Court Dismisses Copyright Infringement Claim Despite Claim for Continuing Infringement

Tahoe Snow Storm - Copyright Carolyn E. Wright

As explained in my May 27, 2005 blog entry, a claim for copyright infringement must be brought “within three years after the claim accrued.” 17 U.S.C. § 507(b). So when does the claim accrue when the infringement continues?

Andrew Diversey, a doctoral candidate at the University of New Mexico, learned in February 2008 that his dissertation had been reproduced for deposit in the University’s library. Despite Diversey’s protest, the University refused to remove the dissertation. The University later  listed Diversey’s work in its library catalog, making it available to the public.

But Diversey didn’t file suit for infringement until June 15, 2012. The district court dismissed the case for being filed after the statute of limitations had expired. So Diversey appealed the ruling and asked the 10th Circuit Court of Appeals to review the matter.

On appeal, the 10th Circuit agreed that Diversey’s claim for unauthorized reproduction was filed too late. It explained that the majority of courts hold that “a claim ‘for copyright infringement accrues when one has knowledge of a violation or is chargeable with such knowledge.’ . . . [The Statute of Limitations] does [not] provide for any reach back if an act of infringement occurs within the statutory period.” “In other words, the majority view rejects the notion that a plaintiff can recover for acts of infringement occurring more than three years before the filing of a complaint merely because some related act of infringement occurs within the limitation period.”

When applied to Diversey’s claim, the 10th Circuit ruled that he should have filed his copyright infringement lawsuit within three years of knowing that his dissertation had been copied for placement in the University’s library, regardless of whether the infringement continued.

But not all courts agree. A fewer number of courts apply a “continuing wrong” exception, which means that the limitation period “does not begin to run on a continuing wrong till the wrong is over and done with.”

Fortunately for Diversey, he had another infringement claim for acts that occurred within the three years of filing suit (“each act of infringement is a distinct harm.”). Specifically, Diversey’s exclusive right to distribute his work was allegedly infringed when the University listed his work in its library catalog for public lending. As Diversey didn’t discover the distribution until June 16, 2009, his Complaint was timely filed for that claim. So the Circuit Court remanded the case back to the District for further proceedings.

What to do? Don’t delay in pursuing your copyright infringement claims. It’s best to not have to ask the court to consider these matters, as it may not decide in your favor.

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