The Second Circuit reversed a district court opinion that cited the plaintiff’s history as an active litigant as a reason to side step the Second Circuit’s discovery rule in Michael Grecco Productions v. RADesign et al. Grecco is an accomplished photographer who has enforced his rights prolifically in federal courts.
In copyright infringement cases, the discovery rule refers to when the three-year statute of limitations is measured from — the time of the infringement, or when the infringement was, or should have been, discovered.
As the Second Circuit would point out, something different happened in this case. In response to the defendant’s motion to dismiss, the district court found that defendants had reasonably argued that this plaintiff should have filed the lawsuit within three years of the infringement, not the discovery of the infringement. Defendants in this way relied on the injury rule (the date of infringement being the date the plaintiff was “injured”).
The Second Circuit disagreed with the lower court’s ruling, noting that the Second Circuit, and 10 other circuits, use the discovery rule. In this case, the district court had held that the lawsuit should have been brought within three years of when the infringement began. Instead, the appellate court ruled, whether the case was timely should have been determined by counting three years backwards from the date that the lawsuit began.
The Second Circuit goes on to say that, even if the district court hadn’t miscalculated, it also imposed an artificial qualification or requirement in addition to saying some plaintiffs should be treated differently than other plaintiffs. The fact that the photographer in this case showed relative sophistication in enforcing his own copyrights (that is, as a prolific litigant) did not mean that he should be held to a higher standard.
The Second Circuit reminded the district court that the law does not say that. In fact, the district judge had recognized that other district courts don’t agree with him. Instead, he believed that in this case (and two other cases he had decided) copyright plaintiffs who frequently litigated should be on notice, and they should have brought this case within three years of when the injury occurred.
The Second Circuit held that, after going through fact-intensive discovery, the defendant may have enough information to move for summary judgment and show that the case commenced after the statute of limitations had run. But on a motion to dismiss, the district court had improperly allowed defendants to get the case dismissed without jumping through the hoops of proving anything.
It seems to me that the district court was trying to limit plaintiffs who bring a hundred or more lawsuits as full-time copyright litigants. This might be understandable, as those who decry so-called copyright trolls (who sue frequently but without sufficient factual or legal support) have pointed out. On the other hand, the plaintiff was enforcing his rights. If he actually owns the works, and they were actually infringed, the court shouldn’t be second-guessing whether he’s got the right to do so until after a more fact-intensive inquiry. This photographer seems to have published a lot of work, and his work had been infringed. A plaintiff who frequently enforces his rights shouldn’t be prevented from doing so simply because he’s keeping the courts busy.
