On December 31, IPWatchdog published “What Lies Ahead: Here’s What IP Practitioners Will Be Watching in 2024,” including insights from Brian Brookey, who focused on “a case of great interest to copyright holders and practitioners: Warner Chappell Music, Inc. v. Nealey.” Brian commented:

The Copyright Act imposes a three-year statute of limitations on infringement actions. Yet courts apply the “discovery rule” to permit plaintiffs to file lawsuits more than three years after infringement where they could not reasonably have discovered the infringement earlier. The Second Circuit has held that even so, a plaintiff may not recover damages for acts occurring more than three years before suit is filed. The Ninth Circuit uses the discovery rule to allow for damages regardless of how long ago the infringement occurred. In Warner-Chappell, the Eleventh Circuit adopted the latter approach.

Broad application of the discovery rule is the bane of those defending against copyright “trolls” seeking to extract years’ worth of damages. Music companies like Warner Chappell also frequently must fend off stale claims of infringement, years after records and witnesses have been lost. It is difficult to predict how the Court will rule. But a textualist like Justice Gorsuch, and a pro-business super-majority, may be predisposed to a stricter application of the discovery rule, in which damages beyond the three-year “lookback” are unavailable.

Read the article on the IPWatchdog website here.