Discovering Melodies or Discovering Lawsuits? Why the Discovery Rule Is Increasingly Inapplicable to Copyright Infringement as the War Over Generative AI Wages On

Abstract

This comment examines whether the judicially created discovery rule should continue to govern claim accrual in copyright infringement actions as generative artificial intelligence increasingly transforms creative industries. The author argues that the discovery rule, which delays accrual until a plaintiff discovers or reasonably should have discovered an infringement, is becoming both textually unsupported and increasingly inequitable in the modern technological environment. After reviewing the foundations of copyright law, the history of the Copyright Act’s statute of limitations, and the development of the discovery rule in federal jurisprudence, the comment traces the evolution of a longstanding circuit split concerning copyright claim accrual and damages. Particular attention is devoted to the Supreme Court’s decision in Warner Chappell Music, Inc. v. Nealy, which held that plaintiffs proceeding under the discovery rule may recover damages beyond a three-year lookback period while leaving unresolved the antecedent question of whether the discovery rule properly applies to copyright claims at all.The comment contends that the text, structure, and legislative history of the Copyright Act favor an injury-based accrual rule rather than the discovery rule. It argues that the discovery rule originated as a limited equitable doctrine suited primarily to cases involving fraud, concealment, or inherently unknowable injuries and that copyright infringement does not present the same concerns. The author further maintains that recent developments in copyright law, including the erosion of equitable defenses and the expansion of available damages, have shifted the balance decisively in favor of plaintiffs. Against the backdrop of ongoing litigation over generative AI systems trained on copyrighted works, the comment warns that the continued application of the discovery rule may encourage costly infringement litigation, chill experimentation with emerging creative technologies, and undermine copyright law’s constitutional purpose of promoting innovation. The comment concludes that courts should reject the discovery rule in copyright cases or, at minimum, lower the reasonable-diligence standard used to determine when discovery occurs.[This abstract was written by Microsoft Copilot, a generative artificial intelligence.]