Copyright Infringement: When Can I Seek a Remedy?
When a person or entity infringes upon a copyright holder’s copyright, that copyright holder has the right to seek a remedy under 17 U.S.C. § 501. However, the copyright holder only has a certain period of time to seek that remedy. In copyright cases, 17 U.S.C. § 507(b) provides that, “[n]o civil action shall be maintained under the provisions of this title unless it is commenced within three years after the claim accrued.” Although the statute provides a period of three years for the statute of limitations there is a split among the circuits as to when the statute of limitations begins to run. Specifically, when does the “claim accrue.” Does the claim accrue when the infringing material is uploaded or distributed or when the copyright holder has actual or constructive knowledge of the violation?
The United States District Court for the Western District of Virginia, Lynchburg Division provides us with that answer. A claim accrues when one has knowledge of a violation or is chargeable with such knowledge. Tyler v. Cashflow Technologies, No. 6:16-CV-00038, 2016 WL 6538006 at *4 (W.D. Va. Nov. 3, 2016) (citing Lyons P’ship, L.P. v. Morris Costumes, Inc., 243 F.3d 789, 796 (4th Cir. 2001)). Once the copyright holder has actual or constructive knowledge of the violation, he has three years to file his claim. If the copyright holder does not file suit they have no claim. The theory behind that is the copyright holder had “knowledge” and should have asserted his rights. Because the copyright holder did not assert his rights, he has no claim.
It should be noted that while the three-year statute of limitations period does not bar recovery for related acts of infringement that occurred during the statute of limitations period, a plaintiff may not reach back based on acts of infringement that occurred during the three-year limitations period to recover for related acts that occurred prior. Hotaling v. Church of Jesus Christ of Latter-Day Saints, 118 F.3d 199, 202 (4th Cir. 1997). For example, if an infringer had been posting copyrighted photos on his website for six years and the copyright holder knew or should have known of the infringement, the copyright holder cannot use his claim against the infringements that have occurred in the last three years to reach back and recover against the infringer for the acts that occurred before those three years even though they are related.
In several opinions within the 4th Circuit constructive knowledge is often mentioned but it is not always defined. A defendant has constructive knowledge when he has reason to know of the direct infringement. Ellison v. Robertson, 357 F.3d 1072, 1076 (9th Cir. 2004). One example where a defendant has constructive knowledge or has reason to know of direct infringement is when the defendant receives complaints of the infringement from copyright holders. Id. Another possible instance is if a supervisor knew that a student had to go through a process to get a license for the music and did not communicate to the student of that process. BMG Rts. Mgmt. (US) LLC v. Cox Commc’ns, Inc., 881 F.3d 293, 312 n.7 (4th Cir. 2018).
What Constitutes an Act of Infringement?
Because the statute of limitations is only a period of three years, what constitutes an act of infringement is important. For example, if a copyright infringer uploads a video with music that he does not have a license to, does the upload constitute the act of infringement or does a third viewership of the video constitute a new act of infringement? After conducting nothing I found provided me with a clear answer with respect to viewership in the 4th Circuit. However, the court in BMG Rts. Mgmt. (US) LLC v. Cox Commc’ns, Inc., 881 F.3d 293 (4th Cir. 2018), cited a case in the United States District Court in the Southern District of Texas. In that case, the Defendant uploaded copyrighted materials for other users to download in 2009. The Plaintiff copyright holder filed suit in 2014 which the Court held to be after the statute of limitations. The Court reasoned that, “[a]lthough others may have downloaded the copyrighted material, Defendants are only liable for their acts of infringement committed within three years [before] the plaintiff’s lawsuit.” Alfa Laval Inc. v. Flowtrend, Inc., No. CV H-14-2597, 2016 WL 2625068, at *6 (S.D. Tex. May 9, 2016) (citing Makedwde Pub. Co. v. Johnson, 37 F.3d 180, 182 (5th Cir. 1994)). The Court determined that the only act of infringement that occurred that was attributable to the defendants was the uploading of the copyrighted materials, not the subsequent downloading by third parties. See Chelko v. Does, No. 3:18-cv-00536-GCM, 2019 WL 3294201, at *5 (W.D.N.C. July 22, 2019) (granting motion to dismiss and holding that, “[i]f every access of a copyrighted work on a website establishes a new claim for infringement, as Plaintiff contends, the statute of limitations becomes obsolete for the internet”). The Court in Alfa Laval, however, did imply that a reposting of the materials would constitute a new copyright infringement. “There is no evidence cited by Plaintiff to suggest that Defendants reposted the Copyrighted Materials after the original posting in 2009.” Alfa Laval Inc. No. CV H-14-2597, 2016 WL 2625068, at *6 (S.D. Tex. May 9, 2016).
Therefore, in a case where the infringer posted a video with music to which the infringer did not have a copyright to, the violation would likely be the actual upload of the video to the respective platform not the subsequent viewership of the video by third parties. This helps with the actual or constructive knowledge analysis. For example, there may be a discussion between whether the copyright holder received actual or constructive knowledge from third party viewership. Although this may be sufficient, it is possible that constructive knowledge could be attributed at the actual upload. For example, YouTube and many Copyright holders have agreements in which YouTube will notify a copyright holder if an account on the platform is using the Copyright holder’s copyright. Or perhaps the Copyright holder knows of an account that has continually tried to use the Copyright holder’s copyrighted music without permission on several different occasions. Because it is the Copyright holder’s duty to assert their rights.
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