the Copyright Act to withhold profits from artists with

whom it has worked in the past and realize windfalls,

both here and down the road in the many other cases

in which a writer or performing artist seeks or will

seek to obtain her royalties or portion of profits from

the company.

Under the so-called “injury rule,” as urged by

Warner Chappell, “a copyright plaintiff ’s claim accrues

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

matter when the plaintiff learns of it.” Nealy v. Warner

Chappell Music, Inc., 60 F.4th 1325, 1330 (11th Cir.

2023), cert. granted in part sub nom. Warner Chappell

Music v. Sherman Nealy, No. 22-1078, 2023 WL

6319656 (U.S. Sept. 29, 2023), citing Petrella, 572 U.S.

at 670, 134 S.Ct. 1962.

This rule has long been rejected because its adoption would defy the plain text of the statute and severely limit or entirely obviate artists’ rights, while

allowing infringers – especially those sophisticated

enough to conceal their infringement – to benefit massively from their misdeeds. See William A. Graham Co.

v. Haughey, 568 F.3d 425, 437 (3d Cir. 2009) (rejecting

injury rule because “eight of our sister courts of

appeals have applied the discovery rule to civil actions

under the Copyright Act” and holding that “use of the

discovery rule comports with the text, structure, legislative history and underlying policies of the Copyright

Act”).

Lack of immediate discovery of an infringement is

common because an infringement of copyright begins

as soon as the infringer violates an artist’s exclusive

rights under 17 U.S.C. § 106. 17 U.S.C.A. § 501(a) (“Anyone who violates any of the exclusive rights of the

122 or of the author as provided in section 106A(a), or

who imports copies or phonorecords into the United

States in violation of section 602, is an infringer of the

see also Massachusetts Museum of Contemp. Art

Found., Inc. v. Buchel, 593 F.3d 38, 48 (1st Cir. 2010)

(“One infringes a copyright when he or she violates one

of the exclusive rights to a work held by a copyright

owner, and the owner has the right to sue for infringement.”). And most initial acts of infringement – the act

of reproduction, which violates 17 U.S.C. § 106(1) – occur entirely in privacy or semi-privacy.

For example, in the music context, infringement

would begin, under an injury rule, as soon as the producer that creates an infringing song in her private

studio makes an unauthorized copy of a plaintiff ’s

song and saves that copy into her production software.

See 17 U.S.C. § 106(1) (reproduction right). Of course,

the artist whose rights have been infringed would have

no way to know that this occurred in the private studio,

but it would nevertheless start the statute of limitations running under the injury rule advanced by

Warner Chappell. If the actual infringing song is not

released until three years after this initial reproduction, the aggrieved artist, even if she discovered the

song immediately, would already be beyond the statute

of limitations. This is of course an absurd result and

illustrates why the discovery rule has always been applied.

The absurdity of the injury rule is manifest when

considered in the crucial context of the modern internet. There, application of the injury rule would act to

provide impunity and a perpetual license to any website that publishes infringing content and evades detection for three years. Cases such as Alfa Laval, Inc.

v. Flowtrend, Inc. have held that when an artist cannot

provide evidence that an online infringer engaged “in

new acts of copyright infringement after it originally

posted the [infringing content] on its website,” or that

there were “later independent acts of copyright infringement, the ‘separate-accrual rule’ does not extend

the limitations period.” No. CV H-14-2597, 2016 WL

2625068, at *6 (S.D. Tex. May 9, 2016) (citing Petrella,

572 U.S. at 671). Applying the injury rule in the absence of the separate accrual rule would render an artist without a remedy, unable even to file a lawsuit to

force the removal of infringing work that has been

online more than three years, even if she only recently

discovered the infringement. See 17 U.S.C. § 507 (“No

civil action shall be maintained under the provisions of

this title unless it is commenced within three years after the claim accrued.”).

Given the above, § 507(b)’s application should

acknowledge that a copyright infringement claim accrues similarly to claims arising from “latent disease

and medical malpractice[.]” Martinelli v. Hearst Newspapers, L.L.C., 65 F.4th 231, 239 (5th Cir. 2023), quoting TRW Inc. v. Andrews, 534 U.S. 19, 27, 122 S.Ct. 441,

151 L.Ed.2d 339 (2001). To be sure, unlike most torts –

e.g., a dog bite victim knows of the injury from the moment at which she is bit – a victim of infringement has

no knowledge of the tort until she discovers same. Conjure the unprincipled producer copying another’s song,

or the jewelry counterfeiter fabricating unlawful reproductions, all in private and in violation of 17 U.S.C.

§ 106, which acts would start the running of the statute of limitations under the injury rule. And the hundreds of thousands of new (and possibly infringing)

works transmitted out into the internet ether every

day and around the clock, some of which violate § 106.

To be sure, to the original artist, these violations are

“unknown or unknowable until the injury manifests itself[.]” Id., quoting Rotella v. Wood, 528 U.S. 549, 556,

120 S.Ct. 1075, 145 L.Ed.2d 1047 (2000) (citation omitted). Thus, the statute of limitation for copyright infringement claims, like latent diseases and medical

practice, should incorporate a “prevailing discovery

rule,” as discussed herein. TRW Inc., 534 U.S. at 27, 122

S.Ct. 441.

There is no Circuit split as to the discovery rule

and its application is presumed for purposes of this

appeal. Yet, Warner Chappell urges a departure from

this settled precedent. The invitation should be declined.

III. The Copyright Act contains no temporal

bar on damages

Under Sohm, which, like all other courts, applied

the discovery rule, an artist may file a suit on a date

more than three years after the initial infringement.

Sohm, 959 F.3d at 50 (“the discovery rule applies for

statute of limitations purposes in determining when a

recovering profits from the infringer if they were realized more than three years before the filing date. Id. at

51 (“the Supreme Court explicitly delimited damages

to the three years prior to the commencement of a

appears nowhere in the Copyright Act and provides a

massive windfall to infringers, especially wily ones

with the means and sophistication to conceal their infringement.

Sohm’s novel and wholly improper damages bar

materially deprives artists of the ability to fully enforce their rights. In that case, the Court sought to

apply Petrella in which the daughter of the writer of

the “Raging Bull” screenplay brought an infringement

case against the movie studio long after the “Raging

Bull” film was released. 572 U.S. at 663. In that case, it

was undisputed that the plaintiff had been well aware

of the “Raging Bull” movie for decades. However,

Petrella did not address the statute of limitations at

all but instead considered the viability of the laches

defense in the case of copyright infringement claims.

The Supreme Court correctly concluded that in such a

circumstance the laches defense was rather weak because, among other things, the impact of a delay in

bringing suit is mitigated by the fact that “a successful

plaintiff can gain retrospective relief only three years

back from the time of suit.” This was quite clearly dicta

applicable only to the circumstances of that case where

the plaintiff did know about “Raging Bull” since it was

released in 1980; the court was obviously discussing

those circumstances as they applied to the doctrine of

laches in a copyright context, and not making a ruling

as to damages in all contexts.

The Sohm decision, though, misapplied this dicta

to stand decades of precedent on its head. In Sohm,

Judge Richard J. Sullivan, citing to Papazian v. Sony

Music Corp. – his own decision from his district court

tenure – and the Petrella dicta discussed above, found

that Petrella bars all copyright holders from recovering

damages beyond the three-year window that precedes

the filing of their lawsuit.

The reasoning of Sohm ran contra to the discovery

rule and, as Professor Nimmer stated in his treatise,

“took a hundred-and-eighty degree turn” to create a

rule that was inconsistent with the statute and case

law. See 3 Melville B. Nimmer & David Nimmer,

Nimmer on Copyright § 12.05[B][2][d][ii] (2021). It

also grated against the Supreme Court’s reasoning in

SCA Hygiene Products Aktiebolag v. First Quality Baby

Products, LLC, 580 U.S. 328, 137 S.Ct. 954, 197 L.Ed.2d

292 (2017), which had already made clear that Petrella

did not impact the “discovery rule.”

Sohm’s damages bar finds no support in the Copyright Act. Congress set forth the three-year statute of

limitations in Section 507 of the Copyright Act, which

pertains to “limitations on actions.” See 17 U.S.C.

§ 507. However, a copyright owner’s ability to recover

actual damages and an infringer’s profits is enshrined

in Section 504, entitled “remedies for infringement:

damages and profits.” See 17 U.S.C. § 504. “Had Congress intended to limit recoverable damages or profits

to those arising only from acts of infringement during

the three-year period before suit was commenced, it

would have said so, and said so in § 504, which sets

forth detailed instructions as to the proper calculation

of actual and statutory damages and profits.” Starz

Ent., LLC, 39 F.4th at 1246. However, § 504 of the

limit on damages or profits and never refers to § 507,

but rather expressly states that a copyright plaintiff is

entitled to recover “the actual damages suffered by

him or her” and “any profits of the infringer that are

attributable to the infringement.” See § 504 (emphasis

added).

The following hypotheticals further illustrate why

a temporal damages bar is nonsensical: an infringer

sells unauthorized copies of an author’s book from

2010 to 2019 and the artist discovers one in a

secondhand store in 2023. She can file suit at that time

but will not be able to recover any of the proceeds from

the infringement because those profits accrued more

than three years before she filed suit. The infringer

walks away with all of the ill-gotten profits.

A similarly inequitable result would inure if an

importer on-shored tens of thousands of garments

bearing unauthorized copies of a designer’s original

and copyrightable lace, embroidery, or graphic design

and sold them through a regional chain of retail stores

in a region other than the one in which the designer

resides. After selling the infringing garments in that

region for ten years, the retailer opens a store in the

designer’s neighborhood. A year later, the designer, discovers the garment being worn by a fellow customer in

a coffee shop. She identifies the infringer by reading

the garment label, and then immediately rushes to

court. While she would not be denied all damages – she

would be allowed to seek to recover the most recent

three years of the infringer’s profits under Sohm – the

infringer would keep much more: all profits from the

first eight (and likely most profitable) years of the infringement. This is inequitable.

Note also that an artist, after discovering an infringement, still has to find (and save up the funds to

pay) an attorney. And then she must register the work

with the Copyright Office. Fourth Est. Pub. Benefit

Corp. v. Wall-Street.com, LLC, 139 S.Ct. 881, 886–87,

203 L.Ed.2d 147 (2019) (artist must register work before filing suit). The registration process requires more

money from the artist and can take more than a year

(and even longer if there are issues with the application or deposit). Once the registration is obtained, a

complaint must be drafted and filed, which again takes

time and money. These acts, in aggregate, can take

three years, which is one reason why the Copyright Act

provides a three-year statute of limitations. But, with

every passing day the artist’s available damages decrease. This is an unjust result.

Notably, Warner Chappell, though relying heavily

on the Sohm-induced Circuit split to gain access to the

Court, completely abandons Sohm’s reasoning in its

opening brief. It had no other choice, as discussed below.

IV. No other Circuit applies a temporal damages bar

The Ninth Circuit, in Starz Ent., LLC, wrote that

adopting the Sohm damages bar would mean that “a

after the infringement occurred would be out of luck.

Such a harsh rule would distort the tenor of the statute.” Starz Ent., 39 F.4th at 1246 (citation omitted).

The Circuit also wrote that it “makes little sense to bar

recovery of damages beyond the three-years before the

suit was filed where the copyright holder did not delay,

but acted in accordance with § 507(b) by filing his complaint within three years of discovery.” Id. at 1238.

The Eleventh Circuit agreed with the Ninth Circuit when deciding Nealy v. Warner Chappell Music,

Inc., finding that if the claim is timely under the discovery rule, the infringer may be required to disgorge

all profits from the infringement. 60 F.4th 1325, 1331

(11th Cir. 2023). It based this conclusion on two

grounds: first, that Petrella’s statements about the

availability of relief were directed to the way the statute of limitations works when claims accrue under the

injury rule, not the discovery rule (because there is no

belated discovery), and, second, “the text of the Copyright Act does not place a time limit on remedies for an

otherwise timely claim.” Id.

The Fifth Circuit is also onboard, rejecting the arguments advanced by petitioner here because “Petrella

does not lead to that conclusion.” Martinelli v. Hearst

Newspapers, L.L.C., 65 F.4th 231, 239 (5th Cir. 2023).

The Fifth Circuit further noted, “[w]ere we to hold”

that the discovery rule does not apply to § 507(b), “we

would be the only court of appeals to do so after [Petrella and Rotkiske].” Id., 65 F.4th at 245 (citation omitted).

Approximately 30 other district courts have also

explicitly or implicitly rejected Sohm’s use of Petrella

to create a damages bar to limit the discovery rule. See

Starz Ent., LLC, 39 F.4th at 1244 (collecting cases).

Sohm’s damages bar finds no support in precedent and

the plain text and intent of the Copyright Act. Its reasoning should be rejected.

The solutions to the foregoing problems are

the discovery and separate-accrual rules

Courts tasked with interpreting the Copyright Act

have, for decades, and in accord with the Copyright

Act’s intent, have capably addressed the above problems via the “discovery rule” and “separate accrual

rule.” While Sohm has disrupted this flow, refocusing

on the below doctrines will hasten a return to rectitude.

A. The discovery rule

This rule ensures that a copyright infringer does

not benefit from its infringement. While the injury rule

rewards an infringer who successfully conceals her infringement, the discovery rule prevents such injustice

by starting the three-year limitations period “only

when the copyright holder knows or should know of the

infringing act.” Starz Ent., LLC, 39 F.4th at 1246. This

means that a copyright owner cannot lose her right to

seek relief before she reasonably has the chance to act,

no matter how well an infringer conceals their misconduct. The discovery rule also ensures that an artist

who does not have the resources to scour publicly available media daily is not prejudiced if she discovers an

infringement 2-3 years or more after it occurs. It also

ensures that an infringement that occurs in private or

semi-private does not occur with impunity.

Without the discovery rule, an artist would have

to police every outlet for potential infringement just to

maintain their ability to protect her rights in her art,

but this is actually impossible. It is reported that more

than 100,000 new songs are created and uploaded to the

internet every day. Chris Willman, Music Streaming

Hits Major Milestone as 100,000 Songs are Uploaded

Daily to Spotify and Other DSPs, VARIETY, Oct. 6, 2022,

https://variety.com/2022/music/news/new-songs-100000being-released-every-day-dsps-1235395788/. More than

3.2 billion photographs and 720,000 hours of video

are posted daily. T.J. Thomson, Daniel Angus, Paula

Dootson, 3.2 billion images and 720,000 hours of video

are shared online daily. Can you sort real from fake?,

https://theconversation.com/3-2-billion-images-and720-000-hours-of-video-are-shared-online-daily-can-yousort-real-from-fake-148630. It would take teams of

investigators and a massive budget to scour that universe of material to identify infringing content. And

that is without considering the private acts of infringement. Under the injury rule, and depending on when

the discovery occurs, each day that an artist is unable

to identify and immediately sue for infringement is a

day for which an infringer can keep its profits from the

infringement.

The discovery rule protects against such an occurrence and ensures that an artists’ rights are not denied

when she acts with reasonable diligence. If a claim “accrues when the plaintiff learns, or should as a reasonable person have learned, that the defendant was

violating his” rights, an artist can more feasibly enforce his rights. Nealy, 60 F.4th at 1330 (citation omitted).

Because copyrightable works are created upon fixation in a tangible medium rather than upon publication, the first unlawful reproduction is almost always

made in private, where there is no way that a plaintiff

can learn of the injury. The discovery rule starts the

clock on an artist’s ability to recover an infringer’s illgotten revenues not upon this first private reproduction, when there are likely little to no revenues, but rather when the artist actually has the ability to know of

the infringement and to (hopefully) determine whether

its profitability or potential profitability justifies the

filing of a lawsuit. The discovery rule thus ensures that

an artist does not lose her right to recover the entirety

of an infringer’s profits simply because the infringer

first fixed the work in private before publicly exploiting

it.

It also ensures that lawful infringement claims

are not filed unnecessarily just to maintain an artist’s

statute of limitations. If an artist must file their claim

within three years of the infringing work’s initial fixation they may at times have to file a without any damages if the infringer has yet to publicly and monetarily

exploit the work. A right without a remedy is no right,

particularly given the expense of copyright litigation.

In contrast, the discovery rule ensures that the artist’s

claim generally accrues only after the infringement

has been published to the public and monetized to the

extent that the artist can recover damages that would

offset the heavy costs of litigation.

B. The separate accrual rule

The “separate-accrual rule” provides that, “when

a defendant commits separate violations of [the Copyright Act], the statute of limitations runs separately

from each violation.” Media Rights Tech., Inc. v.

Microsoft Corp., 922 F.3d 1014, 1022 (9th Cir. 2019),

quoting Petrella, 572 U.S. at 671. Each new infringement “gives rise to a discrete ‘claim’ that ‘accrue[s]’ at

the time the wrong occurs.” Id., quoting Petrella, 572

U.S. at 671, 134 S.Ct. 1962.

By applying this rule in combination with the discovery rule, courts have rigorously enforced the Copyright Act and held infringers accountable while also

limiting damages in circumstances where there is any

unreasonable delay in enforcement. Verily, as this

Court has previously noted, it “is hardly incumbent on

about waiting to see whether an infringer’s exploitation undercuts the value of the copyrighted work, has

no effect on that work, or even complements it.” Petrella, 572 U.S. at 665. Applying an injury rule will run

afoul of these considerations, as any artist that discovers a claim will be forced to rush to court to sue because

she will likely not know the date the infringement began (i.e., when the “injury” occurred) and cannot risk

the expiry of the statute of limitations. Forcing artists

to hastily file claims or lose their rights contravenes

the text and spirit of the Copyright Act, and its interpretation in Petrella.

The separate accrual rule then – making each additional violation of the artists’ rights start a new

three-year period – ensures the artist can “defer suit

until she can estimate whether litigation is worth the

candle” by filing after a subsequent infringement

which generated sufficient damages to justify a suit.

Petrella, 572 U.S. at 6883.

The application of the discovery rule in combination with the separate accrual rule prevents an artist

from being denied her right to file claims for violations

of her copyright and ensures the availability of damages. Denying such rights when she did not know or

have reason to know an infringement occurred, or forcing her to hastily file a lawsuit for a claim that may not

have a value to justify the cost of litigation, runs afoul

of the statute and its purpose.

VI. This Court should affirm the Eleventh Circuit’s decision

It is tremendously challenging to make a living as

an artist and never has it been more difficult and expensive for an artist to enforce her rights in court. Limiting an artist’s damages, as urged by petitioner, will

result in fewer artists being willing and able to enforce

their rights in court.

The Eleventh Circuit’s approach accords with the

other Circuits and balances the equities between copyright holders and copyright infringers. There is little

motivation for an artist to delay in bringing a claim.

And in some cases, a delay is warranted or even encouraged, such as in cases where the scope of infringement “has no effect on that work, or even complements

it.” Petrella, 572 U.S. at 665.

Most artists are unrepresented and do not have counsel to consult should they discover an infringement.

Forcing them to scour the millions of uploads to the internet on a daily basis, and then rush to engage counsel and file a claim once it is discovered, because failing

to act immediately might limit their damages, is unjust

and violative of the Copyright Act. Petitioners’ approach will result only in a windfall to copyright infringers, especially to those who conceal their unlawful

acts, and the deprivation of rights and remedies for

those artists whose creativity most benefits society

and whose output is most vulnerable to infringement.

NSEAL respectfully submits that the Eleventh Circuit’s decision should be affirmed.

---------------------------------♦---------------------------------

CONCLUSION

For the foregoing reasons, the Eleventh Circuit’s

decision should be affirmed.

Respectfully submitted,

SCOTT ALAN BURROUGHS, ESQ.

Counsel of Record

DAVID M.S. JENKINS, ESQ.

DONIGER / BURROUGHS

247 Water Street, First Floor

New York, New York 10038

(310) 590-1820

scott@donigerlawfirm.com

Counsel for Amicus Curiae

National Society of

Entertainment & Arts Lawyers

Dated: January 12, 2024

STEVEN T. LOWE, ESQ.

LOWE & ASSOCIATES

8383 Wilshire Boulevard,

Suite 1038

Los Angeles, California

90211

(310) 477-5811

steven@lowelaw.com

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.