Introduction

How do federal district courts within the region of the U.S. Court of Appeals for the Eleventh Circuit (namely, Georgia, Alabama, and Florida) analyze a statute-of-limitations defense in copyright cases? That proverbial answer “it depends” rings out in reply. Here, it depends on where in this Circuit the case sits and even, in at least one of these districts, who presides over the case. This confused, highly balkanized state of the law on the copyright statute of limitations directly results from Supreme Court and Eleventh Circuit case law that can best be regarded as equivocal.

Until either the Supreme Court or the Eleventh Circuit issues a new decision providing greater clarity, the district courts within this Circuit will likely remain varied in their analyses of statute-of-limitations defenses to copyright infringement claims. This diminishes predictability as to whether a statute of limitations defense can actually produce an early dismissal of such claims in these courts. This lack of clear guidance calls for closely researching a particular district court’s decisions and even particular judges’ decisions within these districts.

Recent Example of Confusion About Eleventh Circuit Law

On May 25, the U.S. District Court for the District of Columbia (“D.D.C.”) issued a consolidated Memorandum Opinion denying motions to dismiss filed in three separate copyright infringement lawsuits brought by plaintiff Lindsay Olson against law firms and one attorney from each firm. In two of those lawsuits, the defendants raised the statute of limitations as a defense mandating dismissal, on the ground that Ms. Olson filed those lawsuits more than “three years after the claim accrued” (citing 17 U.S.C. § 507(b)).

As phrased by the Eleventh Circuit, courts recognize two different approaches for determining when a copyright claim “accrues” under § 507(b), namely, the “injury rule” and the “discovery rule”:

The copyright statute of limitations runs from the day that a claim “accrues.” And there are two recognized rules for determining that date: the discovery rule and the injury rule. Under the discovery rule, a claim “accrues when the plaintiff learns, or should as a reasonable person have learned, that the defendant was violating his” rights. These kinds of claims can only accrue one time. Conversely, under the injury rule, a copyright plaintiff’s claim accrues when the harm, that is, the infringement, occurs, no matter when the plaintiff learns of it. But, attendant to the injury rule is the separate-accrual rule, which means that a new copyright claim accrues with each discrete infringement.

Nealy v. Warner Chappell Music, Inc. (11th Cir. 2023) (emphasis added, citations omitted), aff’d, 601 U.S. 366 (2024). (Editorial note: all emphasis appearing in text quoted in this article has been added unless stated otherwise.)

In Olson, the D.D.C. observed that the question of which rule governs “is an open question in the Supreme Court and the D.C. Circuit.” The D.D.C. acknowledged that if the injury rule were to apply, dismissal of Olson’s infringement claims would be warranted under § 507(b), given the timing of the defendants’ uses of the copyrighted work relative to when Olson brought suit.

The D.D.C., however, broadly declared that “every circuit has landed on the discovery rule.” Based on what it thus viewed as “the unanimous and overwhelming weight of persuasive authority on this issue,” the D.D.C. agreed with Ms. Olson that it should apply the discovery rule in assessing whether her infringement claims were time-barred. With that issue decided, the D.D.C. rejected the statute-of-limitations ground for dismissal, reasoning that application of the discovery rule involved fact-intensive inquiries that were inappropriate for resolution at such an early stage of the cases.

As support for the Eleventh Circuit’s alleged endorsement of the “discovery rule,” the D.D.C. cited Webster v. Dean Guitars (11th Cir. 2020). Although commentary on its characterization of other circuits’ law exceeds the scope of this article, the D.D.C.’s view of Eleventh Circuit law amounts to an over-generalization.

Webster did not go as far as the D.D.C. portrayed. Put differently, Webster did not, in fact, broadly hold that the discovery rule applies to all copyright claims. Instead, as discussed in further detail below, Webster first paid attention to the type of copyright claim raised in the pleadings, i.e., whether it was a conventional infringement claim or instead a claim based on copyright ownership issues. If the latter, then the discovery rule applies under Webster. The Eleventh Circuit in Webster did not extend that rule to straightforward infringement claims. To the contrary, Webster suggested (though it did not expressly hold) that the injury rule applies to such claims under Supreme Court precedent. In the D.D.C.’s defense, confusion about Eleventh Circuit law on § 507(b) reflected in Olson is quite understandable, given the failure of binding case law to provide clear analytical guidance.

Supreme Court’s Discussion of § 507(b) Principles in Petrella

Before 2014, courts were split on whether the equitable doctrine of laches still existed in copyright cases, given the statute of limitations in § 507(b). In Petrella v. Metro-Goldwyn-Mayer, Inc. (2014), the Supreme Court resolved this split of authority, finding that laches still exists in copyright cases, but only in “extraordinary circumstances,” and that the statute of limitations left “‘little place’ for a doctrine that would further limit the timeliness of a copyright owner’s suit.”

In Petrella, even though the petitioner (Paula Petrella) “sought no relief for conduct occurring outside § 507(b)’s three-year limitations period,” the U.S. Court of Appeals for the Ninth Circuit held that the doctrine of laches had barred her copyright infringement claim. The Supreme Court held that this ruling was “contrary to § 507(b) and this Court’s precedent on the province of laches.” Writing for the majority in Petrella, Justice Ruth Bader Ginsburg stated that “four aspects of copyright law bear explanation at the outset.” The fourth of those aspects was § 507(b).

Citing legislative history behind the 1957 enactment of § 507(b), Justice Ginsburg explained that the statute  furthers two purposes: “(1) to render uniform and certain the time within which copyright claims could be pursued; and (2) to prevent the forum shopping invited by disparate state limitations periods, which ranged from one to eight years.” She then stated: “To comprehend how the Copyright Act’s limitations period works, one must understand when a copyright infringement claim accrues.”

Quoting precedent, Justice Ginsburg explained:

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.” A copyright claim thus arises or “accrue[s]” when an infringing act occurs. [Citations omitted; emphasis added.]4

4 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.” William A. Graham Co. v. Haughey, 568 F.3d 425, 433 (CA3 2009) (internal quotation marks omitted). See also 6 W. Patry, Copyright § 20:19, p. 20-28 (2013) (hereinafter Patry) (“The overwhelming majority of courts use discovery accrual in copyright cases.”).

While the main text from this Petrella block quote appears to endorse the injury rule (and thus giveth clarity), Footnote 4 taketh away. There, the Court expressly states that it is “not pass[ing] on the question” of which rule applies. Footnote 4 merely observes that a large majority of lower courts have applied the discovery rule, without even commenting on whether doing so conflicts with the injury rule precedent cited earlier Justice Ginsburg’s discussion of § 507(b). Despite declaring that “one must understand when a copyright infringement claim accrues,” Petrella does not provide guidance sufficient for one to actually attain such an understanding.

Addressing the substance of the Ninth Circuit’s ruling, the Petrella majority declared:

The Ninth Circuit erred, we hold, in failing to recognize that the copyright statute of limitations, § 507(b), itself takes account of delay.

* * *

[W]e adhere to the position that, in face of a statute of limitations enacted by Congress, laches cannot be invoked to bar legal relief . . . .

* * *

Inviting  individual judges to set a time limit other than the one Congress prescribed, we note, would tug against the uniformity Congress sought to achieve when it enacted § 507(b).

Thus, even though the Petrella majority did not squarely decide which rule (as between the injury rule or the discovery rule) applies in § 507(b) analyses, the statute itself was clearly central to Petrella’s holding that the equitable doctrine of laches did not bar Ms. Petrella’s copyright infringement claim.

The Eleventh Circuit’s Webster Decision Distinguishes Between Infringement Claims and Ownership Claims in Determining Which Rule to Apply

In Webster, when the plaintiff Webster confronted the CEO of defendant Dean Guitars (Dean) concerning Dean’s sale of guitars bearing Webster’s copyrighted design, the CEO contended that Webster did not own the copyright to the design and that it was instead owned by the estate of a deceased guitarist from the band Pantera, whose guitar had displayed the design. The Eleventh Circuit held that the district court below correctly characterized the litigation as a copyright ownership dispute, because the parties agreed that Dean reproduced the copyrighted design on guitars it sold without Webster’s permission, leaving ownership as the only disputed issue.

The Eleventh Circuit indicated it was dealing with an issue of first impression and then announced its resolution:

In Petrella, the Supreme Court stated that a copyright infringement claim “ordinarily accrues when a plaintiff has a complete and present cause of action,” that is, “when an infringing act occurs.” But Petrella concerned a non-ownership copyright infringement claim. And though we have not previously addressed the issue, other circuits draw a distinction between the accrual of copyright infringement and copyright ownership claims.

* * *

We have not previously decided whether copyright ownership claims have a different accrual standard than copyright infringement claims. Today, we agree with the district court and our sister circuits and hold that, unlike an ordinary copyright infringement claim, which accrues for each infringing act, a claim concerning mainly ownership accrues only once. This is consistent with Petrella—which did not concern a copyright ownership claim. See 572 U.S. 663, 134 S. Ct. 1962, 188 L. Ed. 2d 979. And we adopt the approach used by the First, Second, Fifth, and Seventh Circuits—that an ownership claim accrues when the plaintiff learns, or should as a reasonable person have learned, that the defendant was violating his ownership rights—as this approach is most consistent with our existing precedent. [Citation omitted.]

In the end, it really did not matter which accrual rule ultimately applied in Webster. The Eleventh Circuit held that even under the more lenient ownership dispute accrual standard recited above, Webster’s claim was time-barred because he was on notice that his rights were being violated at least as early as 2007 – when Webster received the CEO’s communication contesting Webster’s ownership – yet Webster did not file suit until 2017.

As seen above, Webster acknowledged Petrella’s statement of the injury rule accrual standard and strongly suggested that this standard applied for “a non-ownership copyright infringement claim.” Despite this strong suggestion, Webster did not expressly hold that the injury rule applies to statute-of-limitation analyses involving copyright infringement claims. Even had it done so, one could assert that such a statement would have been non-binding dicta, because such a statement would not be necessary to resolve the case before the court, which was an ownership (instead of infringement) case.

Dissent in Warner Chappell Music Addresses Question Left Open in Petrella

The Eleventh Circuit’s next § 507(b) decision was Nealy, which involved an interlocutory appeal where the district court had certified a question of law to the Eleventh Circuit, i.e., “whether damages in this copyright action are limited to a three-year lookback period as calculated from the date of the filing of the Complaint pursuant to the Copyright Act and Petrella.”

In addition to certifying the stated question for the Eleventh Circuit’s resolution, the district court had issued an order denying the defendants’ motion for summary judgment seeking the dismissal of the case on statute-of-limitation grounds. The parties agreed that the only disputed substantive issue was whether the plaintiffs owned the asserted copyright, so the district court applied the “discovery rule” accrual standard set forth in the above Webster block quote for copyright ownership claims. The district court denied summary judgment because, under that accrual standard, genuine disputes of material fact existed concerning “when [MSI and Nealy] knew or should have known that [the defendants] were challenging their ownership to the [works].”

Thus, when the Eleventh Circuit decided Nealy, the district court had not yet resolved the issue of whether, using the discovery rule, the plaintiffs’ lawsuit was timely under § 507(b). To resolve the certified question, the Eleventh Circuit had to assume a timely filing of the lawsuit under the discovery rule:

The question in this appeal is whether the Copyright Act’s statute of limitations, 17 U.S.C. § 507(b), precludes a copyright plaintiff from recovering damages for harms occurring more than three years before the plaintiff filed suit, even if the plaintiff’s suit is timely under our discovery rule. Our discussion proceeds in two parts. First, we briefly confirm that the discovery rule governs the timeliness of MSI and Nealy’s claims. Second, assuming MSI and Nealy’s claims are timely, we evaluate the Copyright Act and the Supreme Court’s decision in Petrellato determine whether the plaintiffs may recover damages for infringement that occurred more than three years before they filed this lawsuit.

* * *

We will assume for the purposes of answering the district court’s certified question that the district court’s summary judgment ruling on this point was correct. And so, assuming the plaintiffs’ claims are timely under the discovery rule, we turn to the question whether the plaintiffs may recover retrospective relief for infringement that occurred more than three years before they filed this lawsuit.

The Eleventh Circuit ultimately answered the certified question by holding: “[A] copyright plaintiff with a timely claim under the discovery rule may recover retrospective relief for infringement that occurred more than three years prior to the filing of the lawsuit.” It reasoned: “the text of the Copyright Act does not place a time limit on remedies for an otherwise timely claim.”

In its discussion, the Eleventh Circuit observed that Petrella had “preserved the question whether the discovery rule governs the accrual of copyright claims.”

The Supreme Court granted the defendants’ petition for certiorari and, in Warner Chappell Music, Inc. v. Nealy, a 6-3 decision, affirmed the Eleventh Circuit’s answer to the certified question in Nealy. Writing for the majority, Justice Kagan began her discussion by assuming the propriety of the discovery rule for a § 507(b) statute-of-limitations analysis: “[W]e assume without deciding that a claim is timely under that provision if brought within three years of when the plaintiff discovered an infringement, no matter when the infringement happened.” Justice Kagan reiterated that this assumption reflected the question left open by Footnote 4 of Petrella was still undecided:

We have never decided whether that assumption is valid—i.e., whether a copyright claim accrues when a plaintiff discovers or should have discovered an infringement, rather than when the infringement happened. See Petrella, 572 U. S., at 670, n. 4, 134 S. Ct. 1962, 188 L. Ed. 2d 979. But that issue is not properly presented here, because Warner Chappell never challenged the Eleventh Circuit’s use of the discovery rule below. . . .  And as noted above, a division exists among the many Courts of Appeals applying a copyright discovery rule (11 at last count) about whether to superimpose a three-year limit on damages. . . .  We therefore confined our review to that disputed remedial issue, excluding consideration of the discovery rule and asking only whether a plaintiff with a timely claim under the rule can get damages going back more than three years.

Justices Gorsuch, Thomas, and Alito dissented from the majority’s opinion in Warner Chappell Music, contending that the majority’s assumption of the propriety of the discovery rule conflicted with Supreme Court precedent holding that “[u]nless the statute at hand directs otherwise, we proceed consistent with traditional equitable practice and ordinarily apply the discovery rule only ‘in cases of fraud or concealment.’” (quoting TRW Inc. v. Andrews (U.S. 2001)). The dissent did not see any reason for exempting copyright cases from this approach. Added Justice Gorsuch, who penned the dissenting opinion: “We have long warned lower courts, too, against taking any more ‘expansive approach to the discovery rule.’” Notably, as did the Supreme Court later in Petrella, the Supreme Court in TRW recognized lower courts’ common use of the discovery rule where a statute is silent on the issue. “But,” said the Court, we have not adopted that position as our own.”

Justice Gorsuch’s dissent concluded that although the majority’s failure to decide the propriety of the discovery rule may have been understandable in one sense, since the parties did not question application of the discovery rule, “[n]othing requires us to play along with these particular parties and expound on the details of a rule of law that they may assume but very likely does not exist.” Justice Gorsuch indicated that he would have: (i) dismissed the writ of certiorari as “improvidently granted,” and (ii) waited for a better case that would have more squarely presented the issue of propriety of the discovery rule.

Interestingly, Justice Gorsuch’s dissent in Warner Chappell Music did not cite Justice Alito’s opinion in SCA Hygiene Prods. Aktiebolag v. First Quality Baby Prods., LLC (2017), a patent case. That case lends further support for Justice Gorsuch’s position in his dissent – that application of the discovery rule in statute-of-limitations analyses is essentially the exception and not the rule. In SCA Hygiene, the Supreme Court extended the rationale of Petrella to the statute of limitations in the Patent Act (35 U.S.C. § 286), such that “[l]aches cannot be interposed as a defense against damages where the infringement occurred within the period prescribed by § 286.” In an attempt to inject equitable determinations into analyses under that statute, the defendant contended that “the event that triggers the running of a statute of limitations, occurs when ‘a plaintiff knows of a cause of action.’” The Court responded, however: “[T]hat is not ordinarily true,” and: “While some claims are subject to a ‘discovery rule’ under which the limitations period begins when the plaintiff  discovers or should have discovered the injury giving rise to the claim, that is not a universal feature of statutes of limitations.”

District Courts in Eleventh Circuit Split Over Whether the Discovery Rule Applies to Copyright Infringement Claims

Since Webster was the first Eleventh Circuit case affirmatively adopting a distinction between copyright infringement claims and copyright ownership claims in a statute-of-limitations analysis, the discussion below addresses post-Webster decisions from Eleventh Circuit district courts to assess their analyses when showing awareness of the distinction made in Webster.

Southern District of Florida

The district court within the Eleventh Circuit exhibiting the most noticeable variance on the question of whether the discovery rule applies to § 507(b) statute-of-limitations analyses involving copyright infringement (as opposed to ownership) claims is the U.S. District Court for the Southern District of Florida. The variance occurs among different judges within this same district court, as evident from the following bullet points.

• In Tomelleri v. Natale (S.D. Fla. Jul. 15, 2020), U.S. Magistrate Judge Bruce Reinhart issued a Report and Recommendation (“R&R”) on the defendants’ motion for judgment on the pleadings, seeking dismissal of Tomelleri’s copyright infringement claims based on § 507(b). Despite Webster’s suggestion (though again, not express holding) that the injury rule applies to infringement claims, Judge Reinhart ruled: “Defendants have not cited any authority that requires the application of the injury rule in the Eleventh Circuit. I agree with the unanimous view of the federal appellate courts that have addressed this issue: the discovery rule applies to a copyright infringement claim.” For that and other reasons, Judge Reinhart recommended denial of the defendants’ motion. On review of the R&R, the District Court (Judge Robin L. Rosenberg) decided to grant the plaintiff leave to amend her pleadings and thus denied all pending motions as moot, rather than on the merits. Unlike Judge Reinhart, Judge Rosenberg refrained from ruling whether to apply the discovery rule to infringement claims.
• In Oppenheimer v. Palange (S.D. Fla. Dec. 24, 2023), U.S. District Judge Darrin P. Gayles granted in part a Rule 12(b)(6) dismissal motion based on § 507(b), ruling: “The injury rule applies here because copyright infringement is the ‘gravamen’ of Plaintiff’s claims.” Judge Gayles thus concluded that any infringement claims based on acts of infringement that occurred more than three years prior to the filing of the complaint were time-barred.
• In Affordable Aerial Photography, Inc. v. Witkowski (S.D. Fla. Feb. 27, 2025), Judge Rosenberg granted the defendant’s motion for summary judgment against Count IV of the plaintiff’s First Amended Complaint (FAC), a copyright infringement claim. Citing precedent from the Southern District of Florida, Judge Rosenberg stated: “as both parties acknowledge, the trend in this District is to apply the discovery rule.” (emphasis added). Despite applying that rule, Judge Rosenberg ruled that Claim IV was time-barred under § 507(b). That turned out to not be a final ruling, however, because in a subsequent order (Affordable Aerial Photography, Inc. v. Witkowski (S.D. Fla. Aug. 15, 2025)), Judge Rosenberg found that the FAC was a legal nullity because the plaintiff had not obtained leave to amend the original complaint. Thus, ruled Judge Rosenberg, it was error for the court to grant summary judgment against Count IV.
• In Conley v. Vacanti (S.D. Fla. Mar. 3, 2025), Magistrate Judge Reinhart issued a R&R on various motions for summary judgment, including  the defendants’ motion asserting that the plaintiff’s copyright claim was time-barred under § 507(b). “The first issue, here,” stated Judge Reinhart, “is whether this case presents an ownership dispute or an infringement dispute.” Judge Reinhart preserved Webster’s distinction between those types of claims, citing Petrella for the proposition: “For an infringement claim, the cause of action accrues, and the statute of limitations therefore begins to run, when the infringing act occurs.” Judge Reinhart concluded, however, that the dispute at issue was one of ownership, thereby requiring application of the discovery rule. Nevertheless, Judge Reinhart held that the plaintiff’s copyright claim was still time-barred. On review of Judge Reinhart’s R&R (in Conley v. Vacanti (S.D. Fla. Jun. 30, 2025)), U.S. District Judge Raag Singhal observed that the parties did not contest this aspect of the R&R. The Conley case thus stands as an example of where a judge recognized Webster’s apparent distinction between types of copyright claims.

Middle District of Florida

• In Science Photo Library Ltd. v. Bell Performance, Inc. (M.D. Fla. Aug. 2, 2024), U.S. District Judge Paul G. Byron observed: “To date, the Eleventh Circuit has not explicitly adopted either the discovery rule or the injury rule in the civil copyright infringement context. . . . [T]he Southern and Middle Districts of Florida have routinely applied the discovery rule in copyright infringement cases.” The defendant asserted a plausible argument, namely, that because Webster distinguished between infringement and ownership claims, it only makes sense to apply different accrual rules for those different claims. However, Judge Byron rejected that argument, stating:

Although the Eleventh Circuit differentiated the two (2) types of claims, that does not necessarily indicate different tests ought to be applied. Importantly, courts differentiate claims of copyright ownership from those of copyright infringement because, by nature of the claims, they accrue differently. . . . [A] plaintiff may have a fresh infringement claim against a defendant each time that defendant publishes the copywritten work, whereas a claim for ownership can accrue only once. . . . In sum, courts distinguish ownership and infringement claims because they accrue in different manners.

Judge Byron thus applied the discovery rule as the “better practice,” even advancing policy reason for doing so: “If the purpose of the Copyright Act is to protect property rights, applying the injury rule to determine when an infringement claim accrues is counterproductive..”

• In Mishiyev v. UMG Recordings, Inc., (M.D. Fla. Sept. 11, 2025), defendant UMG moved for summary judgment against plaintiff Mishiyev’s claim under the Digital Millennium Copyright Act (DMCA), namely, alleged misrepresentation under 17 U.S.C. § 512(f). That statute of the DMCA imposes liability upon a copyright owner for misuse of an online takedown procedure if a take-down notice contained a material misrepresentation that caused a service provider to take an action that harmed an aggrieved party. Thus, Mishiyev’s § 512(f) claim was neither a copyright infringement claim nor a copyright ownership claim. U.S. District Judge Mary S. Scriven stated: “The Eleventh Circuit has applied two rules for determining the date of accrual in copyright infringement cases: ‘the discovery rule and the injury rule.’” (quoting Nealy). Judge Scriven found that it didn’t matter which rule applied in the case, because “[u]nder either rule, Plaintiff’s claims accrued at the latest at the time each of his videos was taken down by YouTube in 2019,” and since Mishiyev did not file his complaint until August 28, 2023, his § 512(f) claim was time-barred for takedown requests sent prior to August 28, 2020.

Northern District of Florida: No relevant decisions found.

Northern District of Georgia

• In Jones v. Williams (N.D. Ga. Nov. 1, 2022), U.S. District Judge William M. Ray, II observed: “The Eleventh Circuit has held that when a claim accrues depends on the nature of the copyright claim.” (citing Webster). Judge Ray found “that the nature of Plaintiff’s copyright claim is best characterized as a copyright infringement claim,” and that since “the most recent act of copyright infringement occurred more then three years before Plaintiff filed his claim,” the claim as alleged was time-barred. Judge Ray therefore granted the defendant’s dismissal motion, but did so without prejudice, granting the pro se plaintiff leave to replead his claim.
• In Britt v. Durham (N.D. Ga. Mar. 7, 2025), U.S. District Judge Michael L. Brown began his statute-of-limitations analysis by observing: “Typically, claims ‘accrue[]’ whenever ‘the plaintiff has a complete and present cause of action.’” (quoting Corner Post, Inc. v. Bd. of Governors of the Fed. Rsrv. Sys. (U.S. 2024)). This quote from Corner Post echoes that from Petrella concerning when a cause of action generally accrues. Judge Brown applied the discovery rule, however, based on his observation that “Britt’s claim for declaratory relief under the Copyright Act arises from his supposed joint-authorship of the subsequent songs.” Nevertheless, Judge Brown’s use of the word “[t]ypically” when citing to the general rule of Corner Post signals that he would have used the injury rule if the claim at issue were a straightforward copyright infringement claim.

Middle and Southern Districts of Georgia: No relevant decisions found.

Northern District of Alabama: The only relevant case found was a straightforward application of the discovery rule based on a finding that the complaint raised a copyright ownership claim. The court did not take a position on which rule applied for copyright infringement claims. See McClatchy Co. v. EBSCO Information Serv., Inc. (N.D. Ala. May 28, 2025).

Middle District of Alabama: No relevant post-Webster case found. In a pre-Webster decision, the court remarked: “Two tests may determine when the statute of limitations begins to run for this type of claim [i.e. copyright infringement claims], and the Eleventh Circuit has not clearly endorsed either test.” The court did not need to take a position on which test to use, because it agreed that the plaintiff’s claim was time-barred under either test. See Vient v. Raycom Media (M.D. Ala. Oct. 31, 2019).

Southern District of Alabama: No relevant decisions found.

Conclusion

“The uniformity Congress sought to achieve when it enacted § 507(b),” as phrased in Petrella, has not been achieved, at least not within the Eleventh Circuit. District courts within this Circuit that have squarely decided the question of which rule to apply in statute-of-limitation analyses concerning copyright infringement claims, as between the injury rule or the discovery rule, have reached different conclusions. The split among the courts even exists at the intra-district level within the U.S. District Court for the Southern District of Florida. The choice of which rule to use can be outcome-determinative, as demonstrated by the D.D.C.’s discussion in Olson.

Although a couple of district courts appear to adhere to the distinction drawn in Webster between copyright infringement claims and copyright ownership claims, others feel at liberty to apply the discovery rule to both types of copyright claims. Defendants exploring the availability of a pretrial motion based on § 507(b) need to therefore scrutinize how individual judges in these courts have handled such statute-of-limitation analyses (if they have at all). They also need to challenge generalizations that any district within this Circuit has consistently chosen to apply the discovery rule, because the foregoing survey of post-Webster case law indicates that this is not necessarily so.

This article does not explore whether the judicial confusion concerning § 507(b) may exist outside of the Eleventh Circuit, but it would not be surprising if it does, given the noncommittal approach that the Supreme Court took in Petrella and echoed in Warner Chappell Music. As Justice Gorsuch’s dissent stated in the latter decision, the Supreme Court needs to take a case that clearly raises the issue of which rule to apply in § 507(b) determinations involving copyright infringement claims, and to then squarely decide the issue. Supreme Court action would be more realistic than legislative clarification of § 507(b), because as commentator Jonathan Bailey aptly notes, given the current political climate in Congress, legislative clarification of the Copyright Act “is unlikely to ever happen.”