We Have Liftoff: Court of Federal Claims Allows Copyright Infringement Suit Against NASA to Launch Fourteen Years After Initial Allegedly Infringing Act

The Court of Federal Claims (“CFC”) recently held that claims of copyright infringement related to the distribution and display of a photograph posted online in 2004 were timely and could proceed to discovery.

In 1996, APL Microscopic, LLC (“APL”) created a photograph of human bone marrow stem cells (the “Work”). In August 2004, the United States of America (the “Government”), through the National Aeronautics and Space Administration (“NASA”), allegedly posted the Work on its webpage. Fourteen years later, in December 2018, APL sued the Government, alleging that NASA violated three of APL’s rights under the Copyright Act: (1) the right of reproduction, (2) the right of public distribution, and (3) the right of public display.

The Government moved to dismiss based on lack of subject matter jurisdiction and failure to state a claim upon which relief may be granted. At issue was when a reproduction, display, and/or distribution of a work occurs for the purposes of evaluating a statute of limitations defense. The Government argued that a reproduction, display, and/or distribution occurs only when a website owner uploads a work onto its server where it is made available for viewing and downloading to individual computer users who access the relevant page on the website. Because that upload allegedly occurred in 2004, the Government argued that APL’s claims were time-barred. In response, APL argued that the suit is timely because a reproduction, public display, and/or distribution occurs when—and each time—an individual computer user accesses the relevant page on the website.

The CFC prefaced its consideration of APL’s claims by stating that a copyright owner cannot recover for any infringement committed more than three years prior to the filing of the complaint. But what about allegations of multiple or successive infringing acts? The CFC cited the separate-accrual rule laid out by the Supreme Court of the United States in Petrella v. Metro-Goldwyn-Mayer, 572 U.S. 663 (2014)­—“[i]n short, each infringing act starts a new limitations period”—as well as the CFC’s holding in Wechsberg v. United States, 54 Fed. Cl. 158 (2002)—“the statute of limitations . . . begins to run from the time of the most recent act of infringement in a series of infringing acts”—in stating that when a defendant allegedly engaged in a series of discrete infringing acts, the copyright holder’s suit will be timely only as to acts within the three-year window. With this framework in mind, the CFC turned to each of APL’s three claims.

First, the CFC considered APL’s right of reproduction claim. The CFC found that even though NASA may have infringed APL’s reproduction right when NASA allegedly uploaded the Work to its server in 2004, APL’s window to bring suit for that infringing act expired in 2007. Accordingly, APL’s right of reproduction claim was time-barred.

Next, the CFC considered APL’s right of distribution claim. Because the term “distribute” is not defined in the Copyright Act, the CFC determined when a “distribution” occurs by relying on BMG Rights Management (US) LLC v. Cox Communications, Inc., 149 F. Supp. 3d 634 (E.D. VA 2015), which held that “infringement of the distribution right requires an actual dissemination of either copies or phonorecords.” The CFC determined that although NASA did not infringe APL’s right of distribution when it allegedly uploaded the Work to its server, the act of transmitting the webpage—and the Work therein—to a user would infringe this right. Thus, the CFC denied the Government’s motion to dismiss APL’s right of distribution claim and allowed APL to take discovery regarding whether copies were disseminated.

Finally, the Court considered APL’s right of display claim. At the outset, the CFC determined that because showing a copy of a work through a computer is within the statutory definition of “display,” each such showing, if unauthorized, would infringe the owner’s right of display. The CFC then stated that assuming APL’s allegations were true—that NASA published the Work on its webpage in 2004, where it remained for at least fourteen years and was displayed on a user’s computer each time a user viewed NASA’s webpage—each of those displays would separately infringe APL’s right of display, with each display starting a new limitations period. Therefore, the CFC denied the Government’s motion to dismiss APL’s right of display claim.

Ultimately, although the CFC found APL’s right of reproduction claim time-barred, the separate-accrual rule won the day and allowed APL’s claims as to the rights of distribution and display to move forward.

The case is APL Microscopic LLC v. United States, No. 18-1851 C (Ct. Fed. Claims Aug. 27, 2019).