Page:Starz Entertainment v. MGM Domestic Television Distribution.pdf/12



The district court correctly applied the discovery rule to conclude that Starz timely filed its claims of copyright infringement. Taking all the facts in the complaint as true, there were no events that occurred that should have placed Starz on notice that MGM was violating its exclusive rights until Starz’s employee discovered the movie Bill & Ted’s Excellent Adventure on Amazon Prime Video in August 2019. And as the district court aptly put it, “When Starz did detect smoke, in the form of Bill & Ted’s Excellent Adventure, it quickly discovered the fire and promptly sued for all 340 infringements.” Because Starz brought its claim within three years after its claim accrued, Starz is not barred from seeking damages for all acts of infringement.

We therefore affirm the district court’s denial of MGM’s motion to dismiss under Rule 12(b)(6).

AFFIRMED.

(D.C. No. 5:15-CR-00126-C-5)(W.D. Okla.)

Steven W. Creager, Office of the United States Attorney, Western District of Oklahoma, Oklahoma City, OK, for Plaintiff-Appellant.

Virginia L. Grady, O. Dean Sanderford, Office of the Federal Public Defender, Districts of Colorado and Wyoming, Denver, CO, for Defendant-Appellee.

Erica Nicole Peterson, Hunton Andrews Kurth, Washington, DC, Lindsey N. Roberson, Alyssa C. Wheeler, Human Trafficking Institute, Merrifield, VA, Nicholas D. Stellakis, Jacob J. Struck, Hunton Andrews Kurth, Boston, MA, for Amicus Curiae The Human Trafficking Institute.

Before TYMKOVICH, Chief Judge, HARTZ, MATHESON, PHILLIPS, McHUGH, MORITZ, EID, and CARSON, Circuit Judges.

On January 12, 2022, the panel’s opinion issued in this matter, and the court’s judgment entered the same day. An active judge of the court then called a poll, sua sponte, to consider en banc review of the panel decision. A majority of the non-recused active judges of the court voted not to rehear the case en banc, and as a result the poll failed. See Fed. R. App. P. 35(a).

Judges Hartz, Carson and Eid voted to grant en banc rehearing. Judge Hartz has prepared the attached written dissent from the denial of en banc rehearing, which is