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10th Circuit Goes Where 7th Circuit Hasn’t Regarding Copyright Law’s “Continuing Violation” Doctrine

Andrew Diversey, a doctoral student at the University of New Mexico, challenged the university administration regarding the use of his dissertation.  When he discovered that the university had copied and made his dissertation publicly available without his permission, he demanded that all copies be returned to him.  When the university refused to comply with his request, Diversey then sued the university for copyright infringement.

Diversey’s claims were dismissed by the district court because the 3-year statute of limitations for copyright infringement actions had elapsed by the time Diversey filed suit.  The court explained that his copyright claims had accrued when he was made aware of the infringement in February 2008, more than four years before he filed suit in June of 2012.  In response, Diversey espoused the “continuing violation” doctrine, which would delay the accrual of any copyright infringement claim and the running of the statute of limitations until the infringing conduct stopped.  Diversey argued that because the university continued to publicly distribute his dissertation, the infringement had not stopped occurring, therefore, his claims had not yet accrued and should not be time barred.  Diversey appealed when the district court rejected this argument. 

On appeal, the 10th Circuit Court was tasked with interpreting Section 507(b) of the Copyright Act to determine if the section allowed for the “continuing violation” doctrine that Diversey proposed.  That section 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.”  The majority of the federal circuit courts have determined that a claim accrues when the plaintiff “has knowledge of the violation or is chargeable with such knowledge.”  Applying this interpretation of Section 507(b) to the case at hand would mean that Diversey’s claims would be barred by the statute of limitations.  However, some of the federal circuit courts have held, as explained by the 7th Circuit in Taylor v. Merick, 712 F. 2d 1112 (7th Cir. 1983), that “the statute of limitations does not begin to run on a copyright claim involving a continuing series of copyright infringements until the entire series is over and done with” (i.e., the “continuing violation” doctrine).

Diversey’s appeal based on the “continuing violation” doctrine was rejected by the 10th Circuit Court. In the matter of Diversey v. Schmidly, the court explained:

“First, the statute itself says nothing to support a special limitation rule for ‘continuing wrongs.’  Second, although the minority view seems intended to ensure copyright infringers do not escape liability when their infringing acts are obfuscated by the stream of commerce, the majority accrual rule and tolling principles adequately protect copyright owners’ rights in such situations. The limitation period never begins to run until the plaintiff knows or has reason to know of the infringement.  Moreover, when an infringer's actions are calculated to deceive the plaintiff, the accrual may be tolled even further.”

The decision handed down by the 10th Circuit Court in this case adds another important layer to “continuing violation” doctrine precedent, possibly also adding another nail in the doctrine’s coffin.  The timing of this case is also significant as the decision was delivered as the district courts in the 7th Circuit have already been questioning the doctrine. We will continue to keep an eye on this issue, especially to see how the 7th Circuit Court of Appeals handles the doctrine in future cases.



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