Page:Nealy v. Warner Chappell Music, Inc. (11th Cir. 2023).pdf/9

 from stale claims by giving a copyright owner only three years from that date to sue for the infringement. Id.; see 17 U.S.C. § 507(b). But after those three years pass, the owner no longer has a timely claim to sue for that act of infringement under the injury rule. That’s the way the injury accrual rule works—it precludes a plaintiff’s recovery for any harms that occur earlier than three years before the plaintiff files suit.

The discovery rule affords defendants a different kind of protection from stale claims. Under the discovery rule, it is possible to have a timely claim for an infringement that occurred more than three years before the lawsuit was filed. On the other hand, it also means that a claim accrues only one time: “when a copyright ownership claim is time-barred, ‘all those claims logically following therefrom should be barred, including infringement claims.’ ” Webster, 955 F.3d at 1277 (quoting Calhoun v. Lillenas Publ’g, 298 F.3d 1228, 1236 (11th Cir. 2002) (Birch, J., concurring)). Had the discovery rule applied in Petrella, the plaintiff’s claims—based on infringing conduct that began almost two decades earlier—may well have been untimely.

In any event, the Court’s explanation of how the injury rule protects defendants from stale claims says nothing about damages when a claim is timely under the discovery rule. If the Court in Petrella had been addressing a claim that was timely under the discovery rule, it would have said different things about how that claim accrued and the way the statute of limitations affected the availability of damages. For example, it would have explained that the statute of limitations protects defendants from stale claims because all claims for damages are cut off three years from when the putative plaintiff discovers his claim. But the Court’s bottom line about laches would have been the same: “in face of a statute of limitations enacted by Congress, laches cannot be invoked to bar legal relief.” Petrella, 572 U.S. at 679, 134 S.Ct. 1962.

Second, the Court in Petrella expressly addressed the discovery rule and preserved the question whether the discovery rule governs the accrual of copyright claims. The Court recognized that nine of our sister circuits apply the discovery rule to the kind of ordinary infringement claims that were at issue in Petrella. See id. at 670 n.4, 134 S.Ct. 1962. The Court noted that it “[has] not passed on the question” of the discovery rule’s propriety and reserved that question for a future case. Id.

It would be inconsistent with Petrella’s preservation of the discovery rule to read Petrella to bar damages for claims that are timely under the discovery rule. See Petrella, 572 U.S. at 670 n.4, 134 S.Ct. 1962. As the Ninth Circuit explained, “[t]here is no reason for a discovery rule if damages for infringing acts of which the copyright owner reasonably becomes aware years later are unavailable.” Starz Ent., 39 F.4th at 1244. Unless a plaintiff may recover damages for the infringement, the discovery and injury rules lead to the same result—retrospective relief only for harms occurring in the three years preceding the filing of the lawsuit. Because the Supreme Court expressly reserved the question of the discovery rule’s propriety, we cannot say it silently eliminated the discovery rule by capping damages for claims that are timely under that rule.

In response to this concern, the defendants argue that their reading of Petrella would allow a copyright plaintiff with a timely claim under the discovery rule to sue for injunctive relief, even if retrospective relief is unavailable. See 17 U.S.C. § 502. But the defendants have no explanation for why the statute of limitations would bar damages, but not other kinds of