rule, a “discovery rule,” which starts the limitations period when “the plaintiff discovers, or with due diligence should have discovered, the injury that forms the basis for the claim.” William A. Graham Co. v. Haughey, 568 F.3d 425, 433 (3d. Cir. 2009) (internal quotation marks omitted). See also 6 W. Patry, Copyright § 20:19, p. 20-28 (2013) … (“The overwhelming majority of courts use discovery accrual in copyright cases.”).
Id. at 670 n.4, 134 S.Ct. 1962. However, the Court expressly noted that it had “not passed on the question,” and it did not do so in Petrella. Id. Nor has it had the occasion to address the discovery rule since. See, e.g., SCA Hygiene Prods. Aktiebolag v. First Quality Baby Prods., LLC, – U.S. —, 137 S. Ct. 954, 962, 197 L.Ed.2d 292 (2017) (recognizing that the Court has not decided “whether the Copyright Act’s statute of limitations is governed by [a discovery] rule”). And because the Petrella Court was solely concerned with laches—a doctrine addressing concerns about delay when plaintiffs know of their claims, but sleep on their legal rights[1]—it could not have intended its language to address the situation where a copyright holder does not know about the infringing act to which the discovery rule, not the incident of injury rule, applies. It thus seems fair to draw the conclusion that in Petrella, “the Court acknowledged that the ‘incident of injury’ rule it described in the main text of the case is not the only [accrual] rale that federal courts apply in copyright infringement cases,” Mitchell v. Capitol Recs., LLC, 287 F. Supp. 3d 673, 677 (W.D. Ky. 2017), but said nothing else about the discovery rule's continued viability.
B.
“The overwhelming majority of courts” today use the discovery rule for determining accrual in copyright cases. See 6 William F. Patry, Patry on Copyright § 20:19 (2013) (collecting cases). Our circuit has continued to apply the discovery rule post Petrella. See Oracle Am., Inc. v. Hewlett Packard Enter. Co., 971 F.3d 1042, 1047 (9th Cir. 2020) (“[A] copyright infringement claim accrues—and the statute of limitations begins to ran—when a party discovers, or reasonably should have discovered, the alleged infringement.”); Media Rts. Techs., Inc. v. Microsoft Corp., 922 F.3d 1014, 1022 (9th Cir. 2019) (same). But most circuit courts, including ours, have not yet addressed whether Petrella imposed a damages bar separate from the statute of limitations, as MGM suggests.
The Second . Circuit is the only exception. See Sohm v. Scholastic Inc., 959 F.3d 39 (2d Cir. 2020). There, Sohm, a professional photographer, entered into an agreement with different agencies to issue limited licenses to third parties to use his photographs. Id. at 42. In 2004, one of those agencies entered into an agreement with Scholastic, a publisher and distributor of children’s books, that established fees for certain print-run ranges of Sohm’s photos. Id. Some twelve years later, in May 2016, Sohm sued Scholastic for copyright infringement, alleging that Scholastic used his photos in numbers in excess of those contemplated in the monthly invoices governing Scholastic’s licenses. Id. Scholastic moved for summary judgment, arguing that the incident of injury rule should apply to determine when Sohm’s claim accrued and, even if the discovery rule applied, first, Sohm should have discovered
- ↑ See Restatement (Second) of Torts § 939 (1979) (defining laches as an equitable remedy that may bar relief where there is “delay by the plaintiff in bringing suit, after he knew or should have known of the tort … if the delay has operated to the prejudice of the defendant or has weakened the court’s facility of administration”).
