“Continuing Wrong” Doctrine Rejected by Tenth Circuit - Diversey v. Schmidly
Rejecting the continuing wrong doctrine, the U.S. Court of Appeals for the Tenth Circuit recently held that copyright owners must bring their copyright infringement claims within three years of first learning of the violation and not three years after the infringement ceased. Diversey v. Schmidly, Case No. 13-2058 (10th Cir., Dec. 23, 2013) (O’Brien, J.).
The copyright owner, Andrew Diversey, was a Ph.D. student at the University of New Mexico (UNM). On February 7, 2008, UNM sent Diversey a letter advising that his draft dissertation was deposited in the university’s library and also sent to the university’s dissertation publisher. Diversey complained to UNM administrators, requesting the return of all copies of his dissertation. But on June 16, 2009, he discovered copies of his dissertation in two UNM libraries.
On June 15, 2012, Diversey sued UNM administrators for copyright. Diversey brought his claim under (a) 17 U.S.C. § 106(1) for violating his exclusive right to make copies of his dissertation and (b) 17 U.S.C. § 106(3) for violating his exclusive right to distribute his dissertation. The district court dismissed Diversey’s claims as untimely under the three-year statute of limitations, 17 U.S.C. § 507(b), which applies to claims for copyright infringement. Diversey appealed.
On appeal, Diversey argued that his claims were not untimely under the doctrine of “continuing wrongs.” Under this doctrine, UNM continued to infringe Diversey’s copyright through the ongoing distribution of his dissertation in the university’s libraries. Diversey argued that the three-year statute of limitations does not begin to run on a continuing wrong until the wrong is over and done with.
The 10th Circuit rejected the continuing wrong doctrine as a minority view among circuits. Instead, the court followed the majority view that a claim “for copyright infringement accrues when one has knowledge of a violation or is chargeable with such knowledge.” According to the majority view, Diversey’s unauthorized copying claim under § 106(1) accrued when UNM sent Diversey a letter in February 2008. Thus, Diversey’s unauthorized copying claim was barred by the three-year statute of limitations.
However, the 10th Circuit agreed with Diversey that his unauthorized distribution claim under § 106(3) was not time-barred. The court concluded that this claim accrued in June 2009, when Diversey discovered copies of his dissertation in UNM’s libraries, not in February 2008 when his dissertation was deposited in the libraries. Until his dissertation was made available in the library catalog system, the 10th Circuit found that Diversey had no reason to know that his dissertation had been distributed and available to the public.
The court also rejected the university’s fair use defense to Diversey’s copyright infringement claim. The court found that Diversey’s right to control the first public appearance of his dissertation and the unpublished nature of the work outweighed the university’s claim of fair use.
Copyright / Statute of Limitations: Diversey v. Schmidly