Very Interesting Article on Statute of Limitations and Discovery Rule

[AndrewRaia]

Anyone have time to read and interpret for the Ley Man? Got through the first few pages before my head began to spin lol

http://bit.ly/IpRswF

[Lettered]

A good article mainly about whether discovery or injury rule applies to copyright.  The beauty of receiving the letter is that it is pretty much proof that discovery occurred on or before the date of the letter, and I think this date is a safe bet for calculating the statute of limitations . . . assuming you immediately take down the image (that way the same date applies no matter if you use discovery or injury rule). If they discover it a long time after you take it down, then I am not sure how the statute of limitations applies.  I think the courts can go both ways on that one . . .

That's my layman's understanding anyway.

[AndrewRaia]

do damages calculate then from discovery date or first use?

[Lettered]

thats probably better answered by a lawyer.  My layman's understanding is that they can collect damages for the infringing activity that falls within the 3 year statute of limitation period.  This is the reason it is important, I think, to get the infringing material taken down as soon as possible.  Have a look at Stone v Williams and Roley v New World Pictures in the link you provided.  If I read those correctly, the plaintiff was not able to recover damages for infringing activity falling outside the 3 year period going back from the date the suit was filed.

I also take this to mean that as soon as you take the image down, your risk exposure begins to decrease linearly with time over the next 3 years.  So if Getty waited around 2.9 years and then filed suite there would be very little infringing activity to consider to calculate damages.  If the image was registered before infringement began, this might be a moot point, in that Getty could simply ask for statutory damages.  However, in cases of innocent infringement, the judge is allowed to reduce statutory damages to as low as $200, I believe.

This is just my layman's take on the issues.