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Argument recap: Justices dubious of untimely copyright suits

This week’s copyright dispute – Petrella v. Metro-Goldwyn-Mayer, Inc. – gave the Justices a chance to debate centuries-old distinctions between “law” and “equity” – but it’s pretty clear they have little interest in extending those distinctions into the modern realm.

The case before the Court involves the copyright for a screenplay on which the movie Raging Bull was based.  The plaintiff in this case, Paula Petrella, is the heir of the author; she brought suit in 2009 claiming that MGM’s exploitation of the movie violates her copyright.  Technically, because the only damages Petrella sought were from the last three years before the suit (2006-2009), the suit was within the relevant statute of limitations.  But MGM claims that the entire suit — filed almost forty years after the movie was released and almost thirty years after Petrella inherited her rights in the screenplay – was too late, and thus barred by “laches.”

Petrella’s basic argument to the Supreme Court is simple and direct.  Congress included a statute of limitations in the Copyright Act.  It sets a specific time period. Because this suit is within that time period, courts have no business manufacturing fuzzy doctrines like “laches” to bar the suit.

Although that argument is clean and simple, none of the Justices expressed any support for it.  In particular, because such an argument would be expected to appeal most to Justice Scalia, it looked bad for Petrella’s counsel when Justices Scalia and Alito immediately expressed their skepticism.  In particular, they both emphasized the open-ended nature of the typical language of statutes of limitation. As Scalia put it, “[w]hat a statute of limitations says is not that you are scot-free within the statute of limitations period. It simply is a negative. It says you can’t be sued beyond that, right? [T]here’s nothing [in barring this suit] that would cause the statute of limitations to be frustrated.”

Several of the Justices also seemed shocked at the idea that movie producers could be subject to suit so long after the release of a movie.  Justice Scalia emphasized the unfairness of suing people “who proceeded in good faith on the assumption that 20 years have gone by.”  Kagan asked “who in their right mind would” produce movies under these rules?  And Breyer suggested that “no one in his right mind would go and continue to produce this movie when every penny is going to go to the copyright owner, . . . every penny of profit. . . .  [W]ho’s going to do it? Because every three years they face a lawsuit.”

Nor did the Justices have any sympathy for the government’s intermediate position – that laches can bar injunctive relief (against further use of the movie) but not damages.  The government insisted (with a lot of support in the Court’s existing cases) that the Court had never applied laches when there was a federal statute of limitations. Justice Scalia was openly incredulous: “[Y]ou say that none of the other instances in which we brought into law equitable doctrines, none of those were applied with respect to a prior enacted Federal statute. Is that your position?”  When Assistant to the Solicitor General Nicole Saharsky insisted that was true, Justice Scalia remarked “I’ll have to look it up.” After further discussion, he went on “[y]ou’re saying we never changed our mind when there was a Federal statute of limitations? I don’t believe that.”

Echoing the discussion of the scholars’ amicus brief (filed by Doug Laycock and others), several other Justices (Kagan, Breyer, Kennedy) seemed sympathetic with his idea that it made no sense to maintain the distinction between law and equity at this late date. Thus, by the end of the government’s argument, that position seemed completely untenable.

So it seemed quite likely by the time counsel for MGM began arguing that the Justices were strongly leaning toward accepting some form of laches.  What was not at all clear is whether they could accept the broad version of it applied by the Ninth Circuit.  Most of the Justices were content to question MGM’s counsel about the Court’s prior cases on laches – which in truth are not favorable to MGM.

But Justice Kagan emphasized the oddity of a “presumption” in favor of laches that the Ninth Circuit seemed to adopt. She couldn’t accept that just because a suit was filed two days after the third year the “necessity to give a reason [for the delay] flips to the other side.”

To sum up, the dialogue strongly undercuts the likelihood that the Court will adopt Petrella’s “no laches at all” view or the government’s “laches for equity but not law” view.  Whether it will go so far as MGM suggests remains to be seen.  Justice Kagan’s emphatic participation throughout the argument suggests that anybody who wants to get a majority of the Justices will have to deal with her views.


Recommended Citation: Ronald Mann, Argument recap: Justices dubious of untimely copyright suits, SCOTUSblog (Jan. 22, 2014, 10:45 AM),