By: Daniel Imakyure
In June 2022, Andy Stone, a.k.a. Vince Vance, brought a copyright infringement action in the US District Court of the Eastern District of Louisiana against singer Mariah Carey, producer Walter Afanasieff, and Sony Music Entertainment. Stone alleged that Carey’s record-breaking holiday standard “All I Want for Christmas is You,” released on her 1994 Merry Christmas album, infringed on his identically titled song, written in 1989. Stone’s song—“All I Want for Christmas is You” by Vince Vance and the Valiants—received airplay during the 1993 Christmas season, including appearances on the Billboard Music Charts. Stone sought damages of $20 million, asserting he learned of Carey’s alleged infringement on an unspecified date via “the internet and interstate commerce.”
Section 507(b) of the Copyright Act provides that plaintiffs must bring copyright infringement actions within three years of claim accrual. The Supreme Court has held that the doctrine of laches is inapplicable to claims for infringements within this limitation period, reasoning that Congress barred relief outside the limitations period of section 507(b), and courts cannot substitute their own judgment for that of Congress. Thus, so long as three years has not elapsed since an infringing act, a claim on that act is not time-barred. Accordingly, when three years or more have elapsed, and the plaintiff was aware of the infringement, the claim is barred. But the Court has not addressed what happens when infringement occurs outside the limitations period, and the plaintiff only discovers, and could only have discovered, those acts later. On this issue, the circuits are split.
Most copyright infringement actions occur in the Ninth and Second Circuits. While both circuits apply a discovery rule to determine whether infringement claims are time-barred, they split on whether damages are available for infringements that occur more than three years before the suit, and the plaintiff sues within three years of discovering the infringement. The Ninth Circuit allows full recovery if the plaintiff sues within three years of discovering the infringement. The Second Circuit applies a three-year lookback from the suit’s filing and bars damages for infringements outside that window, regardless of when the plaintiff discovered the infringement. The Supreme Court has repeatedly emphasized uniformity in federal copyright cases, but this circuit split provides significant opposing incentives where infringement outside the statute of limitations is discovered. Defendants are advantaged in the Second Circuit, while Plaintiffs are advantaged in the Ninth.
Perhaps recognizing weaknesses of his claim, in November 2022, Vance filed a Notice of Dismissal. Still, Stone v. Carey may illustrate the potential effect of the circuit split. The Fifth Circuit, like the Ninth, applies the discovery rule as an equitable tolling doctrine and does not limit damages via a three-year lookback rule. Carey, who maintains a lower Manhattan residence, wrote and recorded her song with Afanasieff at New York City’s The Hit Factory, less than 10 minutes from Sony Music Entertainment’s Madison Avenue headquarters. Thus, while there was a strong case to be made by Ms. Carey for transfer to the Second Circuit, Mr. Vance and his Valiants, claiming infringement spanning nearly three decades, would have been limited there to damages for only a tenth of that time.
This Essay will focus on the circuit split over the accrual of copyright infringement damages. First, I will argue that using a discovery rule to assess damages aligns with the purposes of damages provisions, limitations statutes, and the goals of copyright law. I will then examine the effect of the split on forum selection and explore other policy considerations related to this issue. Finally, I will argue that these reasons, combined with the Supreme Court’s emphasis on uniformity in federal copyright cases, suggest that the circuit courts should uniformly adopt a discovery rule to assess damages for copyright infringement.
This section will explore the development of doctrines foundational to this issue, focusing on the purposes of these rules to establish the appropriateness of discovery-based damages accrual.
A. A Copyright Law Primer
The framers of the US Constitution unanimously agreed that copyright regulation should be entrusted to the federal government. The Constitution thus provides that “The Congress shall have Power . . . to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries,” establishing federal power to enact copyright law. The Supreme Court characterizes the main purpose of copyright as securing “the general benefits derived by the public from the labors of authors.” To that end, US copyright law aims to protect the pecuniary rights of copyright holders. By assuring the copyright owner exclusive rights to reproduce and distribute the original work, to prepare derivative works, and to perform and display publicly certain copyrighted works, the Copyright Act of 1976 focuses on the inherent economic value of copyrights.
Copyright law today extends copyright protection to “a term consisting of the life of the author and 70 years after the author’s death” and grants that author six rights:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based on the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) for literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) for literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) for sound recordings, to perform the copyrighted work publicly through a digital audio transmission.
Over the last two decades, Congress has made several updates to expand copyright protections to keep pace with technological advancement and ensure copyright owners are adequately compensated and thus encouraged to produce more works that would further the arts and sciences.
Damages are judicial monetary awards that compensate for a legally recognized injury. The damages award is often a substitutionary remedy, substituting money for the original condition or thing to which a plaintiff was entitled. Thus a plaintiff should be fully indemnified for loss but should not recover any windfall. In this sense, damages seek to correct—to put a plaintiff in their rightful position.
In copyright infringement cases, two types of remedies are generally available upon determining liability—the copyright holder’s actual damages plus any added profits of the infringer and statutory damages. Calculating actual damages requires a straightforward evaluation of evidence; the copyright holder must only prove the infringer’s gross revenue, while the infringer must prove both deductible expenses and profits not attributable to the copyrighted work. By contrast, statutory damages calculation is more complex. A court examines, among other factors, evidence of willful infringement and potential fair use defenses. A copyright holder may recover statutory damages at any time before final judgment, and such damages can range from as little as $200 for innocent infringements to $150,000 for willful violations.
In the context of a copyright infringement, damages might then be recognized as compensation for the financial benefit the copyright owner should have but did not receive due to the infringement. But the recovery of damages is not unlimited. In most cases, the law temporally limits a plaintiff’s ability to bring civil actions and recover damages through limitations statutes.
C. Statutes of Limitations
Statutes of limitations prescribe a period within which a plaintiff must assert a claim for relief for a violation of the law. One of the key aims of this temporal limitation is to prevent unfair prosecution of stale claims that would require defendants to defend claims brought when memories may have faded and witnesses and evidence may have disappeared. Statutes of limitations thus also encourage the prompt presentation of claims and prevent plaintiffs from sleeping on their rights.
Another purpose of limitations statutes is to provide defendants repose. As plaintiffs’ injuries generally fade with time, defendants should be able to rely on settled expectations that liability stops for acts long past. Similarly, there is a societal interest in settling contingent obligations, particularly in commercial transactions, so resources are not tied up indefinitely in anticipation of possible claims.
Finally, statutes of limitations promote judicial efficiency, as evaluating distant facts is more complicated and time-consuming than proving recent ones. Courts have noted that statutes of limitations are instruments of public policy and court management and are not designed to exempt defendants from liability; this is only an effect. Statutes of limitations, then, do not extinguish plaintiffs’ claims but only bar remedies—“Statutes of limitations generally cut off the remedy without extinguishing the right.”
Before 1957, federal courts looked to analogous state statutes of limitations to determine the timeliness of copyright infringement claims. In 1957, a three-year statute of limitations was applied to both civil and criminal actions for infringement. In 1997, Congress passed the NET Act, extending the statute of limitations for criminal purposes to five years. But the statute remained the same for civil claims: “No civil action shall be maintained under the provisions of this title unless it is commenced within three years after the claim accrued.” But how do courts tell when a claim accrues?
D. Discovery and Injury Rules
Courts recognize two doctrines to help determine when a claim accrues—the discovery rule and the injury rule. Under the discovery rule, the limitations period begins “when the plaintiff learns, or should as a reasonable person have learned, that the defendant was violating his rights.” But under the injury rule, “the limitations period begins to run at the point when the plaintiff can file suit and obtain relief. A copyright claim thus arises or ‘accrue[s]’ when an infringing act occurs.”
Courts have not consistently favored one doctrine over the other. In 1874, the Supreme Court in Bailey v. Glover addressed a bankruptcy action filed beyond the two-year limitations period prescribed by the Bankruptcy Act of 1867. There, the Court held that a limitations statute “does not commence to run until the fraud is discovered or becomes known to the party injured by it.” The Court applied Bailey in Exploration Co. v. United States, finding that the discovery rule was implied by the purposes of the statute of limitations. In doing so, the Court also reasoned that Congress must have been aware of Bailey and impliedly adopted the discovery rule, thus indicating the application of the rule to all types of claims where not stated otherwise.
The Supreme Court again applied the discovery rule in 1945 in Holmberg v. Armbrecht, explaining that when a plaintiff is injured and “remains in ignorance of it without any fault or want of diligence or care on his part, the bar of the statute does not begin to run until the fraud is discovered though there be no special circumstances or efforts on the part of the party committing the fraud to conceal it from the knowledge of the other party,” and that “this equitable doctrine is read into every federal statute of limitation.”
But in United States v. Kubrick, the Court applied an inquiry notice limitation to the discovery rule when it held that a medical malpractice claim accrues when the plaintiff knew or should have known both of the existence and the probable cause of an injury, even if the plaintiff has not yet discovered that a completely valid claim exists. As applied by lower courts, Kubrick means that “the statute of limitations begins to run on the first date that the injured party possesses sufficient critical facts to put him on notice that a wrong has been committed and that he need investigate to determine whether he is entitled to redress.” In 1994, the DC Circuit invoked Kubrick in 3M Co. v. Browner when it reasoned that “[b]ecause liability for the penalty attaches at the moment of the violation, one would expect this to be the time when the claim for the penalty ‘first accrued.’”
Then in United States v. Lindsay, the Supreme Court applied the injury rule, rejecting the EPA’s proffered “discovery of violation rule” and holding that a claim normally accrues when the factual and legal prerequisites for a claim are in place, noting that in “common parlance a right accrues when it comes into existence.” Similarly, in Unexcelled Chemical Corp. v. United States, the Court held that the injury rule applies in a civil penalty claim because “[a] cause of action is created when there is a breach of duty owed the plaintiff. It is that breach of duty, not its discovery, that normally is controlling.”
Narrowing the scope of examination to copyright law produces similarly ambiguous results. Before 1957, when amendments to the Copyright Act imposed a uniform 3-year limitations period, the injury rule appeared to serve as the dominant state law accrual rule. Since Congress remained silent on the applicable rule of accrual, it may be that it simply accepted the injury rule as the status quo. Few copyright infringement cases implicating accrual of the statute of limitations arose between 1957 and 1976. While one case decided during this period adopted the injury rule as the appropriate rule of accrual in the context of the Copyright Act, that history contrasts with the later tendencies of courts to apply the discovery rule in infringement cases, albeit with little analysis.
Thus, whether limitation periods generally begin upon injury or discovery depends largely on judicial interpretation. Without clear statements of legislative intent related to limitations statutes in specific areas of law, courts have attempted to substitute their own reasoning. Since the most recent iteration of the Copyright Act in 1976, judicial policy has shifted to a preference for discovery rather than injury-based accrual. Today, the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, and Tenth circuits apply the discovery rule to determine whether a copyright action is time-barred. The Supreme Court has not yet addressed whether the discovery rule is an acceptable method, observing only that the majority of the circuit courts had adopted a discovery rule “as an alternative to the incident of injury rule” but that it “ha[d] not passed on the question.” Thus for the accrual of a claim, there is relative uniformity in that the ten circuits that have ruled on the issue allow claims brought within three years of “when one has knowledge of a violation or is chargeable with such knowledge.” But due to the Supreme Court’s silence on the issue, the injury rule allows for conflicting applications of damages provisions, as seen in the current circuit split.
E. The Split
In Petrella v. Metro-Goldwyn-Mayer, Inc., the Supreme Court held that laches cannot apply to copyright infringements within the three-year statute of limitations imposed by 17 U.S.C. § 504(b), which already addresses the timeliness of filing. Courts may only consider timeliness in “determining contours of relief appropriately awarded.” In so holding, the Court recognized that a claim ordinarily accrues “when [a] plaintiff has a complete and present cause of action.” In other words, the limitations period generally begins to run at the point when “the plaintiff can file suit and obtain relief.” But can a plaintiff “file a suit and obtain relief” if they are unaware of an infringement?
As the Petrella court focused on the application of laches to timely copyright infringement suits, it did not address whether a “discovery rule” is preferable to an “injury rule” to determine when copyright claim accrual begins. While declining to address the question, the Court acknowledged that nine courts of appeal have adopted, as an alternative to the injury rule, a discovery rule, which starts the limitations period when the plaintiff discovers, or should have discovered, the injury that establishes the claim.
In Sohm v. Scholastic, Inc., the Second Circuit affirmed that “the discovery rule applies for statute of limitations purposes in determining when a copyright infringement claim accrues under the Copyright Act” but held that the Petrella court “explicitly delimited damages to the three years prior to the commencement of a copyright infringement action.” The Sohm court thus concluded that it “must apply the discovery rule to determine when a copyright infringement claim accrues, but a three-year lookback period from the time a suit is filed to determine the extent of the relief available.”
In Starz Entertainment, LLC v. MGM Domestic Television Distrib., LLC, the Ninth Circuit reached the opposite conclusion, holding that there is no three-year damages bar to recovery for earlier acts of infringement. Expressly disagreeing with the Second Circuit, the court stated, “[a]pplying a separate damages bar based on a three-year ‘lookback period’. . . would eviscerate the discovery rule. There is no reason for a discovery rule if damages for infringing acts of which the copyright owner reasonably becomes aware years later are unavailable.” Thus in the Ninth Circuit, copyright plaintiffs may recover damages for infringement that occurred outside the three-year limitations period if they sue within three years of discovery.
F. The Issue
All circuit courts have ruled on this issue, excluding the Federal and DC circuits. The Second Circuit alone, applying its three-year lookback provision, only allows a plaintiff to recover for infringements up to three years before the action, regardless of when the plaintiff discovers the infringement. This hybrid application of an injury rule solely to limit damages means that a plaintiff may theoretically bring and win an action for copyright infringement that ceased more than three years prior but be entitled to no damages. This effectively bars a particular class of potential infringement claims. When infringement has both gone undiscovered for an extended period and is no longer generating profit to serve as the basis for damages, it is also likely that no actual damages were suffered (or the plaintiff would have discovered the infringement) and statutory damages are time-barred as outside the three-year lookback period.
Under the federal venue statute, venue is proper in 1) a judicial district in which any defendant resides, if all defendants are residents of the [s]tate in which the district is located; 2) a judicial district in which a substantial portion of the events giving rise to the claim occurred; or 3) any judicial district in which any defendant is subject to the court’s personal jurisdiction. Thus, the proper venue for Mr. Stone’s action in Stone v. Carey would seem to have hinged on the reach of “All I Want For Christmas is You” (Mariah version) into the forum state of Louisiana. Given the defendant’s (and the defendant’s song’s) ties to the Southern District of New York, a motion to transfer venue under 28 U.S.C. § 1406(a) would have been an expected alternative to the defense’s standard motion to dismiss for lack of personal jurisdiction, improper venue and failure to state a claim. But if Stone v. Carey were transferred to a district court within the Second Circuit, Mr. Stone’s potential damages (and Ms. Carey’s potential losses, excluding injunctive relief and its effects) would likely be limited to June 2019 forward—some 25 years after the alleged infringement began.
G. Which Rule is Proper?
The Purpose of Damages Provisions
Copyright infringement damages aim to compensate a copyright holder for infringement by substituting money for the original condition to which the plaintiff was entitled but was prevented from achieving due to infringement. In some cases, the Copyright Act also provides for a punitive increase of damages where willful infringement occurs. Here, an injury-based recovery limitation is of dubious utility, directly conflicting, by its nature and operation, with these purposes of damages. A plaintiff to whom an injury-based limitation applies is necessarily barred from a recovery that would return them to an original condition that infringement precluded.
One interesting option might be an expansion of the discretionary damages increase for willful infringement allowed by 17 U.S.C. § 504(c)(2) to include an extension or removal of the applicable lookback period. But the same effect is accomplished simply through uniformity of discovery rule application. Given the rarity of § 504(c)(2) increases, the resistance to punitive measures for copyright actions, the added complexity of determining and applying criteria to such an exception to an exception, and the lack of other benefits afforded by uniformity with other circuits, the Second Circuit rule seems more logically abandoned than modified.
The Purpose of Limitations Statutes
By encouraging quicker adjudication of claims, limitations statutes promote fairness and peace of mind for parties based on settled expectations and reduced uncertainty. In addition, they promote efficient use of judicial resources by addressing the deterioration of evidence, minimizing fraud, and promoting diligence and an equal footing for defendants and plaintiffs.
In the context of copyright infringement damages, an injury-based rule to limit recovery would, on the one hand, preempt action in some cases of recently discovered but long-since incurred infringement. These types of infringement could likely be instances when evidence and witnesses have vanished and memories have faded. Such a rule provides peace of mind to infringers that they are safe from liability once the last instance of infringement has temporally lapsed beyond the applicable lookback period. Infringement victims are on notice of what recovery is possible given the specific temporal factors of their claim and are encouraged not to sleep on their rights. In this regard, an injury-based recovery limitation would seem to align with the purposes of limitations statutes.
But on the other hand, this alignment assumes that recovery of damages is the only motivation for infringement claims. While potentially impractical for many plaintiffs, particularly those with limited financial resources, the Second Circuit’s rule still allows for suits to commence, even ones that the rule renders ineligible for damages. In this regard, the supposed alignments with limitations statute purposes disappear. Infringement claims may have a function beyond pecuniary recovery. For instance, an infringement action may seek to prove a contract breach, establish a copyright’s validity, preempt a recurrence of identical infringement, or be used to establish legal precedents. Thus, the utility of a rule such as the Second Circuit’s, which arguably only discourages a limited class of older claims based on the potential for recovery, becomes questionable.
The Goals of Copyright Law
How an injury-based recovery limitation furthers the goals of copyright law is unclear. Under such a pro-defendant doctrine, creators might be less inclined to produce works, knowing that protecting their copyright and correcting infringement depends on their continued vigilance, lest recovery becomes time-barred. But discovery-based damages increase statutory infringement protection and encourage copyright owners to commence litigation once they learn of infringement because remedies are then still available.
As discussed, copyright law aims to promote the progress of science and useful arts by protecting the pecuniary interest of a copyright holder. This, in turn, encourages innovation and creativity. Damages are a way to ensure creators that their efforts are supported by the government and their rights will be protected, or failing that, adequately compensated for in the event of an infringement. Where, as in the Second Circuit, these assurances are conditioned on lifelong vigilance, surveilling the nation for any potential infringing works, the incentive diminishes. On the other hand, the motivation to infringe on a work, particularly where profits may be achieved in a limited timeframe, increases if all one must do is not get caught for three years. While the Second Circuit recognizes the discovery rule in applying limitation periods to infringement claims, those claims may be time-barred for damages, effectively applying an injury rule and all the negative implications that come with it.
Forum Selection Implications
Congress first applied a statute of limitations to copyright infringement claims with the 1957 amendment to the Copyright Act. Before then, the Act contained a limitations period only for criminal actions. As a result, Federal courts looked to state laws to determine the timeliness of infringement claims. They thus applied different rules for accrual and tolling depending on the location of the claim. Unfortunately, this produced unequal protection of copyright holders, depending on the forum. Congress sought to remedy this inconsistency through its 1957 amendment of the Copyright Act to establish a uniform timeframe within which plaintiffs could bring copyright infringement actions in what would eventually become 17 U.S.C. § 507(b). The goals then were a fixed statute of limitations to remove uncertainty about the timeliness of claims and to prevent the forum shopping invited by disparate state limitations periods, then ranging from one to eight years. Thus it seems that forum-shopping incentives generated by the circuit split on damages conflict with the intent of current copyright law. Further, the uncertainty of an injury-based limitation that precludes damages yet allows for a finding of infringement contrasts with the congressional intent of the Act’s limitation period.
Several policy considerations are implicated by a lack of uniformity in assessing infringement damages. For example, when weighing the appropriateness of accrual rules, courts may consider policy concerns such as fairness to the defendant, efficiency, and institutional legitimacy.
Fairness to a defendant implicates three main interests: repose, accurate fact-finding, and plaintiff misconduct. The split on damages accrual does not affect the latter two considerations, which are addressed by the circuit consensus on claim timeliness. But the split’s effect on defendant repose warrants analysis. Defendants should not have to worry about potential lawsuits indefinitely. An injury rule to determine a claim’s timeliness promotes such repose. So long as three years have passed since an infringement, a defendant cannot be found liable.
In contrast, the discovery rule may impose liability for an unlimited time, assuming a plaintiff files a timely claim after discovering the infringement. But under a policy that uses discovery-based time limitation and injury-based recovery, a defendant’s potential liability still extends until three years past a plaintiff’s discovery of their infringement. The difference is that the consequence for such liability may be limited to remedies other than damages. Thus, while there is an argument to be made that injury-based limitation periods promote defendant repose, the Second Circuit’s hybrid approach appears to extract little of that benefit.
Judicial efficiency is achieved through reduced costs, clearing dockets, and making judicial determinations simple and easy to decide. Limitations periods reduce transaction costs incurred by evidence gathering. As time passes between an infringement and any litigation that results, the costs of gathering and assessing the validity of evidence grows. Costs are also saved, and efficiency enhanced, by clearing dockets through limiting excessive and frivolous filings. When a claim accrues from injury, evidence of infringement is necessarily less than three years old and thus less costly to locate, gather, and evaluate than in instances where physical evidence and witnesses may have been lost. Of course, these cost savings come at the expense of meritorious claims beyond three years past the infringing act. But a discovery-based limitations period combined with a three-year time bar on damages addresses none of these costs. The ability to bring older claims with higher costs of evidence gathering remains. Similarly, while clear rules that lay out when claims are time-barred provide courts with “structure and clarity,” such a hybrid approach to claim accrual and damages does not benefit from the injury rule’s clear temporal limit, forcing courts to incur all the complexity of determining when an infringement was or should have been discovered while barring many plaintiffs with timely claims from recovery.
Institutional legitimacy is essential to a properly functioning legal system. The public must believe its judiciary operates on well-founded rules instead of mere judicial whim. Today, more than ever, the judiciary wrestles with accusations of judicial legislation and conservative bias, so much so that fewer Americans have confidence in the federal courts than ever before recorded. In the context of copyright infringement, plaintiffs with legitimate claims who are yet barred from recovery will become disillusioned with the judicial system. Copyright infringement claims are particularly susceptible to this effect compared to other judicial matters, as “copyright infringement by its very nature is not a secretive matter.” Actions involving movies, renowned artworks, or popular music, such as Stone v. Carey or the recently argued Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, garner more publicity and have a higher potential to influence the activities of potential infringers, litigants, and the public’s perception of the courts.
While a circuit split is never ideal, the Ninth Circuit correctly rejected Sohm’s reasoning, reaffirming the split between the Second Circuit and much of the federal judiciary. Courts should adopt Starz and recognize the Discovery rule as an exception for damages when plaintiffs were unaware of infringements. Both Petrella and Sohm already allow infringement actions outside the limitations period. Starz ensures that plaintiffs who reasonably could not have timely discovered those infringements may still recover full damages. But in the Second Circuit, a copyright owner without reason to suspect infringement cannot recover outside a three-year lookback period. This potentially bars recovery for plaintiffs with legitimate claims. At the heart of U.S. copyright law is Congress’s constitutional mandate to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries[.]” Copyright protection aims to “motivate the creative activity of authors and inventors by the provision of a special reward.” Acknowledging the viability of an infringement action while disallowing damages conflicts with these objectives and with policy concerns of fairness, efficiency, and institutional legitimacy. The current split also encourages forum-shopping between the two Circuits where the most copyright infringement claims are filed, disadvantaging parties of more modest financial means and further undermining the legitimacy of the courts for lack of uniformity.
This Essay examined the circuit split on damages accrual for copyright infringement which puts in conflict the Second and Ninth circuits—where most copyright infringement claims are filed. The Ninth Circuit allows full recovery if the plaintiff sues within three years of discovering infringement. The Second Circuit’s three-year lookback precludes damages for infringements outside that window, regardless of when the plaintiff discovered the infringement. This effectively bars many potential infringement claims in the Second Circuit. When infringement has both gone undiscovered for more than three years and is no longer generating profit to serve as the basis for damages, plaintiffs with meritorious actions may be left with claims that are timely but precluded from financial recovery. The split thus generates significant forum-shopping incentives for both plaintiffs and defendants.
Further, a rule that allows infringement claims while simultaneously barring those same claims from recovery carries negative implications in terms of public policy and when considering the intent of damages provisions, limitations statutes, and copyright law. As a society, we seek to promote the interests of creators and the progress of the arts and sciences by guaranteeing the pecuniary value of a creator’s work. While those interests must be balanced against considerations of fairness, efficiency, and judicial legitimacy, a rule that begins claim accrual upon discovery but effectively begins accrual for the purpose of damages upon injury makes little sense from either perspective. The effects of this split also conflict with one of the fundamental purposes of the Copyright Clause of the Constitution—to promote national uniformity. The Ninth Circuit opinion in Starz should thus be widely adopted until Sohm is overruled.
J.D Candidate, Cornell Law School, Class of 2024. I am grateful for the support of my wife Brandi and son Jackson, who allowed me to drag them from Hawaii to Ithaca, New York. For their wisdom and friendship, thanks to Peter Anderson, Alexandra Cadena, Brook Dormaier, Jacob Harper, and Nicole Phillis. I will also be forever indebted to Lara Freed for believing in my writing when I did not. Finally, I wish to thank the editors of the Harvard Journal of Sports and Entertainment Law, in particular Briana Greco and Alec Winshel, for their careful and generous work. All errors remain enthusiastically my own.
 Complaint, Stone v. Carey, 2:22-cv-01616-WBV-DMD (E.D. La. Jun. 3, 2022), ECF No.1.
 Hugh McIntyre, Mariah Carey’s ‘All I Want For Christmas Is You’ Becomes The First Holiday Single to be Certified Diamond, Forbes (Dec 3, 2021), https://perma.cc/ZTA7-AE58; see also RIAA News, Mariah Carey’s “All I Want for Christmas is You” Makes History (Dec 3, 2021), https://perma.cc/688D-6C4S (providing additional background if all you want for Christmas is to learn more about this song).
 First Amended Complaint ¶ 9, Stone, 2:22-cv-01616-WBV-DMD (E.D. La. Jun. 28, 2022), ECF No.6.
 Id. ¶¶ 9-17.
 Id. ¶ 35.
 Id. ¶ 22. Conspicuously absent from Stone’s complaint was any mention of when he became aware of Carey’s 28-year-old song. Assumedly, Stone would have to assert that discovery occurred within three years prior to the suit’s filing had the claim continued.
 17 U.S.C. § 507(b).
 Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663 (2014).
 “To the extent that an infringement suit seeks relief solely for conduct occurring within the limitations period, however, courts are not at liberty to jettison Congress’ judgment on the timeliness of suit.” Id. at 667.
 Id. at 671.
 “Although we have not passed on the question, nine Courts of Appeals have adopted, as an alternative to the incident of injury 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.” Id. at 670 n.4 (internal quotation marks omitted).
 Administrative Office of the U.S. Courts, Just the Facts: Intellectual Property Cases—Patent, Copyright, and Trademark (2020), https://www.uscourts.gov/news/2020/02/13/just-facts-intellectual-property-cases-patent-copyright-and-trademark.
 Starz Ent., LLC v. MGM Domestic TV Distribution, LLC, 39 F.4th 1236 (9th Cir. 2022).
 Sohm v. Scholastic Inc., 959 F.3d 39 (2d Cir. 2020).
 See, e.g., Wheaton v. Peters, 33 U.S. 591, 654 (1834) (“[C]opyrights, as recogni[z]ed by the United States, must be uniform.”); Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 231 n.7 (1964) (explaining that Congressional intent for uniformity of copyright laws can be inferred from federal courts’ exclusive copyright jurisdiction); Bonito Boats v. Thunder Craft Boats, 489 U.S. 141, 162 (1989) (“One of the fundamental purposes behind the Patent and Copyright Clauses of the Constitution was to promote national uniformity in the realm of intellectual property.”); Petrella, 572 U.S. at 681 (explaining that applying laches to bar copyright claims occurring within the statutory limitations period would invite judges to set a time limit for such claims other than the one Congress prescribed, and would thus “tug at the uniformity Congress sought to achieve when it enacted § 507(b) [of the Copyright Act].”).
 Among other issues, Vance’s initial complaint cited only similarity between the name of the two songs and alleged that Carey should have known about his work because of his copyright filing. Complaint ¶¶ 13, 20, Stone, 2:22-cv-01616-WBV-DMD (E.D. La. Jun. 3, 2022), ECF No.1. Vance did not account for how, if a copyright constitutes constructive notice (as it does in the 5th Circuit), his claim was not time barred some 28 years after Sony Music’s copyright registration (and 25 years beyond the Copyright Act’s limitations period).
 Notice of Voluntary Dismissal, Stone, 2:22-cv-01616-WBV-DMD (E.D. La. Jun. 3, 2022), ECF No.16.
 E.g., Aspen Tech., Inc. v. M3 Tech., Inc., 569 F. App’x 259 (5th Cir. 2014).
 28 U.S.C. § 1391(b); see also 28 U.S.C. § 1400(a) (“Civil actions, suits, or proceedings arising under any Act of Congress relating to copyrights . . . may be instituted in the district in which the defendant or his agent resides or may be found.”).
 Supra, note 14.
 1 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 1.02 (2022).
 U.S. Const. Art. I, § 8, Cl 8
 1 Nimmer, supra, note 20, at § 1.03.
 17 U.S.C. § 106.
 17 U.S.C. § 302.
 17 U.S.C. § 106.
 Though not subjects of this analysis, such updates include the Copyright Term Extension Act, the No Electronic Theft Act, and the Digital Millennium Copyright Act.
 Dan B. Dobbs & Caprice L. Roberts, Law of Remedies 215 (3rd ed. 2018).
 17 U.S.C.A. § 504(a)(1).
 § 504(a)(2).
 § 504(b).
 § 504(c)(2).
 § 504(c); see Hebenstreit Tr. of Estate for Bell v. Merchants Bank of Indiana, No. 118CV00056JPHDLP, 2021 WL 3810342, at *4 (S.D. Ind. Aug. 26, 2021) (reducing statutory damages to $200 where the court found the defendant business’ use of a copyrighted photo was an innocent infringement; Warner Bros. Entm’t, Inc. v. Caridi, 346 F. Supp. 2d 1068, 1074 (C.D. Cal. 2004) (awarding $150,000 in statutory damages where the defendant purposely breached his agreement not to copy or distribute screeners of the movies The Last Samurai and Mystic River, then refused to proffer any defense, participate in discovery, or engage in settlement negotiations); Columbia Pictures Indus. v. Krypton Broad. of Birmingham, Inc., 259 F.3d 1186, 1194 (9th Cir. 2001) (explaining that the court has discretion in determining the amount of statutory damages awarded, constrained only by the specified minimum and maximum); Ninth Circuit Jury Instructions Committee, Manual of Model Civil Jury Instructions 474 (2022) (“[I]f you find the infringement was innocent, you may award as little as $200 for each work innocently infringed. However, if you find the infringement was willful, you may award as much as $150,000 for each work willfully infringed.”).
 Crown v. Parker, 462 U.S. 345, 352 (1983); Chase Sec. Corp. v. Donaldson, 325 U.S. 304, 314 (1945).
 Burnett v. New York Cent. R.R. Co., 380 U.S. 424, 428 (1964); Order of R.R. Telegraphers v. Railway Express Agency, Inc., 321 U.S. 342, 348-49 (1944); see also United States v. Kubrick, 444 U.S. 111, 117 (1979); American Pipe & Constr. Co. v. Utah, 414 U.S. 538, 554 (1974); United States v. Marion, 404 U.S. 307, 322 n.14 (1971); Chase Sec. Corp., 325 U.S. at 314.
 Kubrick, 444 U.S. at 117; Hamilton v. 1st Source Bank, 928 F.2d 86, 88 (4th Cir. 1990); Wilson v. Johns-Manville Sales Corp., 684 F.2d 111, 119 (D.C. Cir. 1982); City of Aurora v. Bechtel Corp., 599 F.2d 382, 388 (10th Cir. 1979); Owens v. White, 380 F.2d 310, 317 (9th Cir. 1967); Bailey v. Glover, 88 U.S. (21 Wall.) 342, 349 (1874) (“[Limitations statutes] were enacted to prevent frauds; to prevent parties from asserting rights after the lapse of time has destroyed or impaired the evidence which would show that such rights never existed, or had been satisfied, transferred, or extinguished, if they ever did exist.”).
 Tulsa Professional Collection Servs., Inc. v. Pope, 485 U.S. 478, 486 (1988); Kubrick, 444 U.S. at 117; Burnett v. New York Cent. R.R., 380 U.S. 424, 428 (1964); Wilson v. Johns-Manville Sales Corp., 684 F.2d 111, 119 (D.C. Cir. 1982).
 See Gates Rubber Co. v. USM Corp., 508 F.2d 603, 611 (7th Cir. 1975); Resolution Trust Corp. v. Farmer, 865 F. Supp. 1143, 1152 (E.D. Pa. 1994).
 Farmer, 865 F. Supp. at 1152; see also Kubrick, 444 U.S. at 117.
 Goad v. Celotex Corp., 831 F.2d 508, 511 (4th Cir. 1987), cert. denied, 487 U.S. 1218 (1988).
 Arch Mineral Corp. v. Babbitt, 894 F. Supp. 974, 982 (S.D.W. Va. 1995); Gerrard v. United States Office of Educ., 656 F. Supp. 570, 574 (N.D. Cal. 1987);
 Osmundsen v. Todd Pacific Shipyard, 755 F.2d 730, 733 (9th Cir. 1985); see Renner v. Rockwell Int’l Corp., 587 F.2d 1030 (9th Cir. 1978).
 Supra, note 5 at 987. See Lyons v. Gillette, 882 F. Supp. 2d 217, 233 (D. Mass. 2012) (Treatise cited); Maloney v. Stone, 171 F. Supp. 29 (D. Mass. 1959); Carew v. Melrose Music, Inc., 92 F. Supp. 971 (S.D.N.Y. 1950) Loc. Trademarks, Inc. v. Price, 170 F. 2d 715 (5th Cir. 1948); McCaleb v. Fox Film Corp., 299 F. 48 (5th Cir. 1924).
 17 U.S.C. § 507.
 The criminal limitations period measures three years “after the cause of action arose,” 17 U.S.C. § 507(a), whereas the period for civil actions measures three years “after the claim accrued,” 17 U.S.C. § 507(b).
 17 U.S.C. § 507(a).
 17 U.S.C. § 507(b).
 Chi. Bldg. Design, P.C. v. Mongolian House, Inc., 770 F.3d 610, 614 (7th Cir. 2014).
 Petrella, 572 U.S. at 670.
 88 U.S. 342 (1874).
 Id at 347. The Court noted that this was true even where “there be no special circumstances or efforts on the part of the party committing the fraud to conceal it from the knowledge of the other party.” Id. at 348.
 247 U.S. 435, 446 (1918).
 In Exploration Co., the applicable statute of limitations stated that government suits to invalidate land patents “shall only be brought within five years from the passage of this act, and suits to vacate and annul patents hereafter issued shall only be brought within six years after the date of the issuance of such patents.” Id. at 445. Though the patent at issue was nine years old, the Court held that the claim was not barred because the government did not learn until three years prior that the land patents had been owned through trusts to avoid a bar on foreign ownership. Id. at 437. The Court reasoned that the intent of the limitations period was to suppress fraud by preventing untimely fraudulent and unjust claims when evidence might no longer be available to fight such claims. Thus, limitations should not encourage fraud and imply exceptions where it would. Id. at 448.
 “When Congress passed the act in question the rule of Bailey v. Glover was the established doctrine of this Court. It was presumably enacted with the ruling of that case in mind.” Id. at 449. “We are aware of no good reason why the rule, now almost universal, that statutes of limitation upon suits to set aside fraudulent transactions shall not begin to run until the discovery of the fraud, should not apply in favor of the Government as well as a private individual.” Id.
 327 U.S. 392 (1946).
 Id. at 397.
 444 U.S. 111 (1979).
 Id. at 111. Finding no legislative evidence that Congress intended that accrual of a claim requires a plaintiff’s awareness that his injury was negligently inflicted, the Court reasoned that a plaintiff who knows that he has been hurt and by whom need only ask others if he has been wronged—“If he does ask and if the defendant has failed to live up to minimum standards of medical proficiency, the odds are that a competent doctor will so inform the plaintiff.” Id. at 122. The Court observed that this decision, to sue or not for a known injury, is one that all tort claimants must make. Id. at 124.
 Zeleznik v. United States, 770 F.2d 20, 23 (3d Cir. 1985); see also Fletcher v. Union Pacific R.R. Co., 621 F.2d 902, 906-07 (8th Cir. 1980). The Kubrick Court refused to construe the statute “to defeat it’s obvious purpose, which is to encourage to prompt presentation of claims.” 411 U.S. at 117.
 3M Co. v. Browner, 305 U.S. App. D.C. 100, 17 F.3d 1453, 1461 (1994)
 346 U.S. 568 (1954).
 Id. at 569.
 345 U.S. 59 (1953).
 See e.g., McCaleb v. Fox Film Corp., 299 F. 48 (5th Cir. 1924) (applying Louisiana tort law limiting actions to one year following injury to a copyright infringement claim); Pathe Exch., Inc. v. Dalke, 49 F.2d 161 (4th Cir. 1931) (applying Virginia laws that infringement claims accrue from the date of injury); Local Trademarks, Inc. v. Price, 170 F.2d 715 (5th Cir. 1948) (applying Alabama law that infringement actions must commence within one year from the date of infringement); Carew v. Melrose Music, Inc., 92 F. Supp. 971 (S.D.N.Y. 1950) (applying New York’s injury-based statute of limitations).
 See Auscape, 409 F. Supp. 2d at 246 (explaining that Congress intended the statute of limitations to run upon infringement and not upon discovery).
 See, e.g., Affiliated Hosp. Prods., Inc. v. Merdel Game Mfg. Co., 513 F.2d 1183 (2d Cir. 1975) (declining to address limitations statutes as appellee’s alternate grounds for dismissal); Telex Corp. v. Int’l Bus. Mach. Corp., 510 F.2d 894 (10th Cir. 1975) (where the trial court held that the statute of limitations did not apply due to fraudulent concealment of trade secret misappropriation); Prather v. Neva Paperbacks, Inc., 446 F.2d 338 (5th Cir. 1971) (concluding plaintiff’s action was time barred); Gordon v. Vincent Youmans, Inc., 358 F.2d 261 (2d Cir. 1965) (statute of limitations issue was not before the court on appeal).
 See Baxter v. Curtis Indus., Inc., 201 F. Supp. 100 (N.D. Ohio 1962). Plaintiff inventor Jesse Baxter brought a copyright infringement action against the Curtis Industries alleging that Curtis sold certain books containing key code information on Volkswagen automobiles to which Baxter held copyrights. Id. at 100. In response, Curtis moved for dismissal, claiming that the three-year statute of limitations barred Baxter’s claim. Id. Denying the motion, the court held that the legislative history of the 1957 Copyright Act amendment and case law preceding it indicated that the statute of limitations begins to run from the date of the last act of infringement. Id. at 101.
 See, e.g., Bridgeport Music, Inc. v. Diamond Time, Ltd., 371 F.3d 883, 889 (6th Cir. 2004); Hotaling v. Church of Jesus Christ of Latter-Day Saints, 118 F.3d 199, 202 (4th Cir. 1997); Roley v. New World Pictures, 19 F.3d 479, 481 (9th Cir. 1994); Maurizio v. Goldsmith, 84 F. Supp. 2d 455, 461 (S.D.N.Y. 2000); Rosner v. Codata Corp., 917 F. Supp. 1009, 1019 (S.D.N.Y. 1996).
 Ochoa, supra note 72 at 455.
 Id. at 458.
 See Diversey v. Schmidly, 738 F.3d 1196, 1200 (10th Cir. 2013) (collecting cases). The Federal and DC Circuits have not had occasion to rule on this issue.
 Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. at 670 n.4.
 Diversey, 738 F.3d at 1200; see also Roley v. New World Pictures, Ltd., 19 F.3d 479, 481 (9th Cir. 1994); Hotaling v. Church of Jesus Christ of Latter-Day Saints, 118 F.3d 199, 202 (4th Cir. 1997).
 Id. at 670.
 Id. at 677.
 Id. at 670 (citing Bay Area Laundry & Dry Cleaning Pension Tr. Fund v. Ferbar Corp., 522 U.S. 192, 195 (1997).
 Id. at 670 n.4.
 959 F.3d 39 (2d Cir. 2020).
 Id. at 50.
 Id. at 51.
 Id. at 52.
 Supra, note 11.
 Id. at 1237.
 28 U.S.C. § 1391(b).
 See Int’l Shoe Co. v. Washington, 326 U.S. 310 (1945); Hanson v. Denckla, 357 U.S. 235 (1958); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980); Ford Motor Co. v. Mont. Eighth Judicial Dist. Court, 141 S. Ct. 1017 (2021).
 Supra, section I.B.
 Supra section I.C.
 John Ramirez, Discovering Injury? The Confused State of the Statute of Limitations for Federal Copyright Infringement, 17 Fordham Intell. Prop. Media & Ent. L.J. 1125 (2007).
 Auscape Int’l v. Nat’l Geographic Soc’y, 409 F. Supp. 2d 235, 244 (S.D.N.Y. 2004); 17 U.S.C. § 507(b).
 The Copyright Act of 1909 § 39.
 Auscape, 409 F. Supp. 2d at 244.
 Id. at 245.
 Petrella, 572 U.S. at 670.
 Ramirez, supra note 123, at 1154.
 Suzette Malveaux, Statutes of Limitations: A Policy Analysis in the Context of Reparations Litigation, 74 Geo. Wash. L. Rev. 68, 76 (2005).
 Id. at 79.
 Id. at 80.
 Id. at 81.
 Ramirez, supra note 122, at 1162.
 Douglas Keith, A Legitimacy Crisis of the Supreme Court’s Own Making, Brennan Center for Justice (Sept. 15, 2022) https://perma.cc/2MYU-FENU.
 Robert Barnes, Supreme Court, dogged by questions of legitimacy, is ready to resume, The Washington Post (Sep. 29, 2022) https://perma.cc/8CKL-KTNZ.
 Jeffery M. Jones, Supreme Court Trust, Job Approval at Historical Lows, Gallup (Sep 29, 2022) https://perma.cc/UTR8-NYJ4 (indicating that 47% of US adults have a “great deal” or “fair amount” of trust in the federal judicial branch, the lowest level since Gallup began recording this data in 1972.
 Malveaux, supra note 130, at 81.
 3 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 12.05 (quoting Auscape, 409 F. Supp. 2d at 245).
 142 S. Ct. 1412 (2022). Argued October 12, 2022, this case revolves around an Andy Warhol illustration of Prince, which he based on a photograph of the musician by Lynn Goldsmith who now claims copyright infringement. Interestingly, this case, filed in the Second Circuit, is not eligible for damages from Warhol’s 1984 illustration through three years prior to its filing in the Southern District of New York in 2019. Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 382 F. Supp. 3d 312 (S.D.N.Y. 2019). But Goldsmith’s suit arose from the use of Warhol’s illustration in 2016 in a magazine commemorating the musician’s death. This case, like Stone v. Cary, illustrates the effect of the circuit split on damages.
 Supra, note 16.
 Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984).
 Starz, 39 F.4th 1236 (9th Cir. 2022).
 Sohm, 959 F.3d 39 (2d Cir. 2020).
 Supra note 14.
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