Amicus Curiae Brief — RADesign, Inc., et al., Petitioners v. Michael Grecco Productions, Inc.

Supreme Court briefFeb 18, 2025

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No. 24-768

IN THE

Supreme Court of the United States

RADESIGN, INC., et al.,

Petitioners,

MICHAEL GRECCO PRODUCTIONS., INC.,

Respondent.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Second Circuit

BRIEF OF AMICUS CURIAE

TYLER T. OCHOA

IN SUPPORT OF PETITIONERS

AND THE PETITION FOR CERTIORARI

Tyler T. Ochoa

Counsel of Record

SANTA CLARA UNIVERSITY

SCHOOL OF LAW

500 El Camino Real

Santa Clara, CA 95053

(408) 554-2765

ttochoa@scu.edu

Counsel for Amicus Curiae

TABLE OF CONTENTS

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

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

ARGUMENT.............................................................. 3

THE SECOND CIRCUIT’S OPINION IN THIS

CASE IS INCONSISTENT WITH THIS

COURT’S DECISION IN PETRELLA. ............... 6

II. THERE IS ALREADY A SPLIT IN THE LOWER

COURTS CONCERNING THE LEGAL BASIS

FOR THE DISCOVERY RULE. .......................... 9

III. THE DISCOVERY RULE WAS ADOPTED

MOSTLY WITHOUT ANALYSIS, ON THE

ERRONEOUS VIEW THAT THE ISSUE HAD

ALREADY BEEN DECIDED. ........................... 16

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

TABLE OF AUTHORITIES

Cases

Auscape Int’l v. Nat’l Geographic Soc’y, 409

F. Supp. 2d 235 (S.D.N.Y. 2004) ................... 15, 18

Bailey v. Glover, 88 U.S. (21 Wall.) 342

(1875) ..................................................................... 4

Bay Area Laundry and Dry Cleaning

Pension Trust Fund v. Ferbar Corp. of

Cal., 522 U.S. 192 (1997) ...................................... 6

Cathedral of Joy Baptist Church v. Village of

Hazel Crest, 22 F.3d 713 (7th Cir. 1994) .............. 9

Credit Suisse Securities (USA), LLC v.

Simmonds, 566 U.S. 221 (2012) ............................ 8

Everly v. Everly, 958 F.3d 442 (6th Cir. 2020)......... 19

Garza v. Everly, 59 F.4th 876 (6th Cir. 2020).......... 19

George Knight & Co. v. Watson Wyatt & Co.,

170 F.3d 210 (1st Cir. 1999) .................................. 9

Holmberg v. Armbrecht, 327 U.S. 392 (1946) ............ 4

Hoste v. Radio Corp. of America, 654 F.2d 11

(6th Cir. 1981)...................................................... 16

In re General American Life Ins. Co. Sales

Practices Litig., 391 F.3d 907 (8th Cir.

2004)....................................................................... 9

iii

Makedwde Pub. Co. v. Johnson, 37 F.3d 180

(5th Cir. 1994)...................................................... 14

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

(2010) ............................................................... 4, 12

Michael Grecco Prods., Inc. v. RADesign,

Inc., 112 F.4th 144 (2d Cir. 2024) ................... 7, 10

Mount v. Book-of-the-Month Club, Inc., 555

F.2d 1108 (2d Cir. 1977) ...................................... 16

Netzer v. Continuity Graphic Assocs., Inc.,

963 F. Supp. 1308 (S.D.N.Y. 1997) ..................... 14

Oracle America, Inc. v. Hewlett-Packard

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

2020)..................................................................... 14

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

572 U.S. 663 (2014) ..................... 2-8, 10, 13, 18-20

Prather v. Neva Paperbacks, Inc., 446 F.2d

338 (5th Cir. 1971).................................... 14, 16-18

Price v. Fox Entertainment Group, 473 F.

Supp. 2d 446 (S.D.N.Y. 2007) ............................. 14

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

F.3d 120 (2d Cir. 2014) ...............................7, 15, 18

Rice v. Music Royalty Consulting, Inc., 397 F.

Supp. 3d 996 (E.D. Mich. 2019) .......................... 14

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

479 (9th Cir. 1994).......................................... 17-18

Schmidt v. Skolas, 770 F.3d 241 (3d Cir.

2014)....................................................................... 8

Stokes v. Brinor, 683 F. Supp. 3d 713 (N.D.

Ohio 2023) ....................................................... 14-15

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

1992)................................................................ 17-18

Tagliente v. Himmer, 949 F.2d 1 (1st Cir.

1991)....................................................................... 9

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

1983)................................................................ 16-17

United States v. Kubrick, 444 U.S. 111 (1979) .......... 4

Urie v. Thompson, 337 U.S. 163 (1949) ..................... 4

Wallace v. Kato, 549 U.S. 384 (2007) ......................... 3

Warner Chappell Music, Inc. v. Nealy, 601

U.S. 366 (2024). ........................................ 2-4, 8, 19

West Virginia v. United States, 479 U.S. 305

(1987). .................................................................. 13

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

425 (3d Cir. 2009) (Graham I) ....................... 18-19

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

138 (3d Cir. 2011) (Graham II) .............. 2, 9-13, 19

Wood v. Carpenter, 101 U.S. 135 (1879) .................... 8

Wood v. Santa Barbara Chamber of

Commerce, Inc., 507 F. Supp. 1128 (D.

Nev. 1980), aff’d, 705 F.2d 1515 (9th Cir.

1983)..................................................................... 18

Statutes

17 U.S.C. § 106............................................................ 5

17 U.S.C. § 501(a) ....................................................... 5

17 U.S.C. § 502............................................................ 5

17 U.S.C. § 504(c) ........................................................ 5

17 U.S.C. § 507(b) ................................................... 3, 6

Rules

Fed. R. Civ. P. 8(c)(1) .................................................. 8

Supreme Court Rule 37 .............................................. 1

Other Authorities

BLACK’S LAW DICTIONARY (9th ed. 2009) .................. 11

BALLENTINE’S LAW DICTIONARY (3d ed. 1969) .......... 11

Calvin W. Corman, LIMITATION OF ACTIONS

§§ 7.4.1, 11.1.2.1, 11.1.2.3 (1991) ...................... 3, 4

Melville B. Nimmer & David Nimmer,

NIMMER ON COPYRIGHT §12.05[B][2]

(LexisNexis 2023 rev.) ......................................... 15

Tyler T. Ochoa, Warner Chappel Music, Inc.

v. Nealy and the Copyright Act’s Statute

of Limitations, 24 Chicago-Kent J. Intell.

Prop. 98 (2025), at https://digital

commons.law.scu.edu/historical/2898/........... 16-18

Charles A. Wright & Arthur Miller, FEDERAL

PRACTICE AND PROCEDURE § 1056 (3d ed.

2002 & Supp. 2010) ............................................. 10

INTEREST OF AMICUS CURIAE

This brief amicus curiae in support of Petitioners

is submitted pursuant to Rule 37 of the Rules of this

Court. 1

Tyler T. Ochoa is a Professor with the High Tech

Law Institute at Santa Clara University School of

Law. Professor Ochoa is a recognized expert in U.S.

updates to the treatise The Law of Copyright, by the

late Howard B. Abrams. He is also a co-author (with

Craig Joyce and Michael Carroll) of a widely-used law

school casebook, Copyright Law (11th ed. 2020), and

the author of the Copyright chapter in the hornbook

Understanding Intellectual Property Law (4th ed.

2020). He has published numerous articles on copyright law, including one cited by this Court in Eldred

v. Ashcroft, 537 U.S. 186, 202 (2003). In addition to his

expertise in copyright law, he has published three

articles on statutes of limitations, co-authored with

Andrew J. Wistrich, U.S. Magistrate Judge, Central

District of California (retired).

Professor Ochoa is an unbiased observer who does

not have any financial interest in the outcome of this

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

or in part or made a monetary contribution intended to fund its

preparation or submission. No person other than the amicus

made a monetary contribution to the preparation or submission

of this brief. Amicus’ university affiliation is for identification

purposes only; amicus’ university takes no position on this case.

Pursuant to Rule 37.2 of the Rules of this Court, counsel of

record for the amicus provided counsel for all parties notice of

amicus’ intention to file an amicus curiae brief at the petition

stage on February 7, 2025, which was at least 10 days prior to the

due date for the amicus curiae brief.

litigation. The only interest he has is a scholarly

interest in copyright law and statutes of limitations,

and a commitment to the orderly development of both

areas of law in the future.

SUMMARY OF ARGUMENT

This Court “ha[s] never decided … whether a

should have discovered an infringement, rather than

when the infringement happened.” Warner Chappell

Music, Inc. v. Nealy, 601 U.S. 366, 371 (2024). In addition to the reasons presented by counsel for the

Petitioners, this brief sets forth three reasons why the

Court should address the question now.

First, the Second Circuit’s opinion in this case

holds that the discovery rule is the one and only rule

of accrual in copyright cases. That holding contradicts

this Court’s opinion in Petrella v. Metro-GoldwynMayer, Inc., 572 U.S. 663 (2014), which held that the

wrongful act rule is the default rule in copyright cases,

without deciding whether the discovery rule was a

permissible exception. Second, the Second Circuit’s

opinion also conflicts with the Third Circuit’s opinion

in Graham II, which held that the discovery rule is a

rule of equitable tolling, rather than a rule of accrual.

Even if the discovery rule is a permissible exception,

the legal basis for the rule affects proper allocation of

the burdens of proof. Third, the discovery rule was

adopted in copyright cases mostly without analysis,

based on cases that assumed fraudulent concealment

would equitably toll the statute of limitations.

Because the legal basis for the rule is dubious, and a

circuit split already exists, the Court should grant the

petition for certiorari.

ARGUMENT

The Question Presented in this case is “[w]hether

a claim ‘accrue[s]’ under the Copyright Act’s statute of

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

the infringement occurs (the ‘injury rule’) or when a

plaintiff discovers or reasonably should have

discovered the infringement (the ‘discovery rule’).”

Twice in the past eleven years, this Court has noted

but declined to address the question. See Petrella v.

Metro-Goldwyn-Mayer, Inc., 572 U.S. 663, 670 n.4

(2014); Warner Chappell Music, Inc. v. Nealy, 601 U.S.

366, 371 (2024). In addition to the reasons presented

by counsel for the Petitioners, this brief explains why

the Court should address the question now.

At the outset, a note on terminology is warranted.

In Petrella, this Court stated that “[a] copyright claim

. . . arises or ‘accrue[s]’ when an infringing act occurs.”

572 U.S. at 670. It explained: “Each time an infringing

work is reproduced or distributed, the infringer commits a new wrong. Each wrong gives rise to a discrete

‘claim’ that ‘accrue[s]’ at the time the wrong occurs.”

Id. at 671. I will refer to this as the “wrongful act” rule

of accrual.

In some instances, however, a wrongful act does

not immediately result in an injury. In those

instances, courts typically hold that a claim does not

“accrue” until the injury occurs. “Under the traditional

rule of accrual ... the tort cause of action accrues, and

the statute of limitations commences to run, when the

wrongful act or omission results in damages.” Wallace

v. Kato, 549 U.S. 384, 391 (2007) (quoting 1 Calvin W.

Corman, Limitation of Actions §7.4.1 (1991)). I will

refer to this as the “injury” rule of accrual.

Finally, in cases of fraud, this Court has held that

“where the party injured by the fraud remains in

ignorance of it without any fault or want of diligence

or care on his part, the bar of the statute does not begin

to run until the fraud is discovered.” Bailey v. Glover,

88 U.S. (21 Wall.) 342, 348 (1875); accord, Holmberg v.

Armbrecht, 327 U.S. 392, 397 (1946) (quoting Bailey).

“More recently, both state and federal courts have

applied forms of the ‘discovery rule’ to claims other

than fraud.” Merck & Co., Inc. v. Reynolds, 559 U.S.

633, 645 (2010) (citing Corman, Limitation of Actions

§§ 11.1.2.1, 11.1.2.3). 2 “And when they have done so,

state and federal courts have typically interpreted the

word [‘discovery’] to refer not only to actual discovery,

but also to the hypothetical discovery of facts a

reasonably diligent plaintiff would know.” Id. at 645.

So what should we call the default rule of accrual

described in Petrella, that “[a] copyright claim …

arises or ‘accrue[s]’ when an infringing act occurs,” 572

U.S. at 670? In a footnote, the Court in Petrella

referred to the default rule of accrual as “the incident

of injury rule.” Id. at 670 n.4; see also Warner

Chappell, 601 U.S. at 375 (dissenting opinion) (referring to “the standard incident of injury rule”); but cf.

Warner Chappell, 601 U.S. at 373 (majority opinion)

(referring to “the discovery rule” and “its opposite

For example, this Court has applied the “discovery rule”

in cases involving exposure to toxic substances, where “the

injurious consequences of the exposure are the product of a period

of time rather than a point of time,” Urie v. Thompson, 337 U.S.

163, 170 (1949), and medical malpractice, where the fact of injury

“may be unknown or unknowable until the injury manifests

itself” and the plaintiff discovers its factual cause. United States

v. Kubrick, 444 U.S. 111, 122 (1979).

number—an accrual rule based on the timing of an

infringement.”). And Petitioners follow that lead in the

Petition and in the Question Presented, consistently

referring to the default rule of accrual as the “injury

rule.”

In copyright infringement cases, however, the

cause of action is complete when the wrongful act

(unauthorized reproduction, distribution, public

performance, or public display) has occurred, 17

U.S.C. §§106, 501(a). A copyright owner may sue for

infringement and seek an injunction or statutory

damages, even when no actual damages have been

sustained. 17 U.S.C. §§502, 504(c). Thus, although one

could characterize the allegedly infringing act itself as

an “injury,” perhaps it is more accurate (or at least it

provides greater clarity) to refer to the default rule of

accrual described in Petrella as a “wrongful act” rule

of accrual. Otherwise, copyright owners might get the

idea that the statute of limitations does not begin to

run until they have sustained actual damages, which

might not occur until months or years after the

wrongful act occurs (or at all).

For this reason, I will refer to the default rule of

accrual described in Petrella as a “wrongful act” rule

of accrual (except when quoting cases). But in doing

so, I am merely adopting different terminology. In

deemed to be an injury, the default rule that the cause

of action “accrue[s] when an infringing act occurs,”

Petrella, 572 U.S. at 670, remains the same, whether

it is called the “injury” rule (as in the Petition) or the

“wrongful act” rule (as here).

THE SECOND CIRCUIT’S OPINION IN

THIS CASE IS INCONSISTENT WITH THIS

COURT’S DECISION IN PETRELLA.

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

U.S. 663, 670 (2014), this Court expressly held that 17

U.S.C. § 507(b) adopts a wrongful act rule of accrual:

A claim ordinarily accrues “when [a] plaintiff

has a complete and present cause of action.”

Bay Area Laundry and Dry Cleaning Pension

Trust Fund v. Ferbar Corp. of Cal., 522 U.S.

192, 201 (1997) (internal quotation marks

omitted). In other words, the limitations

period generally begins to run at the point

when “the plaintiff can file suit and obtain

relief.” Ibid. A copyright claim thus arises or

“accrue[s]” when an infringing act occurs.

In a footnote, this Court then acknowledged that

“[a]lthough we have not passed on the question, nine

Courts of Appeals have adopted, as an alternative to

the incident of injury rule, a ‘discovery rule,’” that

delays or tolls the running of the limitation period. Id.

at 670 n.4 (emphasis added). This Court also “recognized that the separate-accrual rule attends the copyright statute of limitations,” so that “each infringing

act starts a new limitations period.” Id. at 671. Thus,

[W]hen a defendant has engaged (or is alleged

to have engaged) in a series of discrete

infringing acts, the copyright holder's suit

ordinarily will be timely under § 507(b) with

respect to more recent acts of infringement

(i.e., acts within the three-year window), but

untimely with respect to prior acts of the same

or similar kind.

Id.

Although the Court in Petrella did not need to

address whether the use of the discovery rule was

proper, the language in Petrella made it clear that the

wrongful act rule of accrual is the default rule of

accrual under § 507(b); and that if the discovery rule

can properly be used, it is only to be used as an

exception to the wrongful act rule of accrual.

The Second Circuit’s opinion in this case blatantly

disregarded this Court’s teaching in Petrella. Instead,

it relied on an older Second Circuit case, decided

before Petrella, in holding that “[t]he discovery rule is

not an exception to the injury rule that only applies to

some infringement claims. . . . Rather, ‘the discovery

rule, not the injury rule’ determines, in the first place,

when a copyright infringement claim accrues.”

Michael Grecco Prods., Inc. v. RADesign, Inc., 112

F.4th 144, 151 (2d Cir. 2024), quoting Psihoyos v. John

Wiley & Sons, Inc., 748 F.3d 120, 124 (2d Cir. 2014)

(emphasis added in Michael Grecco Prods.). The

Second Circuit criticized the district court for

“treating the discovery rule as an equitable doctrine

for which only some plaintiffs in some circumstances

will qualify,” 112 F.4th at 152, and it doubled down on

its pre-Petrella view: “because we have previously

determined that the discovery rule is Congress’s

intended rule of accrual for civil actions under the

not an equitable exception to the injury rule.” Id.

(emphasis added), citing Psihoyos, 748 F.3d at 124.

This error is not only inconsistent with Petrella, it

also affects the proper allocation of the burdens of

proof. The expiration of a statute of limitations is an

affirmative defense that the defendant must plead

and prove. Fed. R. Civ. P. 8(c)(1). If the discovery rule

is the only rule of accrual, as the Second Circuit

erroneously asserted below, then the defendant has

the burden of proving that the plaintiff reasonably

should have discovered the alleged infringement more

than three years before filing. But if the wrongful act

rule is the rule of accrual, as this Court held in

Petrella, then the defendant only has the burden of

proving that the alleged infringement occurred more

than three years before filing. An objective standard

like the wrongful act rule is simple to apply; whereas

the discovery rule involves fact questions that cannot

easily be resolved at the early stages of litigation.

Moreover, even if the discovery rule is a permissible exception to the wrongful act rule of accrual (the

question this Court left open in Petrella and Warner

Chappell), the burden on the defendant should remain

the same as under the wrongful act rule. Generally, if

a defendant shows the alleged wrongful act occurred

more than three years before filing, the burden then

shifts to the plaintiff to prove that it reasonably could

not have discovered the relevant facts until less than

three years before filing. See, e.g., Credit Suisse

Securities (USA), LLC v. Simmonds, 566 U.S. 221, 227

(2012) (“Generally, a litigant seeking equitable tolling

bears the burden of establishing … that he has been

pursuing his rights diligently”); Wood v. Carpenter,

101 U.S. 135, 141 (1879) (“A party seeking to avoid the

bar of the statute [of limitations] on account of fraud

must aver and show that he used due diligence to

detect it”). 3

Lower courts have applied this general rule in a wide

variety of cases. See, e.g., Schmidt v. Skolas, 770 F.3d 241, 251

II. THERE IS ALREADY A SPLIT IN THE

LOWER COURTS CONCERNING THE

LEGAL BASIS FOR THE DISCOVERY

RULE.

Although the Courts of Appeals are seemingly

unanimous in adopting the discovery rule in copyright

cases, closer examination reveals that they have very

different conceptions of the legal basis for the

discovery rule, leading to differences in how it should

be applied.

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

138 (3d Cir. 2011) (Graham II), the Third Circuit

expressly held that the discovery rule is not a rule of

accrual; instead, it is a rule of equitable tolling. Id. at

150 (“Since it cannot be an accrual doctrine, the

discovery rule must instead be one of those legal

precepts that operate to toll the running of the

(3d Cir. 2014) (“Generally, the plaintiff bears the burden of

showing that the discovery rule tolls the statute of limitations.”)

(breach of fiduciary duty); In re General American Life Ins. Co.

Sales Practices Litig., 391 F.3d 907, 912 (8th Cir. 2004) (“In order

to invoke the discovery rule, a party bears the burden of showing

that it could not discover its injury despite the exercise of

‘reasonable diligence.’”) (negligence, fraud, and unfair trade

practices); George Knight & Co. v. Watson Wyatt & Co., 170 F.3d

210, 213 (1st Cir. 1999) (“The burden is on [the plaintiff] to prove

that it lacked knowledge or that, in the exercise of reasonable

diligence, it could not have known about the [claim] within the

statute of limitations.”) (ERISA); Cathedral of Joy Baptist

Church v. Village of Hazel Crest, 22 F.3d 713, 717 (7th Cir. 1994)

(plaintiff “has the burden of showing that it falls within the

exception” of the discovery rule) (§1983 claim); Tagliente v.

Himmer, 949 F.2d 1, 5 (1st Cir. 1991) (“The burden is on the

plaintiff to prove that in the exercise of reasonable diligence she

could not have known of the misrepresentation within the statute

of limitations.”).

limitations period after a cause of action has

accrued”). In its opinion in this case, however, the

Second Circuit expressly disagreed, stating that “the

discovery rule is the rule of accrual, not an equitable

tolling . . . doctrine.” Michael Grecco Prods., Inc. v.

RADesign, Inc., 112 F.4th 144, 151 (2d Cir. 2024)

(emphasis added).

The Third Circuit’s view leads to the conclusion

that “[t]he [discovery] rule is an exception to the usual

principle that the statute of limitations begins to run

immediately upon accrual regardless of whether or

not the injured party has any idea what has happened

to him.” Graham II, 646 F.3d at 150 (emphasis added).

The Second Circuit’s view leads to the conclusion that

“[t]he discovery rule is not an exception to the injury

rule that only applies to some infringement claims; it

is not a benefit for which only some plaintiffs qualify.

Rather, ‘the discovery rule, not the injury rule’

determines, in the first place, when a copyright

infringement claim accrues.” Michael Grecco Prods.,

112 F.4th at 150 (emphasis added in Grecco). As

explained above, the Second Circuit’s holding is

fundamentally inconsistent with this Court’s opinion

in Petrella, which characterized the discovery rule “as

an alternative to the incident of injury rule” that

ordinarily applies to copyright claims. Petrella, 572

U.S. at 670 n.4 (emphasis added).

The Third Circuit explained that:

The discovery rule has been characterized

both as delaying the accrual of a cause of

action and as tolling the running of the

limitations period. See 4 Wright & Miller,

FEDERAL PRACTICE AND PROCEDURE § 1056 &

nn. 43.1–43.2 (3d ed. 2002 & Supp. 2010). The

distinction between the two concepts is “often

confusing,” id., but because it [often] makes

no difference for purposes of deciding whether

a claim survives a statute-of-limitations

defense, the question has rarely been

analyzed with semantic precision.

Graham II, 646 F.3d at 148.

The Third Circuit carefully analyzed the

question with semantic precision. First, it

explained the meaning of “accrue”:

As a general matter, a cause of action

“accrues” when it has “come into existence as

an enforceable claim or right.” BLACK'S LAW

DICTIONARY (9th ed. 2009). Stated another

way, accrual is “[t]he event whereby a cause

of action becomes complete so that the

aggrieved party can begin and maintain his

cause of action.” BALLENTINE'S LAW

DICTIONARY (3d ed. 1969).

Id. at 146. It then explained how “accrual” differs from

“tolling”:

Accrual . . . occurs once events satisfying all

the elements of a cause of action have taken

place. At that point, the period prescribed by

the applicable statute of limitations

ordinarily begins to run. . . . There exist,

however, various statutory and judge-made

rules that operate to toll the running of the

limitations period—that is, “to stop [its]

running”; “to abate” it, BLACK'S LAW

DICTIONARY (9th ed.), supra, or “[t]o suspend

interrupt”

it,

BALLENTINE'S LAW

DICTIONARY, supra. . . . Time that passes

while a statute is tolled does not count against

the limitations period.

Id. at 147-48.

The Third Circuit then explained that although

many courts have glossed over the distinction, 4 the

discovery rule is better characterized as a rule of

equitable tolling:

Accrual happens at the moment when events

fulfilling all the elements of a cause of action

have transpired. . . . In order to defer accrual,

the discovery rule would have to add an

additional component to the substantive

definitions of the claims to which it applies.

That simply cannot be right. Rules regarding

limitations periods do not alter substantive

causes of action. Accordingly we do not think

the discovery rule should be read to alter the

date on which a cause of action accrues.

Since it cannot be an accrual doctrine, the

discovery rule must instead be one of those

legal precepts that operate to toll the running

of the limitations period after a cause of action

has accrued, as sundry cases have stated.

[Collecting cases] . . . This conclusion fits with

the usual definitions of “toll” and “accrue,” as

we have explained. . . .

Id. at 148-49 (collecting and criticizing cases, dismissing

them as “nonbinding obiter dicta”). The Third Circuit acknowledged that “[e]ven the Supreme Court has on occasion confused

the two concepts,” and it explained why this Court’s “statement

regarding the discovery rule” in Merck & Co. v. Reynolds, 559

U.S. 633, 644 (2010), was “neither technically accurate nor

necessary to its holding.” Graham II, 646 F.3d at 149.

Id. at 149-50. Consequently, it concluded:

We hold that the “accrual” of a cause of action

occurs at the moment at which each of its

component elements has come into being as a

matter of objective reality. . . . The federal

discovery rule then operates in applicable

cases to toll the running of the limitations

period.

Id. at 150-51 (emphasis added).

Why does this careful semantic distinction make

a difference? 5 It matters because 1) the Copyright

Act’s statute of limitations uses the word “accrued”; 2)

this Court in Petrella interpreted the word “accrued”

in accordance with the ordinary dictionary definition,

just as the Third Circuit did in Graham II; 3) both

Petrella and Graham II characterize the discovery

rule as an exception (or “alternative”) to the wrongful

act rule of accrual, one that only operates “in

applicable cases”; and 4) in this case, the Second

Circuit expressly stated to the contrary that the

discovery rule applies in all copyright cases, rather

than only in some (or in none). It also matters because,

as explained in Part I above, the proper allocation of

the burdens of proof turns on whether the discovery

rule is the one and only rule of accrual (as the Second

In William A. Graham, it made a difference because this

Court had stated that prejudgment interest should be awarded

“from the time the claim accrues until judgment is entered.” West

Virginia v. United States, 479 U.S. 305, 310 n.2 (1987) (emphasis

added). It was therefore important to determine whether the

discovery rule delayed the “accrual” of a claim, or whether it

merely “tolled” the limitations period.

Circuit said below) or whether it is an exception that

only applies in certain cases, or not at all.

The general rule that the plaintiff bears the

burden of demonstrating reasons for equitable tolling,

including fraudulent concealment, has been applied in

2020) (“A plaintiff relying on [fraudulent concealment]

to toll the limitations period must show … that the

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

cause of action.”) (internal quotes and citation omitted); Prather v. Neva Paperbacks, Inc., 446 F.2d 338,

340 (5th Cir. 1979) (“once a defendant has shown that

a claim is time barred [under the wrongful act rule]

…, it is incumbent upon the plaintiff … to come

forward and demonstrate that for some equitable

reason the statute should be tolled in his case.”);

accord, Makedwde Pub. Co. v. Johnson, 37 F.3d 180,

182 n.4 (5th Cir. 1994). Some district courts have also

applied the general rule to other reasons for equitable

tolling, placing the burden on the copyright owner to

show justifiable ignorance of its claim, despite exercising reasonable diligence. 6

See, e.g., Rice v. Music Royalty Consulting, Inc., 397 F.

Supp. 3d 996, 1012 (E.D. Mich. 2019) (“plaintiff bears the burden

of showing that he is entitled to equitable tolling” for mental

illness and lack of discovery); Price v. Fox Entertainment Group,

473 F. Supp. 2d 446, 458 (S.D.N.Y. 2007) (plaintiff bears the

burden of showing justifiable ignorance and diligence); Netzer v.

Continuity Graphic Assocs., Inc., 963 F. Supp. 1308, 1316

(S.D.N.Y. 1997) (“A plaintiff seeking to invoke [equitable tolling]

is also required to demonstrate that his ignorance is not

attributable to a lack of diligence on his part.”). But cf. Stokes v.

If the Third Circuit is correct that the discovery

rule is a rule of equitable tolling, then the plaintiff

should bear the burden of showing that it was unable

to reasonably discover the claim until less than three

years before filing, despite the exercise of reasonable

diligence. Cf. Auscape Int’l v. National Geographic

Society, 409 F. Supp. 2d 235, 248 (S.D.N.Y. 2004) (“a

claim for copyright infringement accrues on the date

of the infringement. Accordingly, plaintiffs’ claims …

are untimely unless plaintiffs have raised a triable

issue of fact … [that] would toll running of the statute

for a sufficient period.”). 7 But if the Second Circuit is

correct that the discovery rule is the one and only rule

of accrual in copyright cases, and that the defendant

bears the burden of showing that the plaintiff reasonably could not have discovered its claim more than

three years before filing, then only this Court can

revisit and revise its statements in Petrella that the

wrongful act rule is the default rule of accrual, and

that the discovery rule is only an “alternative.”

Brinor, 683 F. Supp. 3d 713, 719 (N.D. Ohio 2023) (“As an affirmative defense, the defendant carries the burden of showing that

the statute of limitations period has expired, after which the burden shifts to the plaintiff to establish that an exception applies.”;

but declining to treat the discovery rule as an exception).

In later rejecting Judge Kaplan’s conclusion, the Second

Circuit did not grapple with his reasoning; rather, it simply

deferred to the holdings of the other Circuits. See Psihoyos v.

John Wiley & Sons, Inc., 748 F.3d 120, 124-25 (2d Cir. 2014). See

also 3 Nimmer on Copyright, §12.05[B][2][b] (“Although only a

district court opinion, Auscape represents a fine articulation of

how to compute the Copyright Act’s statute of limitations….

[Psihoyos] eliminates Judge Kaplan’s ruling as a matter of stare

decisis. But the circuit’s failure to grapple with his logic leaves

the rationale undergirding Auscape unassailed.”).

III. THE DISCOVERY RULE WAS ADOPTED

MOSTLY WITHOUT ANALYSIS, ON THE

ERRONEOUS VIEW THAT THE ISSUE

HAD ALREADY BEEN DECIDED.

The first Courts of Appeals to apply the Copyright

Act’s statute of limitations used the wrongful act rule

of accrual. See Mount v. Book-of-the-Month Club, Inc.,

555 F.2d 1108, 1111 (2d Cir. 1977) (“Any infringement

more than three years before the commencement of

the action … is barred by limitations”) (citation omitted); Hoste v. Radio Corp. of America, 654 F.2d 11, 11

(6th Cir. 1981) (allowing action to proceed only for acts

occurring within three years before action was filed in

1978). 8 In one case, the court rejected the “blameless

ignorance” doctrine, a state-law version of the discovery rule. See Prather v. Neva Paperbacks, Inc., 446

F.2d 338, 339-40 (5th Cir. 1971). The Prather court

assumed that the limitations period would be tolled if

the plaintiff could show fraudulent concealment; but

the court found that the plaintiff was on notice more

than three years before filing, so that the claim was

time-barred. 446 F.2d at 340-41. And in Taylor v.

Meirick, 712 F.2d 1112 (7th Cir. 1983), the court

mused that the discovery rule might apply, 9 but it

held that “[i]n any event, there is no doubt that the

Most District Courts agreed. See Tyler T. Ochoa, Warner

Chappel Music, Inc. v. Nealy and the Copyright Act’s Statute of

Limitations, 24 Chicago-Kent J. Intell. Prop. 98, 106 n.52 (2025),

available at https://digitalcommons.law.scu.edu/historical/2898/.

712 F.2d at 1117-18 (“the tendency in modern law is to

toll the statute of limitations until the victim could reasonably

have discovered the cause of his woe. . . . Although we cannot find

a copyright case on point, a similar principle may apply in such

cases.”) (emphasis added).

concealment’ of the infringement,” id. at 1118 (citing

Prather). 10

Many copyright cases applying the discovery rule

trace their lineage to Stone v. Williams, 970 F.2d 1043

(2d Cir. 1992), in which the plaintiff learned that she

was the illegitimate daughter of deceased country

singer Hank Williams, Sr. Based in part on a statecourt finding of fraudulent concealment, the court

held that “the statute of limitations did not begin to

run until plaintiff had reason to know of the facts

giving rise to her statutory entitlement, i.e., that she

was a child of Williams.” Id. at 1048. It found, however, that the plaintiff had such knowledge nearly six

years before she filed suit. Id. at 1048-49. As a result,

ultimately it held that “[r]ecovery is allowed only for

those acts occurring within three years of suit, and is

disallowed for earlier infringing acts.” Id. at 1049-50.

Two years later, the Ninth Circuit adopted the

discovery rule without analysis, by mistake. In Roley

v. New World Pictures, Ltd., 19 F.3d 479, 481 (9th Cir.

1994), it stated flatly: “A cause of action for copyright

infringement accrues when one has knowledge of a

violation or is chargeable with such knowledge.” The

single case that it cited for that proposition was a

More controversial was Taylor’s additional holding that a

plaintiff could recover damages for acts that occurred more than

three years before suit was filed even if it was aware of the earlier

infringements, as long as “the final act of an unlawful course of

conduct occurs within the statutory period.” 712 F.2d at 1119.

This “continuing infringement” theory was widely criticized and

was rejected by other courts; and ultimately it was rejected in the

Seventh Circuit as well. See Ochoa, supra note 8, at 113 & nn. 9596.

district court decision that (like Prather) applied the

wrongful act rule of accrual and rejected a claim of

fraudulent concealment. See Wood v. Santa Barbara

Chamber of Commerce, Inc., 507 F. Supp. 1128, 113436 (D. Nev. 1980), aff’d, 705 F.2d 1515, 1521 (9th Cir.

1983). Moreover, because plaintiff had discovered its

claim more than four years before filing, ultimately

Roley held that “[i]n a case of continuing copyright

infringements, an action may be brought for all acts

that accrued within the three years preceding the

filing of the suit.” 19 F.3d at 481.

Thus, the discovery rule did not affect the outcome in either Stone or Roley. Both cases would have

come out exactly the same way under Petrella.

Nonetheless, from those two foundational cases, the

discovery rule spread to the other Circuits. See Ochoa,

supra note 8, at 114, 118-20.

The only two cases to carefully consider whether

Congress intended the discovery rule to apply in copyright cases reach opposite conclusions. In Auscape

International v. National Geographic Society, 409 F.

Supp. 2d 235, 244-47 (S.D.N.Y. 2004), Judge Lewis

Kaplan concluded that Congress likely intended a

wrongful act rule of accrual, rather than the discovery

rule. 11 In William A. Graham Co. v. Haughey, 568

F.3d 425 (3d Cir. 2009) (Graham I), the Third Circuit

reached the opposite conclusion. In so holding, it

relied heavily on its default rule that “[i]n the absence

of a contrary directive from Congress, we apply the

federal discovery rule.” 568 F.3d at 434. The default

As noted above, the Second Circuit later rejected Auscape

without substantively engaging with its reasoning. See Psihoyos

v. John Wiley & Sons, Inc., 748 F.3d 120, 124-25 (2d Cir. 2014);

Note 7, above.

rule in Graham I contradicts this Court’s subsequent

holding in Petrella (and numerous other cases) that

the wrongful act rule (or the injury rule) is the default

rule of accrual. Moreover, as discussed in Part II

above, the Third Circuit later held in Graham II that

the discovery rule is not a rule of accrual, but is

instead a rule of equitable tolling. 646 F.3d 138, 14951 (3d Cir. 2011). Nonetheless, Graham II has not

caused the Third Circuit to reconsider its holding that

the discovery rule applies in copyright cases.

The issue will not go away anytime soon. Already,

three members of this Court have questioned whether

the discovery rule applies. See Warner Chappell

Music, Inc. v. Nealy, 601 U.S. 366, 374-76 (2024)

(Gorsuch, J., joined by Thomas and Alito, JJ.,

dissenting). In addition, at least one Circuit Judge has

called for a fresh look at the question. See Garza v.

Everly, 59 F.4th 876, 885 (6th Cir. 2020) (Murphy, J.,

concurring) Everly v. Everly, 958 F.3d 442, 465 (6th

Cir. 2020) (Murphy, J., concurring). If the issue is

allowed to fester, thousands of hours and hundreds of

thousands of dollars will be spent litigating this

collateral issue until an inevitable Circuit split

requires this Court to resolve it, one way or the other.

This Court “ha[s] never decided … whether a

should have discovered an infringement, rather than

when the infringement happened.” Warner Chappell

Music, Inc. v. Nealy, 601 U.S. 366, 371 (2024). This

Court should grant certiorari and resolve the issue

now, to avoid months or years of legal uncertainty.

CONCLUSION

The discovery rule of accrual was adopted in

cases that assumed fraudulent concealment would

equitably toll the statute of limitations. The Second

Circuit’s opinion in this case holds that the discovery

rule is the one and only rule of accrual in copyright

cases. That holding contradicts this Court’s opinion in

Petrella, which held that the wrongful act rule is the

default rule in copyright cases; and it conflicts with

the Third Circuit’s opinion in Graham II, which held

that the discovery rule is a rule of equitable tolling,

rather than a rule of accrual. Because a circuit split

already exists, the Court should grant the petition for

certiorari.

Respectfully submitted,