Statute of Limitations

[wolfwolf]

Below is a copy of Tite 17 U.S. Code § 507. Limitations on actions

§ 507. Limitations on actions

(a) Criminal Proceedings. — Except as expressly provided otherwise in this title, no criminal proceeding shall be maintained under the provisions of this title unless it is commenced within 5 years after the cause of action arose.

(b) Civil Actions. — No civil action shall be maintained under the provisions of this title unless it is commenced within three years after the claim accrued.

Does this mean that Masterfile or Getty cannot pursue any action after 3 years of the infringement for civil actions? And is the infringement the date of the publication of the image on the website or the last date that it was viewed by someone accessing your web site? I ask as there is case law in our state (Wisconsin Ladd v. Uecker, 2010 WI App 28, 323 Wis. 2d 798, 780 N.W.2d 216) that "hits on the internet" are compared to publishing a book. The date of the publication is the date of the violation, not the date that someone read the book. I do know that state law is not pertinent to the Federal law, but is there some Federal case law similar to this case?

And, is the date that the claim accrued the date that they knew or should have known about the violation and not the date that they finally send a letter claiming the infringement?

When do the limitations come into play or is this not relevant to the internet?

[Lettered]

I'm not a lawyer, but I wanted to try to post my understanding on the matter mostly to make sure I do understand it correctly.  Hopefully Oscar will let me know if I am wrong.

Assuming non-criminal infringment of unregistered images (which covers most Getty cases I would think).  
Infringment begins the day you post the image.  The 3 year statute of limitations "clock" begins to run the day you take the image down.  This is important, because any damages Getty may be entitled to start to diminish at this point.  Example:
Image posted on Jan 1, 2000
Image taken down on Jan 1, 2011
If they file suit on Jan 1, 2011 they can get 3 years worth of damages
If they file suit on Jan 1, 2012 they can get 2 years worth of damages
If they file suit on Jan 1, 2013 they can get 1 year worth of damages
They wouldn't be entitled to any damages after Jan 1, 2014
(notice that the date of the claim letter isn't relevant)

That's my understanding anyway.

[Helpi]

"No civil action shall be maintained under the provisions of this title unless it is commenced within three years after the claim accrued." "Does this mean that Masterfile or Getty cannot pursue any action after 3 years of the infringement for civil actions?"

No, it means they can't maintain an action three years after "the claim accrued." Not to be cute but the statute says what it says (a lesson to Corbis).

Helpfully Congress doesn't define what "the claim accrued" means so that leaves it to the courts to figure out.  What it means depends on what Circuit you are in.

"And is the infringement the date of the publication of the image on the website or the last date that it was viewed by someone accessing your web site?"

If it's up on a site the infringement is occurring.

"I ask as there is case law in our state "

Irrelevant.   If you're discussing the SOL for copyright infringement, then the applicable statute is the Copyright Act, specifically 507(b) and you need to look at case law discussing 507(b), not state law.

"And, is the date that the claim accrued the date that they knew or should have known about the violation and not the date that they finally send a letter claiming the infringement? "

The meaning of 507(b) is open for interpretation so it's an area people litigate. Courts go in one of two ways for what "the claim accrued" means:  (1) when the plaintiff knows or has reason to know of a Copyright Act violation (referred to as the "discovery rule") or (2) when the Copyright Act violation occurs; that is, when the plaintiff suffers the injury) (referred to as the "injury rule").

So in Lettered's example, image posted Jan 1, 2000 and image taken down Jan 1, 2011. Let's say you sue Jan 1, 2012.  All courts would allow damages back to Jan 1, 2009 since under either rule those claims are not time barred by the 3-year SOL.

Whether you can go back further depends on the court, which rule it uses to define the date the "claim accrued" and the facts and circumstances known to the plaintiff.  

Obviously I'm not giving legal advice. Ask Oscar for that.

[Oscar Michelen]

Both Helpi and Lettered are correct in that as long as the image is up you are still infringing. So therefore until the image comes down, the statute does not start to run. The last day it was up can therefore be used as "when the claim accrued." If Getty filed on that date they would have three years back in damages. Once three years pass from that date they cannot bring a claim.  Also for folks who have the images up for 4,5, 6 years whatever, the image companies cannot get more than a maximum of three years worth of damage.Something to argue when they say "Well the fee for a 6 year license is $15,000.00"

[Helpi]

In Meunch a number of claims were registered in a timely manner and survived the Judges order (I believe registered directly by the photographers). The defense is trying to get rid of those claims as well. Using the SOL.

If the law is as you stated it, please explain why the Muench defense spent pages of arguments to convince the Judge that the "injury rule" should be applied to determine the accrual date of those claims ? If what you wrote is accurate it would be a non-issue. It always runs from the date of the infringement.

(Incidentally, the court put off ruling on the issue until completion of discovery as to the dates any infringement occurred.)

[Oscar Michelen]

Helpi- As I tell my law students, this vagueness is what is so beautiful and frustrating about the law. My statements are my opinion of how this issue should be resolved.  It has never been decided by a court of law so both sides are free to argue how they see the application of 507(b). Until it is firmly settled through litigation and appeals, it will remain subject to argument.

[Helpi]

I'm not trying to score points.

But there is simply nothing vague about the fact that the courts are split as to when a claim accrues under 507(b). And if you were briefing a court (or a client for that matter) I doubt you'd ignore the fact that there is law contrary to how think it should be resolved.  How a court applying the discovery rule might look at a stock agency in this particular position may be unclear.  That the discovery rule, if used, can push the date of accrual of a claim back beyond three years is not.

[Lettered]

Oscar, Thanks for the clarification.

Helpi,
Here's a pretty decent article discussing the controversy over the statute of limitations that I think you are refering to and might find interesting:
http://lawreview.wustl.edu/inprint/78-2/starr.pdf

I believe, for most of us, the "controversy" is moot.  We have a letter from Getty proving that they know about the alleged infringement on a certain date.  Most of us take the image down very soon after the receipt of the letter.  So it doesnt really matter if its determined that the claim accrues based on the injury rule or the discovery rule ... they are nearly the same date anyway in most of our cases.

... unless of course I'm misunderstanding something?

[Helpi]

The issue is relevant for the reason I explained earlier. It goes to the issue of calculating damages.

"image posted Jan 1, 2000 and image taken down Jan 1, 2011. Let's say you sue Jan 1, 2012. All courts would allow damages back to Jan 1, 2009 since under either rule those claims are not time barred by the 3-year SOL. Whether you can go back further depends on the court, which rule it uses to define the date the "claim accrued" and the facts and circumstances known to the plaintiff. "

So if the infringement extends beyond a period of three years it is relevant.

Directly at odds with this statement, by the way:

Oscar : "Also for folks who have the images up for 4,5, 6 years whatever, the image companies cannot get more than a maximum of three years worth of damage."

PS, the law review article is old (case law since then) plus it's just a law review article.  Here is a more recent one for you. They are just articles though, they aren't law obviously. Often they are authored by students.

http://iplj.net/blog/wp-content/uploads/2009/09/Note-DISCOVERING-INJURY-THE-CONFUSED-STATE-OF-THE-STATUTE-OF-LIMITATIONS-FOR-FEDERAL-COPYRIGHT-INFRINGEMENT.pdf

[Lettered]

I dont understand your point.  If you've got a letter from Getty that proves they know about the infringment on Jan 1, 2011 and you take it down on Jan 2, 2011 then it doesnt matter if you use the discovery rule or the injury rule for determining the accrual date.  It's essentially the same accrual date either way, and it's pretty much locked in at that point as I understand it.  If they sued on Jan 1, 2012 and tried to use the discovery rule claiming that they didn't know about the infringing activity until Jan 1, 2012 (in order to get 3 full years of damages), they would look pretty silly when you produced a demand letter from them dated Jan 1, 2011.

I don't see how the application of either rule could ever net more than a maximum of 3 years damages in any non criminal case.  Not where the infringment stopped upon discovery anyway.

[Helpi]

Three times a charm ?

[I hope this adds to the discussion as it took some time to google you cases.  Please understand that this is not legal advice. I suggest you consult with your lawyer for that.]

They learn of the infringement Jan 1, 2011.
You take it down Jan 2, 2011.  
They sue Jan 1, 2012.

You haven't supplied a key date. When did the image go up (i.e., when did the infringing activity commence). If the infringement began after Jan 1, 2009 (three years back) Getty can recover damages for the entire period of infringement. I believe all courts will permit that.

But what if you've been infringing going back before Jan 1, 2009  The "injury rule" would bar recovery for that period. The "discovery rule" would require a fact based inquiry into what plaintiff knew or should have known about the earlier infringement. You would not necessarily be home free for the earlier infringement.

"I don't see how the application of either rule could ever net more than a maximum of 3 years damages in any case."

See above. Or better yet read the law for yourself. I found some cases for you at random and assume they are still law in their circuits. My point isn't to present a picture of the law in each circuit.   Merely to note as I said in an earlier post, there is a split in the circuits. This isn't "vague" as suggested above.

The blanket statement that you can't get damages outside of the three period is not supported.  It depends on the Circuit, the rule used to determine "claim accrual" and the circumstances of the case (such as what plaintiff knew or should have known about those infringements).

I think most Circuits follow the "discovery rule". Though there is some reason to think that the writing is on the wall for the "discovery rule" in the Second Circuit.

Here is a case from the 9th Circuit: http://ftp.resource.org/courts.gov/c/F3/384/384.F3d.700.03-35245.03-35188.html

[Incidentally, you seem to be making the same argument the defendant did in that case and the court deemed "novel": ("I don't see how the application of either rule could ever net more than a maximum of 3 years damages in any case" )

"In copyright litigation, the statute of limitations issue that often arises is that the plaintiff filed its copyright claim more than three years after it discovered or should have discovered infringement. Here, Timex makes a different, novel argument and asks us to rule that § 507(b) prohibits copyright plaintiffs from obtaining any damages resulting from infringement occurring more than three years before filing the copyright action, regardless of the date the plaintiff discovered the infringement. In Kling v. Hallmark Cards, Inc., 225 F.3d 1030, 1041-42 (9th Cir.2000), we left for another day precisely this argument; that day is now upon us. We conclude that § 507(b) permits damages occurring outside of the three — year window, so long as the copyright owner did not discover — and reasonably could not have discovered — the infringement before the commencement of the three-year limitation period. Because Polar Bear did not discover Timex's infringement until within three years of filing suit, Polar Bear may recover damages for infringement that occurred outside of the three-year window."

Here is a Third Circuit court case from 2009 adopting the discovery rule (first time they ruled on which rule they use) and rejecting that you can't get damages from infringement occurring outside of the three year window from when you filed the suit.

http://www.ca3.uscourts.gov/opinarch/082007p.pdf

[Lettered]

I still don't get how any of the points you raise or the cases you cite have much (if any) relevance to Getty cases where the image was taken down upon receipt of the demand letter.   In any event, I'll be shocked if Getty sues anyone over a demand letter that is greater than three years old.  

Since both of us are laymen and presumably not overly qualified to do these type of legal interpretations anyway, I guess we'll just have to agree to disagree, and assess our own risks differently.

[Helpi]

"where the image was taken down upon receipt of the demand letter"

Congratulations. And what does that have to do with how long you've been infringing ? And whether I can get (any) damages outside of the three year window from filing suit ?

Do you get that if you use my photo without authorization I want damages for your entire period of infringement. I don't want my damages for what a license cost for one day if you used it for X years ?

"Since both of us are laymen and presumably not overly qualified to do these type of legal interpretations anyway,"

Thanks for the compliment. Reminds me of the rewards of of pro bono work.

Anyway, I think I get points for trying but I give up at this point.

[Lettered]

Helpi Wrote:
. . .
> Thanks for the compliment. Reminds me of the
> rewards of of pro bono work.
>
. . .

No offense intended, and if you are indeed a lawyer, I appologize for the incorrect assumption that you were not.

[infringer]

The way I see it, the point Helpi is trying to make is very significant if you're faced with a demand letter for a registered image (i.e. from Masterfile) that you had been using for > 3 years.  If the image was registered when you used it, you must settle or likely face a lawsuit.  The copyright holder is going to demand damages based on the length of time they believe you have been using the image (usually by looking your site up in the Way Back Machine).  If the circuit you are in is using the injury rule and you had the image for 6 years, you are in a better position to negotiate because you are only exposed to 3 years of damages.  Otherwise, if the court uses the discovery rule, you'll loose out on that bargaining chip.