Willamette Law Online

Intellectual Property


Diversey v. Schmidly

Summarized by: 

Date Filed: 12-23-2013
Case #: No: 13-2058
United States Court of Appeals for the Tenth Circuit
Full Text Opinion: http://scholar.google.com/scholar_case?case=4475906223534850639&q=diversey+v.+schmidly&hl=en&as_sdt=6,38
LexisNxis Link: 2013 U.S. App. LEXIS 25506
Westlaw Link: 2013 WL 6727517

Copyright: ACCRUAL OF CLAIM: A copyright infringement claim was barred when it was brought more than three years after the date on which the plaintiff should have become aware of an act of infringement, despite plaintiff's arguing a "continuing wrong" exception.

Opinion (O’Brien): Andrew Diversey ("Diversey") brought suits against a number of administrators and members of the Board of Regents of the University of New Mexico for alleged infringement of his copyright to an unpublished dissertation. The district court dismissed Diversey’s complaint as untimely under Federal Rule of Civil Procedure 12(b)(6). Barring the application of an appropriate tolling principle, a copyright infringement claim must be brought within three years of the date on which the plaintiff becomes aware of an act of infringement or becomes chargeable with knowledge of it. A plaintiff cannot recover for acts of infringement occurring more than three years before filing the complaint merely because some related act of infringement occurs within the limitation period.  Diversey relied on a minority interpretation of the limitation period, which applies a “continuing wrong” exception; however, the court found that the statute does not specifically support a special exception and, thus, was not compelling. The court found that the three-year accrual began on February 7, 2008 when Diversey received a letter that his dissertation had been received by a public library. Because Diversey had reason to believe an unauthorized copy of his dissertation had been made earlier than three years before filing his infringement suit, the Court AFFIRMED the district court’s ruling.