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

Supreme Court briefJan 12, 2024

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No. 22-1078

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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 AUTHORS GUILD, INC.,

THE DRAMATISTS LEGAL DEFENSE FUND,

THE GRAPHIC ARTISTS GUILD, THE ROMANCE

WRITERS OF AMERICA, THE SONGWRITERS

GUILD OF AMERICA, INC., AND THE TEXTBOOK

& ACADEMIC AUTHORS ASSOCIATION AS

AMICI CURIAE IN SUPPORT OF RESPONDENTS

---------------------------------♦--------------------------------NATHAN E. DENNING

WIGGIN AND DANA LLP

437 Madison Avenue

35th Floor

New York, NY 10022

(212) 551-2600

ndenning@wiggin.com

BENJAMIN H. DIESSEL

Counsel of Record

ARMANDO GHINAGLIA

WIGGIN AND DANA LLP

265 Church Street

One Century Tower

New Haven, CT 06510

(203) 498-4304

bdiessel@wiggin.com

Counsel for Amici Curiae

January 12, 2024

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

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

TABLE OF CONTENTS

Page

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

iii

INTERESTS OF AMICI CURIAE .......................

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

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

The text and structure of the Copyright

Act require a discovery rule ......................

A. Congress’s choice of different triggers

for Section 507’s civil and criminal

limitations periods demonstrates its

intent for the discovery rule to apply

to the accrual of civil claims ................

B. Other intellectual-property statutes

show that Congress knew how to

adopt the precise injury rule Petitioners recommend here ............................

C. The DMCA and VHDPA demonstrate

that the discovery rule is generally applicable and that Petitioners’ proposed

rule applies only to certain claims under Title 17 .......................................... 10

D. Petitioners’ arguments against a discovery rule lack merit .......................... 12

II.

The discovery rule is sound policy ............ 16

A. The discovery rule furthers our nation’s fundamental interest in artistic

development ........................................ 17

B. American artists are in crisis while

they struggle to police infringers ........ 18

TABLE OF CONTENTS—Continued

Page

C. Petitioners’ and their Amici’s policy

arguments to the contrary are unpersuasive ................................................. 27

III.

The circuit courts’ unanimous application

of the discovery rule is consistent with

this Court’s prior decisions ........................ 29

IV.

Petitioners’ proposal would erase a substantial body of settled law and upend the

expectations of copyright holders and users alike ..................................................... 33

CONCLUSION..................................................... 34

iii

TABLE OF AUTHORITIES

Page

CASES

Bay Area Laundry & Dry Cleaning Pension Tr.

Fund v. Ferbar Corp. of California, 522 U.S.

192 (1997) ................................................................14

Beasley v. John Wiley & Sons, Inc., 56 F.Supp.3d

937 (N.D. Ill. 2014) ..................................................31

Berry v. Braner, 245 Or. 307 (1966) ............................13

Bridgeport Music, Inc. v. Rhyme Syndicate Music, 376 F.3d 615 (6th Cir. 2004)..............................30

Brownstein v. Lindsay, 742 F.3d 55 (3d Cir. 2014) ....... 14

CTS Corp. v. Waldburger, 573 U.S. 1 (2014) ................7

Cal. Pub. Employees’ Ret. Sys. v. ANZ Sec., Inc.,

582 U.S. 497 (2017) .................................................15

Clinch v. Planet Productions, LLC, 1:17-cv-4099

(S.D.N.Y. Jun. 1, 2017) ............................................25

Comcast of Illinois X v. Multi-Vision Elecs., Inc.,

491 F.3d 938 (8th Cir. 2007) ....................................30

Crown Coat Front Co. v. United States, 386 U.S.

503 (1967) ................................................................12

Design Basics LLC v. Campbellsport Bldg. Supply Inc., 99 F.Supp.3d 899 (E.D. Wis. 2015) ............31

Design Basics LLC v. J & V Roberts Invs., Inc.,

130 F.Supp.3d 1266 (E.D. Wis. 2015) ......................31

Design Basics, LLC v. Forrester Wehrle Homes,

Inc., 305 F.Supp.3d 788 (N.D. Ohio 2018) ......... 30, 31

TABLE OF AUTHORITIES—Continued

Page

Disabled in Action of Pennsylvania v. Se. Penn.

Transp. Auth., 539 F.3d 199 (3d Cir. 2008) .............28

Diversey v. Schmidly, 738 F.3d 1196 (10th Cir.

2013) ........................................................................30

D’Pergo Custom Guitars, Inc. v. Sweetwater

Sound, Inc., 516 F.Supp.3d 121 (D.N.H. 2021) .......30

Eldred v. Aschroft, 537 U.S. 186 (2003) ......................17

Everly v. Everly, 958 F.3d 442 (6th Cir. 2020) ............13

Franconia Associates v. United States, 536 U.S.

129 (2002) ................................................................13

Frerck v. Pearson Educ., Inc., 63 F.Supp.3d 882

(N.D. Ill. 2014) .........................................................31

Gabelli v. Sec. & Exch. Comm’n, 568 U.S. 442

(2013) .......................................................................13

Goldberg v. Cameron, 482 F.Supp.2d 1136 (N.D.

Cal. 2007).................................................................28

Grant Heilman Photography, Inc. v. McGrawHill Cos., Inc., 28 F.Supp.3d 399 (E.D. Pa.

2014) ........................................................................31

Graper v. Mid-Continent Cas. Co., 756 F.3d 388

(5th Cir. 2014)..........................................................30

Gross v. FBL Financial Servs., Inc., 557 U.S. 167

(2009) .......................................................................11

Hecht v. Malley, 265 U.S. 144 (1924) ............................6

Hibbs v. Winn, 542 U.S. 88 (2004) ..............................11

TABLE OF AUTHORITIES—Continued

Page

Hotaling v. Church of Jesus Christ of Latter-Day

Saints, 118 F.3d 199 (4th Cir. 1997) .......................30

Kirtsaeng v. John Wiley & Sons, Inc., 579 U.S.

197 (2016) ................................................................18

Klein v. City of Beverly Hills, 865 F.3d 1276 (9th

Cir. 2017) .................................................................28

Krist v. Scholastic, Inc., 253 F.Supp.3d 804 (E.D.

Pa. 2017) ..................................................................31

McMahon v. United States, 342 U.S. 25 (1951) ........ 5, 6

Mitchell v. Capitol Records, LLC, 287 F.Supp.3d

673 (W.D. Ky. 2017) .................................................31

Morgan v. Grace Hosp., Inc., 149 W.Va. 783 (1965) ...... 13

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

663 (2014) ................................................ 4, 28, 30, 31

Psihoyos v. John Wiley & Sons, Inc., 748 F.3d 120

(2d Cir. 2014) ...........................................................30

Raucci v. Candy & Toy Factory, 145 F.Supp.3d

440 (E.D. Pa. 2015) ..................................................31

Rawlings v. Ray, 312 U.S. 96 (1941) ...........................13

Reading Co. v. Koons, 271 U.S. 58 (1926) ...................12

Recording Indus. Ass’n of America, Inc. v. Verizon

Internet Servs., Inc., 351 F.3d 1229 (D.C. Cir.

2003) ........................................................................25

Roley v. New World Pictures, Ltd., 19 F.3d 479

(9th Cir. 1994)..........................................................30

Rotella v. Wood, 528 U.S. 549 (2000) ..........................32

TABLE OF AUTHORITIES—Continued

Page

Rotkiske v. Klemm, 589 U.S. ___, 140 S.Ct. 355

(2019) ................................................................... 9, 32

Sanchez v. United States, 740 F.3d 47 (1st Cir.

2014) ........................................................................27

Santa-Rosa v. Combo Records, 471 F.3d 224 (1st

Cir. 2006) .................................................................30

Shapiro v. United States, 335 U.S. 1 (1948) .................6

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

2020) ........................................................................31

Sony Corp. of Am. v. Universal City Studios, Inc.,

464 U.S. 417 (1984) .................................................17

Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) .............6

Starz Ent., LLC v. MGM Domestic Television

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

2022) ........................................................................30

Stephens v. Clash, 796 F.3d 281 (3d Cir. 2015) ..........15

Stone v. Williams, 970 F.2d 1043 (2d Cir. 1992) .........30

TRW Inc. v. Andrews, 534 U.S. 19 (2001) ....... 4, 12, 14,

..................................................................... 16, 31, 32

Taylor v. Meirick, 712 F.2d 1112 (7th Cir. 1983) ........30

Thornton v. J Jargon Co., 580 F.Supp.2d 1261

(M.D. Fla. 2008) .......................................................31

Toussie v. United States, 397 U.S. 112 (1970) ............7

Urie v. Thompson, 337 U.S. 163 (1949)................. 5, 7, 8

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

2020) ........................................................................30

vii

TABLE OF AUTHORITIES—Continued

Page

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

(3d Cir. 2009) ............................... 6, 14, 15, 28, 30, 31

Wolf v. Travolta, 167 F.Supp.3d 1077 (C.D. Cal.

2016) ........................................................................31

Yates v. United States, 574 U.S. 528 (2015) ................11

Zenith Radio Corp. v. Hazeltine Research, Inc.,

401 U.S. 321 (1971) .................................................13

CONSTITUTIONAL PROVISIONS

U.S. Const. art. I............................................................4

U.S. Const. art. I, § 8, cl. 8...........................................17

STATUTES

7 U.S.C. § 2566(a) ..........................................................9

15 U.S.C. § 15b ............................................................13

15 U.S.C. § 16(b) ..........................................................13

15 U.S.C. § 77m ...........................................................15

15 U.S.C. § 1692(d) ......................................................32

17 U.S.C. § 507(a) .................................................5-7, 11

17 U.S.C. § 507(b) ................. 4-6, 8-11, 13-15, 29, 30, 32

17 U.S.C. § 512(h)........................................................25

17 U.S.C. § 911(d) ........................................................10

17 U.S.C. § 912(b) ........................................................11

17 U.S.C. § 922(c) ........................................................10

viii

TABLE OF AUTHORITIES—Continued

Page

17 U.S.C. § 1323(c) ......................................................10

17 U.S.C. § 1506(i) .......................................................27

18 U.S.C. § 2255(b) (2018) ............................................7

18 U.S.C. § 2335 ............................................................7

18 U.S.C. § 2712(b)(2) ...................................................7

19 U.S.C. § 1621 ..........................................................15

28 U.S.C. § 1498(b) .................................................... 8, 9

29 U.S.C. § 1451(f ) ......................................................14

35 U.S.C. § 286 ..............................................................8

Digital Millennium Copyright Act of 1998 ................10

Semiconductor Chip Protection Act ...........................10

Vessel Hull Design Protection Act ....................... 10, 11

OTHER AUTHORITIES

Alison Flood, Plagiarism, “Book-Stuffing,” Clickfarms * * * The Rotten Side of Self-Publishing,

The Guardian (Mar. 28, 2019), https://www.

theguardian.com/books/2019/mar/28/plagiarismbook-stuffing-clickfarms-the-rotten-side-ofself-publishing .........................................................23

Antonin Scalia & Bryan A. Garner, Reading

Law: The Interpretation of Legal Texts (2012)..........6

Aug. 5, 1935, ch. 438, title III, § 306, 49 Stat.

527 ...........................................................................16

TABLE OF AUTHORITIES—Continued

Page

David Nimmer, Proposal For Small Copyright

Infringement Claims (Jan. 17, 2012), https://

www.copyright.gov/docs/smallclaims/comments/

05_american_photographic_artists.pdf .................. 20

David Streitfeld, What Happens After Amazon’s

Domination Is Complete? Its Bookstore Offers

Clues, N.Y. Times (June 23, 2019), https://www.

nytimes.com/2019/06/23/technology/amazondomination-bookstore-books.html........................ 24

Graphic Artists Guild, Remedies for Small

18, 2012), https://www.copyright.gov/docs/small

claims/comments/noi_10112012/GAG_NOI2_

Remedies_for_Small_Copyright_Claims.pdf ...........22

H.R. 1028 Before the H. Comm. on the Judiciary,

98th Cong. 481 (Aug. 3 and Dec. 1, 1983) ...............11

H.R. 2985, 98th Cong., 1st Sess. (1983) .....................10

H.R. 4059, 86th Cong., 1st Sess. (1959) .......................9

H.R. 6716, 84th Cong., 2d Sess. (1955) ........................9

H.R. 8419, 85th Cong., 2d Sess. (1958) ........................9

H.R. Rep. No. 84-2419 (1956) .....................................14

H.R. Rep. No. 116-252 (Oct. 22, 2019), https://

www.congress.gov/116/crpt/hrpt252/CRPT116hrpt252.pdf .................................................. 26, 27

Imke Reimers, Can Private Copyright Protection

Be Effective? Evidence from Book Publishing,

59 J.L. & Econ. 411 (2016) ......................................21

TABLE OF AUTHORITIES—Continued

Page

InPaint, How to Remove Watermark from a

Photo (last visited Dec. 28, 2023), https://the

inpaint.com/tutorials/online/how-to-removewatermark-from-photo............................................24

James R. MacAyeal, The Discovery Rule and the

Continuing Violation Doctrine as Exceptions

to the Statute of Limitations for Civil Environmental Penalty Claims, 15 Va. Envtl. L.J. 589

(1996) .......................................................................28

Katy Guest, “I Can Get Any Novel I Want In

30 Seconds”: Can Book Piracy Be Stopped?,

The Guardian (Mar. 6, 2019), https://www.the

guardian.com/books/2019/mar/06/i-can-getany-novel-i-want-in-30-seconds-can-book-piracybe-stopped ...............................................................23

Patrick Healy, Offering Playwrights a Better

Deal, N.Y. Times (Nov. 4, 2014), https://www.

nytimes.com/2014/11/05/theater/offering-play

wrights-a-better-deal.html .....................................21

Press Release, Digimarc, E-Book Piracy Costs

Publishers $315 Million in Lost Sales (Mar.

14, 2017), https://www.prnewswire.com/newsreleases/e-book-piracy-costs-publishers-315million-in-lost-sales-300423534.html .....................21

Pub. L. 105-304, title I, § 102(e), Oct. 28, 1998,

112 Stat. 2863 .........................................................11

S. Rep. No. 1014, 85th Cong., 1st Sess. (1957) ...........15

TABLE OF AUTHORITIES—Continued

Page

The Authors Guild, In re: The State of Counterfeit and Pirated Goods Trafficking and Recommendations (July 29, 2019), https://web.archive.

org/web/20220614221009/https://www.authors

guild.org/wp-content/uploads/2019/09/AuthorsGuild-Comments.DOC-Counterfeiting-1.pdf .........22

The Authors Guild, Key Takeaways from the

Authors Guild’s 2023 Author Income Survey

(last updated Oct. 25, 2023), https://authors

guild.org/news/key-takeaways-from-2023-authorincome-survey/ ................................................... 18, 19

The Authors Guild, Presentation on U.S. Published Book Author Income Survey (Jan. 2019),

https://web.archive.org/web/20201026131351/

https://authorsguild.org/wp-content/uploads/

2019/01/Authors-Guild-U.S.-Published-AuthorIncome-.pdf ........................................................ 19, 20

The Authors Guild, Six Takeaways from the

Authors Guild 2018 Author Income Survey

(last updated Jan. 9, 2019), https://www.authors

guild.org/industry-advocacy/six-takeaways-fromthe-authors-guild-2018-authors-income-survey/ ... 18, 19

The Graphic Artists Guild Handbook: Pricing &

Ethical Guidelines (11th ed. 2003) .........................20

The Graphic Artists Guild Handbook: Pricing &

Ethical Guidelines (16th ed. 2021) .......................20

xii

TABLE OF AUTHORITIES—Continued

Page

The Songwriters Guild of America and The

Nashville Songwriters Association International, In the Matter of Remedies for Small

docs/smallclaims/comments/51_songwriters_

guild.pdf...................................................................26

Tom Gerken, How Bots Are Stealing Artwork

from Artists on Twitter, BBC (Dec. 17, 2019),

https://www.bbc.com/news/technology-50817561 ........25

U.S. Bureau of Labor Statistics, CPI Inflation

Calculator, https://www.bls.gov/data/inflation_

calculator.htm..........................................................21

U.S. Copyright Office, Copyright Small Claims:

A Report of the Register of Copyrights 1 (Sept.

2013), https://www.copyright.gov/docs/small

claims/usco-smallcopyrightclaims.pdf ........... 23, 25

U.S. House, Comm. on the Judiciary, Copyright

and the Internet in 2020: Reactions to the

17 U.S.C. § 512 After Two Decades (Sept. 30,

2020) (statement of Rick Carnes, President,

The Songwriters Guild of America), https://www.

songwritersguild.com/docs/9-30-20-commentshouse-judic-re-section-512-IP-1.pdf........................21

U.S. House, Comm. on the Judiciary, The Case

for Small Claims in America: Testimony of

David P. Trust (Sept. 27, 2018), https://docs.

house.gov/meetings/JU/JU00/20180927/108733/

HHRG-115-JU00-Wstate-TrustD-20180927.pdf .........20

xiii

TABLE OF AUTHORITIES—Continued

Page

U.S. House, Comm. on the Judiciary, Statement

of Karyn A. Temple, United States Register

of Copyrights (June 26, 2019), https://www.

U.S. Sen., Comm. on the Judiciary, Subcomm.

on Intell. Prop., Section 512 Hearing: Is the

DMCA’s Notice-and-Takedown System Working in the 21st Century? (June 2, 2020) (statement

of Douglas J. Preston, President, The Authors

Guild), https://www.judiciary.senate.gov/imo/

media/doc/Preston%20Testimony.pdf ............. 22, 23

INTERESTS OF AMICI CURIAE1

The Authors Guild, Inc. (the “Guild”) is the nation’s oldest and largest professional organization of

writers. Since 1912, the Guild has served as the collective voice of American authors, and its membership today comprises more than 14,000 writers, including

National Book Award winners, Pulitzer Prize winners,

and Nobel laureates. The Guild defends and promotes

the rights of all authors to write without interference

or threat, and to receive fair compensation for that

work. As an organization whose members earn their

livelihoods through writing, the Guild has a fundamental interest in ensuring that works of authorship

and rights of authors are protected online and in print,

and that the hard work and talents of our nation’s authors are rewarded so they can keep writing, as guaranteed by the Constitution.

The Dramatists Legal Defense Fund (the “DLDF”)

was created by The Dramatists Guild of America to advocate for the interests of its more than 8,000 members, including playwrights, composers, lyricists, and

librettists writing for the stage.

The Graphic Artists Guild (“GAG”) is a 501(c)(6)

nonprofit trade association which has advocated on

behalf of graphic designers, illustrators, animators,

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

part, and no person or entity other than amici and their counsel

made a monetary contribution for the preparation and submission of this brief.

cartoonists, comic artists, web designers, and production artists for fifty years.

Founded in 1980, Romance Writers of America®

(“RWA”) is a nonprofit trade association whose mission

is to advance the professional and common business

interests of career-focused romance writers through

networking and advocacy and by increasing public

awareness of the romance genre.

Founded in 1931, the Songwriters Guild of America, Inc. (the “SGA”) is the oldest and largest advocacy

and administration organization in the nation run

exclusively by and for songwriters, composers, and

other music creators, as well as their heirs, with approximately 4,500 members. SGA advocates for the

principles of consent, credit, fair compensation, transparency, sustainability, and equitable treatment for all

songwriters and composers.

The Textbook & Academic Authors Association

(the “TAA”) is a membership community for authors of

textbooks, scholarly journal articles and books. TAA’s

mission is to provide the support members need to succeed in their writing pursuits through educational resources, events, and networking opportunities. Formed

in 1987, TAA has more than 3,000 published or aspiring author members.

Together, amici represent the nation’s authors,

dramatists, graphic artists, songwriters, scholarly authors, and other artists. Each organization works to defend and promote the rights of artists to make and

receive fair compensation for their works, and each has

a fundamental interest in ensuring that copyright law

develops in a way that best promotes the advancement

of the creative arts.

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

SUMMARY OF THE ARGUMENT

As Respondents have explained, this case is not

about which accrual rule—discovery or injury—applies to claims under the Copyright Act. See Resps.’ Br.

at 21-25. Rather, the Court “limited” its review to the

question “[w]hether, under the discovery accrual rule

applied by the circuit courts and the Copyright Act’s

statute of limitations for civil actions * * *, a copyright

plaintiff can recover damages for acts that allegedly occurred more than three years before the filing of a lawsuit.” Order (Sept. 29, 2023). In other words, where a

plaintiff ’s copyright claim is timely under the discovery accrual rule, does the three-year statute of limitations nevertheless bar the plaintiff from recovering

damages for acts that occurred outside the limitations

period.

In their brief, Petitioners largely ignore the

Court’s limitation on the Question Presented and instead argue that the discovery rule should not apply to

before the Court and has not divided the circuit courts.

See Resps.’ Br. at 23-25. The Court can and should,

therefore, dismiss the writ of certiorari as improvidently granted.

Should the Court address Petitioners’ refashioned

question, it should nevertheless affirm. The discovery

rule governs the accrual of civil copyright claims for

two primary reasons: First, the text and structure of

the Act demonstrate that Congress intended Section

507(b)’s statute of limitations to be subject to the discovery rule, not the injury rule. See infra pages 5-16.

Second, the discovery rule serves the core purpose of

the Copyright Act (and Article I’s Copyright Clause) by

protecting copyright holders, especially America’s artists, authors, songwriters, and composers, from the effects of widespread infringement in the digital era. See

infra pages 16-29.

Consistent with the Copyright Act’s text and

structure and this Court’s decisions in TRW Inc. v.

Andrews, 534 U.S. 19 (2001), and Petrella v. MetroGoldwyn-Mayer, Inc., 572 U.S. 663, 670 n.4 (2014), the

circuit courts unanimously apply the discovery rule to

determine when claims accrue under the Copyright

Act. See infra pages 29-32. Eliminating the discovery

rule here would be a disruptive reversal of decades of

jurisprudence, would upend the expectations of copyright holders and users alike, and would disincentivize

creation of new works. See infra page 33.

Thus, should the Court engage Petitioners’ attempt to go beyond the Question Presented, it should

endorse the unanimous view of the circuit courts and

hold that the Copyright Act’s statute of limitations is

subject to the discovery accrual rule.

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

ARGUMENT

The text and structure of the Copyright

Act require a discovery rule.

The text and structure of the Copyright Act

demonstrate Congress’s intent to adopt a discovery

rule in civil copyright cases.

A. Congress’s choice of different triggers

for Section 507’s civil and criminal limitations periods demonstrates its intent for the discovery rule to apply to

the accrual of civil claims.

Civil actions under Title 17 must be “commenced

within three years after the claim accrued.” 17 U.S.C.

§ 507(b) (emphasis added). By contrast, criminal actions under Title 17 must be “commenced within 5

years after the cause of action arose.” Id. § 507(a) (emphasis added).

The language appearing in Section 507(b) was

first crafted in 1957. In 1949, the Court had construed

the phrase “cause of action accrued” to signal a discovery rule. See Urie v. Thompson, 337 U.S. 163, 169-70

(1949). In 1951, the Court had construed the phrase

“cause of action arises” to signal an injury rule. See

McMahon v. United States, 342 U.S. 25, 26-27 (1951).

When Congress enacted the Copyright Act’s limitations periods in 1957, Congress chose “accrued” for civil

actions and “arose” for criminal actions. Congress is

presumed to have understood and intended a distinction between the two: Where, as here, “the legislature

uses certain language in one part of the statute and

different language in another, the court assumes different meanings were intended.” Sosa v. Alvarez-Machain, 542 U.S. 692, 711 n.9 (2004). “If a statute uses

words or phrases that have already received authoritative construction by the jurisdiction’s court of last resort * * * they are to be understood according to that

construction.” Antonin Scalia & Bryan A. Garner,

Reading Law: The Interpretation of Legal Texts (2012)

at 322. “In adopting the language used in the earlier

act, Congress ‘must be considered to have adopted also

the construction given by this Court to such language,

and made it a part of the enactment.’ ” Shapiro v.

United States, 335 U.S. 1, 16 (1948) (quoting Hecht v.

Malley, 265 U.S. 144, 153 (1924)).

By employing language this Court had recently associated with a discovery rule in the civil statute of

limitations while using language the Court had associated with an injury rule in the criminal statute of

limitations, Congress expressed its intention that the

discovery rule apply to civil copyright claims and the

injury rule apply to criminal copyright claims. See, e.g.,

William A. Graham Co. v. Haughey, 568 F.3d 425, 434

(3d Cir. 2009), cert. denied, 558 U.S. 991 (2009) (“[S]ix

years prior to the amendment to the Copyright Act

that added the civil limitations period now codified at

17 U.S.C. § 507(b), the Supreme Court interpreted language similar to § 507(a)’s criminal limitations period

in the Admiralty Act (‘cause of action arises’) to embody the injury rule.” (quoting McMahon, 342 U.S. at

26-27)).

This difference in word choice was intentional.

With respect to crimes, “[t]he purpose of a statute of

limitations is to limit exposure to criminal prosecution

to a certain fixed period of time following the occurrence of those acts the legislature has decided to punish by criminal sanctions.” Toussie v. United States,

397 U.S. 112, 114 (1970) (emphasis added). As a result,

“arose” in Section 507(a) unmistakably requires courts

to apply an injury rule instead of a discovery rule, 17

U.S.C. § 507(a).2

By contrast, in the civil context, “a statute of limitations creates a time limit for suing in a civil case,

based on the date when the claim accrued,” and a claim

typically accrues “when the injury occurred or was

discovered.” CTS Corp. v. Waldburger, 573 U.S. 1, 7-8

(2014) (internal quotation marks and citation omitted

and emphasis added). Civil statutes of limitation are

distinguishable from criminal statutes of limitation

and, as the Court held in Waldburger, from civil statutes of repose, which are instead measured “from the

date of the last culpable act or omission of the defendant.” 573 U.S. at 8. Thus, the Court in Urie, in holding

that “accrued” signaled the discovery rule, interpreted

that word in accordance with “the congressional purpose” underlying the statute instead of applying a

Notably, Title 18 of the U.S. Code, entitled “Crimes and

Criminal Procedure,” never uses the term “accrues” in connection

with a criminal statute of limitations. It has only ever used the

term in connection with civil statutes of limitations. See 18 U.S.C.

§ 2255(b) (2018); id. § 2335; id. § 2712(b)(2).

“mechanical analysis of the ‘accrual’ of petitioner’s injury.” Urie, 337 U.S. at 169.

This Court must give effect to Congress’s decision

to employ an injury rule to criminal proceedings and a

discovery rule to civil proceedings under Title 17.

B. Other intellectual-property statutes

show that Congress knew how to adopt

the precise injury rule Petitioners recommend here.

In the years immediately before and after the precursor to Section 507 was enacted, Congress adopted

several statutes of limitations applicable to intellectual-property actions that unambiguously employ the

rule Petitioners ask the Court to impose here. That

Congress chose not to do so in Section 507(b) confirms

its intent for a discovery accrual rule to apply.

The statute of limitations in patent actions—effective on January 1, 1953—provides that “no recovery

shall be had for any infringement committed more

than six years prior to the filing of the complaint.” 35

U.S.C. § 286 (emphasis added). The statute of limitations for copyright actions against the government—

enacted in 1960—provides that “no recovery shall be

had for any infringement of a copyright covered by

this subsection committed more than three years

prior to the filing of the complaint.” 28 U.S.C. § 1498(b)

(emphasis added).3 And the statute of limitations for

claims under the Plant Variety Protection Act, enacted

in 1970, provides that “[n]o recovery shall be had for

that part of any infringement committed more than six

years (or known to the owner more than one year) prior

to the filing of the complaint.” 7 U.S.C. § 2566(a) (emphasis added).

Each of these statutes provides that (1) “no recovery shall be had” (2) for “any infringement committed”

(3) “more than” a specified number of years “prior to

the filing of the complaint or counterclaim for infringement in the action.” In other words, they provide for

exactly the type of limitation on civil recovery Petitioners erroneously claim Section 507(b) does. Pet’rs.’ Br. at

44. The fact that this concept is expressly omitted from

the Copyright Act, while employed in these contemporary statutes, is highly probative. Rotkiske v. Klemm,

589 U.S. ___, 140 S.Ct. 355, 361 (2019) (“Atextual judicial supplementation is particularly inappropriate

when, as here, Congress has shown that it knows how

to adopt the omitted language or provision.”).

Identical language for Section 1498(b) was proposed in

1955, 1958, and 1959 before it was finally adopted in 1960. See

H.R. 6716, 84th Cong., 2d Sess. (1955); H.R. 8419, 85th Cong., 2d

Sess. (1958); H.R. 4059, 86th Cong., 1st Sess. (1959).

C. The DMCA and VHDPA demonstrate

that the discovery rule is generally applicable and that Petitioners’ proposed

rule applies only to certain claims under Title 17.

The express injury rule included in the Digital

Millennium Copyright Act of 1998 (“DMCA”) further

shows that Congress understood other civil claims

brought pursuant to Title 17 to be governed by the discovery rule.

The DMCA amendment included the Vessel Hull

Design Protection Act (“VHDPA”) at Chapter 13 of

Title 17. Among the VHDPA’s additions to Title 17 was

a statute of limitations provision specifying that, as to

vessel hull designs, “[n]o recovery * * * shall be had for

any infringement committed more than 3 years before

the date on which the complaint is filed.” 17 U.S.C.

§ 1323(c) (emphasis added).4 This is the exact sort of

Congress could have allowed Section 507(b)’s default rule

to apply to the VHDPA. But Congress instead expressly adopted

an injury rule at Section 1323(c). This would have been unnecessary if Congress had understood Section 507(b) to incorporate an

injury rule.

The VHDPA is just one of many examples showing that Congress knows how to expressly deploy the sort of injury rule Petitioners implausibly assert was silently included in Section 507(b).

For instance, when adopting the Semiconductor Chip Protection

Act at Chapter 9 of Title 17 in 1984, Congress rejected nearly

identical injury-rule language in favor of standard language regarding accrual. Compare 17 U.S.C. § 911(d) (“An action for infringement under this chapter shall be barred unless the action

is commenced within three years after the claim accrues.”) with

H.R. 2985, 98th Cong., 1st Sess., § 1 (1983) (proposed 17 U.S.C.

§ 922(c)) (“No recovery * * * shall be had for any infringement

injury rule Petitioners claim is already part of Title 17.

But if that were the case, then this language would be

superfluous. See, e.g., Hibbs v. Winn, 542 U.S. 88, 101

(2004) (“A statute should be construed so that effect is

given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant.”); Yates v.

United States, 574 U.S. 528, 543 (2015) (“[T]he canon

against surplusage is strongest when an interpretation would render superfluous another part of the

same statutory scheme.”).

Moreover, at the same time Congress adopted the

injury rule under the VHDPA, Congress also amended

Section 507(a), relating to the statute of limitations for

criminal actions under the Copyright Act. See Pub. L.

105-304, title I, § 102(e), Oct. 28, 1998, 112 Stat. 2863.

Congress’s decision to leave Section 507(b) unchanged

shows that Congress felt no need to revisit the discovery rule generally applicable to civil claims. See Gross

v. FBL Financial Servs., Inc., 557 U.S. 167, 174 (2009)

(“When Congress amends one statutory provision but

not another, it is presumed to have acted intentionally.”).

committed more than three years prior to the filing of the complaint.”), quoted in Hearings on H.R. 1028 Before the H. Comm.

on the Judiciary, 98th Cong. 481 (Aug. 3 and Dec. 1, 1983) (Serial

No. 34). Expressly adopting this accrual language was necessary

because Congress made clear elsewhere that Section 507(b), and

its accrual standard, does not apply to Chapter 9 of Title 17. See

17 U.S.C. § 912(b).

D. Petitioners’ arguments against a discovery rule lack merit.

Petitioners offer a variety of assertions purportedly to support their contention that the phrase “claim

accrues” requires the Court to reject the discovery rule

here. These assertions lack merit.

First, Petitioners suggest that cases, treatises, and

statutes prior to the adoption of the Copyright Act’s

civil statute of limitations demonstrate that, at that

time, “accrued” referred solely to the time of injury. See

Pet’rs.’ Br. at 17 et seq. As an initial matter, the right

place to look to understand what “accrues” means in

the context of a copyright claim is the text and structure of Title 17, where the Copyright Act is found. The

word “accrued” standing alone lacks “any definite technical meaning” and must be “interpreted in the light of

the general purposes of the statute and of its other provisions, and with due regard to those practical ends

which are to be served by any limitation of the time

within which an action must be brought.” Reading Co.

v. Koons, 271 U.S. 58, 61-62 (1926); see also Crown Coat

Front Co. v. United States, 386 U.S. 503, 517 (1967)

(“The Court has pointed out * * * the hazards inherent

in attempting to define for all purposes when a ‘cause

of action’ first ‘accrues.’ ”); TRW, 534 U.S. at 28 (examining whether text and structure of statute expressed

“Congress’s intent to preclude judicial implication of a

discovery rule”).5 Petitioners’ reliance on interpretations of other statutes ignores this principle.

Moreover, contrary to Petitioners’ assertion, a discovery rule aligns with how the concept of “accrual”

was understood at the time. In the years around when

the civil statute of limitations was added to the Copyright Act, courts understood that accrual could refer to

the discovery rule in the face of legislative silence.

Courts rejected as “wholly untenable” assertions that

construing accrual to incorporate a discovery rule

meant “invading the province of the legislature.” Morgan v. Grace Hosp., Inc., 149 W.Va. 783, 790 (1965). Where

the legislature has not defined “the time of accrual,”

“[a] determination that the time of accrual is the time

of discovery is no more judicial legislation than a determination that it is the time of the commission of

the act.” Berry v. Braner, 245 Or. 307, 313 (1966).6

Petitioners’ reference to Judge Murphy’s concurrence in

Everly v. Everly, 958 F.3d 442, 462 (6th Cir. 2020), Pet’rs.’ Br. at

30, for the proposition that “accrues” had a fixed meaning at the

time Section 507(b)’s precursor was enacted misses the mark for

the same reason.

Petitioners cite cases purportedly to show that “accrues,”

standing alone, excludes the possibility of a discovery rule. See

Pet’rs.’ Br. at 17-20. These cases are inapplicable. None of Rawlings v. Ray, 312 U.S. 96 (1941), Franconia Associates v. United

States, 536 U.S. 129 (2002), or Gabelli v. Sec. & Exch. Comm’n,

568 U.S. 442 (2013) even involved any dispute between private

parties regarding the discovery rule. Other cases involved the

word “accrued” in entirely different contexts. In Zenith Radio

Corp. v. Hazeltine Research, Inc., the Court tied “accrued” under

15 U.S.C. § 15b to the date of injury, consistent with the negativeimplication canon, because 15 U.S.C. § 16(b) expressly tolls the

Second, Petitioners argue that the legislative history of Section 507(b) reflects Congress’s decision to reject a discovery rule. See Pet’rs.’ Br. at 21-23. This is

incorrect, for the reasons explained by the Third Circuit in Graham: “Congress rejected inclusion of any

statutory exceptions to the statute of limitations period,” not because it intended to eliminate equitable

considerations, but “because ‘the Federal district courts,

generally, would recognize these equitable defenses

anyway.’ ” 568 F.3d at 436 (quoting H.R. Rep. No. 842419, at 2 (1956)). Petitioners also point to an exchange

between Representative Shepard J. Crumpacker and a

lobbyist to argue that the lobbyist’s comment reflects

Congress’s intent to adopt the injury rule. See Pet’rs.’

Br. at 22. But “[t]hat single statement by a witness at

statute of limitations. 401 U.S. 321, 335-38 (1971). See TRW,

534 U.S. at 28-29 (discussing the negative-implication canon).

Bay Area Laundry & Dry Cleaning Pension Tr. Fund v. Ferbar

Corp. of California is similarly inapplicable. 522 U.S. 192 (1997).

There, the Court rejected an “extraordinary reading of 29 U.S.C.

§ 1451(f ) that would trigger the statute of limitations before a

cause of action accrues.” Id. at 205. The Court did not discuss the

discovery rule because 29 U.S.C. § 1451(f ) already has a built-in

discovery rule.

Nor is the Third Circuit’s second decision in William A. Graham Co. v. Haughey helpful to Petitioners. 646 F.3d 138 (3d Cir.

2011). After the original decision, the defendants claimed that

prejudgment interest was available only from the date on which

the claim accrued under Section 507(b), i.e., the date of discovery,

not the date of injury. At pains to reject these arguments, the

panel relied on Delaware and Pennsylvania state law to conclude

that prejudgment interest was available as of the date of infringement but that, nevertheless, the discovery rule tolled the running

of the limitations period. See also Brownstein v. Lindsay, 742 F.3d

55, 70 (3d Cir. 2014).

a congressional hearing, which no congressperson commented on or agreed with, signifies nothing and is

hardly a basis to conclude that Congress intended to

apply the injury rule.” Graham, 568 F.3d at 436. Finally, Petitioners state that “[t]he public nature of

publication ordinarily provides injured parties with

‘reasonably prompt notice’ of their rights.” Pet’rs.’ Br.

at 22 (quoting S. Rep. No. 1014, 85th Cong., 1st Sess. 2

(1957)). But this concern with notice reflects “an inquiry consistent with the discovery rule.” Graham, 568

F.3d at 435.

Third, Petitioners contend that the fact that some

statutes expressly provide for a discovery rule while

others lack a statutory discovery rule indicates that

Congress intended to foreclose application of the discovery rule in statutes that lack an explicit discovery

rule. See Pet’rs.’ Br. at 20-21. But “[t]he simple fact that

Congress, in drafting the statute, did not include express language of discovery is not equivalent to an explicit command that the discovery rule does not apply.”

Stephens v. Clash, 796 F.3d 281, 285 (3d Cir. 2015).7 In

Petitioners argue that a handful of statutes in effect when

Congress enacted the precursor to Section 507(b) show that a discovery rule could have been incorporated explicitly. See Pet’rs.’

Br. at 20-21. But none of these statutes reflected even a remotely analogous “discovery rule” at the time. Under Sections

77m, 77www, 78r, and 78i of Title 15 as then in effect, a plaintiff

had to file suit within three years of a violation and one year of

discovery of the facts constituting the violation, such that these

statutes included no concept of lengthening the time to bring an

action, like the discovery rule does. See Cal. Pub. Employees’ Ret.

Sys. v. ANZ Sec., Inc., 582 U.S. 497, 516 (2017) (CalPERS) (describing 15 U.S.C. § 77m as a statute of repose). 19 U.S.C. § 1621

any event, Section 507 is clear. Congress used the word

“arose” for criminal actions, a term that definitively referred to an injury rule, but used the word “accrued”

for civil claims, a term that the Court had previously

interpreted as referring to the discovery rule. Under

these circumstances, this Court—like every circuit

court to have considered this language—must respect

the distinction Congress drew.

II.

The discovery rule is sound policy.

The conclusion that civil claims under the Copyright Act are governed by a discovery rule is consistent

with this Court’s mandate in TRW that a discovery

rule applies to statutes that “govern an area of the law

that cries out for application of a discovery rule.” 534

U.S. at 28. No statute cries out louder for a discovery

rule than the Copyright Act.

The discovery rule advances the constitutional

and statutory framework that seeks to ensure artists

have an incentive to produce creative works for the

public good. The discovery rule is especially important

in the digital age. Pay for artists has decreased dramatically in recent years. At the same time, wrongdoers can more easily infringe works and do so at scale

with high-quality copies, making it harder for artists

allows the government to impose civil penalties. Because such

statutes are strictly construed against the government, Congress

was required to incorporate a discovery rule expressly. Congress

did so in 1935. See Aug. 5, 1935, ch. 438, title III, § 306, 49 Stat.

527.

to police infringement. Once an artist does find an infringement, he or she faces great difficulties in obtaining legal relief. Under Petitioners’ proposed rule, these

difficulties would become insurmountable, to all of our

detriment.

A. The discovery rule furthers our nation’s fundamental interest in artistic

development.

The discovery rule promotes the constitutional imperative of promoting artistic development that lies at

the heart of our modern copyright regime. See U.S.

Const. art. I, § 8, cl. 8 (“Congress shall have Power * * *

[t]o promote the Progress of Science and useful Arts,

by securing for limited Times to Authors and Inventors

the exclusive Right to their respective Writings and

Discoveries * * * .”). By protecting artists’ rights in

their works and encouraging private enforcement of

infringements that harm artists, the laws ensure

that society can benefit from access to valuable cultural works that otherwise may not be produced or

shared with the public. See Eldred v. Aschroft, 537 U.S.

186, 212 n.18 (2003) (“[C]opyright law celebrates the

profit motive, recognizing that the incentive to profit

from the exploitation of copyrights will redound to

the public benefit by resulting in the proliferation of

knowledge.” (citation omitted)); Sony Corp. of Am. v.

Universal City Studios, Inc., 464 U.S. 417, 432 (1984)

(“The immediate effect of our copyright law is to secure

a fair return for an author’s creative labor. But the ultimate aim is, by this incentive, to stimulate artistic

creativity for the general public good.” (internal quotation marks omitted)).

The Court has recognized this framework on several occasions. In Kirtsaeng v. John Wiley & Sons, Inc.,

the Court identified the need to “encourage the types

of lawsuits that promote” the purposes of “encouraging

and rewarding authors’ creations while also enabling

others to build on that work.” 579 U.S. 197, 204 (2016).

The Court recognized that copyright law ought to give

a litigant who “is clearly correct * * * an incentive to

litigate the case all the way to the end.” Id. at 205. By

preserving the ability for artists to sue for infringements they could not reasonably have discovered

sooner, the discovery rule helps make this possible.

This is more important now than ever.

B. American artists are in crisis while

they struggle to police infringers.

Artists face unprecedented and worsening financial pressures. In a 2018 Guild survey of more than

5,000 respondents, published authors reported a 42percent decline in median earnings from writingrelated projects over the past decade. See The Authors

Guild, Six Takeaways from the Authors Guild 2018

Author Income Survey (last updated Jan. 9, 2019) [hereinafter Income Survey], https://www.authorsguild.org/

industry-advocacy/six-takeaways-from-the-authorsguild-2018-authors-income-survey/.8 Nearly half of

In 2023, the Authors Guild conducted a subsequent author

income survey. See The Authors Guild, Key Takeaways from the

authors reported their book-related income is falling.

See The Authors Guild, Presentation on U.S. Published

Book Author Income Survey 9 (Jan. 2019) [hereinafter

Income Survey Presentation], https://web.archive.org/

web/20201026131351/https://authorsguild.org/wp-content/

uploads/2019/01/Authors-Guild-U.S.-Published-AuthorIncome-.pdf. The median annual income of full-time

authors is just $20,300. See id. at 10; Income Survey.

Authors are earning less and less money from

writing. Only a fifth of authors earn all their income

from writing books, as book royalties for full-time authors are down to a median of just $12,400 a year.

See Income Survey Presentation 7. Authors are also

writing less than before, turning instead to speaking

engagements, teaching, editing, and other activities

to make a living. See Income Survey; Income Survey

Presentation 18. Authors have expressed concerns

about the viability of their profession:

•

“I love writing books but the return on effort is limited * * * . I find myself having

to decide if it is even possible to continue

* * * .”

•

“Right now, being an author feels like an

expensive hobby.”

Authors Guild’s 2023 Author Income Survey (last updated Oct.

25, 2023), https://authorsguild.org/news/key-takeaways-from-2023author-income-survey/. Although the full report has not yet been

published, statistics from the 2023 survey reflect the continuation

of negative trends identified in the 2018 survey, along with growing concerns about generative artificial intelligence being trained

on authors’ work without permission.

•

“If my husband wasn’t keeping me and

my family financially, I would not be able

to write. So even though I am published

by a Big Five publisher and have a New

York agent, I have earned so little, my

writing is realistically just a hobby.”

Income Survey Presentation 32.

These challenges extend to other creative fields.

Photographers, for example, “work extraordinarily long

hours and earn * * * on average just $34,000 a year.”

U.S. House, Comm. on the Judiciary, The Case for Small

Claims in America: Testimony of David P. Trust (Sept.

27, 2018), https://docs.house.gov/meetings/JU/JU00/

20180927/108733/HHRG-115-JU00-Wstate-TrustD20180927.pdf. They “tend to be small business owners;

most are sole proprietors earning $50,000 dollars or

less each year.” David Nimmer, Proposal For Small

www.copyright.gov/docs/smallclaims/comments/05_

american_photographic_artists.pdf. Graphic artists also

face unprecedented pressures. By 2021, according to

data collected by the Graphic Artists Guild, typical income for illustrators—ranging from $45,500 to $64,250—

had had declined considerably since 2003 when accounting for inflation. See The Graphic Artists Guild

Handbook: Pricing & Ethical Guidelines 196 (16th

ed. 2021).9 Songwriters and dramatists work under

The 2003 version of the handbook shows income for illustrators ranging from $30,750 to $57,250. See The Graphic Artists

Guild Handbook: Pricing & Ethical Guidelines 115 (11th ed.

2003). Had illustrator salaries kept pace with inflation, the 2021

similar financial strain. See U.S. House, Comm. on the

Judiciary, Copyright and the Internet in 2020: Reactions to the Copyright Office’s Report on the Efficacy of

17 U.S.C. § 512 After Two Decades (Sept. 30, 2020)

(statement of Rick Carnes, President, The Songwriters

Guild of America), https://www.songwritersguild.com/docs/

9-30-20-comments-house-judic-re-section-512-IP-1.pdf

(explaining that “the US and global music creator

community has been decimated over the past two decades even as music content was utilized as a primary

driver * * * in amassing enormous wealth for the

multi-national Big Tech industry”); Patrick Healy,

Offering Playwrights a Better Deal, N.Y. Times (Nov. 4,

2014), https://www.nytimes.com/2014/11/05/theater/

offering-playwrights-a-better-deal.html (reporting on

a 2009 survey that found “on average, playwrights

earned $25,000 to $39,000 annually from their work,

with about 62% making less than $40,000”).

At the same time, the digital boom has taken a

heavy toll on artists. Consumption of pirated digital

works siphons off approximately 14% of eBook sales,

costing publishers more than $300 million per year.

See Imke Reimers, Can Private Copyright Protection

Be Effective? Evidence from Book Publishing, 59 J.L. &

Econ. 411, 414 (2016) (concluding that, if an eBook is

not actively protected against piracy, it will lose approximately 14% in sales); Press Release, Digimarc,

E-Book Piracy Costs Publishers $315 Million in Lost

salary range would be approximately $46,000 to $85,000. See U.S.

Bureau of Labor Statistics, CPI Inflation Calculator, https://www.

bls.gov/data/inflation_calculator.htm.

Sales (Mar. 14, 2017), https://www.prnewswire.com/

news-releases/e-book-piracy-costs-publishers-315-millionin-lost-sales-300423534.html. As the Guild informed

Congress, “the number of piracy complaints handled

by the Authors Guild has skyrocketed.” U.S. Sen.,

Comm. on the Judiciary, Subcomm. on Intell. Prop.,

Section 512 Hearing: Is the DMCA’s Notice-andTakedown System Working in the 21st Century? 4 (June

2, 2020) (statement of Douglas J. Preston, President, The

Authors Guild), https://www.judiciary.senate.gov/imo/

media/doc/Preston%20Testimony.pdf. From just 2018

to 2019, “the number of piracy and counterfeiting issues reported to the Authors Guild’s legal department

has increased at least tenfold.” The Authors Guild,

In re: The State of Counterfeit and Pirated Goods

Trafficking and Recommendations (July 29, 2019),

https://web.archive.org/web/20220614221009/https://www.

authorsguild.org/wp-content/uploads/2019/09/AuthorsGuild-Comments.DOC-Counterfeiting-1.pdf.

The problem is not unique to written works. According to a survey of visual artists submitted to Congress, more than 60% of respondents had found an

infringement of their work, and more than 70% of them

reported that the infringement appeared online. See

Graphic Artists Guild, Remedies for Small Copyright

Claims: Additional Comments (Oct. 18, 2012), https://

www.copyright.gov/docs/smallclaims/comments/noi_

10112012/GAG_NOI2_Remedies_for_Small_Copyright_

Claims.pdf.

Policing these infringements is more difficult now

than ever before. Infringements are distributed online

at massive scale at virtually no cost by a sea of largely

anonymous infringers around the world. See U.S.

the Register of Copyrights 1 (Sept. 2013), https://www.

claims.pdf. Artists often compare policing infringement to a game of whack-a-mole. See, e.g., U.S. Sen.,

Comm. on the Judiciary, Subcomm. on Intell. Prop.,

supra, at 6. An artist might successfully have an infringing copy taken down, only to see it uploaded again

the next day. See id. Or a court may order a website

hosting infringing works to take down content, only to

have the site change its domain. See, e.g., Katy Guest,

“I Can Get Any Novel I Want In 30 Seconds”: Can Book

Piracy Be Stopped?, The Guardian (Mar. 6, 2019),

https://www.theguardian.com/books/2019/mar/06/i-canget-any-novel-i-want-in-30-seconds-can-book-piracybe-stopped. Even when an infringer is barred from a

platform, the same infringer may show up on the same

platform a few days later under another pseudonym.

See, e.g., Alison Flood, Plagiarism, “Book-Stuffing,”

Clickfarms * * * The Rotten Side of Self-Publishing,

The Guardian (Mar. 28, 2019), https://www.theguardian.

com/books/2019/mar/28/plagiarism-book-stuffing-click

farms-the-rotten-side-of-self-publishing.

“The burden of policing infringements stretches

the resources of artists and business owners and their

representatives.” U.S. House, Comm. on the Judiciary,

supra. But unfortunately, no matter a party’s resources

and diligence, infringement in the digital realm is

usually discovered “through chance discovery.” See The

Authors Guild, supra, at 11, 12.

Infringements are also becoming harder to identify. In the past, infringement was characterized by

easily detectable quality discrepancies. See David

Streitfeld, What Happens After Amazon’s Domination

Is Complete? Its Bookstore Offers Clues, N.Y. Times

(June 23, 2019), https://www.nytimes.com/2019/06/23/

technology/amazon-domination-bookstore-books.html

(documenting printing quality as one hallmark of infringement). But these indicia of infringement are

harder to detect or disappearing altogether as printon-demand (“POD”) technology improves. See id. (“a

keen-eyed customer” spotted a counterfeit only by noticing that it was larger than the original). Exacerbating this trend, POD publishers “are not incentivized to

alert authors or publishers that someone is counterfeiting their books, since counterfeiters boost POD

revenues.” The Authors Guild, supra, at 6 n.16. See

Streitfeld, supra (reporting how one POD publisher

“acknowledged that he had not told * * * the copyright

owner[ ] that its rights were violated”). Thus, even obvious infringements can go unreported.

Similarly, graphic artists’ digital works can now be

pirated with disturbing ease. Businesses offer software

designed to remove digital watermarks, allowing users to easily misappropriate and commercialize copyrighted images. See, e.g., InPaint, How to Remove

Watermark from a Photo (last visited Dec. 28, 2023),

https://theinpaint.com/tutorials/online/how-to-removewatermark-from-photo. Even major U.S. retailers have

been accused of unwittingly selling clothing with pirated images. See, e.g., Compl., Clinch v. Planet Productions, LLC, 1:17-cv-4099 (S.D.N.Y. Jun. 1, 2017)

(allegations concerning Urban Outfitters and Forever

21). Worse, infringement has become startlingly automated, with “bots” now monitoring social media for

comments such as “I’d love to have this on a shirt.” Tom

Gerken, How Bots Are Stealing Artwork from Artists

on Twitter, BBC (Dec. 17, 2019), https://www.bbc.com/

news/technology-50817561. When an image receives a

threshold number of comments, bots issue orders to

third-party vendors to print and sell shirts with the

image. Id. As with written works, the volume and quality of these infringements mean that discovery often

occurs by chance. See id.

Even when artists find an infringement promptly,

they face barriers to enforcement. For example, “a copyright owner seeking to pursue an infringement claim

must first identify and locate the allege infringer,” but

“[i]n the internet age—where wrongdoers can act

anonymously—this can be difficult.” U.S. Copyright

Office, supra at 18. In addition, legal mechanisms intended to help copyright holders find infringers are

often ineffective. See Recording Indus. Ass’n of America, Inc. v. Verizon Internet Servs., Inc., 351 F.3d 1229,

1233 (D.C. Cir. 2003) (holding that a subpoena under

17 U.S.C. § 512(h) generally may not be used to compel

internet service providers to provide information about

subscribers who are infringing on others’ works).

Even once an artist knows all the facts and finds

the right person to sue, the complexity and cost of

federal civil litigation make enforcement unrealistic in

most cases. As the Register of Copyrights explained to

Congress a few years ago, “[i]n 2017, the median cost

to litigate a copyright infringement suit with less

than $1 million at stake was estimated at $200,000.”

U.S. House, Comm. on the Judiciary, Statement of

Karyn A. Temple, United States Register of Copyrights (June 26, 2019), https://www.copyright.gov/laws/

hearings/testimony-of-karyn-temple-for-june-26-over

sight-hearing.pdf. Combined with attorneys’ reluctance

to take on cases with less than $30,000 at stake, “lowdollar but still valuable copyrighted works often may

be infringed with impunity, with individual creators

and small businesses often lacking an effective remedy.” Id.

In the aggregate, these infringements “have an effect on the livelihoods of individual creators akin to the

infamous torture ‘death by a thousand cuts.’ ” The

Songwriters Guild of America and The Nashville Songwriters Association International, In the Matter of Remedies for Small Copyright Claims, https://www.copyright.

gov/docs/smallclaims/comments/51_songwriters_guild.

pdf.10

The Copyright Alternative in Small-Claims Enforcement

(“CASE”) Act mitigates some of these issues, reducing procedural

burdens for low-value cases by creating a “small claims” forum for

Rep. No. 116-252 at 20 (Oct. 22, 2019), https://www.congress.

gov/116/crpt/hrpt252/CRPT-116hrpt252.pdf. Nevertheless, pursuing claims under the CASE Act comes with important tradeoffs.

“Total damages are limited to $30,000 or less,” and adjudicators

are “flatly prohibited * * * from enhancing statutory damages for

Without a discovery rule, artists would stand no

chance.

C. Petitioners’ and their Amici’s policy

arguments to the contrary are unpersuasive.

Petitioners and their Amici contend that a discovery rule creates purportedly harmful incentives for

their works from infringement. See, e.g., Chamber of

Commerce Br. at 21-22. They also maintain that a discovery rule promotes widespread abuse of the legal

system by unscrupulous actors, see, e.g., EFF Br. at 413, and that the discovery rule is unfair because the

passage of time imposes a greater burden on defendants than on plaintiffs, see id. at 15-18; RIAA Br. at 1316. These assertions are unfounded.

Petitioners and their Amici disregard that the discovery rule already is equipped to address individuals

who do try to abuse it. “The discovery rule incorporates

an objective standard.” Sanchez v. United States, 740

F.3d 47, 52 (1st Cir. 2014). Under the rule, “a cause of

action accrues ‘when the plaintiff discovers, or with

due diligence should have discovered, the injury that

willful infringement, which plaintiffs often seek in federal court.”

Id. at 25. In some instances, a CASE Act plaintiff may have a

higher burden than in federal court, especially with respect to

defaulting defendants. See id. at 24-25. And, under 17 U.S.C.

§ 1506(i), a respondent can choose to opt out of the small-claims

process entirely. Thus, the federal courts continue to play a crucial role in protecting artists’ rights.

forms the basis for the claim.’ ” Graham, 568 F.3d at

433 (quoting Disabled in Action of Pennsylvania v. Se.

Penn. Transp. Auth., 539 F.3d 199, 209 (3d Cir. 2008))

(emphasis added). It also requires that a plaintiff be

“diligent in discovering the critical facts of the case.”

Klein v. City of Beverly Hills, 865 F.3d 1276, 1278 (9th

Cir. 2017). Courts routinely apply this standard to prevent the kind of indefinite liability Petitioners and

their Amici conjure. See, e.g., Goldberg v. Cameron, 482

F.Supp.2d 1136, 1142-43, 1148 (N.D. Cal. 2007) (rejecting plaintiff ’s argument that “he was unaware of the

release of the Terminator movies and their potential

connection to his works because of his twenty-year

spiritual journey” during which he “shunned[ ] all

forms of electronic media”).

Notably, neither Petitioners nor their Amici cite

decisions reflecting rampant abuse of the discovery

rule by copyright trolls. In addition, the notion that

rightsholders would systematically sit on their claims,

as Petitioners’ Amici say happens, defies common

sense. See Chamber of Commerce Br. at 21-22. After

all, “a copyright plaintiff bears the burden of proving

infringement,” Petrella, 572 U.S. at 683, and thus “[a]ny

hindrance caused by the unavailability of evidence

* * * is at least as likely to affect plaintiffs as it is to

disadvantage defendants,” id. at 683-84; accord James

R. MacAyeal, The Discovery Rule and the Continuing

Violation Doctrine as Exceptions to the Statute of Limitations for Civil Environmental Penalty Claims, 15 Va.

Envtl. L.J. 589, 600 (1996) (“[P]laintiffs have an incentive to act promptly, since they generally bear the

burden of proof and, therefore, will be more likely to

suffer prejudice from the lack of evidence associated

with a stale claim than a defendant.”).

Finally, Petitioners and their Amici assert that an

injury rule is necessary as a safeguard against meritless claims. But our legal system already has a series

of procedural and substantive safeguards in place to

address claims that lack merit (including, for copyright

claims, the possibility of attorneys’ fees). And Petitioners’ injury rule would in any event not effectively

weed out only (or even primarily) those claims lacking

merit. Rather, it would bar all claims, no matter how

meritorious, that do not fall within the injury rule’s

narrow ambit. It would therefore make little sense to

use a statute of limitations—perhaps the most remarkable feature of which is that it bars even meritorious

claims—to filter claims based on merit.

III. The circuit courts’ unanimous application

of the discovery rule is consistent with this

Court’s prior decisions.

Petitioners sought certiorari ostensibly to resolve

“a conflict between the Second and Ninth Circuits on

the question whether a plaintiff may recover for acts

that occurred more than three years before the commencement of a copyright-infringement action.” Pet’rs.’

Pet. at 10. But with respect to the issue Petitioners

now focus on instead—the discovery accrual rule under Section 507(b)—there is no conflict. Every circuit

court to address the issue has reached the same

conclusion—for purposes of Section 507(b), claims accrue in accordance with a discovery rule. See Psihoyos

v. John Wiley & Sons, Inc., 748 F.3d 120, 124 (2d Cir.

2014) (“We agree with our sister Circuits that the text

and structure of the Copyright Act * * * evince Congress’s intent to employ the discovery rule, not the injury rule. Policy considerations also counsel in favor of

the discovery rule in this context.”).11

As these courts have recognized—and despite Petitioners’ arguments to the contrary, see Pet’rs.’ Br.

at 6, 29—applying a discovery rule to civil copyright

claims accords with this Court’s decisions. In Petrella,

for example, the Court did not abrogate the preexisting

consensus that the discovery rule applies to claims under Section 507(b).12 Even the Second Circuit’s decision

See also, e.g., Santa-Rosa v. Combo Records, 471 F.3d 224,

227 (1st Cir. 2006); Stone v. Williams, 970 F.2d 1043, 1048 (2d

Cir. 1992); Graham, 568 F.3d at 437 (3d Cir.); Hotaling v. Church

of Jesus Christ of Latter-Day Saints, 118 F.3d 199, 202 (4th Cir.

1997); Graper v. Mid-Continent Cas. Co., 756 F.3d 388, 393 (5th

Cir. 2014); Bridgeport Music, Inc. v. Rhyme Syndicate Music, 376

F.3d 615, 621 (6th Cir. 2004); Taylor v. Meirick, 712 F.2d 1112,

1117 (7th Cir. 1983); Comcast of Illinois X v. Multi-Vision Elecs.,

Inc., 491 F.3d 938, 944 (8th Cir. 2007); Roley v. New World Pictures, Ltd., 19 F.3d 479, 481 (9th Cir. 1994); Diversey v. Schmidly,

738 F.3d 1196, 1201 (10th Cir. 2013); Webster v. Dean Guitars,

955 F.3d 1270, 1276 (11th Cir. 2020). The D.C. Circuit and the

Federal Circuit have not addressed this question.

The Ninth Circuit has identified “nearly thirty cases that

have explicitly or implicitly rejected the notion that Petrella, a

non-discovery rule case, created a damages bar in cases where the

discovery rule applies.” Starz Ent., LLC v. MGM Domestic Television Distribution, LLC, 39 F.4th 1236, 1244 n.4 (9th Cir. 2022)

(citing, inter alia, D’Pergo Custom Guitars, Inc. v. Sweetwater

Sound, Inc., 516 F.Supp.3d 121, 135 (D.N.H. 2021); Design

in Sohm v. Scholastic, Inc.—on which Petitioners relied

when seeking certiorari but now all but ignore—held

that “the discovery rule applies for statute of limitations purposes in determining when a copyright infringement claim accrues under the Copyright Act”

and expressly “decline[d] to alter th[at] Circuit’s precedent mandating use of the discovery rule” after Petrella. 959 F.3d 39, 50 (2d Cir. 2020).

Similarly, contrary to Petitioners’ argument, see

Pet’rs.’ Br. at 37, this Court’s decision in TRW counsels

the precise approach that is decisive here: deferring to

Congress when Congress specifies a discovery rule

based on “implication from the structure and text of

the statute.” TRW, 534 U.S. at 27-28; Graham, 568 F.3d

at 434 (holding that TRW requires courts to defer to

Congress when Congress has specified an accrual

date by “explicit command” or “by implication from the

structure and text of the statute” and otherwise permitting use of the discovery rule); Thornton v. J Jargon

Co., 580 F.Supp.2d 1261, 1286 & n.13 (M.D. Fla. 2008)

Basics, LLC v. Forrester Wehrle Homes, Inc., 305 F.Supp.3d 788,

792-94 (N.D. Ohio 2018); Mitchell v. Capitol Records, LLC, 287

F.Supp.3d 673, 677-78 (W.D. Ky. 2017); Krist v. Scholastic, Inc.,

253 F.Supp.3d 804, 811-12, 812 n.44 (E.D. Pa. 2017); Wolf v.

Travolta, 167 F.Supp.3d 1077, 1092-93 (C.D. Cal. 2016); Raucci v.

Candy & Toy Factory, 145 F.Supp.3d 440, 448 (E.D. Pa. 2015);

Design Basics LLC v. J & V Roberts Invs., Inc., 130 F.Supp.3d

1266, 1281-82 (E.D. Wis. 2015); Design Basics LLC v. Campbellsport Bldg. Supply Inc., 99 F.Supp.3d 899, 919 (E.D. Wis. 2015);

Frerck v. Pearson Educ., Inc., 63 F.Supp.3d 882, 887 n.3 (N.D. Ill.

2014); Beasley v. John Wiley & Sons, Inc., 56 F.Supp.3d 937, 945

n.5 (N.D. Ill. 2014); Grant Heilman Photography, Inc. v. McGrawHill Cos., Inc., 28 F.Supp.3d 399, 410-11 (E.D. Pa. 2014)).

(addressing TRW’s use of the negative-implication and

surplusage canons and holding that “[i]n contrast to

the statute of limitations at issue in TRW, the statute

of limitations in Section 507(b) does not contain an exception or other indication that the general discovery

rule would not be applicable”). As other circuit courts

have concluded, the text, structure, and purpose of the

cases.13

Also without merit is Petitioners’ alternative argument that even if there is a discovery rule, it should

be strictly limited to cases of “fraud, latent disease, or

medical malpractice.” Pet’rs.’ Br. at 32. Although it is

true that this Court has expressly endorsed the discovery rule in these contexts, this Court’s authority does

not require artificially limiting the discovery rule to

these categories. The three specific categories are illustrative of situations where the discovery rule needs to

step in to prevent injustice against blameless plaintiffs

with otherwise meritorious claims. See Rotella v. Wood,

528 U.S. 549, 555 (2000) (endorsing discovery rule in

field “where the cry for a discovery rule is loudest”).

That principle counsels in favor of a discovery rule for

civil claims brought pursuant to the Copyright Act, as

discussed above.

Petitioners’ reliance on Rotkiske is also misplaced. In Rotkiske, the Court addressed the Fair Debt Collection Practice Act’s

statute of limitations, which, unlike Section 507(b), is unambiguously triggered when “the violation occurs,” not when the injury

is discovered. 140 S.Ct. at 360 (quoting 15 U.S.C. § 1692(d)).

IV. Petitioners’ proposal would erase a substantial body of settled law and upend the

expectations of copyright holders and users alike.

Because the circuit courts have unanimously

adopted the discovery rule, eliminating the rule would

require reversing decades of established law and practice nationwide. Such a dramatic change would affect

both the courts, which would face a period of disruption

and uncertainty as they work to apply any new rule,

and also those whose livelihoods depend on making

and using copyrighted works. Under the consensus

reached by the circuit courts, creators and users of

copyrighted works alike have enjoyed clarity regarding the standard by which the accrual of civil copyright

claims is judged. Disregarding this consensus would

upend the expectations of those who make and use

copyrighted works and would generate uncertainty

regarding the enforceability—and, ultimately, the

value—of copyrighted works as a whole. This uncertainty will be a further disincentive to the creation

of new works.

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

CONCLUSION

For these reasons, amici respectfully request the

Court affirm the circuit court’s decision.

Respectfully submitted,

NATHAN E. DENNING

WIGGIN AND DANA LLP

437 Madison Avenue

35th Floor

New York, NY 10022

(212) 551-2600

ndenning@wiggin.com

BENJAMIN H. DIESSEL

Counsel of Record

ARMANDO GHINAGLIA

WIGGIN AND DANA LLP

265 Church Street

One Century Tower

New Haven, CT 06510

(203) 498-4304

bdiessel@wiggin.com

Counsel for Amici Curiae

January 12, 2024

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.