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

Supreme Court briefMar 26, 2025

Ask Donna

What actually matters in this document.

Text

No. 24-768

IN THE

Supreme Court of the United States

RADESIGN, INC., ET AL.,

Petitioners,

MICHAEL GRECCO PRODUCTIONS, INC.

Respondent.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Second Circuit

BRIEF OF KLEMA LAW, PL AS AMICUS

CURIAE IN SUPPORT OF PETITIONERS

GRIFFIN C. KLEMA

Counsel of Record

KLEMA LAW, P.L.

420 W. Kennedy Boulevard

Second Floor

Tampa, FL 33606

(202) 713-5292

Griffin@KlemaLaw.com

Counsel for amicus curiae

QUESTION PRESENTED

Whether 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”).

* Pursuant to Rule 37.2, counsel for the parties received notice of the

intention to file this amicus brief at least ten days prior to the deadline

for this brief’s filing. Further, no counsel for a party authored this

brief in whole or in part, and no person other than amici curiae or

their counsel made a monetary contribution to the brief’s preparation

or submission.

TABLE OF CONTENTS

Page

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

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

INTRODUCTION & SUMMARY OF ARGUMENT.. 1

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

II.

The Seventh Circuit Follows the

Injury Rule for Copyright

Infringement Claims ................................. 3

Taylor v. Meirick applied an

accrual-then-toll approach to

ordinary infringement claims ............... 4

The Seventh Circuit applies a

“discovery rule” to accrual of

The rationale of Chicago Building

Design and Consumer Health

shows that the Seventh Circuit

applies the injury rule to ordinary

infringement claims .............................. 8

Motorola Solutions injected intracircuit tension in the Seventh

Circuit .......................................................... 9

III. An implicit circuit split exists

between the Seventh and Second

circuits on ordinary copyright

infringement claim accrual ................... 12

iii

IV. Copyright ownership disputes are

declaratory-type claims with

different elements than a claim of

infringement ............................................. 13

CONCLUSION.......................................................... 15

TABLE OF CITATIONS

Page(s)

Cases

Bagett v. Bullitt,

377 U.S. 360 (1964) ..................................................... 6

Bay Area Laundry and Dry Cleaning Pension

Trust Fund v. Ferbar Corp. of Cal.,

522 U.S. 192 (1997) .................................................... 2

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

137 S.Ct. 2042 (2017) .................................................. 6

Clapper v. Amnesty Int’l USA,

568 U.S. 398 (2013) .................................................. 14

Consumer Health Info. Corp. v. Amylin

Pharms., Inc.,

819 F.3d 992 (7th Cir. 2016) .............. 3, 7, 8, 9, 10, 14

CTS Corp. v. Waldburger,

573 U.S. 1 (2014) ......................................................... 6

Emory v. Peeler,

756 F.2d 1547 (11th Cir. 1985) ............................... 14

Feist Publ’ns, Inc. v. Rural Tel. Serv., Co.,

499 U.S. 340 (1991) .................................................... 1

Gabelli v. SEC,

568 U.S. 442 (2013) .................................................. 13

Gaiman v. McFarlane,

360 F.3d 644 (7th Cir. 2004) ............................ 6, 7, 12

Holland v. Florida,

560 U.S. 631 (2010) ..................................................... 6

Maryland Cas. Co. v. Pacific Coal & Oil Co.,

312 U.S. 270 (1941) .................................................. 14

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

112 F.4th 144 (2d Cir. 2024) ................................... 13

Motorola Soln’s, Inc. v. Hytera Commc’ns Corp.,

108 F.4th 458 (7th Cir. 2024) .....................3, 9, 10, 11

Norfolk S. Ry. v. Guthrie,

233 F.3d 532 7th Cir. 2000) ..................................... 14

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

572 U.S. 663 (2014) .............................................. 8, 12

Sohm v. Scholastic Inc.,

959 F.3d 39 (2d Cir. 2020) ....................................... 10

Taylor v. Meirick,

712 F.2d 1112 (7th Cir. 1983) ................ 3, 4, 5, 13, 14

Warner Chappell Music v. Nealy,

601 U.S. 366 (2024) .............................................. 9, 10

Webster v. Guitars,

955 F.3d 1270 (11th Cir. 2020) ............................... 14

William A. Graham Co. v. Haughey,

568 F.3d 425 (3d Cir. 2009) ..................................... 12

Statutes

17 U.S.C. § 501(a) ........................................................... 2

17 U.S.C. § 507(b) .................................................1, 3, 15

28 U.S.C. § 2201 ....................................................... 1, 13

Other Authorities

BRYAN A. GARNER ET AL., THE LAW OF JUDICIAL

PRECEDENT (2016) .................................................. 12

INTEREST OF AMICUS CURIAE

Klema Law, PL is an intellectual property law firm

that represents both plaintiffs and defendants in disputed

matters over patents, trademarks, copyrights, and trade

secrets, together with name, image, and likeness. The

firm regularly litigates copyright matters in federal district and circuit courts. A significant number of the firm’s

clients are accused of copyright infringement for singlephotograph disputes, most of which are old website or social media posts where information about the accused conduct has been lost to the passage of time. The firm has

developed significant expertise respecting the issue presented for review and the differences among the circuit

courts on their decisions construing and applying the Copyright Act’s statute of limitations, 17 U.S.C. § 507(b).

INTRODUCTION & SUMMARY OF ARGUMENT

The Seventh Circuit’s jurisprudence respecting the

has been widely misunderstood. It does not embrace the

so-called “discovery rule” of claim accrual for ordinary infringement claims, though it does apply such an accrual

rule with respect to copyright ownership claims.

The Copyright Act does not expressly provide for an

action over ownership. Instead, such disputes are

properly understood as claims arising under the Declaratory Judgments Act, 28 U.S.C. § 2201, which simply refer

to the Copyright Act for their substance. A declaration of

of actual controversy”), which differs markedly from the

elements of an infringement claim, e.g., Feist Publ’ns, Inc.

v. Rural Tel. Serv., Co., 499 U.S. 340, 361 (1991) (“(1) ownership of a valid copyright, and (2) copying of constituent

elements of the work that are original”). This Court has

consistently held that a claim accrues “when the 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). Due to their

differing elements of proof, ownership and infringement

claims accrue differently. An “actual controversy” necessarily requires knowledge of the dispute between two

competing parties, while an infringement claim does not.

A claim of copyright infringement accrues upon the occurrence of a violation of one of the exclusive rights under

Section 106. 17 U.S.C. § 501(a).

A careful reading of decisions from the Seventh Circuit reveals that it understands that distinction, and follows the injury-occurrence rule for claim accrual and not

the discovery rule for garden variety infringement

claims—though it recently cast doubt on its prior decisions. Other circuits, however, do not draw such a distinction, and hold that copyright claims accrue upon the plaintiff’s discovery of their cause of action, irrespective of

claim type. Consequently, an implicit circuit split exists

respecting the proper construction of “accrue” as concerns copyright infringement claims, contrary to petitioners’ argument. See Pet. at 21 (“without a circuit split”).

Additionally, intra-circuit tension exists within the Seventh Circuit.

This Court’s authoritative voice is badly needed to reinstill the proper framework for claim accrual based on

the type of claim, as well as construe what “accrue” means

in the Copyright Act for infringement claims in particular.

ARGUMENT

The Seventh Circuit Follows the Injury Rule

for Copyright Infringement Claims

The Seventh Circuit has never, in a reported decision,

engaged in a textual analysis of the Copyright Act’s statute of limitations, let alone decided whether a discovery

rule applies to ordinary infringement actions. Five of its

decisions have confronted 17 U.S.C. § 507(b), but none

have ever squarely addressed whether the statute embodies a discovery rule for copyright infringement claim accrual. The oldest of is cases, Taylor v. Meirick, 712 F.2d

1112 (7th Cir. 1983), implicitly holds that an ordinary infringement claim (rights enforcement) accrues upon the

injury, while Consumer Health Info. Corp. v. Amylin

Pharms., Inc., 819 F.3d 992 (7th Cir. 2016), suggests that

a copyright ownership claim accrues upon knowledge of

competing claims (rights existence principium) together

with a recognition that each kind of claim differs for purposes of accrual. But a different panel in Motorola Soln’s,

Inc. v. Hytera Commc’ns Corp., 108 F.4th 458 (7th Cir.

2024), has suggested otherwise.

A careful reading of the Seventh Circuit’s decisions applying the Copyright Act’s statute of limitations reveals

an implicit circuit split with the Second, and its most recent decision reveals intra-circuit tension within its own

decisions.

This Court ought to grant certiorari and reiterate the

claim-specific mode of analysis for accrual, separate the

doctrine of tolling from accrual, and resolve the tension

within the Seventh Circuit and among the circuits on accrual of ordinary infringement claims expressly authorized by the Copyright Act.

A. Taylor v. Meirick applied an accrual-then-toll

approach to ordinary infringement claims

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

Seventh Circuit implicitly held that an infringement claim

accrues upon the occurrence of the infringing act. While

Taylor did not engage with the statutory text itself, the

decision’s rationale shows that the Seventh Circuit understood §507(b) as embodying an injury-occurrence rule,

which, like other claims, is subject to post-accrual tolling.

It did not create a discovery rule to delay the claim’s accrual in the first instance. Consistent with the accrualthen-toll approach, the court found the plaintiff’s claims

timely, concluding that “either of the tolling principles discussed earlier” allowed the plaintiff’s claims to proceed as

timely. 712 F.2d at 1119.

In its first “tolling principle[],” Taylor extended the

doctrine to encompass circumstances when the plaintiff

might be unaware of his claim: “the statute of limitations

is tolled until the plaintiff learned or by reasonable diligence could have learned that he had a cause of action.”

Id. at 1117 (emphasis supplied). Taylor not delay accrual

of the claim in the first instance, as illustrated by its use

of the past tense to describe the preexistence of the claim:

the statute “is tolled until the plaintiff learn[s]” “that he

had a cause of action.” Ibid. (emphasis supplied). The

court’s use of the past tense—“had”—indicates that the

cause of action existed before the “plaintiff learned” of its

existence at a later time, with that discovery “toll[ing]”

“the statute of limitations.” Ibid. The discovery did not delay the accrual of the claim itself—rather, post-accrual

tolling saved the otherwise untimely claim.

Unfortunately, most have misread this part of Taylor

to conclude that the Seventh Circuit created a discovery

rule respecting accrual. Such a misreading wholly excises

the repeated use of a key legal term and doctrine of

tolling. Reinforcing Taylor’s tolling rationale is its analogy to accrual of defective products claims, where it correctly applied the longstanding meaning of accrue: “the

tort is complete when the victim is injured.” Ibid. Despite

accrual of such a claim, the Seventh Circuit then invoked

“the tendency in modern law [] to toll the statute of limitations.” Ibid. (emphasis supplied). Notably, Taylor references the word “accrue” only once (quoting § 507(b)),

while repeating the term “toll” seven times throughout

the opinion.

In addition to its first tolling “principle,” its second and

alternative tolling rationale centered on the more commonplace scenario in which courts would equitably toll a

statute of limitations: fraudulent concealment. Id. at 1118.

The court found that the defendant’s conduct was “calculated to obstruct any inquiry” by the plaintiff, and therefore held that such conduct “toll[ed] the statute of limitations.” Ibid.

By repeatedly framing the discussion in terms of tolling, Taylor necessarily concluded that an infringement

claim had already accrued, and simply applied a tolling

doctrine to find the plaintiff’s claim timely, either by late

discovery, id. at 1117-18, or due to “fraudulent concealment” by the defendant. Id. at 1118. Confirming that reading of Taylor is its ultimate holding that “either of the tolling principles discussed earlier” saved the plaintiff’s claim

from being untimely. Id. at 1119. Thus, Taylor did not

hold that a discovery rule applies to delay accrual of an

ordinary copyright infringement claim, because that was

neither its rationale nor its holding. BRYAN A. GARNER ET

AL., THE LAW OF JUDICIAL PRECEDENT § 4, at 44 (2016)

(holdings are “parts of a decision that focus on the legal

questions actually presented to and decided by the

court”).

Taylor, unfortunately, has been misread as an accrual

case rather than a tolling case. Properly understood, however, Taylor shows that an infringement claim accrues

upon the occurrence of the injury (or the moment when a

plaintiff can bring suit on its claim), and tolling may be

applied thereafter at the request of a plaintiff. Taylor

simply expanded the tolling doctrine beyond the exceptional circumstances traditionally required to equitably

relieve a plaintiff from an otherwise time-barred claim,1

but it did not establish a discovery “rule” of claim “accrual” in the Seventh Circuit.

B. The Seventh Circuit applies a “discovery rule”

to accrual of copyright ownership claims

The Seventh Circuit has also approached claim accrual

by looking to the type of claim, as illustrated by its decisions involving claims of copyright ownership disputes.

In Gaiman v. McFarlane, 360 F.3d 644 (7th Cir. 2004),

the Seventh Circuit first confronted a copyright ownership dispute. The plaintiff had sought “a declaration that

he (Gaiman) owns copyrights.” Id. at 648. It made explicit

that the case was “not a suit for infringement.” Id. at 652.

And similar to Warner Chappell Music, the parties in

Gaiman “agree[d] that the copyright statute of limitations starts to run when the plaintiff learns, or as a reasonable person have learned, that the defendant was

The equitable tolling doctrine “is the judicial power to promote

equity, rather than to interpret and enforce statutory provisions,”

Cal. Pub. Employees’ Ret. Sys. v. ANZ Sec., Inc., 137 S.Ct. 2042, 2051

(2017), and is applicable where there are “extraordinary circumstance[s that ] prevent[ a plaintiff] from bringing a timely action,”

CTS Corp. v. Waldburger, 573 U.S. 1, 9-10 (2014); Holland v. Florida,

560 U.S. 631, 652 (2010) (“the circumstances of a case must be ‘extraordinary’ before equitable tolling can be applied”); see also Bagett

v. Bullitt, 377 U.S. 360, 375 (1964) (characterizing the exercise of equity powers where “special circumstances” exist).

violating his rights.” Id. at 653. Based on that agreement,

Gaiman affirmed the jury’s verdict of the date when the

plaintiff was placed on notice of copyright ownership dispute, and thus when the statute of limitations began to run

for the ownership claim. Id. at 657.

Because infringement was not at issue in Gaiman, it

did not hold that § 507(b) embodies a discovery rule for

such claims. Gaiman is correctly understood as a copyright ownership dispute wherein the parties agreed the

limitations began to run upon notice, and because of the

way the parties framed the issue, it too did not create a

discovery rule for claim accrual.

The scope of Gaiman is confirmed by the fact that the

Seventh Circuit did not cite that decision twelve years

later when it again confronted copyright ownership in

Consumer Health Info. Corp. v. Amylin Pharms., Inc.,

819 F.3d 992 (7th Cir. 2016). There, it stated that it “now

hold[s] that when the gravamen of a copyright suit is a

question of copyright ownership, the claim accrues when

the ownership dispute becomes explicit.” Id. at 996-97

(emphasis supplied). Had the Seventh Circuit believed

Gaiman already stood for that proposition as binding

precedent, it presumably would have cited and followed it,

and further would not have temporally qualified its holding in the present tense.

Consumer Health reinforces the accrual-then-toll

reading of Taylor when it characterized the decision as “a

garden-variety infringement action [where] copyright

ownership was not in dispute.” Ibid. So too with respect to

its earlier decision in Chicago Building Design, P.C. v.

Mongolian House, Inc., 770 F.3d 610 (7th Cir. 2014),

which it noted “did not address the distinction between ordinary infringement cases and disputes about copyright

ownership.” Consumer Health, 819 F.3d at 997. The Seventh Circuit made clear that it viewed the statute of

limitations differently depending on the type of claim: as

between copyright ownership disputes and infringement

claims each accrues differently. Ibid. (the “distinction

makes sense for purposes of claim-accrual analysis”).

C. The rationale of Chicago Building Design and

Consumer Health shows that the Seventh Circuit applies the injury rule to ordinary infringement claims

Following this Court’s decision in Petrella v. MetroGoldwyn-Mayer, Inc., 572 U.S. 663 (2014), the Seventh

Circuit concluded that “the right question to ask in copyright cases is whether the complaint contains allegations

of infringing acts that occurred within the three-year

look-back period from the date on which the suit was

filed.” Chicago Building Design, 770 F.3d at 616. While it

suggested that it had “recognized” a discovery rule applies to ownership claims, cf. id. at 614 (citing Gaiman

first and Taylor second), it nevertheless questioned the

“common law gloss” that produced the discovery rule. Id.

at 616.

Citing Petrella extensively, it held that the complaint

should not have been dismissed because the acts of infringement alleged by the plaintiff “f[e]ll within the threeyear limitations period from the date of suit.” Ibid. The

court explicitly did not reach the question of whether the

plaintiff could recover “for earlier infringing acts,” which

it considered an “issue [that] may have to be revisited on

remand in light of Petrella,” id. at 612, because “much remains for further development, both legally and factually,” id. at 618.

Its later decision in Consumer Health reinforced its

position on the difference between ownership and infringement claims, stating that “disputes about copyright

ownership are different” from infringement claims; in the

latter “the focus is on the infringing acts” and that “distinction makes sense for purposes of claim-accrual analysis.” Consumer Health, 819 F.3d at 996-97. While Consumer Health also did not pass on accrual of infringement

claims, its characterization of Taylor as a “garden variety

infringement claim” and omission of Gaiman shows that

it viewed such claims as occurrence-based. Id. at 997. In

“ordinary” infringement actions “each infringing act is a

discrete wrong triggering a new limitations period.” Ibid.

However, after this Court’s decision in Warner Chappell Music v. Nealy, 601 U.S. 366 (2024), a different Seventh Circuit panel broke from those earlier decisions, cast

doubt on its limitations jurisprudence, and created intracircuit tension.

II.

Motorola Solutions injected intra-circuit

tension in the Seventh Circuit

Despite the holdings and rationale of Taylor and Consumer Health indicating the Seventh Circuit views accrual of infringement claims different from ownership

claims, and further views tolling as a separate doctrine, it

recently cast doubt on its prior decisions, resulting in tension and doubt about its jurisprudence respecting copyright claim accrual and tolling.

In Motorola Soln’s, Inc. v. Hytera Comc’ns Corp., 108

F.4th 458 (7th Cir. 2024) it characterized both Chicago

Building Design and Taylor differently from their holdings while never citing Consumer Health.

In an expansive opinion primarily addressing trade secretes, the court addressed whether the jury’s copyright

infringement damages award should stand, noting that

the defendant’s “liability is not at issue” in the appeal. Id.

at 468. The defendant had argued for a limitation on damages, consistent with the Second Circuit’s decision in

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

Corrected Br. at 67-71 Motorola Soln’s, Inc. v. Hytera

Comc’ns Corp., no. 22-2370 (7th Cir. Nov. 15, 2022). After

this Court decided Warner Chappell Music, Inc. v. Nealy,

and overruled Sohm, the Seventh Circuit rejected Hytera’s argument. Motorola Soln’s, 108 F.4th at 479.

But in reaching that holding it characterized its prior

decisions differently from their rationale and holdings. It

previously characterized Chicago Building Design as a

case that “straightforwardly applied the separate-accrual

rule in an infringement-focused case.” Consumer Health,

819 F.3d at 997. But in Motorola Solutions, it now characterized the case as the circuit’s “settled adoption of the

discovery rule in copyright cases.” Motorola Soln’s, 108

F.4th at 479. It did not distinguish between ownership and

infringement claims, nor between claim accrual and equitable tolling. It is therefore difficult to reconcile the two

panels’ competing understanding of Chicago Building

Design, which held only that the complaint should not

have been dismissed because it alleged “the defendants

committed infringing acts within the three-year lookback

period.” Chi. Bldg. Design, 770 F.3d at 618.

The Motorola Solutions panel similarly recharacterized Consumer Health. That earlier panel, addressing accrual of a copyright ownership claim, had distinguished

Taylor as “a garden variety infringement action.” Consumer Health, 819 F.3d at 997. It did so in order to reiterate that copyright ownership claims accrue differently

from ordinary infringement claims. Given its holding, that

panel would not have distinguished Taylor if it viewed

that case as already standing for a broad discovery rule

irrespective of claim type, since it reasoned that “disputes

about copyright ownership are different” from infringement claims, where “each infringing act is a discrete

wrong triggering a new limitations period.” Ibid. And so

for the later panel in Motorola Solutions to view Taylor

as broadly establishing a discovery rule irrespective of

claim type is also at odds with Consumer Health distinguishing it on that basis.

Taylor did not adopt a discovery rule, but rather applied tolling, post-accrual. Nor did Chicago Building Design adopt a discovery rule, because even though the case

“came to” the Seventh Circuit based on the “parties’ dispute” about “the proper application of the discovery rule,”

770 F.3d at 614, it departed from their assertion of what

the law is, relied extensively on Petrella, and rejected the

district court’s use of “inquiry notice” while reframing the

analysis as whether “infringing acts” “occurred within the

three-year look-back period,” id. at 614-16. The whole of

the opinions in Chicago Building Design and Taylor belie

any conclusion that either applied or adopted the discovery rule to infringement claim accrual. To the contrary,

Chicago Building Design applied occurrence-type reasoning, rooted in Petrella, to find that the plaintiff’s claims

were not time barred because the alleged “acts f[e]ll

within the three-year limitations period from the date of

suit.” 770 F.3d at 616.

For the most recent Seventh Circuit panel to characterize Chicago Building Design as the Circuit’s “settled

adoption of the discovery rule” is difficult to square with

the extensive rationale in the opinion repeatedly emphasizing infringing “acts” as the trigger for claim accrual.

So too is it difficult to square its parenthetical characterization of Taylor as “adopting [the] discovery rule,”

Motorola Soln’s, 108 F.4th at 479, when that decision is

replete with tolling rationale, not accrual in the first instance. That the panel also entirely ignored Consumer

Health further clouds how the Seventh Circuit actually

views ordinary infringement claim accrual. Nevertheless,

Motorola Solutions explicitly did not overrule either Taylor, Chicago Building Design, or Consumer Health by the

simple expedient of recharacterizing the first two in

conflict with their holdings and rationale, and omitting the

latter. GARNER, THE LAW OF JUDICIAL PRECEDENT § 3,

at 37 (later panels of the same circuit are “strictly bound

by the decisions of prior panels under the ‘law-of-the-circuit’ rule”); but see id. § 60, at 493 (discussing the Seventh

Circuit’s fluidity respecting horizontal precedent).

Even if Motorola Solutions’s characterization of Taylor and Chicago Building Design is taken at face value

without reading or understanding those decisions, it reveals intra-circuit tension, warranting this Court’s review

to provide conclusive guidance.

III.

An implicit circuit split exists between the

Seventh and Second circuits on ordinary

Because Motorola Solutions panel did not overrule

Taylor, Chicago Building Design, or Consumer Health,

those decisions reveal an implicit circuit split on ordinary

infringement claim accrual.

In Petrella, this Court noted that most “Courts of Appeals have adopted, as an alternative to the incident of injury rule, a ‘discovery rule.’” 572 U.S. at 670 n.4 (citing

William A. Graham Co. v. Haughey, 568 F.3d 425, 433 (3d

Cir. 2009)). Importantly, however, neither Petrella nor

Graham delineated between what types of actions such a

rule had been applied.

The Third Circuit stated that “eight of our sister

courts of appeals have applied the discovery rule to civil

actions under the Copyright Act,” and cited one case each

from the First, Second, Fourth, Fifth, Sixth, Seventh,

Eighth, and Ninth circuits. Graham, 568 F.3d at 433. For

the Seventh Circuit it cited Gaiman. Ibid. But Gaiman

was “not a suit for infringement.” 360 F.3d at 652. Left

unstated by the Third Circuit, and in turn this Court’s

footnote in Petrella (as well as recently in Motorola

Solutions), is the important distinction on the type of

claim being asserted, because “a claim accrues ‘when the

plaintiff has a complete and present cause of action.’” Gabelli v. SEC, 568 U.S. 442, 448 (2013) (emphasis supplied).

Notwithstanding how courts, litigants, and commentators have characterized the Seventh Circuit’s cases, the

holdings of Taylor and Consumer Health, are implicitly in

conflict with the holding of the Second Circuit in the decision below, which unequivocally held that ordinary copyright infringement claims accrue only when the plaintiff

learns of them. Compare Michael Grecco Prods., Inc. v.

RADesign, Inc., 112 F.4th 144, 148 (2d Cir. 2024) (“the

discovery rule determines when an infringement claim accrues under the Copyright Act”) (emphasis supplied) with

Taylor, 712 F.2d at 1117 (“the statute of limitations is

tolled until the plaintiff learned … he had a cause of action”) (emphasis supplied). Thus, an implicit split exists

between at least the Seventh and Second circuits on the

proper understanding of “accrue” in § 507(b) as concerns

infringement claims.

IV.

than a claim of infringement

As the Seventh Circuit has recognized, claims of copyright ownership are different from the statutory claim of

infringement.

A copyright ownership dispute is essentially an equitable claim procedurally cognizable under the Declaratory Judgments Act that refers to the Copyright Act for

its substance. Because such claims arise through the Declaratory Judgments Act, 28 U.S.C. § 2201, a claim for a

declaration of ownership in a copyright cannot exist until

there is a bona fide controversy. See ibid (“actual controversy”). Courts addressing whether such a claim exists

have engaged in a fact-intensive assessment respecting

knowledge. E.g., Maryland Cas. Co. v. Pacific Coal & Oil

Co., 312 U.S. 270, 273 (1941) (the existence of an actual

controversy “is necessarily one of degree”); Emory v.

Peeler, 756 F.2d 1547, 1552 (11th Cir. 1985) (a controversy

“may not be conjectural, hypothetical, or contingent; it

must be real and immediate, and create a definite, rather

than speculative threat of future injury”). Consequently,

and consistent with Consumer Health, a copyright ownership claim requires knowledge of the dispute. Webster v.

Guitars, 955 F.3d 1270, 1275 (11th Cir. 2020); see also

Norfolk S. Ry. v. Guthrie, 233 F.3d 532, 534-35 (7th Cir.

2000) (the defendant’s actions must be “known to the declaratory plaintiff at the time the action is commenced

[and are] considered in determining whether [] a threat

exists”); Clapper v. Amnesty Int’l USA, 568 U.S. 398, 411

(2013) (finding plaintiff could not assert a declaratory

judgment action because they “ha[d] no actual

knowledge” of the alleged wrongdoing and holding that

speculation of a possible dispute is insufficient). A declaration seeking to establish ownership in a copyright cannot exist absent the plaintiff being put on notice of or discovering a competing ownership claim. That analysis is

embodied in the holding of Consumer Health, where ownership claims accrue when a “claimant has notice that his

claim of ownership is repudiated or contested.” 819 F.3d

at 997.

But in contrast, a claim of copyright infringement accrues upon a violation under § 501 because the cause of

action exists where there is uncontested ownership of the

at 1117-19. Unfortunately, Motorola Solutions entirely ignored the Seventh Circuit’s statements in Consumer

Health delineating why ownership and infringement

claims accrue differently, adding confusion to copyright

claim accrual in the Seventh Circuit—confusion which this

Court ought to clarify.

CONCLUSION

Because an implicit conflict exists among the circuit

courts of appeals respecting the meaning of “accrue” under 17 U.S.C. § 507(b) for ordinary infringement claims,

the Court should grant the petition for a writ of certiorari.

At a minimum, the Seventh Circuit’s recent recharacterization of its jurisprudence inconsistent with the reasoning

and holdings of those decisions warrants clarification from

this Court.

Respectfully submitted,