0:00

We'll hear an argument next in Case 2278,

0:02

Warner-Chappell Music v. Neely. Mr. Shanmugam. Shanmugam,

0:08

Jr., Chief Justice. And may it please the

0:10

Court, this case presents the question whether a

0:12

copyright plaintiff can recover damages for acts that

0:14

allegedly occurred more than three years before the

0:17

filing of suit. As a

0:19

straightforward matter of statutory interpretation, the

0:21

answer to that question here is

0:23

no. Under the applicable statute

0:25

of limitations, a civil action must be brought

0:27

within three years after the claim accrued. A

0:30

claim accrues when the plaintiff has a complete

0:32

cause of action. Accordingly, as

0:34

this Court repeatedly stated in Petrella, a

0:37

plaintiff can obtain damages for acts of

0:39

infringement only within three years of filing.

0:42

And under this Court's understanding of the

0:44

background discovery rule, a plaintiff is entitled

0:47

to extend that period only in cases

0:49

involving fraud. Now faced

0:51

with those points, respondents seek to use

0:53

the rephrased question presented to clear the

0:55

board of Petitioner's strongest

0:58

arguments. But that question directs

1:00

the parties to address the statute, and

1:03

statutory construction begins with the text.

1:06

Respondents eventually join issue on the

1:08

text, but the inferences from

1:10

the other provisions they cite cannot overcome

1:12

the plain meaning of the term

1:14

accrues. And even if

1:16

the statutory text were somehow off

1:18

the table here, Respondents offer

1:21

no valid explanation for this Court's statements

1:23

in Petrella, and they assume the

1:26

existence of a broad discovery rule, even

1:29

in the face of disagreement among the lower

1:31

courts about the discovery rule's scope. And

1:34

Respondents do not dispute that if the discovery rule

1:36

applies only in cases involving

1:38

fraud, they are not entitled

1:40

to invoking. There is no precedent for

1:42

this Court's resolving a question of statutory

1:45

interpretation by assuming away the

1:47

relevant statutory text. At

1:49

most, the rephrased question presented assumes the

1:52

existence of some version of the discovery

1:54

rule. It does not take sides on

1:56

the scope of that rule, nor

1:58

need the Court establish that contours

2:00

of the discovery rule here. Instead,

2:03

it need only hold that respondents in this case

2:05

are not entitled to damages for acts that

2:07

took place more than a decade before they

2:10

filed suit. On that basis,

2:12

this court should reverse the court of appeals judgment.

2:14

I welcome the court's questions. Did

2:16

the courts, any of the courts

2:18

below rule on, or pass on

2:21

the discovery rule, or did they

2:23

just simply assume the existence of

2:25

some discovery rule? So I think

2:28

that the court of appeals reaffirmed

2:30

its prior discovery rule from the

2:33

Webster decision, which applies parenthetically

2:35

only in the context of

2:37

ownership disputes. So the argument

2:39

that you're making now, was

2:41

it raised below? So

2:43

we did not raise that argument in

2:45

the 11th Circuit precisely because we were

2:47

bound by the Webster decision. But we

2:49

would respectfully submit that that is not

2:51

necessary, both because the 11th Circuit passed

2:53

upon the issue, and because

2:55

there has never been a requirement that

2:58

a party challenge binding court of appeals

3:00

case law as a ticket to

3:02

raise arguments before this court. What was

3:05

the question that was certified to

3:07

the 11th Circuit? So the question

3:09

that was certified was the question

3:11

of the availability of retrospective relief

3:13

for acts beyond three years

3:15

from the trial. But did not assume the

3:17

existence of the discovery rule?

3:20

Precisely because in the 11th Circuit

3:22

there was binding case law on

3:24

that issue. And our fundamental

3:26

submission for this court is that

3:28

we are not challenging the existence

3:31

of a discovery rule. To be

3:33

sure, the question of the scope

3:35

of any discovery rule is

3:37

to some extent intertwined with the substantive

3:40

question that is presented here. And to

3:42

quote from this court's question presented, that

3:44

question is whether a copyright plaintiff can

3:47

recover damages for acts that allegedly occurred

3:49

more than three years before the filing

3:51

of a lawsuit. Mr. Shin, again, we

3:53

took it off the table. And your cert petition

3:56

did not ask us to grant cert on

3:58

the merits of the discovery rule. Foster's

4:00

cert petition acknowledged that there was no split on

4:02

the discovery role and that the split was between

4:04

the second and the ninth on

4:06

this recovery of damages beyond three years point.

4:09

Well, I would respectfully disagree with that, Justice

4:11

Barrett, to this extent. In the star footnote

4:14

in our petition, we indicated that

4:16

the court may wish- But it wasn't the

4:18

question in which you sought cert and your

4:20

brief pretty much says, well, this is our

4:22

strongest point, so this is what we're going to focus

4:25

on. Star footnote was not what you asked us to

4:27

grant cert. Well, we asked this court

4:29

to grant cert on a somewhat broader

4:31

question presented. The formulation of our question

4:33

presented, as we indicated in the star

4:35

footnote, would have given the court the

4:37

opportunity to pass on the antecedent question

4:39

of whether or not the Copyright Act

4:42

embodies a discovery rule. Once

4:44

this court rephrased the question presented,

4:46

we abandoned any argument that there

4:48

is no discovery rule. My

4:50

point to this court is simply that

4:52

the scope of the discovery rule is

4:55

relevant to this question. Now,

4:57

so, Mr. Sham, again, when we rephrased the

4:59

question, we rephrased it, and I noted that

5:01

you didn't read the part when

5:04

you talked about what the question presented is, whether

5:07

under the discovery rule applied

5:10

by the circuit courts and the Copyright

5:12

Act statute of limitation for civil actions,

5:15

we were very specific. We weren't saying,

5:17

please entertain some arguments about

5:20

the scope of the rule. We were taking

5:22

it off the table, as Justice Barrett suggests.

5:25

Yeah, happy to address that. And I certainly

5:27

didn't mean to ignore the

5:30

prepositional phrase. The critical part. Well,

5:33

let me address that directly. So

5:35

I think that what that part of

5:37

the question presented did was to direct

5:39

the parties to address the substantive question,

5:42

the availability of retrospective relief, in light

5:44

of two considerations. As you say, first,

5:46

the discovery or accrual rule applied by

5:48

the circuit courts, and second, the statute

5:51

of limitations itself. Now, our

5:53

submission, as the court will be aware of, to the

5:55

first part of that, is that there is no consensus

5:57

in the courts of appeals about the scope of

5:59

the discovery rule. There is consensus about

6:01

the existence of a discovery rule. On

6:04

that issue, all of the

6:06

regional circuits have said to some extent

6:08

that there is a discovery rule. We

6:10

read this Court's rephrasing of the question

6:13

presented to take that issue off the

6:15

table precisely because there was no circuit

6:17

conflict on that issue. But

6:19

the Court also directed us

6:22

to address the statutory text.

6:25

And our submission to the extent that respondents

6:27

and the government suggest that, well, you should

6:30

just look at the arguments in the

6:32

Court of Appeals' decisions addressing

6:34

the circuit conflict, is that

6:36

when you look at those decisions, they

6:39

in turn address this Court's decision

6:41

in Petrella. They cite the language

6:43

on which we rely from Petrella.

6:45

And our submission to this Court

6:47

is that that language in turn

6:49

relied on the statute of limitations.

6:52

It relied on Section 507B.

6:55

When the Court said on

6:57

multiple occasions that retrospective relief

6:59

was not available for acts beyond

7:01

three years, the

7:03

Court was discussing Section 507B.

7:06

So I think it would be quite artificial for

7:08

this Court to try to... counsel, isn't it artificial

7:10

for you to do

7:12

what Justice Barrett said,

7:15

which is to raise

7:17

the most important part of your argument in

7:19

a footnote, to say the Court can reach

7:21

it if it wants. The Court

7:23

chose not to. Your

7:25

petition, you point to Samia, where

7:28

the Court did reach a question that

7:30

wasn't argued below. It's a

7:32

very good example. In that petition, was

7:35

very honest about the fact that it was asking

7:37

the Court to answer the question that it had

7:39

not raised below because of

7:41

binding circuit precedent. You didn't do

7:44

that. Well... The Court

7:46

then said, reach this other question,

7:49

not the one that's most important, not the

7:51

one I'm going to hinge my argument on

7:53

in my brief. Don't reach that

7:55

because there's no circuit split. You don't have to.

7:58

We're just going to rely on the discussion. So

8:02

I have two points in response to

8:04

that. The first is that, again, in

8:06

the CERP petition, I think we were

8:08

quite forthright in indicating that we would

8:10

raise the issue on which we were

8:12

bound below, the issue of whether or

8:14

not the Copyright Act embodied the discovery

8:16

rule at all. When- No,

8:19

Counsel. You put that in a footnote

8:21

that there was no circuit split around it. Can I move

8:23

on to another- Yeah, but I'm happy to- Can

8:25

I move on to another issue? Show

8:28

me the statutory language that you

8:30

reply on. The damages section

8:33

speaks about damages. The

8:36

statute of limitations speaks

8:39

about a time period

8:41

to file a complaint. You're

8:43

automatically tying the two. Tell me how you're doing it.

8:46

Sure. I'd be glad to. And that

8:48

is precisely why- Statutorily how? Yes. And

8:50

that's precisely why in our brief we

8:52

start with the statutory language. After all,

8:54

this is a question of statutory interpretation.

8:57

We believe that the relevant language is the language

8:59

in Section 507 B, as

9:01

this Court directed in the rephrase question presented,

9:03

and not the language in 504 or

9:06

any other provision. We would freely recognize

9:08

that in the remedial provision, there is

9:10

no sort of limitations period built into

9:13

that. We believe that the language of

9:15

Section 507 B, and of

9:17

course, in particular the operative term, accrues,

9:19

is a relevant language. Now, I will

9:21

say that this Court's decision in Petrella,

9:23

which I think my friends on the

9:25

other side acknowledge is well within the

9:28

scope of the question presented, because after

9:30

all, that was the primary authority discussed

9:32

by the Second Circuit and the Ninth

9:34

Circuit and the Eleventh Circuit. When

9:37

this Court said time and again that

9:39

there was a limitation on retrospective relief,

9:41

the Court cited the statute of limitations

9:43

in Section 507 B. Now,

9:45

to be sure, the Court, in its

9:48

opinion, in footnote four, recognized

9:50

that some courts of appeals had recognized

9:52

a discovery rule. We think that those

9:54

two things can be harmonized by concluding

9:57

that when the Court referred to the

9:59

discovery rule, What it

10:01

was really referring to is the

10:03

more modest equity-based discovery rule that

10:05

this court has recognized, most recently

10:07

in Gabelli and Rakitsky, a discovery

10:10

rule that is limited to cases

10:12

involving fraud and not a broad-based

10:14

discovery rule more generally. But it's

10:16

really for that reason that treatises

10:18

like ... That's the

10:22

scope of when

10:24

the exception can be raised

10:27

is different from whether it can or not. Correct.

10:30

If it is a statute of limitations as

10:32

you claim that does not

10:35

permit recovery at all

10:37

if it's outside the three-year period,

10:40

then there'd be no fraud exception. It

10:42

would be almost like a statute of repose,

10:44

but that's not the argument you're making. You're

10:47

making a very different one that

10:50

would be subject to briefing in the

10:52

appropriate case of how widely

10:55

expansive was

10:58

the fraud exception in

11:00

the common law. But

11:03

there is an exception of some sort that

11:05

you're recognizing. The only question

11:07

is its threat. Correct. And

11:10

on that ... That wasn't what we granted

11:12

cert on. But to circle back to Justice

11:14

Jackson's question about the rephrase question presented, I'd

11:17

like to say that I don't think

11:19

that this Court, when it rephrased the

11:21

question presented and you can certainly tell

11:23

me if I'm incorrect about this, was

11:25

accepting any particular version of the discovery

11:27

rule. And there is disagreement about that

11:29

in the courts of appeal. The only

11:31

disagreement is whether it applies

11:34

to ownership versus infringement. There

11:37

is no disagreement on the issue

11:39

of whether if it applies, how

11:42

limited is it? And does

11:44

that matter that you're an ownership case

11:46

versus an infringement case? Does that matter

11:48

to your argument here at all, that

11:50

disagreement about the discovery rule? Well,

11:53

as this case comes to the court,

11:55

the Eleventh Circuit does apply the discovery

11:58

rule to ownership claims. Our

12:00

point is simply that in the courts

12:02

of appeals, there are a variety of

12:04

views about the scope of the discovery

12:06

rule, not just on that axis, but

12:08

on other axes. As we point out

12:10

in the Third Circuit, the Third Circuit

12:13

does not locate the discovery rule in

12:15

any notion of accrual. It

12:17

instead located in a notion of equitable

12:19

towing. And my submission to this court,

12:21

and this goes to one of our

12:23

other arguments that again I think is

12:25

properly before the court, is

12:27

that in rephrasing the question

12:29

presented, I don't think that

12:31

the court is bound to any of

12:33

the options that courts of appeals have

12:35

previously accepted, particularly when

12:38

those decisions are

12:40

inconsistent with this court's approach to

12:42

the discovery rule more generally. Mr.

12:44

Chellingen, oh, I'm sorry. No,

12:46

go ahead. If we were

12:48

to hold that there is no discovery rule

12:51

with respect to the statute of limitations

12:53

on the Copyright Act. This is

12:56

a question on which

12:58

we granted review would go away, would it

13:00

not? Yes, the answer to

13:02

that question would be no. With

13:05

the proviso that the court could, and

13:07

I think should leave open the question of

13:10

whether or not there is a narrower equity-based

13:12

discovery rule for cases involving fraud. And

13:14

the court does not need to opine

13:16

on that here for the reason that

13:19

I gave in the opening, namely that

13:21

there's no claim here. So let me

13:23

map out what would happen

13:25

if in the event,

13:27

and this may or may not

13:29

occur, we granted cert in

13:32

the case, we were to dismiss this petition

13:35

as in providently granted.

13:38

The case, I assume, would go back to the

13:40

district court. And the

13:43

district court would be aware that

13:45

we recently, excuse me, granted review

13:47

in a case that does present

13:49

the issue, whether there is a

13:52

discovery rule for the Copyright Act

13:54

statute of limitations. So if

13:56

I were the district court judge in those circumstances,

13:58

I might choose. not to

14:00

plow ahead with further proceedings

14:03

in this case until that issue was

14:05

resolved. Isn't that true? Yes. Well, I

14:07

think that the court would be bound

14:09

by the existing Eleventh Circuit case law.

14:11

But let me just say a word

14:13

about this question of whether or not

14:15

to dismiss the case, because I

14:17

don't think that this is a case involving,

14:20

you know, unfair surprise or anything

14:22

like that. We flagged this issue,

14:24

again, in the petition. It's

14:26

really a dispute about what arguments are

14:28

available to us and what arguments the

14:30

court should address concerning the question presented,

14:33

because after all, as you pointed out,

14:35

if our view of the

14:37

statutory language is correct, the answer to

14:39

the question presented will be no. Now,

14:41

we have a number of arguments before

14:43

this court. What concerns me is that

14:46

we're being asked to decide what

14:50

a question that may be eliminated

14:54

based on the subsequent decision. I mean,

14:57

there are two questions, one would think. Is

15:00

there a discovery rule if there is?

15:02

What are its implications for relief? The

15:05

first is logically prior to the second.

15:08

Why does it make sense to talk about the

15:10

second without resolving the

15:12

first? Well, it doesn't, but

15:14

I think what I would say is

15:16

that it's really critical, as is always

15:19

true in a case of statutory interpretation,

15:21

to start with the relevant statutory language.

15:23

And that is precisely why, when the

15:25

court rephrased the question presented, we

15:28

pivoted away from any threshold argument that there's

15:30

no discovery rule, and we said, let's start

15:32

with the statutory language as this court directed

15:34

and figure out how it bears on this

15:36

question of the availability of retrospective relief. So

15:39

what is your argument on that, please? Sure.

15:41

Our argument is very simple, and I

15:43

think that the issue is abundantly joined

15:45

in the briefing in this case. It

15:48

is, what is the meaning of the

15:50

term accrues? Our submission is simple. As

15:52

this court has said, the standard rule

15:55

is that accrues means At

15:57

the point when you have a complete and present cause

15:59

of action. And up, Not

16:01

a hard and fast rule that

16:04

can be rebutted by context for

16:06

other keeps. But here, the statutes

16:08

that respondents and they're a meaty

16:11

site simply don't revive that ordinary.

16:13

And guess what I don't understand is why there has to do.

16:15

With the scope of the damages. So

16:18

we have a cruise and we have

16:20

a cruise in sack section five or

16:22

seven which talks about when a civil

16:24

action cel be maintained so fine right?

16:27

Even if I agree with you that

16:29

accrues means what you say it means

16:31

that test the consequences that and looks

16:34

like under the statute is that the

16:36

action shall be maintained within that time

16:38

frame. Use. You seem

16:40

to be arguing that if

16:42

you maintain and action within

16:45

that time frame, the three

16:47

year statute of Limitations that

16:49

pertains to five or seven

16:51

is somehow transported into. The.

16:54

Consideration of how much damage as you can

16:56

get. And so that's the part where you've

16:58

lost. Happy to address that? Yes, So the

17:01

question presented in this case is whether a

17:03

plane of can recover damages for apps that

17:05

allegedly occurred more than three years before the

17:07

filing of a losses. And if you go

17:09

back and look at this court's decision and

17:12

patrol us, I think that that was a

17:14

distinction that the court was drawn. I think

17:16

the court was saying, if the As takes

17:18

place more than three years before, you can

17:20

I get retrospective relief And as we explain

17:23

and our brief. Perspective relief is

17:25

different for the simple reason that you

17:27

don't have to have any pass violation

17:29

at all in order to get injunctive

17:31

relief or you had to show is

17:33

a likelihood of future in. but when

17:35

we do with size of for and

17:38

be discussion of being entitled to recover

17:40

the actual damages suffered by him. So

17:42

if you have an act that occurs

17:44

within the timeframe but the damages extend

17:46

before that I take your position is

17:48

you can't go back any more than

17:50

three years that I don't see that

17:53

in the statue. Our position consistent with

17:55

a try. I think the second circuit's

17:57

reasoning and so is it. It's actually

17:59

that. The timing of the act in

18:01

other words, in the perhaps unlikely scenario

18:04

that you had an asset took place.

18:06

For. Five years earlier. we're not saying

18:08

there's a damages cut off at three

18:11

years. I don't think that that's what

18:13

Justice Ginsburg in her opinion for the

18:15

course with saying even now I recognize

18:17

that that feels like the flip side

18:20

of the broad version of the discovered

18:22

role, and I would submit to the

18:24

court said it is. That is why

18:26

these issues are so hard conceptually to

18:29

intent to disentangle. My point is simply

18:31

that when it comes to retrospective relief,

18:33

if the act of place more than

18:35

three years earlier, the implication. Of the

18:37

statutory language is you are out of

18:40

luck to cannot recover for retrospective relief.

18:42

If you're bringing a claim for prospect

18:44

of relief, it will turn on whether

18:46

there is a likelihood of future infringements.

18:48

Now I wanna say a word about

18:50

the Pride and are other arguments before

18:53

this court Because as I was saying

18:55

that Justice Alito the reason why this

18:57

is not really a case involving dismissal,

18:59

it's really a case involving what issues

19:01

the court should address is because we

19:03

have free other arguments. The first is

19:06

our arguments concerning. For trauma, I've already

19:08

addressed that to some extent. I think

19:10

the only other thing I would add

19:12

is that I don't think that respondents

19:14

are the government's care for is a

19:16

son of the trial is carnival. They

19:18

say that when the court on multiple

19:20

occasions was talking about the availability retrospective

19:22

release, the court was really talking about

19:24

Miss For Treliske and because she was

19:26

not relying on a discovery rules that

19:28

those statements should all be read in

19:30

that context, but the court was were

19:32

lying on the unavailability of retrospect relief

19:34

for acts more than three years earlier.

19:36

Precisely to explain why applying the

19:38

doctrine of lapses was unnecessary because

19:41

there was a strict statutory products

19:43

And that is why the reading

19:45

treatises have said that the logic

19:47

of Petrella supports our position. Here

19:50

It supports her position because that

19:52

was unnecessary premise of the court's

19:54

decision and again I would submit.

19:57

that when justice ginsburg one of the

19:59

most careful opinion writers ever to sit

20:02

on this court made those statements. She

20:04

was relying on the language in the

20:06

statute of limitations, not some penumbra of

20:09

Section 504 or something

20:11

else. Now, the two other arguments that

20:13

we are making to this court are

20:15

first the argument that under a proper

20:17

understanding of the discovery rule, it should

20:19

be limited to fraud. When you look

20:21

out over the court of appeals opinions

20:23

that have adopted the discovery rule, there

20:25

is not a lot of reasoning in

20:27

those opinions. They really rely on two

20:29

things. First, the broad based

20:31

presumption in favor of a discovery

20:33

rule that this court cast out

20:36

on in TRW and then repudiated

20:38

in Ruckkitsky. And second, the

20:40

fact that the criminal statute of

20:42

limitations uses arises rather than accrues.

20:45

And as recently as yesterday, members of the

20:47

court indicated that there's

20:49

no meaningful difference between those two

20:52

terms. The court itself recognized it

20:54

as much in Petrella itself and

20:57

the legislative history indicates that Congress intended

20:59

for those two periods to be similar. And

21:02

our last argument before the court, again, an argument

21:04

that is plainly within the scope of the question

21:06

presented, even if you take the stingiest view of

21:08

it, is the argument that at

21:10

a minimum, if the court thinks that there

21:13

is a broad discovery rule, it

21:15

should characterize that as an equitable

21:17

rule that is subject to equitable

21:19

limitations. And at a minimum,

21:21

we think that this court's statements in

21:23

Petrella, if the court doesn't

21:26

agree with us on the interpretation of the statute,

21:28

should be applied as an equitable

21:30

limitation on that equitable rule. Indeed,

21:33

in Petrella itself, the court recognized

21:35

that the doctrine of latches could

21:37

apply for what you're dealing with

21:39

is an equitable principle or a

21:41

source of equitable relief. So

21:43

at bottom, what is really going on here,

21:45

I would submit, and I recognize that it

21:48

is difficult to sort of parse questions

21:51

presented sometimes. We spent a lot of time trying

21:53

to figure out exactly what the court was intending

21:55

when it reframed the question presented in a way

21:57

that directed us both to the text and to

21:59

the court. into what the lower courts had done.

22:02

Our fundamental submission is it would

22:04

be wholly artificial for the

22:06

court to try to resolve this case without

22:08

starting with the relevant statutory language. It would

22:10

be a straw man for the court to

22:13

say, well, there's no limitation in section 504

22:15

or section 502. And

22:18

that is precisely because we are dealing with

22:20

a three-year limitations period that is in section

22:22

507. May I ask a

22:25

question about your last submission? It

22:27

seems to me pretty tough one. Kind

22:31

of a halfway textualism, if you will, to

22:33

say that there's a discovery rule, but

22:36

aside from fraud, a real discovery rule,

22:39

the real bad wine, okay? But

22:42

we're only gonna do three years because Petrella,

22:47

which interpreted the statute, which you think doesn't have

22:50

a discovery rule. I mean, that's

22:52

a bit of a few

22:55

gymnastics required there. So I don't think

22:57

that that's quite what we're saying, Justice

22:59

Gorsuch. Just to be clear about our

23:01

argument concerning the text. Again, our argument

23:03

is, a claim accrues when you have

23:05

a complete and present cause of action.

23:07

None of these- I totally understand that

23:09

argument. None of these other statutes overcomes

23:11

that. So therefore, what is- I got

23:13

all that. I'm asking about your last

23:15

argument and only your last argument. Sure.

23:18

So our last argument is the equitable limitations.

23:20

But I recognize that you only get to

23:22

that as a fallback if you reject our

23:24

statutory argument or if you somehow say that

23:26

that is off the table. And I would submit

23:28

that the court really shouldn't- No, but nobody's gonna

23:31

say it's off the table. I have, it may

23:33

not be on this table, it may be on

23:35

another table, but it's on the

23:37

table. Well, there are two things about it.

23:39

First, that the court has a petition currently

23:41

pending before it. I'm well aware. In the

23:43

Martinelli case that presents that issue. And I'm

23:45

just asking, assuming that we are not going

23:47

to decide 507 and you've got

23:49

Petrella out there, how do

23:51

you get to this, okay, there's a discovery rule,

23:54

but it's only a three year discovery

23:56

rule. The best reading of Petrella

23:58

is that Petrella was- turn

24:00

resting on 507B. We

24:02

are not arguing for a

24:04

three-year discovery rule. We are arguing for a three-year

24:07

injury rule. We think that the trigger is the

24:09

point of injury. It's not even the discovery rule.

24:11

That's my point. It's not even the old bad

24:13

line. It's something

24:16

else. It's a new bad line. Well, I

24:18

think that the discovery rule, as applied by

24:20

the lower courts, allows you to go back

24:22

for acts that have taken place more than

24:24

three years earlier. As we point out in

24:26

this case, we're talking about acts of infringement

24:28

going back to 2008. We

24:32

would submit that a proper understanding of

24:34

the discovery rule is so

24:36

limited to cases of fraud. The way that

24:39

this legal regime should work, if the court

24:41

feels unencumbered by the exact

24:43

parsing of the question presented, is

24:46

acts of infringement more than three years

24:48

earlier, ordinarily not actionable,

24:50

under the ordinary operation of the

24:52

discovery rule, they are actionable if

24:55

you have fraud or concealment or

24:57

one of the other traditionally recognized

24:59

equity-based exceptions. This

25:01

is not a difficult question. The

25:04

court has before it all of

25:06

the arguments to resolve the question

25:08

of the correct interpretation of Section

25:11

507B, and we would submit that the

25:13

court can proceed to do that accordingly

25:15

in this case. Thank you, counsel. Justice

25:17

Thomas? Justice Cavanaugh. Thank you, counsel.

25:19

Thank you. Mr. Earnhardt. Mr. Chief

25:21

Justice, and may it please the court, the court reformulated

25:24

the question presented to

25:37

set aside debates about the discovery

25:39

rule. Those issues

25:41

were never raised or decided below, and

25:44

reaching them is not necessary to

25:46

resolve the circuit split targeted by

25:49

the court's actual question presented. Assuming

25:53

respondents' claims are timely under

25:55

the discovery rule, respondents

25:57

are entitled to seek damages as a

25:59

remedy. for those claims. Section

26:02

507B makes no distinction between claims seeking

26:05

the remedy of damages and

26:07

claims seeking other forms of relief. Section

26:09

504 is entitled Remedies

26:11

for Infringement, Damages and Profits,

26:14

and it expressly says that a copyright

26:16

owner is entitled to recover the

26:18

actual damages suffered by him, any

26:21

profits of the infringer, or statutory

26:23

damages for all infringements involved in

26:25

the action. There is

26:27

no damages bar for copyright claims

26:29

in Title 17. Now,

26:32

Congress has enacted three-year

26:34

look-back damages bars as

26:36

narrow exceptions elsewhere in

26:38

Title 17, but Congress

26:41

needed to add those as narrow

26:43

exceptions precisely because there is no

26:45

damages bar in Title 17 as

26:48

a general rule. Nor

26:50

would a judicially created damages

26:52

bar be permissible. In

26:55

Petrella, this Court held that

26:57

if a copyright claim is timely under

26:59

the statute of limitations, again,

27:01

as is assumed here, courts

27:03

are not at liberty to impose

27:05

equitable-based time limits on the recovery

27:07

of damages for those claims. To

27:10

be sure, in Petrella, recovery was

27:12

limited to infringements committed during the

27:15

three years before the complaint was

27:17

filed, but that was because,

27:19

under a laches case like that one

27:21

and any other laches case, earlier

27:24

claims which separately accrue were

27:26

and will become time-barred under

27:29

the statute of limitations when

27:31

the plaintiff doesn't sue on them. That is

27:33

how the statute of limitations takes account of the

27:35

lay. It bars claims if they're

27:37

not brought within three years of when they

27:40

accrue. But if a copyright claim

27:42

is brought within three years of when it

27:44

accrues and thus is timely under the statute

27:46

of limitations, damages must be

27:48

available as a remedy. I welcome the Court's

27:50

questions. The

28:00

arrow. Are crap? Discovery

28:02

rules on if we're going to

28:04

assume the existence of a discovery

28:06

wrote out A We are determined

28:08

that scope fly think the question

28:11

presented answers that question well. The

28:13

way that I interpret the question

28:15

presented an I don't think it's

28:17

very complicated is that clause one

28:19

of the question presented defines the

28:22

term nested was and calls to

28:24

so close to refers to sex

28:26

and bible. Seventy Five or Seventy

28:28

uses the word a crew. What

28:31

rule determines when a claim a cruise

28:34

will cause? One of the question presented

28:36

tells us what the assumption is here,

28:38

which is the discovery. A cruel rule

28:41

applied by the circuit court tells you

28:43

when a recruits and so the reason

28:45

a fraud base discover rule doesn't work

28:47

is that's not the discovery. A cruel

28:50

rule applied by the circuit court. Another

28:52

piece of potential confusing that I think

28:54

I should clarify his we've We agree

28:57

that what the scope of the discovery

28:59

rule is is not necessary. To answer

29:01

the question presented full, that confidence A

29:03

does the discovered will apply and if

29:06

so, what are the consequences of damages.

29:08

But even if that were relevant, there

29:10

is no disagreement in the lower courts

29:12

about the scope of that of several,

29:14

even with respect to ownership points. So

29:17

petitioner say in the reply Verizon in

29:19

the Sixty Ninth and Tenth Circuit the

29:21

courts don't apply a discovered rule as

29:23

this is so called ownership when I

29:25

believe that's demonstrably false. Here is what

29:27

the Abbess case in the ninth Circuit

29:30

which is a site. For that

29:32

proposition says about the Discover Rwanda

29:34

and ownership claim quote. under

29:37

these circumstances a plaintiff must free

29:39

food within three years of receiving

29:41

notice of the repudiation of his

29:43

or her ownership rights that is

29:45

a discovery room it's a more

29:47

permissive form of a discovered rule

29:49

inquiry notice not enough it has

29:52

to be ask for notice and

29:54

it has to be a particular

29:56

type of ask for notice and

29:58

express repudiation all of those things

30:00

can only delay the statute of limitations running,

30:02

but it's a discovery rule. It turns on

30:05

what the plaintiff knows, not on what the

30:07

defendant did. And so for that reason, there

30:09

is no variability in the lower courts about

30:11

the scope of discovery rule, if that were

30:14

relevant. Do you have a view on Justice

30:16

Alito's suggestion about dismissing the case? You

30:19

know, I think either path

30:21

is viable. I will say

30:23

that, you know, being from

30:25

New York, the Psalm court

30:28

is causing some mischief there, and

30:30

the decision of the Second Circuit in

30:33

Psalm is so facially incorrect that I

30:35

believe it would be helpful to the

30:37

bar to clarify that it's wrong,

30:39

that there is no separate damages bar, and

30:41

that would resolve the circuit split that currently exists

30:44

between the Second Circuit on the one hand

30:46

and the 9th and the 11th on the other.

30:49

I have to say, you know, we don't have a

30:51

sort of a dog in the hunt in this case

30:53

about whether there is a discovery rule or not, but

30:56

for 40 years, the courts of appeals unanimously

30:58

have found that there is one, and

31:01

Congress during that time period has amended

31:03

the Copyright Act 79 times, reasons

31:05

big and small, and they've never stepped in

31:08

to say that there's not one. In fact,

31:10

when they've wanted there to be one, when

31:12

Congress has expanded the traditional rights of copyright,

31:14

as a counterbalance, they've instituted a discovery rule,

31:17

I mean, I'm sorry, a damages bar. Counsel,

31:19

you said you don't have a dog in

31:21

the hunt on whether there is a discovery

31:23

rule. If

31:26

not, then why are we here? Well, because

31:28

we, that's assumed by the question presented

31:30

here. I believe we're here because

31:33

that is then the unanimous view of the courts

31:35

of appeals, and the only question is, assuming that

31:37

there is a discovery rule. So you have a

31:39

dog in the hunt on the scope of the

31:41

discovery rule, but not on whether

31:43

there is a discovery rule. Well, no, I- Is that what

31:46

you're saying? No, I'm saying- Where's this

31:48

dog? This

31:50

dog already has a bone because- Oh boy,

31:52

oh boy. There's a discovery rule. All

31:55

I mean by saying we don't have a dog in the

31:57

hunt is we don't have that issue before us. We

32:00

don't have it before us, and that is a

32:02

curiosity of this case. We're being asked

32:04

to decide the scope of something that may or

32:06

may not exist. And

32:09

I think Justice Alito was asking, shouldn't we, as

32:11

a matter of, you're asking what

32:13

would be helpful to the bar, you mentioned that,

32:16

and clarity, wouldn't it be just

32:19

good governance to take up that question first? I

32:21

don't think so, Your Honor. And the reason is

32:24

we have a 40-year history in which the Courts

32:26

of Appeals have applied the discovery rule. All over

32:28

the map, all over the map. And

32:30

we also have a lot of cases in this Court

32:32

casting down on the existence of the discovery rule. We

32:34

call it a wine from

32:37

a bad vintage or something like that. And we've

32:39

done it like several times, including

32:41

like two years ago. So what do

32:43

we do with that? Well, Your

32:45

Honor, I think that with

32:47

respect to the wine of bad

32:49

vintage, that's not the type of discovery rule

32:51

that would exist in the Copyright Act that

32:55

does exist in the Copyright Act. And

32:57

some people say the wine's there. Other people

32:59

say there's no dog and we've got bones.

33:02

I don't know. Why wouldn't

33:04

we just take up that question first?

33:06

Well, to borrow a phrase

33:08

from the Court, in this case,

33:11

there's a lot of stuff that would prevent

33:13

us from doing that. It wasn't raised below.

33:15

It wasn't accepted by

33:17

the Eleventh Circuit as part of

33:19

the interlocutory question. This

33:23

Court rephrased the question presented to

33:25

exclude it. And so neither we nor the United

33:27

States briefed it. It's not necessary to decide the

33:29

circuit split targeted by the actual question presented, which

33:31

is if there's a discovery rule, our damage is

33:34

somehow not available as a remedy. So I think

33:36

this is a bad vehicle for that. I also

33:38

have to say on the issue of whether this

33:40

is the bad wine of

33:42

recent vintage. It's a bad vehicle. Does that not

33:44

suggest we should dismiss this as unprofidently granted? I

33:46

don't think so. The reason this case is so...

33:50

I mean, I never...well, very rarely do I

33:52

hear counsel standing at the podium arguing against

33:54

a result that helps their client in the particular

33:56

case. I Mean, dismissal isn't

33:58

providently granted. Would go... Some way

34:00

for you I'm and that's why we

34:02

spent significant amount of time in our

34:04

brief saying that that's a viable option.

34:07

And it is however between the two

34:09

absence of dismissing it as an profitably

34:11

granted compared to clarifying that song rule

34:13

of incorrect the sawmill been clarified is

34:15

incorrect for courses so clearly worth of

34:17

mischief is some cause I knew said

34:19

it was causing mischief explain or so

34:22

in the second Started under current law

34:24

or even if a claim is timely

34:26

I'm there's a peculiar rule that you

34:28

can only see damage is going back

34:30

for three years for that claim and

34:32

that is completely different from the rule

34:34

that now exists in the ninth Circuit

34:37

under the Out And I guess I'm

34:39

just wondering, is that more being applied

34:41

frequently? Are there many cases that raise

34:43

this issue? It has the second circuit

34:45

time. We are titillated. It

34:47

has there been district courts that of apply?

34:49

That's what's the status of this rule Now

34:52

it's more an issue of forms often have

34:54

some folks want to be in the second

34:56

circuit, other folks want to be in the

34:58

night and eleven circus and so I think

35:00

that is an issue of that.the point of

35:02

the Copyright act the reason that there was

35:04

a statute of limitations and acted in the

35:07

first place because it's not used to be

35:09

want to look at the states. As for

35:11

the limitations was for their be uniform period

35:13

during which time so claims er timely and

35:15

recovery is granted. Now there's. Not there's a

35:17

certain split in between second circuit on

35:20

the one hand and the ninth and

35:22

the eleventh on the other about this

35:24

availability of damages under the discovery rules

35:26

as assets as a as an inconsistency

35:29

that the core I think important to

35:31

resolve and that the the surface split

35:33

director bother. For some reason it's the

35:35

only issue of whether this is a

35:38

bad wind of recent vintage that as

35:40

I understand the courts for teach about

35:42

best course of appeals below assuming this

35:44

is back from principal said there's. A

35:47

Discover Rule when the war to cruises

35:49

and that I understand the court has

35:51

taken issue with them. Recent cases that

35:54

would not be the basis for the

35:56

discovery rule here here that says six

35:58

and seven seven be. Use the

36:00

word a Cruise and and Crown

36:02

close. This court was very careful

36:04

to say that you can not

36:06

apply a universal or meaning to

36:08

the word a cruise. You have

36:10

to roll up your sleeve and

36:12

look at what's the Congress met

36:14

with you that that worth So

36:16

if there's a discover rule here

36:18

in this copyright act which we

36:21

we submitted there is and that

36:23

the question presented as soon as

36:25

there is it because in Nineteen

36:27

Fifty seven when Congress adopted that

36:29

term they intended. It's a included discovered.

36:31

Council Tax Assessment for do you think the

36:33

fat Asses in question of whether this is

36:36

a Sevilla as worthy And by that I

36:38

mean is there a split? Let's let's say

36:40

that as we know there's a split on

36:42

the other classes as a skunk damages rice

36:45

and antecedent classes at least successor to say

36:47

it was kind of presented as well. Other

36:49

parts of Hills are flying less that there

36:51

is. Just as isn't about the other thing.

36:54

Do you think that is? it just

36:57

seems less trade up is their discovery.

36:59

Will or is this an injury a cruel

37:01

that That's the kind of thing the court

37:03

said pick I do not your honor and

37:05

the reason is there is no surface split

37:08

on that is since our sort of said

37:10

about the still there is him against as

37:12

as a surface but about this the scope

37:14

of the discovery was sensing owner suppresses infringement

37:17

that's incorrect that as that is demonstrably incorrect

37:19

the the cases that applies I'm the on

37:21

that the ownership claim distinction with by the

37:23

way as us as it is a questionable

37:26

distinction in the first place but the court

37:28

said do apply. That to thing since

37:30

apply discovered rules, it turns on when

37:32

the plane have received notice of an

37:34

express affiliation. That's a more permissive form

37:37

of a Discover rule. It can only

37:39

the way the Statute of Limitations running,

37:41

but it is a discovery will. So

37:43

you have a situation where for forty

37:45

years. The Court of Appeals had

37:48

uniformly applied a rule. There's no contrary

37:50

opinion in the court of appeals as

37:52

that that is the rules and Congress.

37:55

This is not like the Sermon Act

37:57

where they they path of an axe

37:59

with. Cynicism. Let the court sort

38:01

a figure it out. Congress is taking

38:03

an active role in managing the copyright

38:06

law this country. Seven mins of the

38:08

Copyright act seventy nine times since Nineteen

38:10

Seventy Six However much help them the

38:12

question about how can a question about

38:15

the scope of the discovery would be

38:17

sir, where the and yet the existence

38:19

the question of the existence of this

38:21

of the discovery will not be serve

38:24

where they will because I'm on are

38:26

making an argument that says is that

38:28

the Court of Appeals decisions are recognizing.

38:30

And discovered Ruler correct and that may

38:32

well be true And it's impressive that

38:34

for many of them have respect the

38:37

bush or but I'm understand how the

38:39

second question concert where the and the

38:41

first month was because the second circuit

38:43

in some tips of took such a

38:45

strange turn off of the of of

38:47

the paths they save Sasson This peculiar

38:49

rule that says we're going to assume

38:51

that there's a discovery room We're going

38:53

to assume that applies to claims and

38:56

they the claims er timely over going

38:58

to have this other rule that. Even

39:00

if the claim is timely, you're not

39:02

allowed to recover damages for that plane

39:04

and that is created that sort of

39:06

split and so that that's why that

39:08

is. He was served worthy and the

39:10

other is not. Second

39:13

circuit gone the other way and had gone off

39:15

the path. None of this would be sir, where

39:17

these your view and that's correct. The. Man

39:19

and we. Frequently

39:22

assume. Certain. Aspects.

39:25

Of cases when we're looking at a

39:27

split about and as in a subsequent

39:29

is. Absolutely. And it's

39:31

entirely appropriate to do that here to

39:33

assume that there's a Discovery rules and

39:36

ask what impact that rules have on

39:38

damage. And is that how you read

39:40

ours? Recessing of the question present. It's

39:42

exactly how I read. As I said

39:44

before, I read the question presented as

39:46

the first clause defining a term nested

39:48

within the second call. The second clause

39:51

says I was seventy five or seven.

39:53

Be said, the crew, what rules were

39:55

used to determine when a claim a

39:57

cruise under the Copyright Act look too

39:59

closely. The one you use a discovery a

40:01

cool rule applied by the server. Course something

40:04

that's A that's a that the clear have

40:06

a clear reading of the question presented. Just

40:10

a few. I'm. Just

40:12

one comment on policy. Congress

40:16

gets to decide what's the best

40:19

policy is here, and in the

40:21

Copyright Act, it balances repos on

40:23

the one hand with compensation and

40:26

motivation on the other. So the

40:28

Copyright Act doesn't exist primarily to

40:30

compensate authors whose work for being

40:33

infringed. It exists primarily to motivate

40:35

other folks to create works based

40:37

on the profit motive this available

40:39

for them. So when Congress decides

40:42

that policy and certain circumstances it

40:44

has imposed as three year. Look

40:46

back. Damages bar incompatible with a

40:48

Discovery Room for vessel whole design

40:50

and other situations. It hasn't done

40:52

that with general copyright claims precisely

40:55

because it wants to really motivates

40:57

of the creation of future work.

40:59

And I respectfully submit that Congress

41:01

of Polish to policy decisions on

41:03

these questions. Snobby. Second of he

41:05

says the Discovery Room allows affects

41:07

more than three years read. It

41:10

doesn't allow you to with back more

41:12

than three years and a lover damages

41:14

for more than three years if the

41:16

claim asylum July and that sits with

41:18

the trailer because but for Allah doesn't

41:20

cover all cases, it covers some subset

41:22

case said. The gist of it Know

41:24

this is because that is the precise

41:26

holding up for parole Patrols says that

41:28

if a claim is timely under the

41:30

statute of limitations in the discover room

41:33

contacts that would mean it has brought

41:35

within three years of when the claim

41:37

is a result we should have been

41:39

discovered then. there cannot be equity base limits

41:41

on the remedy of damages for that claim

41:43

traces of effects as i read it may

41:46

be for just reading it differently and look

41:48

back three years and no more no less

41:50

disagree with that why i just a misreading

41:52

of petrella is it is an ending afford

41:55

there are many statements for the court says

41:57

retrospective relief of limited to three years at

41:59

that Yeah, the reason the

42:01

court was making those statements was

42:04

to explain why it was that

42:06

Ms. Petrella's latches had consequences under

42:08

the statute of limitations. The

42:11

dissent in that case said, this isn't fair. Ms.

42:13

Petrella is getting a free path. She

42:16

sat on her hands and didn't sue. How can

42:18

it be that she can bring claims and recover

42:20

damages? The majority responds to that by saying, no,

42:22

no, no. Many of Ms.

42:25

Petrella's claims, based on infringements

42:27

that happened years ago, accrued. The

42:30

three-year period ran, and then those claims

42:32

were time barred. But it's the statute

42:34

of limitations and the dismissal of claims

42:36

that aren't brought within three years of

42:38

when they accrued. So Petrella only, in

42:40

your reading, is only with respect

42:43

to claims in three years, it says nothing about

42:45

the damages period? Well, that

42:47

has to be correct, because Ms. Petrella

42:49

only brought claims for the

42:51

three-year infringement. That is correct. So

42:54

all the language in Petrella about

42:56

three years for damages is

42:58

neither here nor there? I

43:00

don't read it as being three years for damages.

43:02

I read it as being... The

43:04

claim. The claim. If

43:06

the claim is untimely, because of

43:09

the discovery rule, there can be no

43:11

damages. Anyone

43:13

else? Anyone else? Thank

43:16

you, counsel. Ms. Dubin? Mr.

43:19

Chief Justice, and may it please the court? First,

43:22

the only question properly before the court

43:25

today is damages. Read

43:27

fairly, the reformulated question presented bakes in

43:29

an ascension. It tells the

43:31

parties to assume that a copyright claim can

43:33

accrue upon discovery, then ask whether damages are

43:36

available if a claim is timely under that

43:38

rule. The answer to that question is a

43:40

simple yes. If a claim is

43:42

timely under 5-7-B, nothing in the

43:44

Copyright Act imposes a separate time-based

43:46

limit on damages. This court's

43:48

decision in Petrella rejected the idea that

43:51

courts could impose an atextible bar on

43:53

recovery for timely copyright claims, so the

43:55

Second Circuit erred in relying on out-of-context

43:57

language from Petrella to adopt a different...

44:00

So a bar. Second, prisoners don't

44:03

must defend the second sixty seconds if

44:05

it's damage has ruled out because it

44:07

lacks a textual basis and said the

44:09

really asking. The court to answer a different

44:11

question. Whether. The Discovery a Crow rule

44:13

applies to copyright claims. At all or at least

44:16

two the claims here. For. This for

44:18

reform later the first presented six through that

44:20

question setting that arguments out of bounds. As

44:22

Corporate America is for from the doesn't blow up

44:24

and quick question. Does

44:28

the government have a view of whether

44:30

or not there is a discovery with.

44:33

The government is not have a view on whether they're as. A

44:36

discovery real at this time we took our choose

44:38

from the question presented as reform later by the

44:40

court and question which weeks for so views across

44:42

the government in provider of uses on the question

44:44

of amateur there was just an unfair for us.

44:49

Said. We did. The

44:51

United States doesn't have and has an

44:53

expressed as you on that between two

44:55

options are dismissing the cases and properly

44:57

Graham said and affirming I think there

44:59

are good reason stuff from here on

45:01

the sound damages, ruin or of and

45:03

reverse that that rule on the surface

45:05

are divided in that system. Eleventh Circuit

45:07

supplies discovery rules the past and damages

45:09

under that role as important as for

45:11

granted sir. sorry to resolve that and

45:13

that conflict stem from I'm misreading of

45:15

this court's decision and patrol us to

45:17

discourage easily situated resolve that. Concept I

45:19

mean Justice Alito pointed out that and to

45:22

see the antecedent question is whether those the

45:24

discovery will at all do you think the

45:26

a success doing that, clean up and resolving

45:28

the circuit split low solidify the discovery rule

45:30

in a way that then dozens of the

45:33

court an opportunity to address is again if

45:35

we think that the existence of the discovery

45:37

was wrong. to be

45:39

candid i think the discover are pretty slim if

45:41

i added as eleven parts of appeals apply that

45:43

ross so i think of unlikely to solidify further

45:46

this court does often on grants or sure our

45:48

ancestors that bacon an assumption and then decide on

45:50

that question such as i'm a firm is the

45:52

case two years ago and us bank several years

45:54

before that there is an assumption baked into both

45:56

of those cases and a quirk was on to

45:58

resolve the question was And we're free

46:01

then to just revisit it later if we ever

46:03

decide, hey, there's an error that we want to

46:05

correct. Of course, absolutely. Well,

46:07

it doesn't sound like that later day is ever going

46:09

to come. This

46:11

Court, sometimes when there is a well-solidified rule

46:13

in the courts of appeals and this Court

46:15

thinks it's wrong and it's important to resolve

46:17

it, does sometimes grant certiorari when there is

46:19

no circuit conflict. Of course, it could choose

46:21

to do so in an appropriate case. Here,

46:24

Petitioner suggested that the Court do exactly that

46:26

and the Court said no. The Court reformulated

46:28

the question presented. Does the government have a

46:30

view on whether we should do that next

46:32

time around? We do not have a view.

46:34

There is a petition pending that presents this

46:36

question. We have not offered our views nor has

46:38

this Court called for our views on that question. Government

46:41

doesn't have many views here. Justice

46:44

Kagan, we do have strong views

46:47

on two questions. One, the

46:49

damages rule applied by the Second Circuit is wrong.

46:51

There's no textual basis for it. They misread this

46:53

Court's decision in Petrella. This Court could clarify that

46:55

and do good in providing uniform

46:58

administration copyright law. The

47:00

second thing that we have a strong view on

47:02

is that you shouldn't do what Petitioner is asking

47:04

you to do and go outside the reformulated question

47:06

presented and address the question of accrual on a

47:09

one-sided presentation from Petitioner's counsel. As this Court heard

47:11

yesterday, the question of accrual is context-specific. If you

47:13

were deciding that question in the context of the

47:15

Copyright Act, you would want to be deciding it with briefing

47:17

from both sides on both parties as to what accrual means

47:20

in Section 507B. Why

47:22

don't you take this opportunity to just explain

47:25

why the Second Circuit is wrong? Absolutely.

47:27

Thank you, Justice Jackson. The

47:30

Second Circuit believed that Petrella imposed separate

47:32

bar on damages separate from the question

47:34

of accrual under the Copyright Act. But

47:36

that's not the right reading of Petrella. What

47:38

Petrella was trying to explain was that in

47:41

a case in which your claims are untimely

47:43

for acts of infringement that occurred more than

47:45

three years before you filed suit, you can't

47:47

then use claims within the limitation period to

47:49

bootstrap in those claims. That's the way in

47:51

which the separate accrual protects both the interest

47:53

of defendants and plaintiffs. In Petrella

47:55

Itself, all claims for acts that occurred more

47:57

than three years before she filed suit were

48:00

me and she didn't try to look at

48:02

a several internet and it's a the several

48:04

boxes and yams exploitation approach. Dating Babbel was

48:06

so open in Israel for nothing and patrol

48:09

a should be reduced to just that innocence

48:11

and was a place of could raise a

48:13

timely claim for apps that occurred more than

48:15

for years before file suits to so can

48:17

recover damages. I want to respond to petitioners

48:20

you know suggestion that were suggesting in some

48:22

way that the Charlize careless and it's not.

48:24

Just an off color reserve the questions that

48:26

know for of the discovery A Cruel. Blessings

48:28

petitioners reading a patrol us would suggest that

48:31

and the same opinion on which Justice Ginsburg

48:33

reserve the question of whether the several applied.

48:35

She also decided to got it by limiting

48:37

damages are under with no Texel basis for

48:39

and I would submit a that's a far.

48:41

Stranger reading up cause. For.

48:46

Concern for Boy Mister Sam. Thank

48:50

you Mister Chief Justice. Respondents and

48:53

for government now seemingly ask for

48:55

a narrow or from us that

48:57

resolves and certain comfort and that

49:00

rejects the surface cited circuits. Reasoning

49:02

and so we think about reasoning

49:04

is correct and that some appropriately

49:07

rested on it's reading of this

49:09

court's decision in the trailer I

49:11

would know parents dedicated. It's such

49:14

as the majority opinion. As the

49:16

trauma is just as buyers that

49:18

sounds and a d even the

49:20

government's own brief and patrol or

49:22

that all seem to understand the

49:24

statute of limitations the same way

49:26

namely as the statute under which

49:28

claims a cruise consistent with what

49:30

the government as recently as a

49:32

couple of times ago described as

49:34

a standard rule at the time

49:36

of interests and I would submit

49:38

of respondents have fully joined issue

49:40

on the relevant. part of

49:42

this which is the question of the

49:45

extent to which the statutory language fares

49:47

on the availability of retrospective release if

49:49

you're to pages thirty two to forty

49:51

of respondents briefs they make all of

49:53

the arguments that are available to the

49:55

best of my knowledge as why a

49:58

cruise should not be given that So

50:01

that issue is fully teed up and we

50:03

rely on the statutory language as

50:05

this court directed in the rephrased question

50:07

presented, notwithstanding my friend Mr. Earnhardt's careful

50:09

parsing, I think that this court directed

50:12

the parties to address the statute of

50:14

limitations and we did so consistent with

50:16

that, explaining how it bears on the

50:19

question that this court actually asked. Now,

50:21

we don't think that the court needs to

50:24

resolve the validity of the discovery rule, but

50:26

let me explain why the court may want

50:28

to do that. And the court does, as

50:30

Justice Gorsuch alluded to, have before it

50:32

right now a petition in the Martinelli

50:34

case presenting that issue. It

50:36

is true that now 11 courts

50:39

of appeals have accepted a broad-based

50:42

discovery rule, though there are

50:44

disputes, Pache,

50:46

Mr. Earnhardt, about how

50:49

that applies in the context of ownership claims, where

50:51

it comes from, and the like. I

50:54

would submit that if this court doesn't

50:56

intervene here, particularly given what this court

50:58

has said about the discovery rule more

51:01

recently, that it will really solidify the

51:03

discovery rule in place. And how we

51:05

know that is that both in the

51:07

Second Circuit in Soam and in the

51:09

Fifth Circuit in Martinelli, parties raised the

51:12

question of whether this court's more recent

51:14

case law discussing the bad line of

51:16

recent vintage cast out on discovery rules

51:18

in those circuits, and yet the courts

51:20

continue to apply them. I

51:23

take Justice Jackson's point that this court

51:25

assumes things in questions presented all the

51:27

time. But I'm

51:29

not aware of any precedent where the

51:31

court has assumed away the most relevant

51:33

statutory language, and we all agree that

51:36

the language of 507 B is

51:38

the most relevant for purposes of resolving

51:40

a question of statutory interpretation, Or

51:43

a case where the court has

51:45

confined itself to the interpretations of

51:47

particular courts of appeals. In

52:00

favor of the discovery rule that this

52:02

court has held definitively reach us. it

52:04

would be artificial for the courts to

52:07

do so. I recognize the desire for

52:09

judicial modesty, an incremental decision making, but

52:11

this is a context in which has

52:13

all the amicus briefs and of the

52:15

commentary reflects. Parties and lower courts are

52:17

crying out for guidance on what is

52:20

at thought. I'm a simple question of

52:22

statutory interpretation. So whether the court does

52:24

so in this case or whether it

52:26

holds the states and and grants the

52:28

Martinelli petition and resolve. The broader

52:31

questions Here We believe that the

52:33

broader questions are important for what

52:35

against their really intertwined with the

52:37

narrower question that respondents and the

52:39

government are asking. This court's resolved

52:42

and I do submit that it

52:44

would really be an unfortunate if

52:46

this court's however decides this case

52:48

left in place. lower court decisions

52:51

the really cannot be reconciled with

52:53

this court's on president's the answer

52:55

and it's place is straightforward. All

52:57

the courtney do is to apply.

53:00

The standard rule concerning the meaning of the

53:02

term a Cruise If it does so, the

53:04

answer to the question presented of whether a

53:06

copyright point of can recover damages for acts

53:08

that allegedly occurred more than for years before

53:10

the filing of a lawsuit is now. And

53:12

so we would ask the judgment of the

53:14

eleventh Circuit. The reverse. Since

53:17

you council to cases. Submitted: