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AUSCAPE INTERNATIONAL v. NATIONAL GEOGRAPHIC SOCIETY

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

ORDER

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).
SO ORDERED.
  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.

20040511

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