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The Tenth Circuit rejected the use of the continuing wrong doctrine in a New Mexico copyright infringement case.
In Diversey v. Schmidly, Andrew Diversey sued the University of New Mexico for copyright infringement when it used his dissertation without his permission. Diversey's untimely filing issues got his case booted from the district court and he appealed arguing that the continuing wrong doctrine bought him more time to file.
So for whom does the law toll?
If you're wondering why you've never heard of the continuing wrong doctrine in copyright law, you're not alone. In Diversey, the Tenth Circuit held that the continuing wrong doctrine is a minority view amongst the circuits and declined to use it. But hey, A+ to Diversey for digging it up!
As a quick refresher, there's a three year statute of limitations for bringing a civil action under federal copyright laws. So the lawsuit must commence within three years after the infringement has occurred. However, under the continuing wrong doctrine, if a series of infringing acts is considered a "continuing wrong," then only the last infringing act needs to occur within the three-year period in order for liability to attach to all of the previous acts, according to The University of Chicago Law Review.
In his lawsuit, Diversey claims that he received a letter from the university on February 2008 telling him that his dissertation draft was sent to the university's library and publisher. Displeased, he asked for the copies to be returned to him, but later discovered copies of his dissertation in the library in June 2009. Diversey didn't file his lawsuit until June 2012 -- which means four years had passed since his initial notice.
Using the majority view, the Tenth Circuit stated that "copyright infringement accrues when one has knowledge of a violation or is chargeable with such knowledge." So since more than three years had passed since Diversey was aware of a copyright violation via the university's letter, the statute had run on his unauthorized copying claim under 17 U.S.C. §106(1).
Luckily for Diversey, the Tenth Circuit held that his §106(3) claim for unauthorized distribution still had time left on it because that claim accrued in June 2009, which is when he found out that his dissertation was available to the public in the library.
For attorneys, this means that although it may be a plausible claim, the Tenth Circuit isn't down for a continuing wrong argument. On the brightside, the court clearly understands the differences between the types of exclusives rights and as long as the infringing acts don't occur at the same time, your client may not be stuck with a single end date for his statute of limitations.
Now let's see if the Tenth Circuit continues to do it right in the upcoming gay marriage cases.
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