Case 5:18-cv-01039-JKP-RBF Document 125 Filed 09/03/20 Page 1 of 15
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF TEXAS
`SAN ANTONIO DIVISION
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`NO. SA-18-CV-01039-JKP
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`Plaintiff,
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`ALEXANDER STROSS,
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`v.
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`HEARST COMMUNICATIONS, INC.,
`HEARST CORPORATION, HEARST
`NEWSPAPERS, LLC, HEARST
`NEWSPAPERS II, LLC, HEARST
`SEATTLE MEDIA, LLC, HEARST
`MEDIA SERVICES CONNECTICUT,
`LLC, MIDLAND PUBLISHING
`COMPANY. LLC, HURON
`PUBLISHING COMPANY, LLC,
`EDWARDSVILLE PUBLISHING
`COMPANY, LLC,
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`Defendants.
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`MEMORANDUM OPINION AND ORDER
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`Before the Court is Plaintiff Alexander Stross’s Motion for Partial Summary Judgment
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`and Defendants’ response. ECF Nos. 98, 106, 112. Upon consideration, the Court concludes
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`the motion shall be DENIED. While Defendants disagree with Stross’s contention that he is
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`entitled to summary judgment on their affirmative defenses of collateral estoppel and lack of
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`personal
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`jurisdiction, Defendants voluntarily withdraw
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`these affirmative defenses.
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`Accordingly, Defendants’ asserted affirmative defense of collateral estoppel and Defendants’
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`challenge to personal jurisdiction are stricken and dismissed with prejudice.
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`Factual Background
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`This is a copyright-infringement case involving photographs taken by Plaintiff
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`Alexander Stross. It is undisputed Stross owns the copyright to the subject photographs which
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`depict a group of “tiny houses” on the Llano River (“the Tiny House photos”). In 2015, through
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`an email exchange, Stross gave the San Antonio Express News and Country Living Magazine,
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`publications owned by two of the Defendants, permission to publish the photos.
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`In bringing this action, Stross alleges he granted limited authorization to the San
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`Antonio Express News and Country Living Magazine to use the subject photographs in a single
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`article in each publication; however, Defendants made numerous other unauthorized uses of
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`the photographs, particularly through reproduction in social media, while also removing the
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`credit line and a hyperlink to Stross’s website. Stross also claims another publication owned
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`by one of the Defendants used a second set of his photographs of another residential property
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`(the Renovation Photos) without authorization.
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`Based upon these allegations, Stross brings a cause of action for copyright infringement
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`against all Defendants (direct infringement claim). In addition, Stross asserts a cause of action
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`for contributory copyright infringement against all Defendants (secondary infringement claim),
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`stating, Hearst Newspapers induced, and/or materially contributed to the infringing conduct of
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`these entities by sharing his photographs with those individual entities, and facilitating their
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`republication. By doing so, Hearst Newspaper’s actions constitute willful infringement of
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`Stross’s copyrights because it knew these Defendants’ use of his photographs was not
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`authorized and/or because it acted in reckless disregard of Stross’s copyright.
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`Defendants assert the following affirmative defenses: (1) Stross’s claims are barred by
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`the doctrine of fair use because the photographs at issue were used for newsworthy purposes,
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`and there was no effect upon the market for the photographs at issue; (2) lack of willfulness
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`because any infringement was inadvertent and not willful; (3) Stross’s claim is barred because
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`he licensed some or all of the photographs to one or more of the Defendants for the uses he
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`challenges in this action; (4) Stross’s claims are barred because he consented to uses of his
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`allegedly copyrighted works; (5) Stross is barred by the doctrine of collateral estoppel from
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`relitigating any or all of any issues in this action that could be resolved in other litigation
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`concerning the works at issue in this case; (6) Stross’s claims are barred because he failed to
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`mitigate his damages; (7) Stross suffered no actual damages; (8) Stross fails to plead facts
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`sufficient to support an exercise of personal jurisdiction over all Defendants, and not all
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`Defendants are subject to personal jurisdiction; and (9) Stross’s claims against all Hearst
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`Defendants are barred by the applicable three-year statute of limitations.
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`Stross now moves for partial summary judgment on his direct copyright infringement
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`cause of action and upon all of Defendants’ affirmative defenses.
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`Legal Standard
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`Summary judgment is appropriate where “the pleadings, depositions, answers to
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`interrogatories and admissions on file, together with affidavits, if any, show that there is no
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`genuine dispute as to any material fact and that the moving party is entitled to judgment as a
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`matter of law.” Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see
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`also Rodriguez v. Pacificare, Inc., 980 F.2d 1014, 1019 (5th Cir. 1993).1 A dispute is “genuine”
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`where there is sufficient evidence such that a reasonable jury could return a verdict for the
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`nonmoving party. Id. There is no genuine dispute for trial when “the record taken as a whole
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`could not lead a rational trier of fact to find for the nonmoving party.” Scott v. Harris, 550 U.S.
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`372, 380 (2007) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
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`586-87 (1986)). While all evidence and reasonable inferences are viewed in the light most
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`favorable to the nonmovant, and all disputed facts are resolved in favor of the nonmovant, the
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`judge’s function “is not ‘to weigh the evidence and determine the truth of the matter but to
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`determine whether there is a genuine issue for trial.’” Tolan v. Cotton, 572 U.S. 650, 656 (2014)
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`(quoting Anderson, 477 U.S. at 249); see also Heinsohn v. Carabin & Shaw, P.C., 832 F.3d
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`224, 234 (5th Cir. 2016).
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` 1Although 2010 amendments replaced “issue” with “dispute,” the summary judgment standard “remains
`unchanged.” Fed. R. Civ. P. 56 advisory committee notes (2010 amend.).
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`The “party seeking summary judgment always bears the initial responsibility of
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`informing the district court of the basis for its motion.” Celotex Corp., 477 U.S. at 323. The
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`moving party has the burden to “demonstrate the absence of a genuine issue of material fact
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`and the appropriateness of judgment as a matter of law” to prevail on its motion. Union Planters
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`Nat’l Leasing v. Woods, 687 F.2d 117, 121 (5th Cir. 1982). To do so, the moving party must
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`identify the portions of the pleadings, depositions, answers to interrogatories, and admissions
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`on file, together with the affidavits that demonstrate the absence of a triable dispute of material
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`fact. Celotex Corp., 477 U.S. at 323; Union Planters Nat’l Leasing, 687 F.2d at 121. To meet
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`its initial burden, the moving party must either: (1) present evidence that negates the existence
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`of some material element of the nonmoving party’s claim; or (2) point out the nonmoving party
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`lacks sufficient evidence to prove an essential element of its claim. Celotex Corp., 477 U.S. at
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`331; McKee v. CBF Corp., 299 F. App’x 426, 428 (5th Cir. 2008).
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`“When a party moves for summary judgment on claims on which the opposing parties
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`will bear the burden of proof at trial, the moving party can meet its summary judgment
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`obligation by pointing the court to the absence of admissible evidence to support the
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`nonmovants’ claims.” Armas v. St. Augustine Old Roman Catholic Church, No. 3:17-CV-2383-
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`D, 2019 WL 2929616, at *2 (N.D. Tex. July 8, 2019) (citing Celotex Corp., 477 U.S. at 325);
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`see also Austin v. Kroger Texas, L.P., 864 F. 3d 326, 335 (5th Cir. 2017)). The movant is not
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`required to negate the elements of the nonmovant’s case but may satisfy its summary judgment
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`burden by alleging the absence of facts supporting specific elements of the nonmovant’s
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`cause(s) of action. Little v. Liquid Air Corp., 37 F. 3d 1069, 1075, 1076 n. 16 (5th Cir. 1994).
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`If the movant carries that initial burden, the burden shifts to the nonmovant to identify
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`specific facts or present competent summary judgment evidence showing the existence of a
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`genuine fact dispute. Matsushita Elec. Indus. Co., 475 U.S. at 586-87; see also Fed.R.Civ.P.
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`56(c). Upon the shifting burden “[u]nsubstantiated assertions, improbable inferences, and
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`unsupported speculation are not sufficient to defeat a motion for summary judgment.”
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`Heinsohn, 832 F.3d at 234 (citation omitted). Furthermore, the courts have “no duty to search
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`the record for material fact issues.” RSR Corp. v. Int’l Ins. Co., 612 F.3d 851, 857 (5th Cir.
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`2010); see also Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 651 (5th Cir. 2012).
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`1. Copyright Infringement Cause of Action
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`Discussion
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`Stross contends he is entitled to summary judgment on the direct copyright
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`infringement cause of action because there is no genuine dispute whether Defendants copied
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`and displayed his registered photographs without authorization.
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`The Copyright Act gives a copyright owner the exclusive right to reproduce the
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`copyrighted work and display it publicly. 17 U.S.C. § 106(1), (5). Copyright infringement can
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`be direct or secondary. BWP Media USA, Inc. v. T & S Software Assocs., Inc., 852 F.3d 436,
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`439 (5th Cir. 2017). For direct copyright infringement, a plaintiff must prove two elements: (1)
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`ownership of a valid copyright, and (2) copying of constituent elements of the work that are
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`original. Id. at 438–39 (5th Cir. 2017)(quoting Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499
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`U.S. 340, 361, (1991)). In direct-infringement cases, the Fifth Circuit requires the plaintiff also
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`establish the defendant acted with “volitional conduct.” BWP Media USA, Inc., 852 F.3d at
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`439. In the context of the facts in this case, this volitional-conduct requirement protects website
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`owners and internet service providers that merely “serv[e] as ... passive conduit[s] for
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`copyrighted material.” Id. at 439-42 (no liability for defendant that “hosts the [online] forum
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`on which infringing content was posted” by others). “Generally, a copyright owner who grants
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`a nonexclusive license to use his copyrighted material waives his right to sue the licensee for
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`copyright infringement and can sue only for breach of contract.” Energy Intelligence Group,
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`Inc. v. Bank of Am., N.A., 4:17-CV-3767, 2018 WL 3303166, at *6 (S.D. Tex. July 5, 2018)
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`(quoting Sun Microsystems, Inc. v. Microsoft Corp., 188 F.3d 1115, 1121 (9th Cir. 1999),
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`abrogated on other grounds by eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006)).
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`However, if the licensee acts outside the scope of the license, the licensor may sue for copyright
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`infringement. Energy Intelligence Group, Inc., 2018 WL 3303166, at *6.
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`Stross moves for summary judgment only on the direct copyright infringement cause
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`of action asserted against all Defendants. In this regard, Stross presents argument and summary
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`judgment evidence pertaining only to the elements of the cause of action: whether he owned a
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`valid copyright and whether Defendants violated his exclusive rights. Because he “established
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`ownership, copying and display,” Stross contends he “is entitled to summary judgment as to
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`infringement.”
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`While Stross presents summary judgment evidence establishing he owns the copyright
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`to the subject photos and Defendants used them, these points are not in dispute. Further, proof
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`of these two elements, alone, does not entitle Stross to summary judgment on the direct
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`copyright infringement cause of action. Defendants’ use must be unauthorized for liability to
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`attach.
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`The existence of a license or other authorization of the use of copyrighted material is
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`an affirmative defense to an allegation of infringement. Lulirama Ltd., Inc. v. Axcess Broad.
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`Servs., Inc., 128 F.3d 872, 884 (5th Cir. 1997). Defendants present summary judgment
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`evidence to raise a genuine dispute of material fact regarding the extent of any authorization or
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`licensure Stross gave them for use of his photographs, whether their use of the photographs
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`exceeded the scope of any authorization given, and whether they acted with volitional conduct.
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`In fact, dispute whether Defendants use of Stross’s photos was within the authorization given
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`is the core of this case. The parties dispute whether the email exchange in which Stross granted
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`permission for Defendants’ use of his photographs limited such use to a single article in the
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`San Antonio Express News and Country Living Magazine and whether such use was
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`conditioned upon the placement of a credit and hyperlink to Stross’s website.
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`Accordingly, a genuine dispute of material fact exists as to Defendants’ license defense,
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`which in turn creates a genuine dispute of material fact as to Stross’s direct copyright
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`infringement cause of action. See Joseph Paul Corp. v. Trademark Custom Homes, Inc., 3:16-
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`CV-1651-L, 2017 WL 5479611, at *4–5 (N.D. Tex. Nov. 15, 2017). Because genuine disputes
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`of material fact exist, Stross is not entitled to summary judgment on his direct copyright
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`infringement cause of action.
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`2. Affirmative Defenses
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`a. Fair Use
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`Stross contends he is entitled to summary judgment on Defendants’ affirmative defense
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`of fair use because no reasonable jury could render a verdict in Defendants’ favor.
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`Fair use is an affirmative defense for which the defendant has the burden to establish
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`that an otherwise infringing use is excused. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569,
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`590 (1994). To determine applicability, courts weigh and consider four non-exclusive factors:
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`(1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount
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`and substantiality of the portion used in relation to the copyrighted work as a whole; and (4)
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`the effect on the potential market for or value of the copyrighted work. 17 U.S.C. § 107;
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`Campbell, 510 U.S. at 577-78. Because fair use is a mixed question of law and fact, it may be
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`resolved on summary judgment only if a reasonable trier of fact could reach only one
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`conclusion. Peteski Prods. v. Rothman, 264 F. Supp. 3d 731, 734 (E.D. Tex. 2017).
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`Stross’s Motion for Summary Judgment on the fair-use affirmative defense fails for the
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`same reasons summary judgment on the direct copyright infringement cause of action fails. A
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`genuine dispute of material fact exists whether Defendants’ conduct infringed upon Stross’s
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`copyright. The basis of a fair-use affirmative defense is any use of copyright material must be
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`“otherwise infringing” and, if so, whether such conduct is excused after considering the fair-
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`use elements.
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`Defendants present summary judgment argument and evidence to raise a genuine
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`dispute of material fact regarding the extent of any authorization Stross gave to Defendants for
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`their use of his photographs and whether Defendants’ use of any photographs exceeded the
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`scope of any such authorization given. Based upon this genuine dispute, a reasonable trier of
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`fact could reach more than one conclusion regarding whether Defendants’ use of the subject
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`photographs was “otherwise infringing”. If a jury could find Defendants’ conduct was not
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`“infringing” then the fair-use affirmative defense is never reached. Accordingly, Stross is not
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`entitled to summary judgment on this affirmative defense.
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`b. License and Consent
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`Stross seeks summary judgment on Defendants’ affirmative defenses of license and
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`consent.
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`As previously discussed, Defendants present summary judgment evidence to raise a
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`genuine dispute of material fact regarding the extent of any authorization Stross gave to
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`Defendants for their use of his photographs and whether Defendants’ use of any photographs
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`exceeded the scope of any such authorization given. The focus of this dispute is the email
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`exchange in which Stross contends he granted permission for only one article, and Defendants
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`argue a reasonable trier of fact could construe the permission to be unlimited.
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`Based upon this genuine dispute, a reasonable trier of fact could reach more than one
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`conclusion regarding whether the email constitutes a license, whether Stross granted
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`Defendants license and/or consent to use his photographs, and whether Defendants’ use of any
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`photographs exceeded the scope of any consent or license given. Consequently, triable disputes
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`about the existence of, or scope of, any license and/or consent warrant denial of Stross’s request
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`for summary judgment on these affirmative defenses.
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`c. No Willfulness
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`The issue of “willfulness” is not necessarily an affirmative defense, but instead is an
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`element of Stross’s direct copyright infringement cause of action. Nevertheless, Defendants
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`assert this as an affirmative defense. In this Motion for Summary Judgment, Stross contends
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`generally “w]hile this allegation – if true – might have some relevance to damages, it does not
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`shield Defendants from liability for infringement, and should not prevent the Court from
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`granting summary judgment on Stross’ infringement claim (with damages to be decided by the
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`trier of fact). Moreover, in light of the undisputed facts, Stross is entitled to summary judgment
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`on this issue.”
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`To begin, in his general argument, Stross fails to satisfy his initial responsibility of
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`informing the Court of the basis of his motion and demonstrating the lack of evidence to
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`establish lack of willfulness. See Union Planters Nat’l Leasing, 687 F.2d at 121; Celotex, 477
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`U.S. at 331. This deficient argument, alone, is sufficient basis to deny summary judgment on
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`this issue.
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`Similar to the previous affirmative defenses, Defendants present summary judgment
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`evidence to raise a genuine dispute of material fact regarding the extent of any authorization
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`Stross gave to Defendants for their use of his photographs and whether Defendants’ use
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`exceeded the scope of any such authorization given. Based upon resolution of these disputes,
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`a reasonable trier of fact could reach more than one conclusion whether Defendants acted with
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`“willfulness” in committing any infringing conduct. Consequently, triable disputes about the
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`existence of, or scope of, any authorization given and whether any infringement was “willful”
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`warrant denial of Stross’s request for summary judgment on this asserted “affirmative defense.”
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`Consequently, Stross is not entitled to summary judgment on the willfulness
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`“affirmative defense.”
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`d. No Damages
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`Defendants assert as an affirmative defense: “Plaintiff has suffered no damages.”
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`Stross contends he is entitled to summary judgment on this “affirmative defense”
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`because he
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`presented evidence of actual damages (Stross Decl., ¶ 26), and Defendants have
`identified no controverting evidence other than a self-serving suggestion that
`they would not have paid to use the photographs. Defendants’ willingness to
`pay a license fee has nothing to do with actual damages; and in any event, injury
`isn’t an element of liability for copyright infringement.
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`Based upon this argument, Stross contends “this boilerplate defense should not prevent the
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`Court from granting summary judgment on Stross’ infringement claim (with damages to be
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`decided by the factfinder).”
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`Even if Stross presents summary judgment evidence on his purported damages, this
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`does not entitle him to summary judgment on his direct copyright infringement cause of action,
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`as requested. This Court has already determined genuine disputes of material fact preclude
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`Stross’s entitlement to summary judgment on his direct copyright infringement cause of action.
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`For these reasons, Stross’s argument fails, and he is not entitled to summary judgment on this
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`“affirmative defense” of “no damages.”
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`e. Failure to Mitigate
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`Stross argues he “is entitled to summary judgment because Defendants have failed to
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`identify any consequential damages that could have been avoided or minimized by reasonable
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`effort or expense…. Even if they had, . . . Defendants’ boilerplate defense of “failure to
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`mitigate” does not shield them from liability for infringement, and should not prevent the Court
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`from granting summary judgment on liability.”
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`Stross presents no plausible argument to support summary judgment on this affirmative
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`defense, but instead argues Defendants’ failure to adequately plead or prove failure to mitigate
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`damages entitles him to summary judgment on his direct copyright infringement cause of
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`action. However, even if true, Defendants’ failure to adequately plead or prove mitigation of
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`damages does not entitle Stross to summary judgment on the direct copyright infringement
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`cause of action. This Court has already determined genuine disputes of material fact preclude
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`Stross’s entitlement to summary judgment on his direct copyright infringement cause of action.
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`For these reasons, Stross’s argument fails, and he is not entitled to summary judgment on the
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`affirmative defense of failure to mitigate damages.
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`f. Statute of Limitations
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`As shown in the pleadings, Defendants’ statute of limitations defense is predicated on
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`their contention that Stross’s copyright infringement causes of action on the Tiny House photos
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`accrued in May 2015 when the Original Express News and Country Living Magazine articles
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`were first published. With regard to the Renovation photographs, Defendants contend Stross’s
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`copyright infringement causes of action accrued in August of 2015 when the House Beautiful
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`article was first published. Both accruals are more than three years prior to the date Stross filed
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`suit on October 2, 2018.
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`In this Motion for Partial Summary Judgment, Stross contends he is entitled to summary
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`judgment on his issue that the discovery rule applies to this affirmative defense because he
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`presented competent summary judgment evidence showing he did not discover any of the
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`Defendants’ uses of the Tiny House Photos until March 23, 2017, and he did not discover
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`House Beautiful’s unauthorized use of the Renovation Photos until July, 2017. Because
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`Defendants produce no controverting evidence, Stross contends he is “entitled to summary
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`judgment on this defense.”
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`Thus, Stross seeks summary judgment on his discovery-rule defense to the statute of
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`limitations affirmative defense. This request is improper within the context of the shifting
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`summary judgment burdens of proof. This Court will not issue declaratory summary judgment
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`on Stross’s discovery-rule defense to Defendants’ statute of limitations affirmative defense.
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`Thus, this request will be liberally construed to mean Stross seeks summary judgment on
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`Defendants’ statute of limitations affirmative defense, meaning he is not barred from pursuing
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`these copyright infringement causes of action based upon application of the discovery rule.
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`Defendants respond only that:
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`[a]s explained in Defendants’ Motion, this presents an issue of first impression
`for the courts of the Fifth Circuit: Whether the so-called “discovery rule”
`adopted by the Court of Appeals for the Fifth Circuit has been abrogated by the
`Supreme Court’s decisions in Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S.
`663 (2014), and Rotkiske v. Klemm, 140 S. Ct. 355 (2019). For the reasons
`explained in Defendants’ Motion, this Court should answer that question in the
`affirmative, and grant summary judgment as to Plaintiff’s untimely claim
`concerning the Renovation Photographs
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` Thus, Defendants do not respond to Stross’s argument of entitlement to summary
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`judgment on the statute of limitations defense. Instead, Defendants refer the Court to their own
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`Motion for Partial Summary Judgment urging the Court to render summary judgment in their
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`favor on this affirmative defense.
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`Here, Stross, as the plaintiff, moves for summary judgment on an affirmative defense
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`on which Defendants will bear the burden of proof at trial. In this context, Stross may satisfy
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`his initial burden by presenting evidence which points the Court to the absence of admissible
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`evidence to support Defendants’ affirmative defense. See Armas, 2019 WL 2929616, at *2
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`(citing Celotex Corp., 477 U.S. at 325); see also Fontenot v. Upjohn Co., 780 F.2d 1190, 1194
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`(5th Cir. 1986). Then, only within the context of a plaintiff’s summary judgment motion, the
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`burden shifts to Defendants to show all essential elements of its statute of limitations defense,
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`because it has the burden of proof at trial. See Silo Rest. Inc. v. Allied Prop. & Cas. Ins. Co.,
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`420 F. Supp. 3d 562, 576 (W.D. Tex. 2019). To carry its summary judgment burden,
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`Defendants must establish each cause of action accrued outside the applicable limitations
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`period. Id.; Wetsel v. State Farm Lloyds Ins. Co., No. 3:02-CV-0510-D, 2002 WL 1592665, at
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`*3 (N.D. Tex. July 18, 2002). If Defendants carry this burden, Stross, then has the burden to
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`show a material factual dispute regarding the timeliness of its action, such as a showing that
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`the action is timely through the discovery rule.
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`To satisfy his burden of proof in this context, Stross presents sufficient summary
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`judgment evidence to point the Court to the absence of evidence to support Defendants’ statute
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`of limitations affirmative defense. This summary judgment evidence consists of Stross’s
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`declaration attesting he discovered Defendants’ uses of the Tiny House Photos in March 23,
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`2017, and he discovered House Beautiful’s use of the Renovation Photos in July 2017. He has
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`also tendered a declaration stating that he wasn’t aware of any “suspicious circumstances” that
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`would have awakened inquiry at any earlier date.
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`The burden then shifts to Defendants to establish the copyright infringement causes of
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`action accrued outside the applicable limitations period. Here, Defendants’ response is
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`improper and insufficient. Upon the shifting burden “[u]nsubstantiated assertions, improbable
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`inferences, and unsupported speculation are not sufficient to defeat a motion for summary judg-
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`ment.” Heinsohn, 832 F.3d at 234. Furthermore, this Court has no duty to search the record for
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`argument and evidence to support Defendants’ position and mutual argument for entitlement
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`to summary judgment. See RSR Corp., 612 F.3d at 857; Hernandez, 670 F.3d at 651. In
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`accordance, this Court will decline to do so.
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`Defendants do present argument on a purely legal issue whether the Fifth Circuit applies
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`the “discovery rule” or the “injury rule” to determine the accrual of copyright infringement
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`actions. Because this is a purely legal issue, this Court will address it.
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`A cause of action for copyright infringement must be filed within three years of accrual.
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`17 U.S.C. § 507(b). The Fifth Circuit applies the discovery rule to determine accrual of a
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`copyright infringement cause of action, that is, such claims accrue upon actual or constructive
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`discovery of the relevant infringement. See Graper v. Mid-Continent Cas. Co., 756 F.3d 388,
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`393 (5th Cir. 2014)(citing Jordan v. Sony BMG Music Entm’t Inc., 354 Fed.Appx. 942, 945
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`13
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`Case 5:18-cv-01039-JKP-RBF Document 125 Filed 09/03/20 Page 14 of 15
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`(5th Cir. 2009)); see also Edwards v. Take Fo’ Records, Inc., CV 19-12130, 2020 WL 3832606,
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`at *15 (E.D. La. July 8, 2020).
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`Defendants contend the Fifth Circuit’s use of the discovery rule was abrogated by the
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`Supreme Court’s decisions in Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663 (2014),
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`and Rotkiske v. Klemm, 140 S. Ct. 355 (2019). Relying on these cases, Defendants contend this
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`Court should apply the “injury rule” to determine accrual, that is, the causes of action accrued
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`on the initial date of injury, and not the date of discovery. However, in the context of the facts
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`of this case and the scant arguments presented on the issue, this Court declines to go against
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`long established precedent. In Petrella v. Metro-Goldwyn-Mayer, Inc., the Supreme Court held
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`laches cannot be invoked as a bar to adjudication of a claim brought within the Copyright Act’s
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`three-year limitations period. See Petrella, 572 U.S. at 670-78. This is not the issue here. In
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`Rotkiske v. Klemm, the Supreme Court held that absent the application of an equitable doctrine,
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`the statute of limitations of a cause of action brought under the Fair Debt Collection Practices
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`Act begins to run when the alleged violation occurs, not when the violation is discovered. See
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`Rotkiske 140 S. Ct. at 359 – 362. This is not the issue here.
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`Consequently, this Court will apply the discovery rule to determine accrual of this direct
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`copyright infringement cause of action. Defendants fail to present summary judgment evidence
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`to address the issue of when Stross discovered any infringement and to establish their
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`contention the copyright infringement causes of action accrued outside the applicable
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`limitations period. Thus, Defendants fail to satisfy their burden on this issue.
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`However, this deficiency, alone, does not, per se, entitle Stross to summary judgment
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`on Defendants’ affirmative defense, as Stross requests. “Inquiries involving the discovery rule
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`usually entail questions for the trier of fact.” Childs v. Haussecker, 974 S.W.2d 31, 44 (Tex.
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`1998). Further, issues “[w]hen a plaintiff discovers or should have discovered the cause of his
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`injury and whether a particular plaintiff exercised due diligence in so discovering are questions
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`Case 5:18-cv-01039-JKP-RBF Document 125 Filed 09/03/20 Page 15 of 15
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`of fact” unless the evidence can support only one reasonable conclusion. Pirtle v. Kahn, 177
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`S.W.3 d 567, 572 (Tex. App. App.—Houston [1st Dist.] 2005, pet. denied); see also Raytheon
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`Co. v. Indigo Sys. Corp., 4:07-CV-109, 2014 WL 5341920, at *1 (E.D. Tex. Sept. 30, 2014).
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`Stross presents no evidence which supports only one conclusion with regard to his discovery
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`of the accrual of the direct copyright infringement cause of action.
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`The Court finds the summary-judgment record contains evidence which raises issues
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`of fact of when Stross discovered or should have discovered the copyright causes of action and
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`whether he exercised due diligence. For this reason, Stross’s request for summary judgment on
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`the affirmative defense of statute of limitations is denied because issues of fact must be
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`determined by a jury regarding the accrual of his causes of action.
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`Conclusion
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`
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`For the reasons stated, Stross’s Motion for Partial Summary Judgment is DENIED.
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`Defendants’ voluntarily withdrawn affirmative defense of collateral estoppel and challenge to
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`personal jurisdiction are stricken and dismissed with prejudice.
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`It is so Ordered.
`SIGNED this 3rd day of September, 2020.
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`JASON PULLIAM
`UNITED STATES DISTRICT JUDGE
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`15
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