Instead, the Eleventh Circuit held that "[p]arties are generally allowed to contract for a shorter limitations period than that provided by statute" where there is no "controlling statute to the contrary," i.e. where the applicable statute "does not prohibit parties from contractually shortening that limitations period."Id. (citing Wolfe, 331 U.S. at 608.) In Entous, the most analogous case cited by the parties on the precise issue, the court recognized (without expressly deciding the issue in that case) that parties may contract around the Copyright Act's three-year statute of limitations.Entous v. Viacom Int'l, Inc., 151 F. Supp. 2d 1150, 1156 (C. D. Cal. 2001) (citing Wolfe, 331 U.S. at 608, MFS Int'l, Inc., 50 F.Supp.2d at 521-23, and Harriman Bros., 227 U.S. at 672). Similarly, in MFS Intern., Inc. v. International Telcom Ltd., the district court for the Eastern District of Virginia addressed whether parties can, by contract, agree to a limitations provision shorter than the two-year period prescribed in the Federal Communications Act, 47 U.S.C. § 415(b).
Consequently, district courts have applied shortened contractual limitations periods to federal copyright infringement claims. See, e.g., Entous v. Viacom Int'l, Inc., 151 F. Supp. 2d 1150, 1154-56 (C.D. Cal. 2001) (applying six-month contractual limitations period); Evox Prods. LLC v. Chrome Data Sols., LP, No. 16-cv-00057-JR, 2021 WL 1406879, at *5-6 (D. Or. Mar. 3, 2021) (applying two-year contractual limitations period); NAFRA Worldwide, LLC v. Home Depot U.S.A., Inc., No. 1:12-cv-02808-AT, 2013 WL 12098772, at * 11 (N.D. Ga. Aug. 29, 2013) (applying one-year contractual limitations period); Ashland, Inc. v. Achiever Bus. Sols., Inc., No. C2-05-247, 2005 WL 8161380, at *4 (S.D. Ohio Dec. 20, 2005) (same).
And while "ideas" are specifically excluded from copyright protection, 17 U.S.C. § 102(b), "courts have consistently held that they fall within the 'subject matter of copyright' for the purposes of preemption analysis." Entous v. Viacom Int'l, Inc., 151 F. Supp. 2d 1150, 1159 (C.D. Cal. 2001) (citing Selby, 96 F.Supp.2d at 1058). The Court therefore concludes that the subject matter of Count II falls within the subject matter of copyright.
Similarly, Defendants urge entry of judgment in their favor on the ground that Plaintiff has not met his burden of sufficiently pleading facts from which he can demonstrate that his claim is timely. See Mot. at 5; but see Entous v. Viacom Int'l, Inc., 151 F. Supp. 2d 1150, 1154 (C.D. Cal. 2001) (defendants have the burden at trial on the affirmative defense of statute of limitations and, consequently, have the initial burden at summary judgment of presenting evidence showing the untimeliness of the claim); Ayala v. Frito Lay, Inc., 263 F. Supp. 3d 891, 913 (E.D. Cal. 2017) ("It is well-settled that statutes of limitations are affirmative defenses, not pleading requirements. . . . [A] plaintiff is not ordinarily required to plead around affirmative defenses" (internal citations and quotations omitted)).
Because Defendants did not offer the evidence for the truth of the matter asserted, it is not hearsay. See Entous v. Viacom Int'l, Inc., 151 F.Supp.2d 1150, 1157 n.5 (C.D.Cal. 2001) (recognizing the non-hearsay purpose of showing the state of plaintiff's knowledge). Moreover, Defendants properly authenticated each piece of evidence.
Assuming the collection of email addresses falls within the "subject matter" of the Copyright Act, the Plaintiffs' state law privacy rights are nonetheless qualitatively different from the rights protected by the Copyright Act. "A right is ‘equivalent’ to copyright if it ‘is infringed by the mere act of reproduction, performance, distribution or display.’ " Entous v. Viacom Int'l, Inc. , 151 F.Supp.2d 1150, 1159 (C.D.Cal.2001) (quoting Nimmer on Copyright, § 1.10[B] at 1–12 to 1–13 (1989)). However, a state law claim is not "equivalent" to rights within the scope of copyright if it "contains an additional element not required for a copyright claim."
Heimeshoff borrows the "controlling statute to the contrary" language directly from Wolfe, and courts have, on several occasions, held that the language in Wolfe encompasses both state and federal statutes. See e.g., Entous v. Viacom Int'l, Inc., 151 F. Supp. 2d 1150, 1155 (C.D. Cal. 2001)(noting that "Wolfe does not distinguish between state and federal statutes" and holding that "[the controlling statute to the contrary doctrine] applies with equal force whether the applicable limitations period is governed by a federal statute or a state statute."), MFS Int'l, Inc. v. Int'l Telcom Ltd., 50 F. Supp. 2d 517, 522 ("A 'controlling statute to the contrary' must sensibly be understood to mean a federal or state statute that explicitly proscribes such contractual limitations.").
The first prong of this test is satisfied wherever the works at issue come within the "subject matter of copyright" as defined by 17 U.S.C. §§ 102-103, even where the works at issue (or some parts of those works) may not actually be protected under the Copyright Act. See, e.g., Entous v. Viacom International Inc., 58 U.S.P.Q. 2d 1628, 1634 (C.D. Cal. 2001); Selby v. New Line Cinema Corp., 96 F.Supp.2d 1053, 1058-59 (C.D. Cal. 2000); Firoozye v. Earthlink Network, 153 F. Supp. 2d 1115, 1124-25 (N.D. Cal. 2001). Lilith admits that "[t]here is no dispute that Lilith's source code over which it claims a trade secret . . . falls within the subject matter of the Copyright Act."
Dkt. 93; Dkt. 128. The statute of limitations is an affirmative defense, even when raised in a summary judgment motion, and the burden of proof lies with the defendant who raises it. See Pacific Stock v. Pearson Educ., Inc., 927 F.Supp.2d 991, 1001–02 (D.Hawai'i 2013); Entous v. Viacom Int'l, Inc., 151 F.Supp.2d 1150, 1154 (C.D.Cal.2001). The Copyright Act provides that “[n]o civil action shall be maintained under the provisions of [the Act] unless it is commenced within three years after the claim accrued.
The statute of limitations is an affirmative defense for which the defendant bears the burden of proof. Entous v. Viacom Intern., Inc., 151 F.Supp.2d 1150, 1154 (C.D.Cal. 2001). To prevail on its summary judgment motion, McGraw must produce evidence sufficient to show that "no reasonable trier of fact could find other than for the moving party" on the statute of limitations issue.