Recently, a commenter posted a link to a petition seeking to remove the statute of limitations on copyright law. Though I had to delete the comment because it was posted in the wrong place, it did get me thinking about the issue of the statute of limitations (SOL) as it applies to copyright law.
Never having dealt with this aspect of copyright law, my own battle being barely three years old, I began to research it and what I turned up shows that the SOL of copyright is much like the law itself, hopelessly muddled and burderned with excessive complexity.
But, in the end, what I learned was that the SOL is almost certainly no obstacle to anyone wanting to file suit against a potential plagiarist, no copyright holder who acts within reason has anything to fear from it.
What is a Statute of Limitations?
The Wikipedia defines a statute of limitations as "a statute in a common law legal system setting forth the maximum period of time, after certain events, that legal proceedings based on those events may begin"
In simpler terms, an SOL is a time limit that one has to start legal proceedings after an event has occured. If the SOL on a criminal offense is seven years, then prosecuters have until seven years after the crime to charge some one. Similarly, if a SOL on a personal injury case is two years, then the the plaintiff has two years after the injury occurred to file their case. If you wait until after the SOL has expired, it’s impossible to begin proceedings on the matter and any case regarding it will be thrown out.
SOLs are designed to prevent plaintiffs and prosecutors from "sitting" on a case for a long period of time while memories fade, evidence vanishes and those involved go on about their lives. SOLs are also designed to bring closure to an event, a final day in which no further action may be brought, and also prevent the court system from being overburdened with impossibly old cases.
The SOL on copyright infringement claims is three years. This has lead many to worry about the possibility of someone infringing on their material and then "hiding" for three years, waiiting until the SOL has run out and they could not be sued.
However, when one delves into the nature of SOL and how it applies to copyright law, it becomes clear that this is not the case nor a very likely possibility.
The Clock Starts… Here
The question revolving around SOLs isn’t how long they last, that time is absolute, but when the clock starts. With some cases, such as robberies and personal injury matters, it’s pretty straightforward, the clock starts when the act occurs. With copyright infringement claims, the clock does not start until the conclusion of an ongoing infringement.
If an infinging work is posted online, the infringement is ongoing and the clock doesn’t start until after the work has been removed and the infringement ceased. For example, if someone posted a poem of mine six years ago and the poem is still up today, then the clock has not even started, though the infringement began well past the limit of the statute of limitations, I can still sue and can do so for at least three more years.
It is not a question of whether or not I can sue for copyright infringement, the only question is whether I can claim damages for all six years or just the most recent three. The courts have been split on that matter and either ruling is possible.
If the work was somehow hidden (IE: Search engines didn’t pick it up or it was hidden in a password protected area) the clock starts when the plaintiff either discovered the infringement or when they should have reasonably done so. This is called "tolling" the SOL.
A situation such as this is analogous to someone discovering years after a car accident that they have a previously undiagnosed injury that needs to be treated, as long as there was no reasonable way they could have known about the injury, the plaintiff may still sue for damages, even if the SOL has long since expired.
When Problems Can Arise
When dealing with plagiarism online, the odds of ever encountering an SOL limitation are slim. Before one can effectively rely on the SOL in their defense, they have to be able to prove two things.
- That the copyright infringement has ceased and is no longer ongoing
- That you, the copyright holder, have had knowledge or should have had knowledge about the infringement for at least three years and did not act on it.
This means, for example, that I can not sue the first plagiarist I battled since his site was removed over three years ago. However, if he started up another site, unbeknownst to me, I can still take action on that for that and, even if the site had already been taken down but were discovered later, I could also act on that since I had no way of knowing.
All the SOL does is prevent copyright holders from "sitting" on an old infringement for a long period of time and suing a long time after everything is done. It does not allow thieves to escape detection for a certain period of time and then claim immunity.
This isn’t to say that SOL problems can’t occur, but they are much more likely to come up in the print world where works can be taken in and out of publication. Since courts are unclear about whether the second printing of a book is a continuation of the original infringement or a new one, one could run into SOL trouble there if the infringement were known.
Similarly, an online plagiarist could take down and put up a work repeatedly (perhaps on different sites) and raise the same issue. Once again though, the infringement would have to have been known for a period of three years and not acted upon in that time. That could provide an extra obstacle to getting damages in such a case, especially damages for the entire span of the infringement.
In the end, while SOL defences have worked in some copyright infringement cases, those generally dealt with people who did not act on an infringement after it was discovered but, instead, waited until they were dire financial straits to file suit. That is exactly the type of case SOLs are designed to guard against.
The average copyright holder, acting with a reasonable amount of swiftness and determination, will not likely face an SOL defense with a good chance of success. The intent of the law is to prevent people from waiting to file suit, not allow infringement to escape unpunished.
Nonetheless, if you have a copyright infringement claim, it’s probably best to discuss the matter with an attorney so he can evaluate how the SOL applies in your case. It is a deciding factor in determining how to handle a copyright matter and only a lawyer can provide a final judgement.
My special thanks goes to these following sites and the individuals that posted the information:
Applying Statutes of Limitations to Internet Offenses by Michael L. Baroni
Copyright Law: Time Waits for No Man by Robert J. Bernstei
Copyright Law Questions by FreeAdvice
(Note: If the poster of the petition wishes to attach it to this piece, I will have no problem with that.)[tags]plagiarism, copyright law, copyright infringement, content theft, copyright, statute of limitations, law[/tags]