Page:Sohm v. Scholastic.pdf/12

 the discovery rule.” Scholastic’s Br. at 34 (citing SCA Hygiene Prods. Aktiebolag v. First Quality Baby Prods., LLC, – U.S. —, 137 S. Ct. 954, 197 L.Ed.2d 292 (2017); Petrella, 572 U.S. 663, 134 S.Ct. 1962, 188 L.Ed.2d 979). We disagree and decline to alter this Circuit’s precedent mandating use of the discovery rule; we therefore affirm the district court’s holding that the discovery rule applies for statute of limitations purposes in determining when a copyright infringement claim accrues under the Copyright Act.

“Civil actions for copyright infringement must be ‘commenced within three years after the claim accrued.’ ” Psihoyos, 748 F.3d at 124 (quoting 17 U.S.C. § 507(b)). As we noted in Psihoyos, we apply “a discovery rule for copyright claims under 17 U.S.C. § 507(b).” Id. Under that rule, “an infringement claim does not ‘accrue’ until the copyright holder discovers, or with due diligence should have discovered, the infringement.” Id.

Psihoyos, as a published opinion of a prior panel, is binding precedent upon this Court “unless and until its rationale is overruled, implicitly or expressly, by the Supreme Court or this court en banc.” United States v. Allah, 130 F.3d 33, 38 (2d Cir. 1997) (quoting United States v. Ianniello, 808 F.2d 184, 190 (2d Cir. 1986)). Scholastic contends that the Supreme Court has done just that, first in Petrella and subsequently in SCA Hygiene Products. The Supreme Court, however, has not overruled Psihoyos, either implicitly or explicitly, and therefore we must continue to apply the discovery rule.

Petrella specifically noted that it was not passing on the question of the discovery rule. See 572 U.S. at 670 n.4, 134 S.Ct. 1962. The Supreme Court reaffirmed that position in SCA Hygiene Products, explaining that it had “specifically noted” in Petrella that it had “not passed on the question whether the Copyright Act’s statute of limitations is governed by such a rule.” 137 S. Ct. at 962 (internal quotation marks and citation omitted). Consequently, while some language in Petrella is perhaps consistent with the injury rule, in light of the Supreme Court’s direct and repeated representations that it has not opined on the propriety of the discovery or injury rules, it would contravene settled principles of stare decisis for this Court to depart from its prior holding in Psihoyos on the basis of Petrella.

Given the continuing propriety of the discovery rule in this Circuit, we must now determine whether the district court properly applied that rule, namely, whether the court erred in finding that Sohm did not discover, nor with due diligence should have discovered, Scholastic’s purported copyright infringements more than three years prior to when he filed suit. Scholastic contends that even under the discovery rule standard, Sohm’s claims accrued more than three years prior to his filing suit, thereby falling outside the Copyright Act’s