As explained in my May 27, 2005 blog entry, you have the limited time of three years to make your claim when someone infringes your copyright. But sometimes you don’t find out about the infringement until after it has occurred. So when does the three years start?
Some courts follow the “injury rule” for starting the clock for statute of limitations. This means that the three years begins at the time from the last act of infringement, regardless of whether you know about it. Therefore, if you don’t learn about the infringement until three years and a day after it occurred, then you can’t make a claim against the infringer.
Most courts, however, follow the “discovery rule” for the statute of limitations for copyright infringement. In other words, the time starts when you discover (or should have discovered if you had been diligent), the infringement. Because some infringers will assert that you should have discovered the infringement earlier, they will argue that your claim is barred by the statute of limitations. This adds an extra hurdle when making a copyright infringement claim.
Currently, the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth and Ninth Circuits have held that the discovery rule applies to claims under the U.S. Copyright Act. That leaves only the Tenth and Eleventh Circuit courts with the injury rule.
But you should never sit on your claim even if you have some time left on the statute of limitations. Instead, be diligent about pursuing your infringement claim when you find it. Check my article about your options from there.
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