Diversey v. Schmidly
738 F.3d 1196
10th Cir.2013Background
- Diversey, a Ph.D. student at UNM, alleges university officials took his unpublished dissertation, deposited copies in the Zimmerman Library and the Center for Southwest Research, and listed it in the library catalog despite his objections and repeated complaints.
- UNM Deputy Provost informed Diversey by letter on Feb. 7, 2008 that the dissertation had been deposited; ProQuest confirmed receipt on Feb. 20, 2008.
- Diversey discovered the entry in the UNM libraries’ catalog on June 16, 2009 and demanded removal; UNM counsel refused on Oct. 5, 2009.
- Diversey filed suit for copyright infringement on June 15, 2012. The magistrate judge dismissed as time-barred under the 3‑year statute of limitations.
- The Tenth Circuit reviewed accrual rules for copyright claims, distinguished copying (reproduction) from distribution (lending/cataloguing), and examined fair use and secondary liability theories.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| When does a copyright claim accrue for statute of limitations purposes? | Diversey argued accrual can await the end of a continuing infringement or that separate infringements have separate accrual dates. | Appellees argued accrual ran when Diversey first learned of the deposit (Feb. 2008) and thus suit was untimely. | Court adopted majority rule: accrual when plaintiff knows or is chargeable with knowledge; rejected a separate “continuing wrong” accrual doctrine but allowed tolling where appropriate. |
| Are copying (reproduction) and distribution (library lending/catalog listing) distinct acts with separate accrual dates? | Diversey contended reproduction (Feb. 2008) and distribution (catalog/listing discovered June 16, 2009) are distinct, yielding separate accruals. | Appellees treated deposit notice as notice of distribution too, so all claims accrued in Feb. 2008. | Court held reproduction claim accrued by Feb. 20, 2008 (untimely); distribution claim accrued on June 16, 2009 (timely). |
| Whether UNM’s library listing/distribution is actionable distribution under § 106(3) without proof of an actual loan? | Diversey relied on precedents holding that adding a work to a public library collection and catalog and making it available to borrowers constitutes distribution. | Appellees argued mere catalog listing absent an actual loan is not distribution. | Court followed Hotaling approach: cataloguing and making available to patrons can constitute distribution; listing in catalog on June 16, 2009 sufficed to trigger accrual. |
| Whether UNM’s use was fair use under § 107? | Diversey argued fair-use factors favor him because the work is unpublished, the entire work was used, and the use harmed his academic value/market. | Appellees argued noncommercial educational library use supports fair use. | Court held that at the pleading stage fair-use factors (work unpublished, whole work used, effect on value) tilt against appellees; fair use not established as a matter of law. |
Key Cases Cited
- Roley v. New World Pictures, Ltd., 19 F.3d 479 (9th Cir.) (accrual occurs when plaintiff knows or is chargeable with knowledge)
- Taylor v. Meirick, 712 F.2d 1112 (7th Cir.) (advances continuing‑wrong accrual; tolling where defendant conceals infringement)
- Hotaling v. Church of Jesus Christ of Latter‑Day Saints, 118 F.3d 199 (4th Cir.) (public library cataloging and making work available can constitute distribution)
- Bridgeport Music, Inc. v. Diamond Time, Ltd., 371 F.3d 883 (6th Cir.) (each act of infringement is a distinct harm)
- Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539 (U.S.) (unpublished status weighs against fair use; right of first publication significant)
- Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259 (9th Cir.) (secondary liability doctrines: vicarious and contributory infringement)
- Country Kids ’N City Slicks, Inc. v. Sheen, 77 F.3d 1280 (10th Cir.) (elements of a copyright infringement claim)