# United States Court **of Appeals**  **f or the Fifth Circuit** 

No. 22

- 20333

**Antonio Martinelli,**

Plaintiff

— Appellee **,**

versus

**Hearst Newspapers, L.L.C.; Hearst Magazine Media, Incorporated,** 

Defendants

— Appellants

**.**

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:21

- CV -3412

Before **Barksdale** , **Southwick** , and **Higginson** , Circuit Jud ges

**. Stephen A. Higginson**  , Circuit Judge **:** A civil action for copyright infringement under the Copyright Act of 1976 must be “commenced within three years after the claim accrued.” 17
U.S.C. § 507(b). In Graper v. Mid

- Continent Casualty Co. , our court decided
that this limitations period starts r unning “ once the plaintiff knows or has reason to know of the injury upon which the claim is based ,” which is also known as the discovery rule. 756 F.3d 388, 393 (5th Cir. 2014) (cleaned up)

. Today , appellants Hearst Newspapers, L.L.C. and Hearst Magazin e Media, Incorporated (collective, “Hearst”) ask us to replace the discovery rule with United States Court of Appeals Fifth Circuit 

### FILED April 13, 2023 Lyle W. Cayce Clerk Case: 22-20333 Document: 00516711690 Page: 1 Date Filed: 04/13/2023No. 22

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2 a hold ing that the clock starts when an act of copyright infringement occurs.
Hearst argues that Graper is no longer binding in light of 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)

. Since neither of those cases unequivocally overruled Graper , we **AFFIRM**

.
I.
In 2015, Sotheby’s International Realty commissioned Antonio Martinelli to photograph Lugalla, an Irish estate owned by the Guinness family. 1 Martinelli took seven photographs of the property, and Lugalla was subsequently listed for sale.
On March 7, 20 17, Hearst Newspapers used Martinelli’s photographs
in a web

- only article, “The ‘Guinness Castle’ in Ireland Is on the Market,” which Hearst Newspapers published on websites associated with the Houston Chronicle, the San Francisco Chronicle, t he Times Unio n, the Greenwich Time, and T he Middletown Press. Six days later, Hearst Newspapers again used the photographs in a web

- only article available on
those websites. The next day, a different entity called Hearst Communications used four of the photographs in a web

- only article published on a website associated with Elle Décor magazine.

Martinelli first discovered the Houston Chronicle article on November 17, 2018. Between September 2019 and May 2020, Martinelli discovered the article on the websites of the San Francisco Chronicle, t he Times Union, the Greenwich Time, and T he Middletown Press. On February 19, 2020, Martinelli discovered the article on the Elle Décor

1 We adopt the parties’ spelling of the estate’s name, even though the more widely accepted spelling appears to be “Luggala.” Case: 22-20333 Document: 00516711690 Page: 2 Date Filed: 04/13/2023No. 22

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3 website. Hearst has stipulated that Martinelli could not have discovered those uses of his photographs with reasonable diligence at earlier times.
On October 18, 2021, Martinelli sued Hearst Newspapers for copyright infringement, alleging that the Houst on Chronicle’s website had used Martinelli’s photographs without permission. On February 11, 2022, Martinelli amended his complaint to bring a copyright infringement claim against Hearst Magazine Media, Inc.

— the current owner of the Elle Décor copyrights

— and to allege that his photographs were also used on websites associated with the San Francisco Chronicle, t he Times Union, the Greenwich Time, and T he Middletown Press. Martinelli brought these claims within three years of discovering the infringements b ut more than three years after the infringements occurred.
The parties cross

- moved for summary judgment, stipulating that Hearst committed copyright infringement and that Martinelli would be entitled to $10,000 if he prevails. Hearst argued that interveni ng Supreme Court decisions “undermined” this circuit’s discovery rule and that
Martinelli’s claims were untimely because they accrued when Hearst infringed Martinelli’s copyrights. The district court rejected this argument,
followed Graper , granted Martin elli’s motion for summary judgment, and
denied Hearst’s motion.
Hearst timely appealed.

II.
On appeal, Hearst argues that Martinelli’s claims are time

- barred because a claim accrues under § 507(b) when the infringement occurs. Hearst recognizes that u nder this circuit’s precedents, the § 507(b) limitations period starts when the plaintiff “ knows or has reason to know of the injury upon which the claim is based .” Graper , 756 F.3d at 393 (cleaned up). Yet Hearst contends that the Supreme Court’s decisi ons in Petrella and Case: 22-20333 Document: 00516711690 Page: 3 Date Filed: 04/13/2023No. 22

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4 Rotkiske “undermined the reasoning of [this circuit’s] precedents” such that
the rule of orderliness does not require this court to follow the discovery rule.
Petrella and Rotkiske had no such effect. Accordingly, as the district court
conclud ed, Martinelli’s claims were timely under Graper

.
A.
Under this circuit’s rule of orderliness, “one panel . . . may not overturn another panel’s decision, absent an intervening change in the law , such as by a statutory amendment, or the Supreme Court, or our en banc

court .” Jacobs v. Nat’l Drug Intel. Ctr. , 548 F.3d 375, 378 (5th Cir. 2008); see United States v. Alcantar , 733 F.3d 143, 145

- 46 (5th Cir. 2013). “[F]or a Supreme Court decision to change our [c]ircuit’s law, it must

. . . unequivocally overrule prior precedent.” Tech

. Automation Servs. Corp. v. Liberty Surplus Ins. Corp. , 673 F.3d 399, 405 (5th Cir. 2012) (cleaned up); Brotherhood of Locomotive Eng’rs & Trainmen v. Union Pac. R.R. Co. , 31 F.4th 337, 344 (5th Cir. 2022) ( similar). Neither “a mere ‘hint’ of how the [Supreme] Court might rule in the future, ” Alcantar , 733 F.3d at 146, nor a decision that is “merely illuminating with respect to the case before [us]” will permit a subsequent panel to depart from circuit prece dent, Tech

. Automation , 673 F.3d at 405.
Following these principles, where an intervening Supreme Court decision “fundamentally changes the focus of the relevant analysis,” our precedents relying on that analysis are “implicitly overruled.” In re
Bonvil lian Marine Serv., Inc. , 19 F.4th 787, 792 (5th Cir. 2021) (cleaned up)

. But this is only true when the changed analysis clearly applies to the case before us, such that we are “unequivocally directed by controlling Supreme Court precedent” to “overrule t he decision of [the] prior panel,” United States v. Zuniga

- Salinas , 945 F.2d 1302, 1306 (5th Cir. 1991); see Stokes v. Sw.
Airlines , 887 F.3d 199, 204 (5th Cir. 2018) (“Such a change occurs, for Case: 22-20333 Document: 00516711690 Page: 4 Date Filed: 04/13/2023No. 22

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5 example, when the Supreme Court disavows the mode of analysis on which our precedent relied.”); Gonzalez v. Thaler , 623 F.3d 222, 226 (5th Cir. 2010) (examining whether a Supreme Court decision “establishes a rule of law inconsistent with our own” (cleaned up)).

B.
The parties identify six cases, three of which are published and binding, in which this circuit arguably held that a copyright infringement claim accrues “once the plaintiff knows or has reason to know of the injury upon which the claim is based.” Graper , 756 F.3d at 393 (cleaned up) ; see Pritchett v. Pound , 473 F.3d 217, 220 (5th Cir. 2006); Prather v. Neva Paperbacks, Inc. , 446 F.2d 338, 341 (5th Cir. 1971); Aspen Tech., Inc. v. M3 Tech., Inc. , 569 F. App’x 259, 264 (5th Cir. 2014) (per curiam) (unpublished); Jordan v. Sony BMG Music Ent. Inc. , 354 F. App’x 942, 945 (5th Cir. 2009) (per curiam) (unpublished); Groden v. Allen , 279 F. App’x 290, 294 (5th Cir. 2008) (per curiam) (unpublished). Out of our three published authorities, only Graper squarely held the discovery rule applies to a c opyright infringement claim. See 756 F.3d at 393. N one of these cases explain s why the discovery rule applies to a copyright infringement claim.
Graper resolved an insurance coverage dispute. The insureds were sued for copyright infringement, and after they tendered the claim to the insurer, the insurer agreed to defend them subject to a reservation of rights.
Id. at 390. One of the bases for exclusion of coverage was “that the injury may not have occurred during policy coverage dates.” Id. at 391. Th e insureds then retained their own counsel to defend the copyright infringement suit because “they believed there was a disqualifying conflict of interest between them and any counsel [the insurer] chose,” and they filed a separate declaratory action to de termine their rights under the relevant policies. Id. Case: 22-20333 Document: 00516711690 Page: 5 Date Filed: 04/13/2023No. 22

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6 On appeal, the only issue was “whether [the insurer] was obligated to pay for the [i]nsureds’ selected counsel to defend the [copyright infringement] claims.” Id. The court explained that an obligat ion to pay for
an insured’s selected counsel arises if the insurer’s chosen counsel has a disqualifying conflict of interest. Id. at 392. S uch a conflict of interest exists if “the facts to be adjudicated in the underlying lawsuit are the same facts

upon which coverage depends.” Id. (cleaned up). The insureds argued that because they defended the “copyright claims on grounds that the claims ‘accrued’ outside the applicable time provided by the statute of limitations”
and because the insurer “reserved th e right to deny coverage of the . . . claims on grounds that the alleged acts of infringement . . . ‘occurred’ outside the time the policy was in effect,” “many of the same facts [would] determine both the [i]nsureds’ liability and the [i]nsureds’ coverage .” Id. at 393.

We disagreed, holding that no disqualifying conflict of interest existed because the limitations period for a copyright

- infringement claim runs from the date that the infringement is discovered, not the date that the infringement occurs. I d. at 393

- 94. “In litigating the [i]nsureds’ statute of limitation defense,” counsel “would only need to have adjudicated the fact
of when the claim accrued , not the fact of when the acts of infringement
occurred ,” id. at 393 (emphasis in original), and w e explained that “[a] claim accrues once the plaintiff knows or has reason to know of the injury upon which the claim is based,” id. (quotation marks and alterations omitted) (quoting Jordan , 354 F. App’x at 945). Although adjudication of the date when the infringement was discovered “would signal, in subsequent litigation, that the infringing conduct occurred before that date of discovery,” “such a determination . . . would lack the specificity necessary
to decide whether the claim was covered unde r the [i]nsureds’ policy.” Id. (emphasis omitted). Case: 22-20333 Document: 00516711690 Page: 6 Date Filed: 04/13/2023No. 22

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7 Although it was necessary to the decision in Graper that the discovery rule controlled the limitations period for a copyright infringement claim , Graper did not explain why the discovery rule applied. I nstead, as noted above, the discovery rule holding in Graper quoted from our unpublished
decision in Jordan v. Sony BMG Music Entertainment Inc. See 354 F. App’x
at 945. 2 At most, Graper included a footnote recognizing that “[o]ther circuits agree that this is the proper inquiry” without endorsing the reasoning
of those out

- of

- circuit decisions. Graper , 756 F.3d at 393 n.5 (citing Cooper v. NCS Pearson, Inc. , 733 F.3d 1013 (10th Cir. 2013) ; and William A. Graham Co. v. Haughey , 568 F.3d 425, 433 (3d Cir . 2009)).
Two other recent unpublished cases from this court apply the discovery rule to copyright infringement claims without giving a rationale

. See Aspen , 569 F. App’x at 264 (stating that “the discovery rule . . . appl[ies] to . . . infringement clai ms” ); Groden , 279 F. App’x at 294 ( stating that “the relevant inquiry” under § 507(b) “is when the claim accrued, not when the infringement occurred”). Both cases rely on our earlier published decision
in Prather v. Neva Paperbacks, Inc. See Aspen , 569 F. App’x at 264 n.8. ; Groden , 279 F. App’x at 294.
However, Prather concerned whether the “ fraudulent concealment” of a copyright infringement cause of action “by the defendant will [equitably]

2 In turn, Jordan does not explain why the discovery rule applies to copyright infringement claims and instead quotes from our published decision in Pritchett v. Pound

. 354 F. App’x at 945 (quoting Pritchett , 473 F.3d at 220). But Pritchett in volved a copyright ownership claim, did not address whether the discovery rule applied to a copyright infringement claim, and also did not explain why the discovery rule applied to the claims at issue. See Pritchett , 473 F.3d at 220. Instead, it cited to a Second Circuit case that similarly does not explain why the discovery rule applies to a copyright ownership claim. See id. (citing Est. of Burne Hogarth v. Edgar Rice Burroughs, Inc. , 342 F.3d 149, 165 (2d Cir. 2003)). Case: 22-20333 Document: 00516711690 Page: 7 Date Filed: 04/13/2023No. 22

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8 toll the statute of limitations” under the Copyright A ct as amended in 1957. 3
446 F.2d at 341. The district court had found “that the last publication of the alleged infringing work occurred in June , 1964, but [the] suit was not filed until August , 1969,” and “no circumstances . . . excuse[d] plaintiff’s l ack of knowledge of the infringement.” Id. at 339. On appeal, we considered only whether the plaintiff was entitled to equitable tolling. Id. at 339

- 41.
At the outset, we refused to apply a Florida

- law equitable doctrine called the “Blameless Ignorance rule” because enforcing “a peculiarly local doctrine” would “frustrate the Congressional goal of homogeneity” in enacting a uniform three

- year limitations period. Id. at 33 9

- 40. Then, we considered whether the federal

- law fraudulent concealment doctrine tolled the limitations period. Id. at 340

- 41. The plaintiff argued that the defendants had concealed the existence of a book that infringed his copyrights “and prevented h im from obtaining a copy of that book.” Id. at 340. But the court concluded that the defendants had not fraudulently concealed the book because the plaintiff knew about the book all along. Id. at 341. That the “plaintiff was unable to procure a copy of the [allegedly infringing book was] insufficient to show the successful concealment necessary to toll the statute
of limitations.” Id. In more general terms , we said that “[o]nce [ a ] plaintiff is on inquiry that it has a potential claim, the statute can start to run,” even

3 As the Supreme Court explained in Petrella , “[u]ntil 1957, federal copyright law did not include a statute of limitations for civil suits,” and so federal courts “used analogous state statutes of limitations.” 572 U.S. at 669. In 1957, Congress added a t hree

year limitations period for civil claims, which read, “[n]o civil action shall be maintained under [the Act] unless the same is commenced within three years after the claim accrued.” See Act of Sept. 7, 1957, Pub. L. 85

– 313, 71 Stat. 633, 17 U.S.C. § 115(b) (1958 ed.). Essentially the same language was recodified in the Copyright Act of 1976: “No civil action shall be maintained under [the Act] unless it is commenced within three years after the claim accrued.” 17 U.S.C. § 507(b); see Petrella , 572 U. S. at 670 n.3 (“The Copyright Act was pervasively revised in 1976, but the three

- year look

- back statute of limitations has remained materially unchanged.”)

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9 if the plaintiff has not yet “obtain[ed] a thorough understanding of all the
facts.” Id. (citation omitted). Prather borrowed this principle from a decision of the Court of Claims, which explained that “[t]his standard is in line with the modern philosophy of pleading which has reduced the requirements of the petition and left for discovery and other pretrial procedures the opportunity to flesh out claims and to define more narrowly the disputed
facts and issues.” Id. (quoting Japanese War Notes Claimants Ass’n of Philippines, Inc. v. United States , 373 F.2d 356, 359 (Ct. Cl. 1967)). As Prather put it, “[t]he bells do not toll the limitations statute while one ferrets the
facts.” Id.
Thus, in Prather , we appear to have assumed that the statute of limitations would bar the plaintiff’s claim unless the fraudulent concealment doctrine applied. And since the plaintiff kn ew about the alleged infringement, he could not assert that the defendants had concealed it. So
Prather narrowly held that a plaintiff’s inability to obtain evidence of infringement does not equitably toll the limitations period under a fraudulent
conceal ment theory. The issue of whether the limitations period of the Copyright Act as amended in 1957 started running when the defendants published the book or when the plaintiff discovered the book was not clearly
raised or resolved.
In sum, Graper is the on ly precedent binding this court to apply the discovery rule with respect to the § 507(b) limitations period for copyright infringement claims.

C.
Hearst argues that the panel “need not . . . follow[]” this circuit’s discovery rule because cases like Grap er “cannot be reconciled” with Petrella
and Rotkiske

. But Petrella and Rotkiske did not “unequivocally overrule” Graper , either by holding that the limitations period in § 507(b) starts running Case: 22-20333 Document: 00516711690 Page: 9 Date Filed: 04/13/2023No. 22

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10 when infringement occurs or by “fundamentally chang[ing] the focus of the relevant analysis” with respect to the Copyright Act. Bonvillian , 19 F.4th at 792 (cleaned up). To the contrary, Petrella and Rotkiske leave open the possibility that in a later case, the Supreme Court might decide that the discovery rule do es apply to § 507(b).

1.

In Petrella , the Court decided under what circumstances a defendant can assert the equitable defense of laches

— an “unreasonable, prejudicial delay in commencing suit”

— against a copyright infringement claim that is brought within § 507(b)’s limitations period. 572 U.S. at 667. The Court held that although laches cannot preclude a timely claim for damages, in “extraordinary circumstances,” laches may bar equitable relief. Id. at 667

- 68. But the Court left for another day the question of whether discovery or occurrence of an infringing act triggers § 507(b).
Before reaching the question of whether a laches defense was available, the Court explained how the § 507(b) limitations period works. Id.

at 66 9

- 72

. The Court noted that “[a] claim ordinarily accrues when a plaintiff has a complete and present cause of action,” and then stated that “[a] copyright claim thus arises or accrues when an infringing act occurs.” Id. at 670 (cleaned up). However, in a corresponding footnote, t he Court clarified that “[a]lthough we have not passed on the question, nine Courts of Appeals have adopted, as an alternative to the incident of injury rule, a ‘discovery rule,’ which starts the limitations period when the plaintiff discovers, or with
due diligence should have discovered, the injury that forms the basis for the
claim.” Id. at 670 n.4 (cleaned up).
Although the Court appears to have assumed without deciding that the limitations period starts to run when the infringement occurs, that

assum ption was not necessary to the Court’s decision. The Court held that Case: 22-20333 Document: 00516711690 Page: 10 Date Filed: 04/13/2023No. 22

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11 laches may not be invoked as a bar to damages under the Copyright Act because § 507(b) “itself takes account of delay.” Id. at 677. Specifically,

u nder “the separate

- accrual rule,” “th e statute of limitations runs separately from each violation” of the Copyright Act, meaning that “each infringing act starts a new limitations period.” Id. at 671. Because “a successful plaintiff can gain retrospective relief only three years back from t he time of suit,” the plaintiff could not reach the defendant’s “returns on its investments ”
realized earlier than three

- years prior to the date of the suit. Id. at 677

. None of this analysis requires that the limitations period start running with the
in fringing act

— only that the plaintiff’s recovery be limited to a three

- year window “from the time of suit,” and that separate infringing acts trigger separate limitations periods. Id.
In rebutting the counterargument that laches should be treated like

equ itable tolling and read into every federal statute of limitations, the Court
said that unlike tolling, laches “originally served as a guide when no statute of limitations controlled the claim” and “can scarcely be described as a rule
for interpreting a sta tutory prescription.” Id. at 681

- 82. To illustrate the point, the Court noted that § 507(b) “makes the starting trigger an infringing act committed three years back from the commencement of suit, while
laches , as conceived by [the court of appeals] and a dvanced by [the respondent], makes the presumptive trigger the defendant’s initial infringing
act.” Id. at 682 (emphasis omitted). But the Court’s gloss on what condition triggers the limitations period was not necessary to the Court’s point that § 507( b) contained a limitations period, and so there was no need to use laches “as a guide.” Id. at 681. After all, regardless of whether the discovery or occurrence of infringement starts the clock, what mattered to the Court was that the “limitations period . . . coupled to the separate

- accrual rule . . . . allows a copyright owner to defer suit until she can estimate whether litigation is worth the candle.” Id. at 682

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12 The Court later confirmed that Petrella didn’t disturb the discovery
rule in SCA Hyg iene Products Aktiebolag v. First Quality Baby Products, LLC , 580 U.S. 328 (2017). There , the Court decided that laches could not be asserted as a defense against a timely claim for damages from patent infringement under the Patent Act, 35 U.S.C. § 286. SCA Hygiene , 580 U.S.

at 346. The infringer tried to distinguish Petrella on the basis that unlike § 507(b), § 286 was not a “true statute of limitations” because it “runs
backward from the time of suit.” Id. at 336 (citation omitted). The Court

r ejected this distinction, explaining that Petrella described § 507(b) as “a three year look

- back limitations period” that “allows plaintiffs to gain retrospective relief running only three years back from the date the complaint
was filed.” Id. at 336

- 37 ( cleaned up and emphasis omitted). Nor was the Court persuaded that § 286 of the Patent Act is different from § 507(b) because § 286 “turns only on when the infringer is sued, regardless of when the patentee learned of the infringement.” Id. at 337 (citat ion omitted). The
Court quoted Petrella that “a claim ordinarily accrues when a plaintiff has a complete and present cause of action,” and further explained that “[w]hile some claims are subject to a ‘discovery rule’ . . . that is not a universal feature
of statutes of limitations.” Id. (cleaned up). T he Court further recognized
that “in Petrella , we specifically noted that ‘we have not passed on the question’ whether the Copyright Act’s statute of limitations is governed by
such a rule.” Id. at 337

- 38 (citation omitted).
Hearst acknowledges that Petrella did not decide whether the statute of limitations in § 507(b) starts running when the infringing act occurs or is
discovered. So instead of arguing that Petrella unequivocally overruled Graper , Hearst contends that “the Court’s articulation of when claims generally accrue, and its explanation [of] how statutes of limitations generally work, leads to the conclusion that [the discovery rule] does not apply” to Case: 22-20333 Document: 00516711690 Page: 12 Date Filed: 04/13/2023No. 22

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13 § 507(b). 4 Petrella does not lead to that conclusion. But even if it did, under this circuit’s rule of orderliness, we would still be bound to Graper

. Petrella ’s general statements about statutes of limitation and the
separate

- accrual rule leave room for caselaw holding that the discovery rule applies to § 507(b). Petrella said that limitations periods “ generally begin[] to run at the point when the plaintiff can file suit and obtain relief , ” assumed that “[a] copyright claim . . . accrues when an infringing act occurs , ” and reasoned that “each infringing act starts a new limitations period” under the
separate

- accrual rule. Petrella , 572 U.S. at 670

- 71 (cleaned up)

. But the
Court did “not pass[]” on whether the § 507(b) limitations period is triggered by discov ery of infringement

. I d. at 670 n.4; see SCA Hygiene , 580
U.S. at 337

. Instead, the Court left open the possibility that at the time of § 507(b)’s enactment, a copyright infringement claim a ccrued like claims arising from “latent disease and medical malp ractice,” TRW Inc. v. Andrews , 534 U.S. 19, 27 (2001) , which are “unknown or unknowable until the injury manifests itself,” Rotella v. Wood , 528 U.S. 549, 556 (2000) (citation omitted) , and for which the Court has “recognized a prevailing discovery rule,” TRW Inc. , 534 U.S. at 2 7. However, even accepting as true that Petrella “leads to the conclusion that” the discovery rule does not apply to § 507(b), the rule of orderliness
still requires us to follow Graper

. As set forth above, Petrella ’s statements suggesting that a copyright infringement claim accrues when the

4 Graper issued on June 24, 2014, about a month after Petrella

. See 572 U.S. 663 (decided May 19, 2014). However, as Hearst points out, just because Graper came out after Petrella doesn’t mean that Graper actually decided that the discovery rule survives Petrella

. See Gahagan v. USCIS , 911 F.3d 298, 302 (5th Cir. 2018). Graper did not mention Petrel la or address whether Petrella foreclosed the discovery rule , and no party appears to have brought Petrella to the court’s attention

. The issue of whether Petrella unequivocally overruled the discovery rule is accordingly before us as a matter of first im pression. Case: 22-20333 Document: 00516711690 Page: 13 Date Filed: 04/13/2023No. 22

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14 infringeme nt occurs are dicta, which do not bind us and are therefore at most “merely illuminating” with respect to this case. Tech

. Automation , 673 F.3d

at 405.

This court’s decision in Energy Intelligence Group, Inc. v. Kayne Anderson Capital Advisors, L

. P

. doe s not compel a different result. 948 F.3d 261 (5th Cir. 2020). There, we did not interpret Petrella as unequivocally overruling Graper , and we certainly did not bind future courts to such an interpretation. Rather, we decided that “mitigation is not an absolute defense to statutory damages under the Copyright Act.” Id. at 275. Before reaching that holding, w e explained that the viability of a mitigation defense turned on “whether the Copyright Act contains a statutory purpose” contrary to “the common

- l aw principle of mitigation ,” and we summarized
Petrella because “statutory purpose and the nature of the common

- law defense asserted . . . were central to [that case].” Id. at 270

- 71. I n our recap of Petrella , we said in a footnote that “[t]he rule of separate accrual, as
discussed in Petrella , takes as given that a copyright claim accrues when an infringing act occurs (the ‘incident of injury’ rule) and treats each successive infringing act as a new, independent wrong with its own limitations period.”
Id. at 271 n.5. T his footnote simply reiterates that Petrella assumed without deciding that a copyright infringement claim accrues when the infringement

occurs. It does not say that Graper is bad law

. Indeed, even if we are bound
to this claim that Petrella assumed that the “incident of injury” rule applies,
as discussed above , it might still be that the limitations period in § 507(b) starts running at the discovery of each infringing act.
In any event, the Energy Intelligence footnote is dict a to which the rule of orderliness does not apply. Netsphere, Inc. v. Baron , 799 F.3d 327, 333 (5th Cir. 2015) (citation omitted). Our decision that mitigation is not an absolute defense to statutory damages was based on the insight that statutory damage s under the Copyright Act “ are not solely intended to approximate actual Case: 22-20333 Document: 00516711690 Page: 14 Date Filed: 04/13/2023No. 22

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15 damages,” “serve purposes that include deterrence,” and “are therefore distinct from the type of damages that are typically calculated according to rules of mitigation.” Energy Intel . Grp. , 948 F.3d at 274. Although we rejected the defendant’s argument that the “harm . . . for purposes of its mitigation defense, was [its] continuing infringing conduct” because

“ Petrella unequivocally approved the rule of separate accrual and held tha t every act of copyright infringement is an independently actionable legal wrong,” id. , this part of our analysis depended solely on the fact that the
separate

- accrual rule creates a separate limitations period for each infringing

act

— not that the limitati ons period starts running when each separate infringement occurs. T he first part of the footnote about the separate

- accrual
rule

— “[t]he rule of separate accrual, as discussed in Petrella , takes as given that a copyright claim accrues when an infringing act occurs (the ‘incident of injury’ rule),” id. at 271 n.5

— “could have been deleted without seriously impairing the analytical foundations of the holding and being peripheral, may
not have received the full and careful consideration of the court that uttered it,” Netsphere, Inc. , 799 F.3d at 333 (citation omitted). We know that this is

true because if we “turn the questioned proposition around . . . to assert whatever alternative propositi on the court rejected in its favor”

— namely, that the separate limitations periods start running when the infringing acts
are discovered

— “the insertion of the rejected proposition. . . would not require a change in either the court ’ s judgment or the reasoni ng that supports
it.” Pierre N. Lev a l, Judging Under the Constitution: Dicta About Dicta , 81
**N.Y.U. L. Rev.** 1249, 1257 (2006).

2. Next, Hearst argues that Rotkiske “fundamentally changes the focus of the relevant analysis” by holding that “the discovery rule does not generally apply to statutes of limitations absent clear language in the statute Case: 22-20333 Document: 00516711690 Page: 15 Date Filed: 04/13/2023No. 22

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16 to that effect.” But Hearst misconstrues Rotkiske and overstates the extent
to which Rotkiske governs this court’s interpretation of the Copyright Act.

Rotkiske held that the statute of limitations in the Fair Debt Collection Practices Act (FDCPA) , 15 U.S.C. § 1692k(d), “begins to run on the date on which the alleged FDCPA violation occurs, not the date on which the
violation is discovered.” 140 S. Ct. at 358. To start, the Court considered whether § 1692k applied “a general discovery rule as a principle of statutory interpretation.” Id. at 360. The Court explained that “we begin by analyzing the statutory language,” and “[i]f the words of a statute are unambigu ous, this first step of the interpretive inquiry is our last.” Id. The limitations provision in the FDCPA says that an action may be brought “within one year from the date on which the violation occurs.” 15 U.S.C. § 1692k(d). The
Court held that this “ language unambiguously sets the date of the [FDCPA]
violation as the event that starts the one

- year limitations period.” Rotkiske , 140 S. Ct. at 360.
Given § 1692k(d)’s unambiguous text, the Court refused “to read in a provision stating that [the] limita tions period begins to run on the date an alleged FDCPA violation is discovered.” Id. The Court called such an attempt to add a discovery rule into a statute where Congress did not include one a “bad wine of recent vintage.” Id. (quoting TRW Inc. , 534 U .S. at 37 (Scalia, J., concurring in judgment)). Although “at the time Congress enacted the FDCPA, many statutes included provisions that . . . would begin the running of a limitations upon the discovery of a violation, injury, or some other event,” Congr ess did not say as much in § 1692k. Id. at 361 (emphasis omitted) . Thus, the Court declined “to second

- guess Congress’ decision to include a ‘violation occurs’ provision, rather than a discovery provision, in § 1692k(d).” Id. Case: 22-20333 Document: 00516711690 Page: 16 Date Filed: 04/13/2023No. 22

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17 The Court also noted that “ [i]f there are two plausible constructions of a statute of limitations, we generally adopt the construction that starts the time limit running when the cause of action accrues because Congress legislates against the standard rule that the limitations perio d commences when the plaintiff has a complete and present cause of action.” Id. at 360 (internal quotation marks and alteration omitted) (quoting Graham Cnty. Soil
& Water Conservation Dist. v. United States ex rel. Wilson , 545 U.S. 409, 418

- 19 (2005)). But because the Court decided that § 1692k was unambiguous, it
had no occasion in Rotkiske to apply this general rule.
Therefore, contrary to Hearst’s position, Rotkiske did not introduce a clear statement rule that a limitations period runs from the occurrence of the injury unless the statute expressly says that the discovery rule applies.
Rather , Rotkiske identified how to resolve the limitations question in two categor ies of cases. First, in cases where a limitations period is unambiguous with respect to what conditions starts the clock running, the statutory language controls. Rotkiske , 140 S. Ct. at 360. Second, for cases where “there are two plausible construction s,” the court “generally adopt[s] the construction that starts the time limit running when the cause of action
accrues.” Id. (cleaned up).

Bu t Rotkiske did not describe how to analyze every statute of
limitations in the U.S. Code

. Because the limitatio ns period at issue in
Rotkiske “unambiguously set [] the date of the violation as the event that starts the . . . limitations period , ” i d. , t he Court did not need to decide whether or under what circumstances an ambiguous limitations period could be

constr ued to apply the discovery rule. Indeed, with respect to ambiguous
statutes, while Rotkiske said that courts “ generally adopt the construction that starts the time limit running when the cause of action accrues,” id. (emphasis added and alteration omitted), it did not survey when courts might permissibly adopt an alternative construction. For example, s tatutory Case: 22-20333 Document: 00516711690 Page: 17 Date Filed: 04/13/2023No. 22

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18 language describing the limitations period might be ambiguous, yet the only plausible construction might be that the discovery rule applies. Rotkiske did
not address this scenario.

While Rotkiske refused to “enlarge[]” the FDCPA by “read[ing] in” a discovery rule provision and noted that “[a]textual judicial supplementation” of a discovery rule was “particularly inappr opriate”
because “Congress has enacted statutes that expressly include” discovery rule language, id. at 360

- 61, the Court said so in the context of an unambiguous statute that provided a limitations period “within one year
from the date on which the violat ion occurs ,” 15 U.S.C. § 1692k(d) (emphasis added). The Court did not hold that any ambiguity forecloses application of a discovery rule. And the Court did not hold that the only way that Congress can signal a discovery rule is by using the word “discove r.”
Accordingly, the issues decided in Rotkiske and Graper are distinct. See Gahagan v. USCIS , 911 F.3d 298, 30 2

- 0 3 (5th Cir. 2018) (In determining whether “a Supreme Court decision involving one statute implicitly overrules our precedent involving anothe r statute,” “[t]he overriding consideration is the similarity of the issues decided.”). Rotkiske declined to read a discovery rule into an unambiguous statute that said that “the date on which the violation occurs” is the date that the limitations period starts. Graper interpreted the Copyright Act’s limitations period, which provides that a civil action must be “commenced within three years after the claim accrued,” 17 U.S.C. § 507(b), as running from the date that infringement is
discovered. Unlike the FDCPA, the Copyright Act does not explicitly pin the limitations period to the date that the “violation occurred.” Compare 17 U.S.C. § 507(b) with 15 U.S.C. § 1692k(d).
Further, even assuming, as Hearst argues, that Rotkiske “rejects

any

. . . presumption” that “all federal statutes of limitations, regardless of Case: 22-20333 Document: 00516711690 Page: 18 Date Filed: 04/13/2023No. 22

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19 context, incorporate a general discovery rule unless Congress has expressly legislated otherwise,” Rotkiske did not fundamentally change the focus of the analysis in Graper

. Graper did not explain why it was adopting the discovery rule, let alone announce that it was applying such a presumption. 5 Graper
could have concluded that at the time of § 507(b)’s adoption, a copyright infringement claim accrued in the same manner as other clai ms that the Supreme Court has decided are controlled by the discovery rule . See TRW
Inc. , 534 U.S. at 2 7

- 28 ; Rotella , 528 U.S. at 556. Had Graper reached that conclusion, the court might have further concluded that the only plausible
construction of the phrase “claim accrued” in § 507(b) is that the discovery rule applies. Graper and Rotkiske can be reconciled along those lines.
Finally, Hearst argues that In re Bonvillian Marine Service, Inc. “maps perfectly on this case.” But Bonvillian is an awkward fit.

In Bonvillian , the district court dismissed an untimely action under the Limitation of Liability Act of 1851 for lack of subject

- matter jurisdiction in
accordance with In re Eckstein Marine Serv ice L.L.C. , 672 F.3d 310, 315

- 16 (5th Cir. 2012), which h eld that the time bar in the Limitation Act was jurisdictional. Bonvillian , 19 F.4th at 789

- 90. In holding that the time bar was jurisdictional, Eckstein asserted that “[w]hile many statutory filing deadlines are not jurisdictional, we have long recogniz ed that some are” and the Limitation Act’s “requirement is one of these.” Eckstein , 672 F.3d at 315. To support that proposition, Eckstein cited to, among other cases, our
decision in In re FEMA Trailer Formaldehyde Prod ucts Liab ility Litig ation , 646

5 Hearst argues that Graper “relied on two pre

- Rotkiske and Petrella cases that employed” this presumption. However, as we explained, Graper merely cited those cases for the proposition that “[o]ther circuits agree” that the discovery rule applies, not to incorporate the reasoning of those out

- of

- circuit cases. Graper , 756 F.3d at 393 n.5. Case: 22-20333 Document: 00516711690 Page: 19 Date Filed: 04/13/2023No. 22

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20 F.3d 185, 189 (5th Cir. 2011), which held that the FTCA’s statute of limitations was jurisdictional. Eckstein , 672 F.3d at 315 n.12.
On appeal, we concluded that the rule of orderliness did not bind us

to Eckstein . After we had decided Eckstein , in United States v. Kwai Fun Wong , the Supreme Court held that procedural rules like time bars are jurisdictional “only if Congress has clearly stated as much.” 575 U.S. 402, 409 (2015). And Wong had “directly abrogated” FEMA Trailer , which was “a logical linchpin” of Eckstein

. Bonvillian , 19 F.4th at 791. So we held that Wong “fundamentally change[d] the focus of the relevant analysis,” id. at 792 (internal quotation marks omitted), because “the Eckstein panel largely
assumed

— by citation to a prior panel ’s unsupported assumption . . . and by analogy to this court’s since

- abrogated interpretation of the FTCA’s statute
of limitations

— that [the] action’s untimeliness deprives a district court of jurisdiction,” while Wong said “that the essential hallmark of a jurisdictional procedural rule is a clear congressional statement, which is nowhere to be
found in the Limitation Act.” Id. at 793.

Unlike in Bonvillian , here, intervening Supreme Court decisions have not unequivocally established a clear rule for deter mining when a statute of limitations is triggered by the discovery rule. Petrella and Rotkiske left room for exceptions, including an exception upon which our court might have
relied in Graper

— the nature of the copyright infringement injury. 6

6 Graper ’s reference to out

- of

- circuit cases using th e discovery rule is also different from Eckstein ’s citation to FEMA Trailer

. Eckstein cited FEMA Trailer for an example of a jurisdictional statutory filing deadline and said that the Limitation Act’s deadline was analogous. See 672 F.3d at 315 n.12. Gr aper cited out

- of

- circuit cases merely to show that other circuits had reached a similar conclusion as to § 507(b), not to adopt the reasoning of those cases. Case: 22-20333 Document: 00516711690 Page: 20 Date Filed: 04/13/2023No. 22

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21 This case is more like Jacobs v. National Drug Intelligence Center than
Bonvillian

. In Jacobs , the defendant appealed the district court’s award of
emotional

- distress damages to the plaintiff under the Privacy Act of 1974, 5 U.S.C. § 552a, arguing that the plainti ff was limited to out

- of

- pocket

expenses. See 548 F.3d at 377. In affirming the damages award, we adhered to an earlier decision of this court, Johnson v. National Drug Intelligence
Center , 700 F.2d 971 (5th Cir. 1983), which held that the Privacy Act’s damages remedy included emotional

- distress damages , id. at 986; see Jacobs , 548 F.3d at 377

- 79. To overcome our rule of orderliness, the appellant argued that “post

- Johnson , Supreme Court cases have construed other statutory waivers of sovereign immunity narrowly; and therefore, were Johnson to be

re

- decided today, our court’s analysis of what damages are recoverable under the Privacy Act might reach a different outcome.” Jacobs , 548 F.3d at 378

. We declined to address whether the outcome in Johnson would be different under a present

- day analysis because the fact that those intervening Supreme Court cases arguably changed the method for construing statutory waivers of sovereign immunity did not count as an “intervening change in law” that would permit us to overrule Johnson

. Id. “[I]n Jacobs , we specifically rejected the idea that later Supreme Court and other decisions that were not directly on point could alter the binding nature of our prior precedent.”
United States v. Traxler , 764 F.3d 486, 489 (5th Cir. 2014)

. Here, Rotkiske is

not “directly on point.” Id. It leave s room for a Copyright Act discovery rule grounded in the nature of the copyright infringement injury.

3.

Both circuits th at have considered whether Petrella and Rotkiske overturned their Copyright Act discovery rules have rejected the argument and stuck with their precedents. Case: 22-20333 Document: 00516711690 Page: 21 Date Filed: 04/13/2023No. 22

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22 First, in Sohm v. Scholastic Inc. , the Second Circuit “decline[d] to alter . . . [c]ircuit[] precede nt mandating use of the discovery rule” despite Petrella
and Rotkiske

. 959 F.3d 39, 50 (2d Cir. 2020). In the Second Circuit, “a published opinion of a prior panel . . . is binding precedent . . . unless and until its rationale is overruled, implicitly o r expressly, by the Supreme Court or [the Second Circuit] en banc .” Id. (cleaned up). The Second Circuit emphasized that “ Petrella specifically noted that it was not passing on the question of the discovery rule” and that SCA Hygiene “reaffirmed that

pos ition.” Id. Thus, t he Second Circuit concluded that “while some language in Petrella is perhaps consistent with the [rule that the clock starts running when the infringement occurs], in light of the Supreme Court ’ s direct and repeated representations that it has not opined on the propriety of [these] rules, it would contravene settled pri nciples of stare decisis for this Court to depart from its prior holding . . . on the basis of Petrella .” Id.
Rotkiske did “not persuade [ the Second Circuit ] to depart from this holding,”
either. Id. at 50 n.2. Because “ Rotskiske ’s holding . . . was ba sed on the Court’s interpretation of the FDCPA’s text,” not “the Copyright Act’s statute of limitations,” the Second Circuit decided that “ Rotkiske is inapposite here.” 7 Id.
Second, in Starz Entertainment, LLC v. MGM Domestic Television Distribution, LL C , the Ninth Circuit affirmed that Petrella did not change its discovery rule. See 39 F.4th 1236, 1246 (9th Cir. 2022). The Ninth Circuit
read Petrella as “acknowledg[ing] that the ‘incident of injury’ rule it

7 Although Sohm adhered to the Second Circuit’s discovery rule precedents, following Petrella , So hm also held that “a plaintiff’s recovery is limited to damages incurred during the three years prior to filing suit.” 959 F.3d at 52. Hearst does not argue that this court should adopt a similar interpretation of the Copyright Act, and because the parti es have stipulated to the amount of damages to which Martinelli is entitled, this case does not present the issue of whether we should adopt the Sohm rule. Case: 22-20333 Document: 00516711690 Page: 22 Date Filed: 04/13/2023No. 22

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23 described in the main text of the case is no t the only accrual rule that federal courts apply in copyright infringement cases” and saying “nothing else about the discovery rule’s continued viability.” Id. at 1242 ( cleaned up )

. Thus, “ [w] ere we to hold” that the discovery rule does not apply to § 5 07(b), “we would be the only court of appeals to do so after [ Petrella and
Rotkiske ].” Gahagan , 911 F.3d at 304. “We are always chary to create a circuit split, including when applying the rule of orderliness,” and we decline
to do so in this case. Id. (cleaned up).

III.

For those reasons , the Supreme Court’s decisions in Petrella and
Rotkiske did not unequivocally overrule Graper

. And u nder Graper , Martinelli’s copyright infringement claims were timely because he brought them within three years of discovering Hearst’s infringements. Accordingly, the judgment of the district court is AFFIRM ED. Case: 22-20333 Document: 00516711690 Page: 23 Date Filed: 04/13/2023