There are many different types of Copyright plaintiffs who sue for unlawful and unlicensed use of their copyright-registered content. For example, our firm has dealt with the following types of copyright defense brought by professional Plaintiff counsel. When I say professional counsel, I mean the types of companies that use "phone home" or "call home" software to track and log unlicensed usage. They do this day in and day out in an attempt to turn copyright infringement into a profit center. Some examples include:

1. Software companies (such as Ansys, Solidworks, Siemens, Autodesk, Flexera, Synopsis and others).

2. Photo infringement Plaintiffs (more and more photographers are being encouraged to make a living in the infringement and pursuit of claims business). These companies typically track infringements across the web every single day).

3. BitTorrent file sharing of movies: (ex. Strike 3 Holdings, LLC)

As Defense counsel, I often see claims being brought where the first detection of infringement was over 4 or 5 years ago. I typically raise the statute of limitations defense only to hear "We just discovered the infringement and have no obligation to bring a case or a lawsuit earlier."

I typically like to point out that this position may not be BULLETPROOF. Let's take a look.

STATUTE OF LIMITATIONS FOR COPYRIGHT INFRINGEMENT

The standard statute of limitations for copyright infringement claims is three years. Most courts look at the date the Plaintiff DISCOVERED OR WITH THE EXERCISE OF REASONABLE DUE DILIGENCE SHOULD HAVE DISCOVERED the infringement. That is the key. If you are a professional infringement Plaintiff and make representations on your website such as "we scour the internet every day to detect infringements," this representation could come back to bite you.

LEGAL ARGUMENT (SAMPLE ONLY, NOT LEGAL ADVICE)

Here is one argument I might make in a case like the above:

By waiting so long to sue (while apparently having logged this data), any lawsuit could be subject to a motion to dismiss or a motion for summary judgment or judgment on the pleadings. Courts often look to the sophistication of the Plaintiff and how well-seasoned they are at monitoring and detecting infringement in determining when the statute of limitations begins to run. Saying “we just discovered it,” in other words, is not always on safe legal ground. See Michael Grecco Prods., Inc. v. RADesign, Inc., No. 21 Civ. 8381 (S.D.N.Y.).

Grecco is a Plaintiff who monitors and files infringement actions (much like Ansys does) and claimed he failed to spot the alleged infringement at issue until more than three years after the use began. The defendants filed a motion to dismiss under FRCP 12(b). Although the Court acknowledged that the discovery rule applied--meaning that the statute of limitations began to run when Grecco knew, or reasonably should have known, about the infringement, it nevertheless dismissed the case on statute of limitations grounds stating:

"Plaintiff's relative sophistication as an experienced litigator in identifying and bringing causes of action for unauthorized uses of Grecco's copyrighted works leads to the conclusion that it should have discovered, with the exercise of due diligence, that the Rose Photographs were posted within the three-year limitations period."

In so holding, the Court followed Minden Pictures, Inc. v. Buzzfeed Inc., 390 F. Supp. 3d 461 (S.D.N.Y.), in which a different S.D.N.Y. judge had dismissed a suit filed by Minden Pictures, another seasoned copyright plaintiff.

While this defense may not always work, it is important to see if it might apply in your case. Check the Plaintiff's website. Are they making representations that they track and monitor the internet every day looking for infringements (for example, on Instagram, Facebook, company websites, TikTok, etc.)? If so, it may be worth raising the argument.