`
`Case 1:23-cv-00639-DAT Document 43 Filed 09/25/24 Page 1 of 13
`
`In the United States Court of Federal Claims
`No. 23-639
`Filed: September 6, 2024†
`Published: September 25, 2024
`
`
`
`
`
`RENEE COMET,
`
`Plaintiff,
`
`v.
`
`THE UNITED STATES,
`
`Defendant.
`
`
`Faith D. Beckworth, Joel B. Rothman, and Layla Nguyen, SRIPLAW, P.A., Atlanta, Georgia, for
`Plaintiff. 1
`
`Hayley A. Dunn, Trial Attorney, Commercial Litigation Branch, Civil Division, Scott Bolden,
`Director, and Brian M. Boynton, Principal Deputy Assistant Attorney General, United States
`Department of Justice, for Defendant.
`
`MEMORANDUM OPINION AND ORDER
`
`TAPP, Judge.
`
`The United States moves for summary judgment, primarily arguing that the statute of
`
`limitations bars Plaintiff Renee Comet’s (“Ms. Comet”) copyright claims. (Defendant’s Motion
`for Summary Judgment (“Def.’s Mot. for Summ. J.”), ECF No. 27). The United States further
`argues that if jurisdiction exists, and if the Court ultimately determines liability against the
`United States, Ms. Comet’s damages must be statutorily capped at $750. (Id.). Ms. Comet argues
`that issues of fact exist concerning whether infringement has occurred within three years of the
`
`
`† This Opinion was originally filed under seal on September 6, 2024, (ECF No. 37). The Court
`provided parties the opportunity to review this Opinion for any proprietary, confidential, or other
`protected information and submit proposed redactions. In a Joint Status Report filed September
`19, (ECF No. 40), the parties proposed redactions which the Court accepts. The sealed and
`public versions of this Opinion differ only to the extent of those redactions, the publication date,
`and this footnote.
`
`1 Faith D. Beckworth was counsel of record at the time of briefing. On August 28, Layla Nguyen
`was substituted as counsel of record. (ECF No. 36). Because Ms. Beckworth was counsel of
`record during briefing, her name appears first in the introduction.
`
`

`

`Case 1:23-cv-00639-DAT Document 43 Filed 09/25/24 Page 2 of 13
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`
`
`
`
`Complaint, necessarily precluding summary judgment. (Plaintiff’s Response to the Motion for
`Summary Judgment (“Pl.’s Resp.”), ECF No. 29). Ms. Comet also asserts that 17 U.S.C. §
`405(c) does not limit her recovery. (Id.). Ultimately, the Court agrees that a genuine issue of
`material fact exists as to Ms. Comet’s reproduction rights under the Copyright Act but finds no
`genuine issues as to her rights to display and distribute. Furthermore, the Court finds partial
`summary judgment on the issue of statutory damages to be premature. Accordingly, the United
`States’ Motion for Summary Judgment is denied.
`
`I.
`
`Background
`
`Ms. Comet asserts that she is a renowned photographer specializing in still life
`photography for advertising, packaging, digital content, cookbooks, and recipe videos. (Compl.
`at 1, ECF No. 1). Her style of photography involves the use of “exquisite lighting techniques,
`minimalist propping, and refreshingly uncomplicated backgrounds” that Ms. Comet asserts are
`“highly desirable” to her customer base. (Id.). Ms. Comet also claims her clientele consists of
`several high-profile companies and government agencies, including Food Network, Marriot
`International, the United States Postal Service, and the Internal Revenue Service. (Id. at 2–3).
`Several federal agencies allegedly used Ms. Comet’s published photograph; this case involves
`use of her work by the United States Department of Agriculture (“USDA”). (Id.; see generally
`Def’s. Mot. for Summ. J.).
`
`The Almond Board of California (“ABC”) is a representative of the United States
`government established to promote the research and marketing of almonds grown in the state of
`California. (Handling of Almonds Grown in California, 15 Fed. Reg. 4993–5007 (Aug. 4, 1950)
`(codified at 7 C.F.R. Part 981)). ABC sought a photographer to capture images of almonds that
`would highlight almond usage in certain recipes. (Def.’s Mot. for Summ. J. Ex. 15 (Deposition
`(“Dep.”) of M. Mautz, ABC, Dec. 14, 2023) at 44:3–22, 102:25–103:20, ECF No. 27-15). Ms.
`Comet submitted a cost estimate of $
` to photograph almonds for ABC. (Def.’s Mot. for
`Summ. J. Ex. 5 (Renée Comet Photography Estimate to Porter Novelli on behalf of ABC, March
`23, 2010), ECF No. 27-5). ABC selected Ms. Comet for the photoshoot and paid $
`
`towards the total cost prior to the shoot. (Def.’s Mot. for Summ. J. Ex. 15 (Dep. of M. Mautz,
`ABC, Dec. 14, 2023) at 103:16–105:6, ECF No. 27-15; see also Ex. 16 (Dep. of R. Comet,
`Plaintiff, Nov. 9, 2023) at 171:14–16, ECF No. 27-16). Ms. Comet submitted an updated invoice
`for $
`, minus ABC’s deposit of $
`, and ultimately delivered 100 photographs
`to ABC, including the photo subject to this controversy. (Def.’s Mot. for Summ. J. Ex. 6
`(“Invoice”) at A75, ECF No. 27-6; see also Ex. 16 (Dep. of R. Comet, Plaintiff, Nov. 9, 2023) at
`170:11–16, ECF No. 27-16).
`
`A.
`
`USDA’s Use of the Work
`
`In February 2012, the USDA published an article titled “Infrared Heating: Hot Idea for
`Keeping Almonds Safe to Eat” (“February 2012 Article”) in USDA’s online magazine. (Def.’s
`Mot. for Summ. J. at 3). ABC gave the USDA permission to include one of Ms. Comet’s photos
`(“the Work”) in the article. (Id.). It is undisputed that no later than January 13, 2015, the USDA
`uploaded the Work onto its server and web content management system, Umbraco, and
`
`2
`
`

`

`Case 1:23-cv-00639-DAT Document 43 Filed 09/25/24 Page 3 of 13
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`
`
`
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`published the February 2012 Article with the Work on its website.2 (Id. at 4; Pl.’s Resp. at 5
`(“On January 13, 2015, the Work was “published” again.”)). The USDA later removed the Work
`from its February 2012 Article on December 20, 2021. (Id.).
`
`
`
`(COMPL. AT 4).
`
`
`In March 2018, the USDA would again use the Work in an AgResearch Magazine article
`entitled “Going Nuts Over Calories” (“March 2018 Article”). (Id. at 4). It is undisputed that no
`later than March 2018, the USDA uploaded the Work onto its server and web content
`management system, Umbraco, and published the March 2018 Article with the Work on its
`website.3 The USDA removed the Work from the March 2018 Article on December 20, 2021.
`(Id.).
`
`
`
`2 See Infrared Heating: Hot Idea for Keeping Almonds Safe To Eat, United States Department of
`Agriculture AgResearch Magazine, https://agresearchmag.ars.usda.gov/2012/feb/almonds (last
`visited Sept. 6, 2024). (Def.’s Mot. for Summ. J. at 3). The United States asserts the reason for
`the three-year gap between 2012 and 2015 is not that the USDA first published these in 2015.
`Rather, the United States confirms that in “approximately 2014” USDA transitioned from its old
`content management system, SitePublisher 2.5, to Umbraco, the current content management
`system. During the transition all old data from SitePublisher 2.5 was lost and is currently
`unavailable, though the United States agrees that “it is likely that the USDA first uploaded the
`Work onto the server and published on the website in the February 2012 Article prior to
`November 20, 2014.” (Id. Ex. 19 (Def.’s Am. Obj. and Resp. Pl.’s First Set of Interrog.), at 15,
`ECF No. 27-19); see also Id. Ex. 7 (Screenshot of Umbraco Audit Trail for February 2012
`AgResearch Magazine Article, Infrared Heating: Hot Idea for Keeping Almonds Safe to Eat, at
`A78, ECF No. 27-7).
`
`3 See Going Nuts Over Calories, United States Department of Agriculture AgResearch
`Magazine, https://agresearchmag.ars.usda.gov/2018/mar/calories/ (last visited Sept. 8, 2024).
`
`
`3
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`

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`Case 1:23-cv-00639-DAT Document 43 Filed 09/25/24 Page 4 of 13
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`
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`The USDA utilized the image again on the USDA-ARS’s Image Gallery (“Image Gallery
`webpage”) which indexes USDA images. (Id. at 4–5). It is undisputed that no later than March
`2018, the USDA uploaded the Work onto its server and web content management system,
`Umbraco, and published the Work on one of its websites.4 The United States alleges that on
`December 10, 2020, the Image Gallery webpage received an archive tag, but this did not
`republish the webpage, cause the Work to be reuploaded to the server, nor did it impact the page
`being publicly available. (Id. at 5). On October 19, 2021, the USDA unpublished the webpage in
`Umbraco, and made it unavailable for public viewing at that time. (Id.).
`
`B.
`
`The Start of Litigation
`
`Ms. Comet purports to have discovered the use of her work on USDA’s website around
`July 15, 2020. (Compl. at 5). On May 3, 2023, Comet initiated legal action alleging that USDA
`infringed on her exclusive rights to reproduce, display, and distribute the Work. (Id. at 8). Ms.
`Comet alleges that these three instances where the USDA “upload[ed] the Work to its server,” as
`evidenced by the webpages, constitute infringements of the right to reproduction. (Id. at 6 (citing
`17 U.S.C. § 106(1))). Ms. Comet also alleges that by making the Work available for download
`for free to third parties, USDA infringed on Ms. Comet’s distribution rights. (Id. at 7 (citing 17
`U.S.C. § 106(3))). Additionally, Ms. Comet alleges that by displaying the Work, USDA violated
`Comet’s right to display. (Id. (citing 17 U.S.C. § 106(5))). Plaintiff seeks to recover actual
`damages or statutory damages. (Id. (citing 17 U.S.C. § 504(c)(1))).
`
`II.
`
`Analysis
`
`The United States argues that it is entitled to summary judgment because Ms. Comet’s
`“claims are entirely barred by the statute of limitations set forth in 28 U.S.C. § 1498(b).” (Def.’s
`Mot. for Summ. J. at 9–25). In addition, the United States maintains that even if jurisdiction
`exists, and should the Court find the United States liable, “statutory damages must be limited to
`$750 as a matter of law.” (Id. at 25–30). The Court ultimately finds that genuine issues of
`material fact exist as to whether the United States republished the copyrighted work to its server
`after May 3, 2020, precluding summary judgment on this issue. The Court also finds the United
`States’ argument regarding minimum statutory damages is premature.
`
`
`
`(Def.’s Mot. for Summ. J. at 4 (“In March 2018, the USDA used the Work in an AgResearch
`Magazine article entitled “Going Nuts Over Calories[.]”); Pl.’s Resp. at 5 (“On March 8, 2018,
`the Government published the Work on its website in an article titled Going Nuts Over
`Calories[.]”))
`
`4 (Def.’s Mot. for Summ. J. at 4 (“It is undisputed that no later than March 13, 2018, the USDA
`uploaded the Work onto its server and web content management system, Umbraco, and
`published the Work on the Website [.]”); Pl.’s Resp. at 5 (“The Work was “published” again on
`March 13, 2018, and March 23, 2018[.]”) (citing https://www.ars.usda.gov/oc/images/
`photos/mar18/d2411-1/)).
`
`4
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`

`

`Case 1:23-cv-00639-DAT Document 43 Filed 09/25/24 Page 5 of 13
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`A.
`
`Standard of Review
`
`The Court may grant summary judgment if the pleadings, affidavits, and evidentiary
`materials filed in a case reveal that “there is no genuine dispute as to any material fact and the
`movant is entitled to judgment as a matter of law.” RCFC 56(a). The moving party bears the
`initial burden to demonstrate the absence of any genuine issue of material fact. The moving party
`bears the initial burden to demonstrate the absence of any genuine issue of material fact. See
`Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Facts are material if they “might affect the
`outcome of the suit.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine
`factual dispute exists when “the evidence is such that a reasonable [factfinder] could return a
`verdict for the nonmoving party.” Id. A party seeking to establish a genuine dispute of material
`fact must “cit[e] to particular parts of materials in the record, including depositions, documents,
`electronically stored information, affidavits or declarations, stipulations, admissions,
`interrogatory answers, or other materials.” RCFC 56(c)(1)(A).
`
`While “inferences to be drawn from the underlying facts . . . must be viewed in the light
`most favorable to the party opposing the motion,” United States v. Diebold, Inc., 369 U.S. 654,
`655 (1962), summary judgment may still be granted when the party opposing the motion submits
`evidence that “is merely colorable . . . or is not significantly probative.” Anderson, 477 U.S. at
`251, (internal citation omitted). However, the moving party “need not produce evidence showing
`the absence of a genuine issue of material fact but rather may discharge its burden by showing . .
`. that there is an absence of evidence to support the nonmoving party's case.” Dairyland Power
`Co-op. v. United States, 16 F.3d 1197, 1202 (Fed. Cir. 1994) (citing Celotex Corp., 477 U.S. at
`325). Courts may only grant summary judgment when “the record taken as a whole could not
`lead a rational trier of fact to find for the non-moving party.” Matsushita, Elec. Indus. Co., Ltd. v.
`United States, 475 U.S. 574, 587 (1986) (quoting First Nat. Bank of Ariz. v. Cities Serv. Co., 391
`U.S. 253, 289 (1968)). A trial court is permitted, in its discretion, to deny even a well-supported
`motion for summary judgment, if it believes the case would benefit from a full hearing. Lowery
`v. United States, 167 Fed. Cl. 28, 37 (2023) (citing United States v. Certain Real & Pers. Prop.
`Belonging to Hayes, 943 F.2d 1292 (11th Cir. 1991)).
`
`B.
`
`Limitations Period Under 28 U.S.C. § 1498(b)
`
`The Court possesses jurisdiction pursuant to § 1498(b), which provides that the
`“exclusive action” for a claim of copyright infringement against the United States . . . shall be
`before the United States Court of Federal Claims. 28 U.S.C. § 1498(b). Before the Court may
`even begin to determine whether Ms. Comet may be entitled to either statutory damages or actual
`damages, it must first determine whether recovery at all is permitted by § 1498(b).
`
`The relevant language of the statute provides: “[e]xcept as otherwise required by law, no
`recovery shall be had for any infringement of a copyright covered by this subsection committed
`more than three years prior to the filing of the complaint[.]” 28 U.S.C. § 1498(b). From the plain
`language of the statute, recovery is prohibited for infringements that occurred more than three
`years prior to when a plaintiff files their initial complaint. Further, limitations periods that
`provide this Court with jurisdiction, along with any exceptions, “must be strictly construed.”
`Wechsberg v. United States, 54 Fed. Cl. 158, 163 (2002). Claimants are permitted to sue the
`United States through a waiver of sovereign immunity, but “any statute that creates a waiver of
`
`5
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`

`

`Case 1:23-cv-00639-DAT Document 43 Filed 09/25/24 Page 6 of 13
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`sovereign immunity must be strictly construed in favor of the government.” Id. at 164 (quoting
`Boyle v. United States, 200 F.3d 1369, 1372-73 (2000)).
`
`It is also critical for the Court to distinguish between a statute of limitations and a statute
`of repose. “[A] statute of limitations creates ‘a time limit for suing in a civil case, based on the
`date when the claim accrued.’” CTS Corp. v. Waldburger, 573 U.S. 1, 7-8 (2014). “A statute of
`repose, on the other hand, puts an outer limit on the right to bring a civil action” that is
`“measured not from the date on which the claim accrues but instead from the date of the last
`culpable act or omission of the defendant.” (Id. at 8). Such statutes bar “any suit that is brought
`after a specified time since the defendant acted . . . even if this period ends before the plaintiff
`has suffered a resulting injury.” Id. (quoting Black’s 1546 (9th ed. 2009)). Statutes of limitations
`require that a plaintiff diligently pursue prosecution of known claims, while a statute of repose
`reflects a “legislative judgment that a defendant should be free from liability after the
`legislatively determined period of time.” Corner Post, Inc. v. Board of Governors of Federal
`Reserve System, 144 S. Ct. 2440, 2452 (2024) (quoting CTS Corp., 573 U.S. at 8-9) (referencing
`how a statute “which sets a filing deadline of 60 days from the ‘entry’ of the agency order”
`constitutes a statute of repose).
`
`Ms. Comet filed her Complaint on May 3, 2023. (See Compl.). Section 1498(b) is a
`statute of repose that will only permit recovery if the United States committed a “culpable act”
`within the three years prior to the Plaintiff’s Complaint. See Corner Post, Inc., 144 S. Ct. at
`2452. Applying the plain language of Section 1498(b), any claims of infringement that occurred
`prior to May 3, 2020, are barred. The parties seem to concede this premise. (Def.’s Mot. for
`Summ. J. at 13 (“Plaintiff filed the complaint on May 3, 2023, making any claims that accrued
`prior to May 3, 2020 untimely.”); Pl.’s Resp. at 7 (“Section 1498(b), by its plain language,
`prevents recovery for ‘infringement . . . committed more than three years prior to the filing of the
`complaint.’”)). Summary judgment on those claims occurring prior to May 3, 2020 is
`appropriate. A question remains regarding whether the United States infringed on Ms. Comet’s
`rights after May 3, 2020, which would entitle her to compensation.
`
`1.
`
`Reproduction
`
`Ms. Comet alleges that the “USDA reproduced the copyrighted Work in violation of §
`106(1) on its Website by uploading the Work to its server[.]” (Compl. at 6). The Copyright Act
`grants a copyright owner the exclusive right to “reproduce the copyrighted work in copies or
`phonorecords.” 17 U.S.C. § 106(1). The term “copies” is defined as “material objects, other than
`phonorecords, in which a work is fixed and by any method now known or later developed, and
`from which the work can be perceived, reproduced, or otherwise communicated, either directly
`or with the aid of a machine or device.” 17 U.S.C. § 101. A copy is “‘fixed’ in a tangible
`medium of expression when its embodiment in a copy or phonorecord . . . is sufficiently
`permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a
`period of more than transitory duration.” Id. A photographic image is “fixed” in the digital
`context when “embodied (i.e., stored) in a computer’s server (or hard disk, or other storage
`device). APL Microscopic, LLC v. United States, 144 Fed. Cl. 489, 494 (2019). The image stored
`in the computer is the “copy” of the work for purposes of copyright law. Id. (citing Perfect 10,
`Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1160 (9th Cir. 2007)).
`
`6
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`

`

`Case 1:23-cv-00639-DAT Document 43 Filed 09/25/24 Page 7 of 13
`Case 1:23-cv-00639-DAT Document 43 Filed 09/25/24 Page 7 of 13
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`Neither party disputes that a defendant infringes the reproduction right when the copyis
`made. (Def.’s Mot. for Summ.J. at 14 (“[A] defendant only infringes the reproduction right
`when a copy is made.”); Pl.’s Resp. at 9 (“this Court found that when the defendantin that case
`uploaded the infringing workto its server, ‘a copy’ was made. . . in accordance with the
`Copyright Act.”)). The problem here stems from conflicting interpretations of the documents.
`
`Plaintiff asserts that “although the Work was displayed multiple times within the past
`three years, the image was also reproduced several times and as late as December 20, 2021.”
`(Pl.’s Resp. at 9) (emphasis in original). On the contrary, the United States argues that the
`evidence demonstrates “[t]he publication dates for all three USDA URLsshowsthelatest
`possible dates by which the Work could have been uploadedto the server .
`.
`. .” (Def.’s Mot. for
`Summ.J. at 14). The United States cites its own discovery responses in whichit purports to
`demonstrate “the latest date[s] by which the Work could have been uploadedto the server.” (Id.
`Ex. 19).
`
`
`
`First Publication
`Date
`
`Latest Publication
`Date that Includes
`
`Alleged
`Work
`
`Nature of Use ofthe
`Alleged Work
`
`Alleged Work
`
`Takedown
`Date
`
`https://agresearc December|Displayed inFebruary28, March 23, 2018
`
`
`
`
`hmag.ars.usda.go 20,2021|AgResearch2018
`
`v/2018/mar/calor
`Magazinearticle
`ies/
`
`| Displayed in
`| December
`January 13, 2015
`| Unavailable, see |
`https://agresearc
`
`hmag.ars.usda.go 20,2021|AgResearchbelow
`
`v/2012/feb/almo
`Magazinearticle
`nds
`
`
`
`https://www.ars. October 19,|Displayed indexMarch 8, 2018 March 13, 2018
`
`usda.gov/oc/ima
`2021
`webpage for image
`ges/photos/marl
`8/d2411-1,
`
`
`
`
`
`(DEF.’s Mot. SuUMM.J. Ex 19. aT 14).
`
`To support its position Plaintiff argues:
`
`(1) The United States identified Exhibit L as evidence that the Work was published on
`March 23, 2018, and “if this is the case, then it must also be true that the image was
`reproduced again on December20, 2021.” (Pl.’s Resp.at 9)
`
`

`

`Case 1:23-cv-00639-DAT Document 43 Filed 09/25/24 Page 8 of 13
`Case 1:23-cv-00639-DAT Document 43 Filed 09/25/24 Page 8 of 13
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`Audit Trail
`
`Action User
`
`Date
`
`Comment
`
`Publish
`
`Publish
`
`20 December2021
`
`12:40:06
`
`13 January 2015
`09:10:56
`
`20 November 2014
`
`17:54:31
`
`(PL.’s REspP. Ex L.).
`
`Publish
`Publish
`
`(2) The United States identified Exhibit N as evidence that the Work waspublished on
`March 23, 2018, and“if this is the case, then it must also be true that the image was
`reproduced again on December20, 2021.” (P1.’s Resp.at 9).
`
`Audit Trail
`
`Action
`
`User
`
`Date
`
`Comment
`
`Publish
`
`20 December 2021
`
`12:42:15
`
`23 March 2018
`
`Ta7i25
`
`(PL.’s Resp. EX N.).
`
`(3) “Exhibit U showsthat a new version of the Work wascreated and fixed in the
`Government’s own server. . .” andis “a new and separate copy of the Work,
`distinguishable from the 2015 copy.” (Pl.’s Resp. at 9-10). Exhibit U shows
`screenshots allegedly showing the 2015 Article containing the infringing Work,
`Infrared Heating: Hot Ideasfor Keeping Almonds Safe to Eat, shown as the “current
`version” created in 2021. The system appears to promptthe userto select a version to
`compare with the current version which Ms. Cometalleges “indicat[es] that this is a
`new and separate copy of the Work, distinguishable from the 2015 copy.” (/d.).
`
`

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`Case 1:23-cv-00639-DAT Document 43 Filed 09/25/24 Page 9 of 13
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`The United States rebuts this assertion by arguing that the December 20, 2021
`publications of the 2012 and 2018 Articles were made after the Work had been removed from the
`webpages. (Defendant’s Reply (“Def.’s Reply”), at 3–7, ECF No. 32).
`
`These documents by themselves do not clearly establish that the image itself was not in
`fact republished. Ms. Comet presents evidence that raises a genuine issue of material fact. (Pl.’s
`Resp. Exs. L, N, U). Taken together, Exhibits L, N, and U demonstrate that the USDA published
`articles on various dates within the three-year period prior to Comet’s filing, but it is unclear if
`those publications contained the actual protected work. Based on the record before it, the Court
`cannot determine whether the image was, or was not, included in a publication that occurred
`within the three-year period. Accordingly, summary judgment is precluded.
`
`2.
`
`Distribution
`
`Title 17, U.S.C. § 106(3) provides a copyright owner with the exclusive right “to
`distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer
`of ownership, or by rental, lease, or lending.” The term “distribute” is not defined in the
`Copyright Act, therefore the Court must determine when a “distribution” occurs.
`
`Ms. Comet initially pled that the United States “distributed Comet’s Work in violation of
`17 U.S.C. § 106(3) on its Website by making the Work available for download for free to third
`parties . . . .” (Compl. at 7) (emphasis added). On the other hand, the United States contends that
`“passively hosting an infringing work on the internet does not itself give rise to an infringing act,
`but rather . . . the infringing act occurs when a defendant made an infringing work available for
`distribution in its website.” (Def.’s Mot. for Summ. J. at 24). Ms. Comet attempts to re-
`characterize her Complaint through reliance on the Court’s analysis in APL Microscopic, LLC v.
`United States, arguing “distribution occurs ‘each and every time a computer user accesses the
`defendant’s website displaying the protected work.’” (Pl.’s Resp. at 11 (citing APL Microscopic,
`144 Fed. Cl. at 499)).
`
`In APL Microscopic, APL alleged that the National Aeronautics and Space
`Administration (“NASA”) infringed on APL’s rights under 17 U.S.C. § 106. APL Microscopic,
`144 Fed. Cl. at 498 (J. Damich). Amongst other claims, APL alleged NASA had infringed on
`APL’s rights under § 106(3). Id. Judge Damich rejected the United States’ argument that
`distribution occurs when the work is made available and found that Section 106(3) requires
`“actual dissemination of either copies or phonorecords.” APL Microscopic, 144 Fed. Cl. at 498.
`
`The Court in APL Microscopic considered the Copyright Act’s definition of
`“publication.” Id. at 497. The Copyright Act defines publication as:
`
`The distribution of copies or phonorecords of a work to the public by sale or
`other transfer of ownership, or by rental, lease, or lending. The offering to
`distribute copies or phonorecords to a group of persons for purposes of further
`distribution, public performance, or public display, constitutes publication.
`
`17 U.S.C. § 101. Judge Damich determined “[t]he first sentence of the definition tracks language
`in § 106(3), making it clear that all distributions are publications” but also found that the inverse
`“all publications are distributions” is not necessarily true. APL Microscopic, 144 Fed. Cl. at 497
`
`9
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`Case 1:23-cv-00639-DAT Document 43 Filed 09/25/24 Page 10 of 13
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`
`
`(citing BMG Rights Mgmt. (US), LLC v. Cox Comms., Inc., 149 F. Supp. 3d 634, 670 (E.D. VA.
`2015)). Additionally, the Court determined the statute’s use of the language “offering to
`distribute” created “an additional category of publications that are not distributions,” thus
`offering no support to the defendant’s argument that “making available” constitutes an
`infringement. Id. Under this interpretation, Judge Damich rejected the theory that a distribution
`occurs when the work is “made available” for distribution and held that “actual dissemination of
`either copies or phonorecords” was required. Id. at 498. The Court subsequently concluded that
`the United States’ upload of the work to its server did not trigger a violation of § 106(3), but
`rather, any time a user accessed the website the United States wrongfully distributed the work.
`(Id.). Although the Court is not bound by the decisions of other judges of this Court, such rulings
`may be persuasive. E.g., Doe v. United States, 95 Fed. Cl. 546, 572 (2010). Here, the Court
`declines to apply the logic of APL Microscopic to these circumstances.
`
`As pointed out in Tom Hussey Photography, LLC v. BDG Media, Inc., APL Microscopic
`primarily relied on BMG in reaching its conclusion; however, BMG did not address the statute of
`limitations. 2020 WL 7481770 at *3 n.2 (D. Del. Dec. 18, 2020); see also APL, 144 Fed. Cl. at
`496–98. This presents a significant concern in APL’s analysis, as § 1498(b) is a statute of repose
`that specifically bars “any suit that is not brought after a specified time since the defendant
`acted.” CTS Corp., 573 U.S. at 8; see also Corner Post, Inc., 144 S.Ct. at 2452 (highlighting
`Congressional intent when creating a limitations period beginning with defendant’s action).
`Therefore, having incorporated the restrictions set forth in § 1498(b), the United States’ most
`recent culpable act is determinative when establishing the applicable limitations period.
`
`Furthermore, the Supreme Court has made clear that “separately accruing harm should
`not be confused with harm from past violations that are continuing.” Petrella v. Metro-Goldwyn-
`Mayer, Inc., 572 U.S. 663, 671 n.6 (2014). Under this guidance, the mere fact that a particular
`photo remained online does not trigger a separate act from which a new limitations period begins
`to run. Id. (citing Klehr v. A.O. Smith Corp., 521 U.S. 179, 190 (1997)) (stating that each new act
`must “harm [the plaintiff] over and above the harm that the earlier acts caused”). Accordingly,
`the Court rejects Ms. Comet’s argument that distribution occurs each and every time a computer
`user accesses the USDA’s website, and instead finds that infringement of the right of public
`distribution under § 106(3) occurred when the Work was made available.
`
`Ms. Comet premises liability under § 106(3) based on how many times third-party users
`accessed USDA’s website. This mistakes third-party action for culpable acts of the United States
`and she has presented no evidence that the United States has engaged in any acts of distribution
`after May 3, 2020. Cohen v. United States, 98 Fed. Cl. 156, 170 (2011) (citing Boyle, 200 F.3d at
`1372) (holding the United States may only be found liable for its own infringements or those of a
`third party acting with government authorization or consent). The United States is correct as to
`this argument and has not violated Ms. Comet’s distinct right of distribution.
`
`3.
`
`Display
`
`The Copyright Act also grants a copyright owner the exclusive rights to “display the
`copyrighted work publicly.” 17 U.S.C. § 106(5). “To ‘display’ a work means to show a copy of
`it, either directly or by means of a film, slide, television image, or any other device or process[.]”
`
`10
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`Case 1:23-cv-00639-DAT Document 43 Filed 09/25/24 Page 11 of 13
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`Id. In relevant part, 17 U.S.C. § 101 states that to “perform or display a work ‘publicly’” means
`to:
`
`[T]ransmit or otherwise communicate a performance or display of the work
`… to the public, by means of any device or process, whether the members of
`the public capable of receiving the performance or display receive it in the
`same place or in separate places and at the same time or at different times.
`
`Ms. Comet argues that the United States displayed her Work in violation of § 106(5) by
`
`placing the Work on the USDA’s website. (Compl. at 7). Furthermore, Ms. Comet asserts her
`claims are timely pursuant to § 1498(b) because “the Work was viewed, and therefore displayed
`to third-party users, on the Government’s webpages at least until December 20, 2021. (Pl.’s
`Resp. at 13) (emphasis in original). The United States opposes this position, arguing that “we
`must look to when the defendant’s infringing conduct occurred.” (Def.’s Mot. for Summ. J. at
`20). For reasons previously discussed in the analysis of § 106(3), the Court agrees with the
`United States argument.
`
`In APL Microscopic, Judge Damich relied primarily on a 9th Circuit decision that
`
`considered “whether an internet service provider infringed on the plaintiff’s display rights by
`storing thumbnail versions of copyrighted images on its server and communicating those images
`to its users.” APL Microscopic, 144 Fed. Cl. at 499 (citing Perfect 10, Inc., 508 F.3d. at 1155-
`61). The Court in Perfect 10 found the plain language of 17 U.S.C. § 101 establishes that “a
`person displays a photographic image by using a computer to fill a computer screen with a copy
`of the photographic image fixed in the computer’s memory.” Id. (emphasis added). Following
`this guidance, Judge Damich concluded that NASA infringed on APL’s right to display each
`time a user viewed NASA’s webpage. Id. Under this interpretation, each viewing constituted a
`new infringement that started a new limitations period pursuant to 28 U.S.C. §1498. Id. (finding
`infringements from the initial display in 2004 up until the date that the complaint was filed in
`2018). The Court disagrees.
`
`As discussed above, APL Microscopic’s reliance on Perfect 10 does not address the
`
`limitations period established under § 1498(b); this presents identical shortcomings to BMG. The
`Supreme Court has made clear Congress “kn[ows] how to depart from the traditional rule to
`create a limitations period that begins with the defendant’s action instead of the plaintiff’s
`injury.” Corner Post, Inc., 144 S. Ct. at 2452; see supra pp. 6, 10.
`
`Comet argues that the evidence provided demonstrates that “the Work was viewed[] and
`therefore displayed to third-party users” until December 20, 2021. (Pl.’s Resp. at 13). Under this
`theory, each view of the USDA’s webpage “starts a new limitations period . . . [and] Ms.
`Comet’s claims are timely,” but this is contrary to the legislative judgment exercised by
`Congress in creating a statute of repose as explained by the Supreme Court. See Discussion
`supra Section II. B. To reach Ms. Comet’s understanding of § 1498(b), the Court would need to
`make an inferential step beyond § 1498(b) to find liability. The Court declines to do so. Ms.
`Co