United States District Court, S.D. New York
May 11, 2004.
AUSCAPE INTERNATIONAL, et al., Plaintiffs, -against- NATIONAL GEOGRAPHIC SOCIETY, et al., Defendants
The opinion of the court was delivered by: LEWIS KAPLAN, District Judge
Pending before this Court are cross-motions for summary judgment, one
each by plaintiffs, the National Geographic defendants and the ProQuest
defendants. Among the issues raised is when the copyright infringement
claim regarding the electronic products, General Periodicals On Disc and
its subset, Magazine Express (collectively, "GPO"), "accrued" under
Section 507(b) of the Copyright Act.
The parties are directed to submit briefs on this issue on or before
June 11, 2004. They should discuss, among other things, whether a
copyright infringement claim accrues under Section 507(b) upon the
occurrence of the infringement or whether the so-called "discovery" or
some other rule applies in determining accrual. See, e.g., Roley v. New
World Pictures, 19 F.3d 479 (9th Cir. 1994). The parties are requested to
bring to the Court's attention all relevant legislative history
including, inter alia, floor debates, committee reports and hearings.
The parties are invited also to address whether and to what extent the
following statement from a relevant House Judiciary Committee Report
implies that Congress intended a claim of copyright infringement to
accrue upon the occurrence of an infringement:
"At hearings on similar legislation in the 84th
Congress, it was pointed out that existing State
statutes of limitations generally provide for a
suspension of the limitation period in certain
instances such as . . . during such time as the cause
of action is fraudulently concealed by the person
liable for the infringement, and such fact is unknown
to the person who is injured. It was therefore
suggested that the bill provide for the tolling of the
statute of limitation during such time. . . . "The committee, however, decided not to adopt these
suggestions for the reason that Federal district
courts, generally, recognize these equitable defenses
anyway." H.R. REP. No. 85-150, at 2 (1957) (emphasis
partly in original and partly added).
It is ORDERED that counsel to whom this Order is sent is responsible
for faxing a copy to all counsel and retaining verification of such in
the case file. Do not fax such verification to Chambers.
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