The Second Circuit and the Ninth Circuit are currently divided on the issue of how far back a copyright owning plaintiff in a copyright infringement can collect in damages against a continuing infringer. The Second Circuit states that the Copyright Act’s three-year statute of limitations and the discovery rule only permit plaintiffs to collect damages three years back from the date they bring their infringement action. However, the Ninth Circuit states that the three-year statute of limitations is only concerned with the timing in which a plaintiff brings her infringement action, and that she can recover all of the damages from the defendant’s infringement with no time limit. This circuit split will not only encourage forum shopping in the Ninth Circuit, but it will incentivize infringement in the Second Circuit. Further, the entertainment industry will capitalize on this split until it is resolved.

This Note is about the circuit split between the Ninth and Second Circuits as a result of the diametrically opposed rulings in Sohm v. Scholastic and Starz v. MGM respectively, and the effects of these opposing decisions. First, this Note discusses the background of copyright infringement. Venue in federal cases and the concept of forum shopping is also discussed. Next, this Note discusses the Second Circuit’s decision in Sohm v. Scholastic and the Ninth Circuit’s decision in Starz v. MGM, and this Note contends that the Ninth Circuit’s viewpoint is correct. Next, this Note predicts that the opposing rulings will encourage forum shopping, incentivize copyright infringement in the second circuit, and that the entertainment industry will capitalize on these opposing rulings until the split is resolved. Finally, this Note suggests that the only realistic solutions to resolving this split are that either the Supreme Court will have to directly rule on the issue of the length of time in that a plaintiff can recover damages for a defendant’s continuing copyright infringement, or Congress will need to amend the Copyright Act to confirm the amount of damages plaintiffs can recover in continuing infringement actions.