Oral Argument Legal Case Summary

Oral Audio Transcript(Beta version)

. And then there's some judicial flexibility on timeliness issues. There's no question that non-timeliness doctrines can cut claims off within the limitations period, but not the timeliness doctrine of latches. Should we see anything in the particular way this provision is worded? It says, no civil action shall be maintained under the provisions of this title unless it is commenced within three years after the claim accrued. It doesn't say any civil action may be maintained if it is commenced within three years after the claim occurred. Yes, Your Honor. That's what it says. It says you can't do it unless it's within three years, but it doesn't say that if it's within three years, you're home free. Yes, Your Honor. That's why I said it's not strictly a textual argument. It's about the domain of latches and the congressional understanding of limitations periods. That's what how this Court read them in the lead better case, if I might quote, a freestanding violation may always be charged within its own charging period, regardless of its connection to other violations. We repeated the same point more recently in Morgan. Quote, the existence of past acts and the employee's pyrrhenology, their occurrence, dhattatatat, does not bar employees from filing charges about related discrete acts, so long as the acts are independently discriminatory and charges addressing those acts are themselves timely filed. This Court's understanding in Morgan and in lead better was the period is to remain open and Timeliness doctrines are not to cut them short because those doctrines such as latches are where there isn't a binding congressional statute of limitations. Why, by the way, I mean, I guess the ones that increase the statute of limitations do they apply to? It doesn't say anything about that. The Timeliness doctrines of tolling and the discovery rule are distinguishable. This Court understands that when Congress tolling and discovery rules developed in order to interpret limitations periods, you cannot have a tolling or discovery rule without a limitations period to interpret. So this Court has said it's an accoutrements, it's intertwined with interpreting the word accrues for discovery rule or interpreting three years. Do you account the period of infancy? Do you account Saturdays or Sundays? It interprets a special material. I just take exactly your words and I fill in instead of tolling latches. So tolling has always been used. Yeah, yeah, yeah, all right, but I mean now what you're talking about is custom. You're not talking about language. Right. Because the language sounds to me like the same. And so then I'm obviously going to ask you, if the Court House burns down or fraudulent concealment or, you know, there are dozens of not dozens, but there are quite a few such doctrines. And why would we apply those and not apply the shortening ones, too? Well, first briefly, respondents concede there are no words in the sec that even give a tolling or a latches. But second, the State of the Law in 1957 and to this day is that tolling and discovery rules were long background periods for interpreting limitations rules. Latches has never been this Court in the Court. They originated inequity just as latches did

. The tolling rules originated in equity. They were brought into law. What troubles me about this case is this. Did the adoption of the new rules of federal procedure disable courts from bringing over anything else from equity into law? Tolling used to exist. It was brought over into law before the new rules of civil procedure. And therefore, you would not be altering any substantive right to continue to apply that tolling rule. Your argument here is that to apply latches is to alter a substantive right. And therefore, under the rules enabling act is not allowable. My question is this. Do you think that the rules enabling act prevented courts from doing what they had in the past? That is not using the act as the means of saying everything that was inequity is now in law. But rather sitting back and thinking, you know, here is another part of equity that should be brought over into law. Not because the act says so, but because we think it ought to be just as we thought 50 years ago, the tolling provision should be brought over into law. Have courts been disabled from doing that by reason of the act? Yes. Not only the words of Section 2072B that may not enlarge a bridge or modify any substantive right, but this courts holding in group of mexico know recognized that the historical limits on equitable remedies are limited to where they were at the times of the But it says the rules shall not alter or amend any substantive right. And what I am saying is it isn't the rules that do it. It is just we have made the independent justification that this ancient rule which was applied in equity ought to be implied in law as well. I would point to this courts having repeatedly rejected that extension. In Mac and then Russell and Holmberg and Onida and Merck just four years ago, this court has repeatedly said, laches cannot shorten these statutes' limitations. It is not applicable. Especially if it is a good choice. Could you, do you have to accept Justice Scalia's premise that the court in all areas is deprived of that right? Can you concentrate on your arguments why in this particular act, even if we had the option we shouldn't exercise? Yes, Your Honor. I think it is very salient that this is the Copyright Act, an act with detailed statutory safeguards against financial and evidentiary prejudice. Moreover, the Copyright is a property right, registered with the government with a clear registry that wants clear, simple, predictable, easy to apply rules as the policy of the 76 Copyright Act. And this courts' case law in the trademark context from the late 19th century says, when we are dealing with a property right that extends into the future, injunctive relief has to remain available to vindicate that property right. Unless there is something that rises to the level of a distinct defense, an abandonment or an estoppel. But the prosecutor, this is my property. And I sort of disagree with you fundamentally, because I don't know that your entitled to injunctive relief, but you might be entitled to a compulsory license. And by that, I mean, you have, this is the government's position, and maybe I'm arguing for it, the government says you might be entitled to payment for the use of your Copyright because it belongs to you and there shouldn't be some adverse possession right that the other side gets. But in terms of injunctive relief given their reliance on your failure to act for 18 years, they shouldn't be put out of business until they can't continue in their business. And so that's the kind of policy I'm talking about, which is break down the remedies and tell me I'm more moved by the fact that someone could take over your Copyright than I am by your injunctive relief argument

. Yes, Your Honor. You're correct, but the Copyright Act has provisions that forbid adverse possession that require transfers to be in writing, and so the right itself can't be defeated. So I agree with your premise. Now, as to how that bears on injunctive relief, we do not take the position that an injunction must automatically issue. This Court in eBay said very clearly it must, but one must look at the traditional test for equitable relief. And one of the factors in that test is prejudice to the defendant, but it must be balanced against prejudice to the plaintiff and the public interest. And that is foreclosed if one uses latches as a threshold bar, is foreclosed if one uses as this thing. Why? It's being titled to money for their infringement. Three years. You only go back three years, but if they continue to infringe in the future, presumably you can get an order giving you damages for that. We certainly agree that we're entitled to damages going forward, but we don't agree that that's exclusive because I'd point to the Chief Justice's concurrence in the eBay case. A Copyright is a property right. It comes with the right to exclude presumptively. That right cannot necessarily be fully enforced in all circumstances, but presumptively, it all terming on the table to enforce with injunctive relief. Now, you are correct. Respondents have entered into the commercial agreements for the arrangements for the next two years. It would be reasonable for a court saving an equity to say, let's balance the hardships. The hardships between now and 2015 might look different from the hardships in 2015 until the middle of the 21st century. We might tailor the duration and the scope of injunctive relief to say some damages, some royalties for a few years, but that's not a reason to defeat her right to exclude for the next four decades. Kagan-Mr. Babies, I would have thought that there's something in the copyright context that cuts against you, and that's that because of the separate accrual role in the feature of these rolling statutes of limitations combined with very, very lengthy copyright terms, that essentially a plaintiff can not bring suit for years, decades, and time the suit in order to maximize her own gain. That strikes me as something that's, we don't usually see in statute of limitations cases. I mean, we don't have very many cases where courts have applied latches as against a statute of limitations, but that's because you can't think of many instances in which it would be considered unfair to take the entire statute of limitations to bring a suit. But in this context, you look at something that seems very different. A plaintiff can wait 20 years given the way the separate accrual role works. Kagan-Mr. Babies, I think your consideration is cut in favor of our position. Whether our client brings suit now or 20 years from now, she gets three and only three years damages. The evidence in this case is that creative works are worth the most right after their release. And so the value of the claim goes down

. Respondents get to keep the first 17 years of profits if she waits. So she has every incentive as the Amicus briefs indicate to file suit early. And indeed, courts can use adverse inferences against plaintiffs who delay, draw inferences or missing witness instructions from their delay. But let me point out that there are plenty of situations in which there is a delay in suit. Take Bay Area laundry. Take a standard 30-year mortgage. The mortgage who waits until your 20 doesn't get to claim 20 years worth of payments. But there's nothing that debars that mortgage from claiming payments for your 17 to 20. It would radically upend the law to say that. And to come back to your point that we don't see latches in these cases, that again cuts our direction. This is not- The mortgage does not invest substantial amounts of money the way MGM did here. On the assumption that since suit hasn't been brought for 20 years, there's no valid claim. I mean, that's the difference in that situation. You're talking about inducing or causing at least people who proceed in good faith on the assumption that 20 years have gone by. Nobody- Nobody is questioned or doing it. They invest substantial amounts of money. And then when that money starts to pay off, you file suit and you get three years worth of their profits. Under the Copyright Act, they are entitled to deduct all the expenses that are attributable to earning the profits from infringement. So, pant plaintiffs don't get a dime until respondents recoup those expenses. Moreover, one who has noticed of a registered copyright in the face of protest has no legitimate good faith expectation and continue to infringe. I've filed a Declaratory Judgment Act, Engaged in Settlement Negotiations or in Fringe at your peril. I'd like to reserve the balance of my time for a bottle. Thank you, Council. Mr. Hars. Mr. Chief Justice, and may it please the Court. The only question before the Court is whether the courts below were right to bar the suit entirely on Latch's ground, and on that question we agree entirely with Petitioner that the suit should not have been barred at the outset. But it is the government's view that Latches is available in extraordinary cases to bar copyright infringement claims brought within the statute of limitations for two reasons. First of all, Latches, like equitable tolling and other equitable principles, principles, was a background principle that Congress acted against when it enacted the statute of limitations and it said nothing to bar it

. We've already had the discussion here at Court today about the tax and how it doesn't barred. But second, for the reasons that Justice Kagan gave, the copyright's situation is unique in that there is this separate accrual which allows a person to sue many years after the infringing conduct started so that it makes sense to at least be able to consider Latches. Now, our view on damages as well as injunctive relief, I thought your brief said injunctive relief along damages. Right. We would distinguish between equitable relief and legal relief, and that's because that distinction was well established in the courts of equity and in the courts of law and post-merger at the time this Court enacted in 1957. We don't make that distinction with respect to equitable tolling. Why would we make it here? Well, because the history is different. The history that this Court recognized in cases like MAC, for example, 1935 case, where that was a legal claim, the Court said Latches within a term of the statute of limitations is no defense at law, and the Court has continued to pick up that language in case after case. There are numerous cases cited in the brief. Why can't we change our mind? Why can't we change our mind? Because this is a statutory claim and a statute of limitations that Congress put in place. And the question is, what is the background rule against which Congress was acting? Congress could change the background rule, but because this is a statutory action, it's for Congress to do it as opposed to the Court. And you say that none of the other instances in which we brought into law equitable doctrines, none of those were applied with respect to a prior enacted Federal statute. Is that your position? No. I have to look it up. Right. What I'm saying is specific to the Latches defense, and what I'm saying there is that there is a long history that Latches did not apply at law, and that this Court has continued to recognize that in the law. There was a long history that tolling didn't apply at law, and then we changed our mind. Right. But I'm saying that you're saying we never changed our mind where there was a statute of limitations. I don't believe that. I'm saying that in the Latches context, we are not aware of any instances in which this Court has used Latches to bar a claim at law. That's not surprising because to show Latches, you have to show unreasonable delay plus reliance. So normally it won't be unreasonable within a limitation period, but this is a unique statute. The uniqueness is not in the words, but in the facts. And therefore, the uniqueness is that it's rolling. And as long as you have a movie that's going to make money over 30 years, in year 33, they bring an action against something that didn't happen until year 30. So when the government comes in and says, oh, we'll just allow it as a defense to law, but not to injunction, law here has the same effect as an injunction. If you just leave it up to the legal part, it can bring whenever they want, as long as the movie is still making money, and therefore it has exactly the same effect to let them, you say, oh, you can't recover, I mean, you can recover under law, I just can't have an injunction. Who in their right mind would go ahead and make this year after year if the huge amount of money is going to be paid to this copyright owner who delayed for 30 years and didn't even seem to own it? Well, two responses to that. First, as a general matter, we think it makes sense for the Latches defense to apply in fashioning equitable relief because that is a place where judges are exercising discretion

. I understand the words. My specific question is in the copyright area, as here. Once you have given them the right to apply Latches to an injunction, you have given them precisely nothing because exactly the same thing will happen to them once you bring 15 legal actions as if you gave them the injunction. And if there is a difference there, I haven't been able to think of it yet. So I don't really understand the government's position in terms of the practice. Okay. In terms of the practical offense, the Stat-the Copyright Act Statute specifies the particular remedies that are available, and it's fairly clearly distinguished between legal and equitable remedies. The legal remedies are actual or statutory damages, and those are limited to the past three years. And then the equitable remedies are the profits of the defendant, the essentially unjust enrichment of the defendant, and then as you mentioned, Justice Breyer, the injunction situation. Now, we are not saying that if a plaintiff has established copyright infringement, that it's an all or nothing on injunctions, this Court recognized in eBay. You still haven't answered my question. We're trying to hums to the same thing. You're giving me legal arguments. You may be right in that. I'll look into that. But I'm saying in practice, no one in his right mind could go and continue to produce this movie when every penny is going to have to go to the copyright owner, not every penny of the day spent, but every penny of profit. And who's going to do it? Because you see every three years they face a lawsuit. Well, that's what I'm trying to say is that I don't think that that would be the case if infringement were shown. This Court, for example, recognized in the New York v. Tassini case that in fashioning injunctive relief, it's not just that you give an injunction or you don't give an injunction. It could be the case that in a situation like this one, for example, the Court could say, I will allow the defendant to continue with these contracts that it has entered into to continue using this film as a derivative work, but I will pay a reasonable royalty or I will put forth call for a reasonable royalty to the plaintiff. So there is some splitting of the difference available to the Court in fashioning equitable remedies. So I don't think the Court is that equitable remedy overruled the statement that you're entitled to sue for all the profits within that three-year period. Are you saying the injunction can in effect say you don't have to pay? Well, these are two different remedies. There's the profits of- I understand that, but does the Second eliminate the First? If it doesn't eliminate the First Justice, Breyer's point is absolutely correct. I think that both are susceptible to the Court's equitable consideration. The profits, the way that that is addressed in the Copyright Act, is that it is the profits of the defendant and you subtract out what the defendant contributed. Well, then you say both are subject to equitable consideration. We were told by the petitioner that the equitable rule of latches simply can't apply. I was going to ask, a stopper applies

. Why isn't latches just the first cousin of the stopper? A stopper is an affirmative misrepresentation. Why isn't latches here almost a misrepresentation? And I don't understand the difference between latches and a stopper in this. But a stopper was an equitable remedy that's been taken into the law. Right. They are related, but different. Latches involves sitting on your rights to the detriment of the defendant, whereas equitable a stopper involves affirmative thing that- But suppose sitting on your rights amounted really to an affirmative representation. It succinctly very close enough so that I'm not sure that we should distinguish between latches and a stopper as being so that the former is unavailable at all. Well, you're right that latches can- is a cousin of equitable a stopper and that it's right that equitable a stopper could bar the claim entirely. The reason that we are distinguishing in between law and equity are two reasons. First of all, there is a very long history that latches is unique to the courts of equity. And this court has recognized it, recognized in a MAC, it recognized in the United case, it recognized in a MAC, it was in the Pomeroy treatis, that this was a classic division that was only in equity. And this court has continued to recognize it. But the second reason is that it makes sense to- to look to latches principles in fashion equitable relief in this context as opposed to the legal relief, because under the Copyright Act, when a person shows a plaintiff's shows infringement, that person is entitled to actual or statutory damages in a certain amount. And that is a mechanical calculation that we expect juries to make. And so I have to summarize this. Before you sit down, this one puzzle I'd like you to address for us. And that is- but your position is damages within the three years, okay, in junction, you can adjust for the latches. In the patent area, also intellectual property, the Federal Circuit has said that latches may bar as it goes. It's just the reverse. Latches may bar monetary relief, but not in junct of relief. What explains the difference between in the patent area, no monetary relief, but yes in junct of relief, in your position in the Copyright area, monetary relief, but no injunction or a modified injunction? You're right that there is that difference. The patent deck is different in several respects. First of all, in terms of the time period, it doesn't have a statute of limitations in which- after which a claim is barred, it says that you can only recover damages for a certain period of time. There's actually a shorter period of limitation- or a shorter period of protection in the patent deck, and you have the patent deck time period that was enacted well before the Copyright period here. So we think that the patent context is different, but I take your point that the analysis that the Federal Circuit underwent is not the same type of analysis that we are undertaking now, ours is based on the background principle at which Congress acted as opposed to that analysis, which was more on policy grounds. Thank you, counsel. Thank you. Mr. Perry? Mr. Chief Justice, to me, please the Court

. The government agrees with us that the 1957 amendment did not abrogate the Lachee's doctrine, since that's the only question presented we submit that the Court should affirm. Now, the government has gone at great length about this law equity distinction. The Copyright Act of 1909 and Section 27 abolished the distinction between law and equity or copyright. Section 27 of the 1999 Act. The Law and Equity Act of 1915 abolished the same distinction for all civil actions. It says, in any action at law, all equitable defenses may be asserted. And if one looks in blacks, for example, a reactive source, not a predictive source, what is an equitable defense? It says, a defense formally available at equity, now available in all actions. And examples are, unclean hands, lachees, and a stopper. That's in the blacks law dictionary. And then this Court, after the rules enabling Act of 1934, which is different, by the way, in 2072 in the current statute, the 34 version, which is in the back of our brief, broke out law and equity, retained the Court's equitable powers, and authorized the Court to merge them. And in Rule 8, this Court, and the fact of that, this Court surveyed, counseled, how do you deal with the language in Homeburg, Mac, and Russell? You're on a line. And your after, I've looked, I've had not myself, but my law clerk, look at all of the cases, and they're absolutely right. That in every case we've applied, lachees, it's only where there's not been an underlying statute of limitations. And in every case in which there's an underlying statute of limitations, we have said, no lachees. Just to so to remember, let me answer that in two steps. The Morgan case involved a statute of limitations. The Court applied lachees or said lachees have available five times. And that's an action at law. That, that plaintiff brought a claim for compensatory and punitive damages. So that's the most recent version where all of those things are not true that the petitioner says. Also, the patterns. There's all's there. Sorry? They didn't apply lachees there. Your Honor, this Court said that lachees was available five times. But that's didn't support that. Meaning that they didn't grant. It wasn't raised, Your Honor. That point wasn't raised. This Court said, however, five times that where you have a rolling statute of limitations, lachees is a necessary protection for the defendant because the events may move so far away from the underlying facts, which is very true here. The Homeberg case is in many ways our best case, Justice Sotomayor

. Looks to look what Homeberg said. Homeberg was remembered disgust in the legislative history. Congress, somebody in Congress focused on it. It says first, when Congress leaves to the federal courts the formulation of remedial details, it can hardly expect them to break with historic principles of equity. And we know from the, both the House and the Senate report, this 1957 statute specifically said that the remedial details are up to the Court because we want the courts to continue to apply equitable considerations. So what are those equitable principles? This Court went on in Homeberg and said first, a suit in equity may fail, though not barred by the act of limitations. That's a pretty clear equitable principle. And of course, we win this case under that principle. And then the Court went on and articulated the Goose and Gander rule. That these are two sides of the same coin. That lachees and tolling go together. They travel together. They're not cousins, Justice Kennedy. They're fraternal twins. You don't get one without the other. And what the Court said is if want to do diligence by the plaintiff may make it unfair to pursue the defendant, laches, then also fraudulent conduct on the part of the defendant may make it unfair for the plaintiff to proceed. Fraudulent concealment. And then the Court said, and this is the critical point, cited Bailey versus Glover, which also had the Goose and Gander rule embedded in it. It said, this equitable doctrine is read into every federal statute of limitations. Not fraudulent concealment, but the twin nature of tolling plus laches. That every time the courts have the power to adjust the rights and obligations of the parties using their equitable powers, that happens on the front end and on the back end. My friend, Mr. Beavis, has to respond to that by saying tolling is available, discovery is available, waiver, abandonment, acquiescence, estoppel, and all of the other equitable doctrines, eight of which are listed in rule eight, that this Court has determined are available in all civil actions. But he says laches, which this Court also listed in rule eight, is not available in this civil action. That is a bizarre argument, Your Honor, and it has no support whatsoever. This Court confronted the same point. Excuse me. Bizarre seems to me a little strong. I mean, because I take it that Mr. Beavis is making a statutory argument

. I mean, he's saying not the language of the statute, but he's saying what was Congress thinking at the time? Congress was faced with all these precedents, essentially saying laches was not available. There are no cases out there, really, where laches does cut into a defined statute of limitations period. And then you have the feature that Congress knew that it was enacting these role in statute of limitations. You would have thought that it might have been foremost in their head, how are we going to prevent somebody from suing 30 years later? And they did nothing of the kind. They could very easily have made it clear that laches applied, or they could have set an outer limit, or they could have done a number of things, and they really didn't do any of them. So how are we to account for all that? Just as Kagan, the Congress cited Homeberg, which cites Patterson as the leading laches case and cites Russell as well, and Patterson dealt with this very point. Patterson, which did hold. The Congress cited what? I'm sorry. The legislature, the committee reports, cites the Homeberg case, not Congress cited. Thank you, Your Honor. Patterson case, however, squarely held in Justice Sotomayor of this goes to your question too, that a claim brought within the statute of limitations, a state statute borrowed for a federal claim, and this involved property, copyrights of property, this involved to Goldmine. And it's exactly analogous. What happened there is a plaintiff sat around how to part interest in the Goldmine, sat around and waited until these somebody else developed it enough to make a profit, and then rushed in and demanded a share. That is what Mr. Trella did in this case. She is demanding her share in the Goldmine after my clients spent years developing. Okay? What Congress is doing? It is true, however, that your why you take this out of the Court. That your, all of your investment in this is going to be offset against your profits, correct? That is not exactly clear, Your Honor. She sued in January of 2009 to pick up the profits back to January of 2006. The biggest investment was in 2005 for the 25th anniversary edition. We think she's going to go into court and say, I don't have to offset that because it's more than three years old, so that she wants only, she wants to skim the cream. She gets to look back and pick her three. You didn't own it. What's so bad about that? Because why should you, you've gotten a lot of profits in those 18 years, and in fact that one point when she did reach out to you, you told her, why sue? You're not going to get any money. We're not making any. Your Honor, on a net basis, the film still has never made a profit for one. Well, it's not that we're back to the point I made. And are you disagreeing with the government's position that the Court has equitable power in junk to relieve, to decide how much you pay forward? Two answers, Your Honor. First, Congress looked at that, and this is the reason that the statutory damages remedy is in the statute, to encourage rights assurders to early go into court and establish priority and availability of their rights if they have them, so that if there are no profits, if there are no damages, and of course this plaintiff has no damage. I don't understand. Why don't you just go in and get a declaratory judgment when you first heard from her? Because, Your Honor, we sent, she made a demand which we refused. We get lots of demands, and we refused them. And the last letter in the series was, you have no claim. Then she did nothing, actually she did more than nothing. She showed up at our guest at a party for the 25th anniversary, suggesting that she agreed with our interpretation of this. And then she didn't sue for years and years later. The events in question, the reason that the three year, the rolling three years is, as in a Title VII case, what's not being litigated in this case, if it were to go to trial, is the last three years, is 1961, 62, and 63. Whenever the film is released, the disputed events happened in the early 1960s, so that every year she waits for her own strategic reasons, she's getting farther away from those events. And this Court answered the same point in Patterson about the mine. Instead, of course, you could have portioned the profits to account for the investment, but you can never, you can never reimburse the developers for the risk of getting not. You can never reimburse them for the work they did while she was sitting on the sidelines. And therefore, at some point, the reliance interests are so great. And then we haven't talked yet about the evidentiary prejudice. These cases get so old, the witnesses have died. They are unavailable. And she is now trying to tell the Court, the Court's, the judicial system, that her father lied in a written representation, yet her mother, who could have testified to that? Councillor Kaston. She was going to get this copyright when her father died. Under no circumstance, even if she had sued in 92, could she have brought a claim in the 1960s? She didn't have a copyright then. Your property is not against the witness dying. Your complaint is about what Congress does, which is to give a person the right to keep a copyright or renew it, when the individual with whom you probably dealt with is dead. That's always going to be the case. Justice Sotomayor, she still has her copyright. She can enforce it against the world, and she still has a contractual right with MGM in which she will get participation rights pursuant to the contract. She wants to renegotiate that contract. That's what this case is about. She could have done that in 1991. She could have brought this lawsuit in 1991. We are not seeking to task her with her father's death or anything that happened before in 1991. After 1991, however, Mr. Lamada, he witnesses to the collaboration of the 1963 screenplay, has become unavailable to testify

. Why don't you just go in and get a declaratory judgment when you first heard from her? Because, Your Honor, we sent, she made a demand which we refused. We get lots of demands, and we refused them. And the last letter in the series was, you have no claim. Then she did nothing, actually she did more than nothing. She showed up at our guest at a party for the 25th anniversary, suggesting that she agreed with our interpretation of this. And then she didn't sue for years and years later. The events in question, the reason that the three year, the rolling three years is, as in a Title VII case, what's not being litigated in this case, if it were to go to trial, is the last three years, is 1961, 62, and 63. Whenever the film is released, the disputed events happened in the early 1960s, so that every year she waits for her own strategic reasons, she's getting farther away from those events. And this Court answered the same point in Patterson about the mine. Instead, of course, you could have portioned the profits to account for the investment, but you can never, you can never reimburse the developers for the risk of getting not. You can never reimburse them for the work they did while she was sitting on the sidelines. And therefore, at some point, the reliance interests are so great. And then we haven't talked yet about the evidentiary prejudice. These cases get so old, the witnesses have died. They are unavailable. And she is now trying to tell the Court, the Court's, the judicial system, that her father lied in a written representation, yet her mother, who could have testified to that? Councillor Kaston. She was going to get this copyright when her father died. Under no circumstance, even if she had sued in 92, could she have brought a claim in the 1960s? She didn't have a copyright then. Your property is not against the witness dying. Your complaint is about what Congress does, which is to give a person the right to keep a copyright or renew it, when the individual with whom you probably dealt with is dead. That's always going to be the case. Justice Sotomayor, she still has her copyright. She can enforce it against the world, and she still has a contractual right with MGM in which she will get participation rights pursuant to the contract. She wants to renegotiate that contract. That's what this case is about. She could have done that in 1991. She could have brought this lawsuit in 1991. We are not seeking to task her with her father's death or anything that happened before in 1991. After 1991, however, Mr. Lamada, he witnesses to the collaboration of the 1963 screenplay, has become unavailable to testify. Vicky Lamada, who could have established our defense that the screenplay reflects real life rather than imaginary events because she is a central character in that, has to weigh. And Mrs. Petrella, who, if you read, Paula Petrella's declaration, she says my mother was up late at night typing something in implying that it was the book, had she sued in 1991, we would have put her mother under oath and said, what were you typing? And she would have said the screenplay or something else. She would not have said the book, we believe, but we can't ask her that question because she waited long enough for all of the witnesses, not her father, all the other witnesses who have recipient knowledge to pass away. And Latches is a prejudice doctrine. It's not a timeless doctrine. It requires delay as a trigger, but it turns on prejudice. The ninth circuit here used the slanguage of presumption. It said, if any part of the alleged wrongful conduct occurred outside of the limitations period, the courts presume that the plaintiffs' claims are barred by Latches. And as you just said, Latches is, at least in part, a prejudice doctrine. Do you concede that that presumption is wrong? No, you're wrong. First, I think the spoke of a presumption and then didn't apply it, and certainly the district court didn't know that. Well, that's one, you know, one understanding of the opinion is, look, that's just a, this court, this court said, you agree with it. This court, Justice Kagan, and the Foster versus Mansfield case in 1892 said, my quote, after 10 years, quote, there is certainly a presumption of Latches, which is as incumbent on the plaintiff to rebut. Which is the same concept that the ninth circuit articulated, although we submit to not apply. And the federal circuit, in the Ockerman case, very carefully explained what this means. It's a federal rule of evidence 301 type presumption, sometimes called a bursting bubble presumption, which says that when the defendant raises this defense, it requires the plaintiff to come forward with the burden of production of an excuse or a rationale for the delay, but the burden of persuasion always rests on the defendant because it is an affirmative defense. And the Ockerman decision is very clear on this and to the extent that the ninth circuit spoke of presumptions, that's exactly what it meant. Because in no place was an evidentiary presumption applied against her, and in fact, of course, this was a summary judgment case, so the evidence was undisputed. The record was irrefutable as to the prejudice. Well, I guess partly that suggests a burden of persuasion, but partly it suggests just a kind of, our starting position is that if there was conduct outside the limitations period, it was prejudicial. And I guess I want to know why that would be. You Honor, I think there's a common sense concept that if you were within, if the claim were brought within the initial three-year period after the claim first occurred in 1991, you might say colloquially there's a presumption that Lachis doesn't apply. In fact, the sixth circuit said that in the Cherk case. Once you move farther and farther away from the initial act that starts the clock for Lachis purposes, which may not be the same event as for statute of limitations purposes, it's another one of the disconnects between these two doctrines. The farther one gets away, it is a reality of the world, as the government notes in its brief, that the evidentiary prejudice is likely to increase because documents get destroyed, witnesses lose their memory. Well, one can agree with that and not think that if a conduct happened three years and two days earlier, the burden of coming forward and the necessity to give a reason flips to the other side. I agree with that, Your Honor. And to be clear, the district court didn't apply any such presumption and didn't put any such burden on Mr. Trellis

. Vicky Lamada, who could have established our defense that the screenplay reflects real life rather than imaginary events because she is a central character in that, has to weigh. And Mrs. Petrella, who, if you read, Paula Petrella's declaration, she says my mother was up late at night typing something in implying that it was the book, had she sued in 1991, we would have put her mother under oath and said, what were you typing? And she would have said the screenplay or something else. She would not have said the book, we believe, but we can't ask her that question because she waited long enough for all of the witnesses, not her father, all the other witnesses who have recipient knowledge to pass away. And Latches is a prejudice doctrine. It's not a timeless doctrine. It requires delay as a trigger, but it turns on prejudice. The ninth circuit here used the slanguage of presumption. It said, if any part of the alleged wrongful conduct occurred outside of the limitations period, the courts presume that the plaintiffs' claims are barred by Latches. And as you just said, Latches is, at least in part, a prejudice doctrine. Do you concede that that presumption is wrong? No, you're wrong. First, I think the spoke of a presumption and then didn't apply it, and certainly the district court didn't know that. Well, that's one, you know, one understanding of the opinion is, look, that's just a, this court, this court said, you agree with it. This court, Justice Kagan, and the Foster versus Mansfield case in 1892 said, my quote, after 10 years, quote, there is certainly a presumption of Latches, which is as incumbent on the plaintiff to rebut. Which is the same concept that the ninth circuit articulated, although we submit to not apply. And the federal circuit, in the Ockerman case, very carefully explained what this means. It's a federal rule of evidence 301 type presumption, sometimes called a bursting bubble presumption, which says that when the defendant raises this defense, it requires the plaintiff to come forward with the burden of production of an excuse or a rationale for the delay, but the burden of persuasion always rests on the defendant because it is an affirmative defense. And the Ockerman decision is very clear on this and to the extent that the ninth circuit spoke of presumptions, that's exactly what it meant. Because in no place was an evidentiary presumption applied against her, and in fact, of course, this was a summary judgment case, so the evidence was undisputed. The record was irrefutable as to the prejudice. Well, I guess partly that suggests a burden of persuasion, but partly it suggests just a kind of, our starting position is that if there was conduct outside the limitations period, it was prejudicial. And I guess I want to know why that would be. You Honor, I think there's a common sense concept that if you were within, if the claim were brought within the initial three-year period after the claim first occurred in 1991, you might say colloquially there's a presumption that Lachis doesn't apply. In fact, the sixth circuit said that in the Cherk case. Once you move farther and farther away from the initial act that starts the clock for Lachis purposes, which may not be the same event as for statute of limitations purposes, it's another one of the disconnects between these two doctrines. The farther one gets away, it is a reality of the world, as the government notes in its brief, that the evidentiary prejudice is likely to increase because documents get destroyed, witnesses lose their memory. Well, one can agree with that and not think that if a conduct happened three years and two days earlier, the burden of coming forward and the necessity to give a reason flips to the other side. I agree with that, Your Honor. And to be clear, the district court didn't apply any such presumption and didn't put any such burden on Mr. Trellis. So the language in the Ninth Circuit of Opinion is irrelevant to a case was tried in the district court at the summer regurgiment stage, and certainly irrelevant to the district court's conclusion, which is reviewed, of course, for an abuse of discretion standard, you know, on the merits of the applicability of the Lachis doctrine, all of which, by the way, the petitioner never raised in the district court, in the Ninth Circuit, in the cert petition. You know, the presumption appears for the first time in the petitioner's reply brief. The government has brought it up, but it was not, you know, it's not probably preserved. We're not afraid of it, but it's, you know, this case came here on a very simple legal question, a binary question, is Lachis available? Of course, it answered that question, yes, the details of this particular case, you know, has been reviewed by two courts on an undisputed record, and we think they got it right. Mr. Perry, you said that the, the, the, that's the objective is to get the copyright holder to sue early on and not to wait. But if the, if no profits are being made in that early period, and it would cost the plaintiff more to mount the lawsuit, then the plaintiff could possibly receive endamages, why should the plaintiff who has a copyright that's going to run a long, long time sue if things stay the same? No, it will ever be bought. Why is it unreasonable for the plaintiff to see if the copyright is worth anything? Justice Ginsburg, that's why Congress put in the statutory damages and also an attorney's fee provision so that even if there are no profits, and many works of authorship never become profitable, there is an incentive, an economic incentive for the rights assurder to come forward to court and clarify those rights because these are valuable assets, even money-losing films, books, songs, and so forth are traded, are financed, are bought and sold, either individually as part of companies, and the entire economic system benefits from greater clarity and earlier resolution of rights, and I should point out in this respect, you know, my clients and the studios generally own mini, mini copyrights. We are on both sides of the V. This is not a plaintiff versus defendant. But I take it in the example that Justice Ginsburg came, gay, your position, tell me if I'm wrong, is of course the defense lashes in principle applies, but the defendant will lose because the plaintiff did not wait an unreasonably long time. Yes. She waited a reasonably long time for the reason that Justice Ginsburg came. Justice Breyer, thank you, and I entirely agree. There is a distinction in this case. It might agree. Between the availability of latches and the applicability of latches, our position is that latches is an available defense in every civil action. That's what Rule 8C says. Rule 8C has a list of affirmative defenses, and it's in there. It may not be a good defense. And that may just mean, you know, where it is a defense, it is an affirmative defense that has to be treated the way the Rule 8C says. I don't think that Rule 8C establishes that it applies in law as well as inequity. And that's the question I want to ask you. How? Do you say that latches was a defense available at law before the Federal Rules were enacted? Or do you say that courts continue to have the power to bring it from equity into law after the rules were enacted? And if the latter, why so? The latter, your honor, for three reasons. First, the Law and Equity Act of 1915 authorized the Court to do that. Second, the Rules Nabling Act of 1934 authorized the Court to do that. And third, this Court's historical practice of doing exactly the same thing with tolling in the Erwin case with unclean hands in the Precision Instruments case, with fraud in the case that they had been used in law before the rules. I don't believe unclean hands ever had been before presenting instruments, your honor. And certainly it is the case that every other equitable defense that this Court has ever looked at applies in law. This Court has never said in the modern era that any of the traditionally equitable defenses, and there are eight of them listed in Rule 8, is not available in an action that would historically have been brought at law

. So the language in the Ninth Circuit of Opinion is irrelevant to a case was tried in the district court at the summer regurgiment stage, and certainly irrelevant to the district court's conclusion, which is reviewed, of course, for an abuse of discretion standard, you know, on the merits of the applicability of the Lachis doctrine, all of which, by the way, the petitioner never raised in the district court, in the Ninth Circuit, in the cert petition. You know, the presumption appears for the first time in the petitioner's reply brief. The government has brought it up, but it was not, you know, it's not probably preserved. We're not afraid of it, but it's, you know, this case came here on a very simple legal question, a binary question, is Lachis available? Of course, it answered that question, yes, the details of this particular case, you know, has been reviewed by two courts on an undisputed record, and we think they got it right. Mr. Perry, you said that the, the, the, that's the objective is to get the copyright holder to sue early on and not to wait. But if the, if no profits are being made in that early period, and it would cost the plaintiff more to mount the lawsuit, then the plaintiff could possibly receive endamages, why should the plaintiff who has a copyright that's going to run a long, long time sue if things stay the same? No, it will ever be bought. Why is it unreasonable for the plaintiff to see if the copyright is worth anything? Justice Ginsburg, that's why Congress put in the statutory damages and also an attorney's fee provision so that even if there are no profits, and many works of authorship never become profitable, there is an incentive, an economic incentive for the rights assurder to come forward to court and clarify those rights because these are valuable assets, even money-losing films, books, songs, and so forth are traded, are financed, are bought and sold, either individually as part of companies, and the entire economic system benefits from greater clarity and earlier resolution of rights, and I should point out in this respect, you know, my clients and the studios generally own mini, mini copyrights. We are on both sides of the V. This is not a plaintiff versus defendant. But I take it in the example that Justice Ginsburg came, gay, your position, tell me if I'm wrong, is of course the defense lashes in principle applies, but the defendant will lose because the plaintiff did not wait an unreasonably long time. Yes. She waited a reasonably long time for the reason that Justice Ginsburg came. Justice Breyer, thank you, and I entirely agree. There is a distinction in this case. It might agree. Between the availability of latches and the applicability of latches, our position is that latches is an available defense in every civil action. That's what Rule 8C says. Rule 8C has a list of affirmative defenses, and it's in there. It may not be a good defense. And that may just mean, you know, where it is a defense, it is an affirmative defense that has to be treated the way the Rule 8C says. I don't think that Rule 8C establishes that it applies in law as well as inequity. And that's the question I want to ask you. How? Do you say that latches was a defense available at law before the Federal Rules were enacted? Or do you say that courts continue to have the power to bring it from equity into law after the rules were enacted? And if the latter, why so? The latter, your honor, for three reasons. First, the Law and Equity Act of 1915 authorized the Court to do that. Second, the Rules Nabling Act of 1934 authorized the Court to do that. And third, this Court's historical practice of doing exactly the same thing with tolling in the Erwin case with unclean hands in the Precision Instruments case, with fraud in the case that they had been used in law before the rules. I don't believe unclean hands ever had been before presenting instruments, your honor. And certainly it is the case that every other equitable defense that this Court has ever looked at applies in law. This Court has never said in the modern era that any of the traditionally equitable defenses, and there are eight of them listed in Rule 8, is not available in an action that would historically have been brought at law. And by the way, I should put note here that this is an action inequity. Had she brought this action, should the only relief sought in the prayer is an accounting for profits and an injunction, both of which Chance 3 could have awarded, so that the claim that question is hypothetical in this case. This is an equitable case. She seeks equitable remedies. They are subject to equitable defenses. But as a philosophical matter, Justice Scalia, if totally, lachis, or excuse me, the Stoppell waiver, abandonment, unclean hands, fraud, all apply law. What makes every, if we search every Federal, every reported Federal decision since 1938, how many would we find in which the Court recognized the available of laches as a defense to a claim for legal relief? In this Court, you are on you would find the Morgan case. You would find the Bay Area Laundry case, which is a muppa case that I believe under the toll seventh amendment analysis would be viewed as legal because it had no analog at common law, both of which recognize that where you have a rolling statute of limitations that an action at law, laches is an available police remedy to police the abuses. Do you want to ask the argument limited to that? Would you say laches is also available when there is no continuing violation or when there is no rolling period? Yes, Your Honor. Absolutely. It is a complementary or supplementary doctrine that has always traveled together. It becomes more apparent and frankly more useful in the rolling statute of limitations context as the Morgan Court made clear, it is that the kinds of cases where because of a structural feature of the statute, the action may be temporally varied, divorced or separated from the events that are being disputed that laches may have its role to play. Can you tell us in response to Justice Alito's second part of this question about the other cases, you talk about the two Supreme Court cases, and he said, if you read every Federal decisions beginning of time. So, in the copyright context, every Court of Appeals to have considered the question has applied it to copyright cases, including legal claims, except the fourth circuit, although the fourth circuit has a subsequent trademark case that calls that, we believe, into question. Outside of the copyright context and the patent context, the Federal Circuit, the Okerman case, I cited clearly applies it. And in other contexts, there are some that doesn't come up all that often. We cited several cases, the Teamsters case and the Maxim case from the seventh circuit, which has the most developed jurisprudence, both of which in very detailed analyses by Judge Posner, which addressed all of the circuit court authorities pretty much conclude that laches applies to actions and equity as well as actions of law, if that old distinction makes sense. And again, I'd point the Court back as well to the Gulf Stream case, where this Court, the last time it looked at the law and equity act of 1915, determined that for purposes of establishing a Federal jurisdiction, the old law actually divide was, quote, in felicitous and not necessary anymore, because of the merger and that that was no longer necessary. And so- Sotomayor, we have an interest, just assume we do, in not having too many suits simply to protect your rights in cases where the copyright may not be worth much or may not be worth much. Which rule, yours or the petitioners, is more helpful in this regard? Kagan, so our rule, the availability of laches has been the rule since the 19th century, this Court recognized laches in the Callahan case and a copyright case, and has been applied in every circuit except the fourth, which doesn't get many copyright cases. 90 plus percent of all copyright cases, your honor, are filed in the second circuit of the ninth circuit, both of those words. Sotomayor, that is true about the ninth circuit, but between the second, sixth, tenth, and eleventh, I always, I thought those circuits announced laches are available but only in an exceptional circumstance. And I actually don't know how many cases they barred a suit, copyright suit, completely on the basis of laches. Sotomayor, we agree it's an exceptional circumstance, and this goes back to Justice Breyer's question. There's a different, you have a different ability. Kagan, you find any case where they actually apply laches. Sure, the second circuit in the new era case applied laches to bar an injunction against a Scientology. Injunction, but not the suit completely. I don't remember, actually. Certainly the Dan Jack case in the ninth circuit canvases this question

. And by the way, I should put note here that this is an action inequity. Had she brought this action, should the only relief sought in the prayer is an accounting for profits and an injunction, both of which Chance 3 could have awarded, so that the claim that question is hypothetical in this case. This is an equitable case. She seeks equitable remedies. They are subject to equitable defenses. But as a philosophical matter, Justice Scalia, if totally, lachis, or excuse me, the Stoppell waiver, abandonment, unclean hands, fraud, all apply law. What makes every, if we search every Federal, every reported Federal decision since 1938, how many would we find in which the Court recognized the available of laches as a defense to a claim for legal relief? In this Court, you are on you would find the Morgan case. You would find the Bay Area Laundry case, which is a muppa case that I believe under the toll seventh amendment analysis would be viewed as legal because it had no analog at common law, both of which recognize that where you have a rolling statute of limitations that an action at law, laches is an available police remedy to police the abuses. Do you want to ask the argument limited to that? Would you say laches is also available when there is no continuing violation or when there is no rolling period? Yes, Your Honor. Absolutely. It is a complementary or supplementary doctrine that has always traveled together. It becomes more apparent and frankly more useful in the rolling statute of limitations context as the Morgan Court made clear, it is that the kinds of cases where because of a structural feature of the statute, the action may be temporally varied, divorced or separated from the events that are being disputed that laches may have its role to play. Can you tell us in response to Justice Alito's second part of this question about the other cases, you talk about the two Supreme Court cases, and he said, if you read every Federal decisions beginning of time. So, in the copyright context, every Court of Appeals to have considered the question has applied it to copyright cases, including legal claims, except the fourth circuit, although the fourth circuit has a subsequent trademark case that calls that, we believe, into question. Outside of the copyright context and the patent context, the Federal Circuit, the Okerman case, I cited clearly applies it. And in other contexts, there are some that doesn't come up all that often. We cited several cases, the Teamsters case and the Maxim case from the seventh circuit, which has the most developed jurisprudence, both of which in very detailed analyses by Judge Posner, which addressed all of the circuit court authorities pretty much conclude that laches applies to actions and equity as well as actions of law, if that old distinction makes sense. And again, I'd point the Court back as well to the Gulf Stream case, where this Court, the last time it looked at the law and equity act of 1915, determined that for purposes of establishing a Federal jurisdiction, the old law actually divide was, quote, in felicitous and not necessary anymore, because of the merger and that that was no longer necessary. And so- Sotomayor, we have an interest, just assume we do, in not having too many suits simply to protect your rights in cases where the copyright may not be worth much or may not be worth much. Which rule, yours or the petitioners, is more helpful in this regard? Kagan, so our rule, the availability of laches has been the rule since the 19th century, this Court recognized laches in the Callahan case and a copyright case, and has been applied in every circuit except the fourth, which doesn't get many copyright cases. 90 plus percent of all copyright cases, your honor, are filed in the second circuit of the ninth circuit, both of those words. Sotomayor, that is true about the ninth circuit, but between the second, sixth, tenth, and eleventh, I always, I thought those circuits announced laches are available but only in an exceptional circumstance. And I actually don't know how many cases they barred a suit, copyright suit, completely on the basis of laches. Sotomayor, we agree it's an exceptional circumstance, and this goes back to Justice Breyer's question. There's a different, you have a different ability. Kagan, you find any case where they actually apply laches. Sure, the second circuit in the new era case applied laches to bar an injunction against a Scientology. Injunction, but not the suit completely. I don't remember, actually. Certainly the Dan Jack case in the ninth circuit canvases this question. And the ninth circuit, I know. And this Court, of course, has recorded it. Could you finish answering my question? Yes, Your Honor. Justice Kennedy, all rule, the availability of laches is the status quo. It has been the status quo for more than 100 years. It has not led to a plethora of litigation, it has not led to a bunch of frivolous suits. One of Petitioners Amiki says that laches appears in something like 1 percent of all reported cases as an issue, not even, you know, the central issue. However, if the Court were to change the rule, depart from the status quo, announced for the first time in its history that this equitable doctrine is not available in this class of cases, or by the way, Petitioners rationale is not limited to this case, it's every case, then the studios and other potential defendants would have the economic incentive to bring to the territory actions or contract actions or other preemptive suits to clarify rights, increasing litigation, increasing complexity. It is absolutely undisputed, I would think, or indisputable at least, that the rule proposed by Petitioner would lead more litigation, our rule leads to the class. Our rule is what has always been the law. You know, our rule goes to this. And just a sort of mayor, if I could pick up on the question about outcomes, it is a discretionary doctrine. So some cases, bar injunctions, some cases don't. This Court in the 19th century, the Sax Laneer cases, the Mineral Water Cases, barred the injunctions. The McClain Liverpool case, didn't bar the injunction. That is because the discretionary nature of the doctrine allows flexibility in its application. But it has always been known and understood, particularly in the gold mine cases. And this is just like a gold mine case, like the Patterson case, it barred the action. It said you can't get damages and you can't get an injunction. That's the defense we asserted in this case. And again, the petitioner did not dispute that in the district court, did not dispute that in the Ninth Circuit, did not dispute that in the Serpentish. You know, that issue, we think is a good issue. She did not dispute what? What? That if Latchee is available, it bars the entire suit. I'm okay, Your Honor. Mr. Pary, what troubles me a bit about your argument is, is I think that the derth of cases on this is probably explainable. But in fact, people just haven't thought that they had a Latches defense once, when a plaintiff brought a suit within a statute of limitations period. And now, if we open this all up, granted in a statutory context in which it makes some sense to give people a Latches defense, if we open this all up, we'll be seeing motions that nobody ever dreamed of before. Your Honor, let me answer in two steps. In copyright cases, this has been a well understood and available defense since Judge Lerner's hands opinion in the hast case at least, and gets asserted with some regularity

. And the ninth circuit, I know. And this Court, of course, has recorded it. Could you finish answering my question? Yes, Your Honor. Justice Kennedy, all rule, the availability of laches is the status quo. It has been the status quo for more than 100 years. It has not led to a plethora of litigation, it has not led to a bunch of frivolous suits. One of Petitioners Amiki says that laches appears in something like 1 percent of all reported cases as an issue, not even, you know, the central issue. However, if the Court were to change the rule, depart from the status quo, announced for the first time in its history that this equitable doctrine is not available in this class of cases, or by the way, Petitioners rationale is not limited to this case, it's every case, then the studios and other potential defendants would have the economic incentive to bring to the territory actions or contract actions or other preemptive suits to clarify rights, increasing litigation, increasing complexity. It is absolutely undisputed, I would think, or indisputable at least, that the rule proposed by Petitioner would lead more litigation, our rule leads to the class. Our rule is what has always been the law. You know, our rule goes to this. And just a sort of mayor, if I could pick up on the question about outcomes, it is a discretionary doctrine. So some cases, bar injunctions, some cases don't. This Court in the 19th century, the Sax Laneer cases, the Mineral Water Cases, barred the injunctions. The McClain Liverpool case, didn't bar the injunction. That is because the discretionary nature of the doctrine allows flexibility in its application. But it has always been known and understood, particularly in the gold mine cases. And this is just like a gold mine case, like the Patterson case, it barred the action. It said you can't get damages and you can't get an injunction. That's the defense we asserted in this case. And again, the petitioner did not dispute that in the district court, did not dispute that in the Ninth Circuit, did not dispute that in the Serpentish. You know, that issue, we think is a good issue. She did not dispute what? What? That if Latchee is available, it bars the entire suit. I'm okay, Your Honor. Mr. Pary, what troubles me a bit about your argument is, is I think that the derth of cases on this is probably explainable. But in fact, people just haven't thought that they had a Latches defense once, when a plaintiff brought a suit within a statute of limitations period. And now, if we open this all up, granted in a statutory context in which it makes some sense to give people a Latches defense, if we open this all up, we'll be seeing motions that nobody ever dreamed of before. Your Honor, let me answer in two steps. In copyright cases, this has been a well understood and available defense since Judge Lerner's hands opinion in the hast case at least, and gets asserted with some regularity. And there's a decision from every circuit just about that here's these kind of cases. So I think empirically, I'm not sure that's right. Why should it be different from the patent? Okay. Your Honor, we don't think it should be different than patent case. We think it the same when the availability should be there. So you think the Federal Circuit's decisions are wrong? To the extent it says that there's a categorical bar on applying Latches to injunctions, that can't be right. They can't be right after eBay. That was a pre-EBAY decision that reflected the Federal Circuit's pretelection for categorical rules. This Court made clear in eBay that all equitable doctrines are discretionary. Justice Kagan, the second answer to your question is, this Court wouldn't be announcing it for the first time. This Court has twice looked at this very question, rolling statute's limitations in Bay Area, Laundry, and in Morton. And in both times, the Court said the statute of limitations rolls forward. And in both times, the said, the potential abuse of that is policed by the Latches doctrines. But I think you've said that it would apply to ordinary statute of limitations. So that if you have a six-year statute of limitations and you don't sue until five years after you're subject to the defense, well, you should have said that. You should have sued sooner. That's correct, Your Honor. You can think of why. I share Justice Kagan's reservation about that. Could we limit our opinion just to rolling statutes? Your Honor, it's an equitable doctrine, and of course, it can be adjusted. It can also be clarified, though, that within the initial term of statute of limitations, it very rarely will apply. But there will be cases. The Patterson case, this Court's decision of Patterson is on all fours with this case. And this Court held that Latches barred the suit, even though the statute of limitations had not run. The Second Circuit's decision in New Era is an example of a copyright case where, because the books had already been published and put on the retailer's shelves, the injunctive request that would have required the recall and destruction of those books came too late, because the petitioner had actual knowledge, the plaintiff had actual knowledge, and could have sued earlier. Or you can think of a strategic situation where you know the key witness is on death store, and you wait for that witness to keel over before you file suit. Even if you're within the statute, that, you know, she who seeks equity must do equity. And there will be situations just as Scalia, where within that same period, it will be extraordinary, it will be unusual, but on a rolling statute, it will happen with increasing frequency, because the farther you get away from the events in question, the more likely the prejudice will arise, the evidentiary prejudice, and the expectations based over alliance prejudice, both of which were established on this record, both of which were found by the district court, reviewed by the Ninth Circuit for an abuse of discretion not found. There's the latches defense bar everything in the future. It is after all a rolling statute of limitations

. And there's a decision from every circuit just about that here's these kind of cases. So I think empirically, I'm not sure that's right. Why should it be different from the patent? Okay. Your Honor, we don't think it should be different than patent case. We think it the same when the availability should be there. So you think the Federal Circuit's decisions are wrong? To the extent it says that there's a categorical bar on applying Latches to injunctions, that can't be right. They can't be right after eBay. That was a pre-EBAY decision that reflected the Federal Circuit's pretelection for categorical rules. This Court made clear in eBay that all equitable doctrines are discretionary. Justice Kagan, the second answer to your question is, this Court wouldn't be announcing it for the first time. This Court has twice looked at this very question, rolling statute's limitations in Bay Area, Laundry, and in Morton. And in both times, the Court said the statute of limitations rolls forward. And in both times, the said, the potential abuse of that is policed by the Latches doctrines. But I think you've said that it would apply to ordinary statute of limitations. So that if you have a six-year statute of limitations and you don't sue until five years after you're subject to the defense, well, you should have said that. You should have sued sooner. That's correct, Your Honor. You can think of why. I share Justice Kagan's reservation about that. Could we limit our opinion just to rolling statutes? Your Honor, it's an equitable doctrine, and of course, it can be adjusted. It can also be clarified, though, that within the initial term of statute of limitations, it very rarely will apply. But there will be cases. The Patterson case, this Court's decision of Patterson is on all fours with this case. And this Court held that Latches barred the suit, even though the statute of limitations had not run. The Second Circuit's decision in New Era is an example of a copyright case where, because the books had already been published and put on the retailer's shelves, the injunctive request that would have required the recall and destruction of those books came too late, because the petitioner had actual knowledge, the plaintiff had actual knowledge, and could have sued earlier. Or you can think of a strategic situation where you know the key witness is on death store, and you wait for that witness to keel over before you file suit. Even if you're within the statute, that, you know, she who seeks equity must do equity. And there will be situations just as Scalia, where within that same period, it will be extraordinary, it will be unusual, but on a rolling statute, it will happen with increasing frequency, because the farther you get away from the events in question, the more likely the prejudice will arise, the evidentiary prejudice, and the expectations based over alliance prejudice, both of which were established on this record, both of which were found by the district court, reviewed by the Ninth Circuit for an abuse of discretion not found. There's the latches defense bar everything in the future. It is after all a rolling statute of limitations. Your Honor, the extension concern is reliance, okay, wait until the reliance is, you know, off the table, then you've got three years to go ahead. We think at Barr's earth claim against MGM to renegotiate this contract because of those unique sequence of events. If there were no question about a past historical act, it may be that an ongoing infringement particularly a willful infringement, which comes up often, the courts have said that past stuff isn't going to be barred, but future, excuse me, past remedies are barred, but future injunctions may not be. Effectively, this court said that in McLean and Menendez, the trademark cases where the liability for trademark infringement willful trademark infringement was clear. Here we have a fine injunctions. I mean, let's say they, you know, released the Blu-ray version or whatever, and so, in a particular two-year period, you make a lot of money and the suits should have been brought before that. Well, starting when the sales go down, you still have a three-year period where you're making the routine. So here is where film is different. She doesn't have any right in the film to be clear. She claims a right in the screenplay and she claims the film is a derivative work. The re-release of the film, on film, on television, VHS, laser disk, DVD, Blu-ray, whatever gets them in view, it's the same alleged infringement. There's no distinction for this claim. There are other copyright claims, Mr. Chief Justice, that that does matter very much, the format and so forth. For this claim, it makes no difference whatsoever. It is just like the Morgan case, a repeat act of discrimination by the same supervisor over and over and over again, and that is why in the D-Circum-Date. Kagan, how about your creation of another derivative work? Dürrer, I believe, if these studios, well, first of all, if somebody else were to create a different work, this case doesn't bar her at all. She has all of her rights and she can assert them against the world. Latchies is a personal doctrine against two litigants. It's like an assault. It is an assault. Second, briefly, thank you, Your Honor. Second, if studios, these studios were to prepare a new work, a remake or a sequel, we would not take the position that Latchies applies there because it is a new work, as opposed to, in my answer to Mr. Chief Justice, the repeat release of the same work. Thank you, counsel. Mr. Meebis, five minutes. Thank you, Your Honor. Five points. First, Justice Sotomayor was entirely right that Holmberg, Russell, Mac, and Merck just four years ago make this settled law

. Your Honor, the extension concern is reliance, okay, wait until the reliance is, you know, off the table, then you've got three years to go ahead. We think at Barr's earth claim against MGM to renegotiate this contract because of those unique sequence of events. If there were no question about a past historical act, it may be that an ongoing infringement particularly a willful infringement, which comes up often, the courts have said that past stuff isn't going to be barred, but future, excuse me, past remedies are barred, but future injunctions may not be. Effectively, this court said that in McLean and Menendez, the trademark cases where the liability for trademark infringement willful trademark infringement was clear. Here we have a fine injunctions. I mean, let's say they, you know, released the Blu-ray version or whatever, and so, in a particular two-year period, you make a lot of money and the suits should have been brought before that. Well, starting when the sales go down, you still have a three-year period where you're making the routine. So here is where film is different. She doesn't have any right in the film to be clear. She claims a right in the screenplay and she claims the film is a derivative work. The re-release of the film, on film, on television, VHS, laser disk, DVD, Blu-ray, whatever gets them in view, it's the same alleged infringement. There's no distinction for this claim. There are other copyright claims, Mr. Chief Justice, that that does matter very much, the format and so forth. For this claim, it makes no difference whatsoever. It is just like the Morgan case, a repeat act of discrimination by the same supervisor over and over and over again, and that is why in the D-Circum-Date. Kagan, how about your creation of another derivative work? Dürrer, I believe, if these studios, well, first of all, if somebody else were to create a different work, this case doesn't bar her at all. She has all of her rights and she can assert them against the world. Latchies is a personal doctrine against two litigants. It's like an assault. It is an assault. Second, briefly, thank you, Your Honor. Second, if studios, these studios were to prepare a new work, a remake or a sequel, we would not take the position that Latchies applies there because it is a new work, as opposed to, in my answer to Mr. Chief Justice, the repeat release of the same work. Thank you, counsel. Mr. Meebis, five minutes. Thank you, Your Honor. Five points. First, Justice Sotomayor was entirely right that Holmberg, Russell, Mac, and Merck just four years ago make this settled law. There is a reason Justice Kagan says that we can't see Latchies in cases like this. We don't see it foreclosing, ongoing, and future wrongs. We've never seen Latchies use to measure the delay before the wrong occurred to foreclose ongoing and future claims. Latchies is normally about the delay between the wrong and the suit, and this invented category of rolling status limitations. This court in Claire carefully distinguished separately accruing discrete wrongs within a limitations period, from continuing violations that reach back beyond the limitations period to claim damages beyond that. When my friend says we could have brought this exact same suit in 1991, he is absolutely incorrect. If they had stopped infringing in 2005, the entire statutory penalty for my client would have been no recovery from 1991 until 2005. Second, the only two precedents my friend can rely upon from this court in the face of the war precedent noted by Justice Sotomayor are Morgan and Bay Area Laundrie. Bay Area Laundrie had a statutory provision, 29 USC 1399 B1, that required an employer to bring claims as soon as practical. The only context in which there was an aside in that case, not even an application are holding, was saying that as soon as practical as a Latchies like doctrine, the only case that looks remotely close might that my friend cites in his brief is the Morgan case, and Morgan is completely distinguishable for two reasons. The first is Morgan involved bootstrapping damages from beyond the limitations period, claiming damages from before the 180 or 300 day filing period. We claim no damages before 2006. Second, my friend is absolutely incorrect in saying there was a statute of limitations in Morgan. Title VII contains no statute of limitations. It contains a filing and timeliness requirement. One of the pillars of this court's decision in Morgan is you can reach back for damages for two years as shown by the back pay provision. Since we don't have a limit on damages, we might possibly consider a Latchies like limitation in a future case that was not the holding, it was not briefed and argued, but there was a mention of it. So Morgan was not within a statute of limitations, there was no statute of limitations. And when this court interpreted it in lead better, it understood. Morgan is about continuing violations, rescuing untimely claims for untimely damages before a limitation period. The lower courts my friend refers to, by the way, he and I have jointly not found a single case that was entirely barred in the second 6th, 10th, or 11th circuits. In the cases that adopt a rare case standard in theory leaving the door open, they have not signed in and we have not found in the 6th, 10th, or 11th circuit, a single case that found that standard met as to damages or injunctive relief. And yes, we do claim damages. Our complaint joined appendix 30, claims damages joined appendix 34. The prayer for relief is phrased in terms of damages, not in accounting for profits. Third, just as, and by the way, the Poesner opinion that was cited said, that's only because there's no statutory limitations period, there's no congressional separation of powers problem because under the statute interpreted in that Poesner opinion, there was no statutory limitation period by Congress. Third, just as Kennedy's point about a stoppile as a cousin, it is not a twin. First, you can have an a stoppile after a one week delay. A stoppile has no element requiring delay. Latches requires a long delay

. There is a reason Justice Kagan says that we can't see Latchies in cases like this. We don't see it foreclosing, ongoing, and future wrongs. We've never seen Latchies use to measure the delay before the wrong occurred to foreclose ongoing and future claims. Latchies is normally about the delay between the wrong and the suit, and this invented category of rolling status limitations. This court in Claire carefully distinguished separately accruing discrete wrongs within a limitations period, from continuing violations that reach back beyond the limitations period to claim damages beyond that. When my friend says we could have brought this exact same suit in 1991, he is absolutely incorrect. If they had stopped infringing in 2005, the entire statutory penalty for my client would have been no recovery from 1991 until 2005. Second, the only two precedents my friend can rely upon from this court in the face of the war precedent noted by Justice Sotomayor are Morgan and Bay Area Laundrie. Bay Area Laundrie had a statutory provision, 29 USC 1399 B1, that required an employer to bring claims as soon as practical. The only context in which there was an aside in that case, not even an application are holding, was saying that as soon as practical as a Latchies like doctrine, the only case that looks remotely close might that my friend cites in his brief is the Morgan case, and Morgan is completely distinguishable for two reasons. The first is Morgan involved bootstrapping damages from beyond the limitations period, claiming damages from before the 180 or 300 day filing period. We claim no damages before 2006. Second, my friend is absolutely incorrect in saying there was a statute of limitations in Morgan. Title VII contains no statute of limitations. It contains a filing and timeliness requirement. One of the pillars of this court's decision in Morgan is you can reach back for damages for two years as shown by the back pay provision. Since we don't have a limit on damages, we might possibly consider a Latchies like limitation in a future case that was not the holding, it was not briefed and argued, but there was a mention of it. So Morgan was not within a statute of limitations, there was no statute of limitations. And when this court interpreted it in lead better, it understood. Morgan is about continuing violations, rescuing untimely claims for untimely damages before a limitation period. The lower courts my friend refers to, by the way, he and I have jointly not found a single case that was entirely barred in the second 6th, 10th, or 11th circuits. In the cases that adopt a rare case standard in theory leaving the door open, they have not signed in and we have not found in the 6th, 10th, or 11th circuit, a single case that found that standard met as to damages or injunctive relief. And yes, we do claim damages. Our complaint joined appendix 30, claims damages joined appendix 34. The prayer for relief is phrased in terms of damages, not in accounting for profits. Third, just as, and by the way, the Poesner opinion that was cited said, that's only because there's no statutory limitations period, there's no congressional separation of powers problem because under the statute interpreted in that Poesner opinion, there was no statutory limitation period by Congress. Third, just as Kennedy's point about a stoppile as a cousin, it is not a twin. First, you can have an a stoppile after a one week delay. A stoppile has no element requiring delay. Latches requires a long delay. A stoppile requires affirmative, intentional, misconduct, causing loss. I'd point out those elements are substantially more stringent. Moreover, a stoppile like tolling a discovery rule will settle law as of 1957. Tolling a discovery rule was cited in the legislative history by the legal advisor to the copyright office. But homeberg case that was cited to that court said, very different rule is the background rule as to latches. No latches within a congressional law period. Finally, let me point out that because a stoppile was settled, it remains available to catch the worst cases of prejudice. It remains available for the manipulative scenarios outlined by my friend. Fourth point, uncertainty. I think it's quite salient that Justice Kagan pointed out that if we were to recognize latches here for the first time, for the first time within a congressional station limitations, we'd open a whole new field of litigation over latches. When do I file? This court, just a week ago, in the Ray Hallett Gravel opinion said, time-linus rules need to be clear, simple, predictable. Parties need to know when to file. We frequently see plaintiffs filing on or shortly before the day the limitation period expires. If this court were to cloud that, then there'd be a Russia preemptive litigation coming into court. Moreover, I think Justice Breyer's point is quite right. You shouldn't have to file 15 damages to one after another, from blackstone to story to the Marshall Court. One of the principles of equity was, you don't have to keep filing in Junction relief. Thank you, counsel. The case is submitted.

Will your argument next in case 12, 13, 15, the Trella versus Metro-Golvern mayor? Mr. Bebas? Bebas? Mr. Chief Justice, and may it please the Court. This Court has never applied latches to constrict a Federal statute limitations and rejected such a claim just four years ago. Latches cannot bar these copyright infringement claims for four reasons. First, under the separate accrual rule these claims are timely. Respondents committed these discrete wrongs from 2006 on, but would use Petitioners failure to challenge earlier wrongs to foreclose these later claims before they even arose. Second, latches is a gap filler, but Congress filled this gap with a bright line statute limitations. Third, Congress chose a clear, predictable timeliness rule. And fourth, injunctive relief must remain available to protect Petitioners' property right against ongoing violations, less respondents effectively get a compulsory license for free for the next four decades. Let's take your second point. What a statute of limitations says is not that you are, or are, Scott free within the statute of limitations period, it simply is a negative. It says you can't be sued beyond that, right? Yes. The wording of the statute of limitations. It seems to me there is nothing if we adopted the position of the other side. There is nothing that would cause the statute of limitations to be frustrated. This is not purely about the text, but about the background principle of equity that latches is. Latches domain was as a gap filler where there was no print, no timeliness rule. Congress has occupied the field with a timeliness rule here and displaced it. That's why latches developed in equity to compensate for the absence of limitations here. Yes, but it continued to be used in equity. Even when there were limitations period, didn't it? It may have started that way, but that was certainly not its only use. Not where there was a binding, a federal one, where there was an analogous one that was borrowed loosely from a state in diversity. Federal courts understood themselves to have flexibility to vary from the state limitation period because it wasn't federal law. Well, it was federal law. The federal law adopted it. It was federal law. This was in the pre-eerie days where there was understanding that there was a general federal common law and equity that those cases were decided. This Court in Homework versus Armbreck understood this almost as a chevron type argument, has Congress spoken to the timeliness issue. If yes, Homework says the congressional statute is definitive. If not, Homework says then its silence delegates the matter to, quote, judicial implication. And then there's some judicial flexibility on timeliness issues. There's no question that non-timeliness doctrines can cut claims off within the limitations period, but not the timeliness doctrine of latches. Should we see anything in the particular way this provision is worded? It says, no civil action shall be maintained under the provisions of this title unless it is commenced within three years after the claim accrued. It doesn't say any civil action may be maintained if it is commenced within three years after the claim occurred. Yes, Your Honor. That's what it says. It says you can't do it unless it's within three years, but it doesn't say that if it's within three years, you're home free. Yes, Your Honor. That's why I said it's not strictly a textual argument. It's about the domain of latches and the congressional understanding of limitations periods. That's what how this Court read them in the lead better case, if I might quote, a freestanding violation may always be charged within its own charging period, regardless of its connection to other violations. We repeated the same point more recently in Morgan. Quote, the existence of past acts and the employee's pyrrhenology, their occurrence, dhattatatat, does not bar employees from filing charges about related discrete acts, so long as the acts are independently discriminatory and charges addressing those acts are themselves timely filed. This Court's understanding in Morgan and in lead better was the period is to remain open and Timeliness doctrines are not to cut them short because those doctrines such as latches are where there isn't a binding congressional statute of limitations. Why, by the way, I mean, I guess the ones that increase the statute of limitations do they apply to? It doesn't say anything about that. The Timeliness doctrines of tolling and the discovery rule are distinguishable. This Court understands that when Congress tolling and discovery rules developed in order to interpret limitations periods, you cannot have a tolling or discovery rule without a limitations period to interpret. So this Court has said it's an accoutrements, it's intertwined with interpreting the word accrues for discovery rule or interpreting three years. Do you account the period of infancy? Do you account Saturdays or Sundays? It interprets a special material. I just take exactly your words and I fill in instead of tolling latches. So tolling has always been used. Yeah, yeah, yeah, all right, but I mean now what you're talking about is custom. You're not talking about language. Right. Because the language sounds to me like the same. And so then I'm obviously going to ask you, if the Court House burns down or fraudulent concealment or, you know, there are dozens of not dozens, but there are quite a few such doctrines. And why would we apply those and not apply the shortening ones, too? Well, first briefly, respondents concede there are no words in the sec that even give a tolling or a latches. But second, the State of the Law in 1957 and to this day is that tolling and discovery rules were long background periods for interpreting limitations rules. Latches has never been this Court in the Court. They originated inequity just as latches did. The tolling rules originated in equity. They were brought into law. What troubles me about this case is this. Did the adoption of the new rules of federal procedure disable courts from bringing over anything else from equity into law? Tolling used to exist. It was brought over into law before the new rules of civil procedure. And therefore, you would not be altering any substantive right to continue to apply that tolling rule. Your argument here is that to apply latches is to alter a substantive right. And therefore, under the rules enabling act is not allowable. My question is this. Do you think that the rules enabling act prevented courts from doing what they had in the past? That is not using the act as the means of saying everything that was inequity is now in law. But rather sitting back and thinking, you know, here is another part of equity that should be brought over into law. Not because the act says so, but because we think it ought to be just as we thought 50 years ago, the tolling provision should be brought over into law. Have courts been disabled from doing that by reason of the act? Yes. Not only the words of Section 2072B that may not enlarge a bridge or modify any substantive right, but this courts holding in group of mexico know recognized that the historical limits on equitable remedies are limited to where they were at the times of the But it says the rules shall not alter or amend any substantive right. And what I am saying is it isn't the rules that do it. It is just we have made the independent justification that this ancient rule which was applied in equity ought to be implied in law as well. I would point to this courts having repeatedly rejected that extension. In Mac and then Russell and Holmberg and Onida and Merck just four years ago, this court has repeatedly said, laches cannot shorten these statutes' limitations. It is not applicable. Especially if it is a good choice. Could you, do you have to accept Justice Scalia's premise that the court in all areas is deprived of that right? Can you concentrate on your arguments why in this particular act, even if we had the option we shouldn't exercise? Yes, Your Honor. I think it is very salient that this is the Copyright Act, an act with detailed statutory safeguards against financial and evidentiary prejudice. Moreover, the Copyright is a property right, registered with the government with a clear registry that wants clear, simple, predictable, easy to apply rules as the policy of the 76 Copyright Act. And this courts' case law in the trademark context from the late 19th century says, when we are dealing with a property right that extends into the future, injunctive relief has to remain available to vindicate that property right. Unless there is something that rises to the level of a distinct defense, an abandonment or an estoppel. But the prosecutor, this is my property. And I sort of disagree with you fundamentally, because I don't know that your entitled to injunctive relief, but you might be entitled to a compulsory license. And by that, I mean, you have, this is the government's position, and maybe I'm arguing for it, the government says you might be entitled to payment for the use of your Copyright because it belongs to you and there shouldn't be some adverse possession right that the other side gets. But in terms of injunctive relief given their reliance on your failure to act for 18 years, they shouldn't be put out of business until they can't continue in their business. And so that's the kind of policy I'm talking about, which is break down the remedies and tell me I'm more moved by the fact that someone could take over your Copyright than I am by your injunctive relief argument. Yes, Your Honor. You're correct, but the Copyright Act has provisions that forbid adverse possession that require transfers to be in writing, and so the right itself can't be defeated. So I agree with your premise. Now, as to how that bears on injunctive relief, we do not take the position that an injunction must automatically issue. This Court in eBay said very clearly it must, but one must look at the traditional test for equitable relief. And one of the factors in that test is prejudice to the defendant, but it must be balanced against prejudice to the plaintiff and the public interest. And that is foreclosed if one uses latches as a threshold bar, is foreclosed if one uses as this thing. Why? It's being titled to money for their infringement. Three years. You only go back three years, but if they continue to infringe in the future, presumably you can get an order giving you damages for that. We certainly agree that we're entitled to damages going forward, but we don't agree that that's exclusive because I'd point to the Chief Justice's concurrence in the eBay case. A Copyright is a property right. It comes with the right to exclude presumptively. That right cannot necessarily be fully enforced in all circumstances, but presumptively, it all terming on the table to enforce with injunctive relief. Now, you are correct. Respondents have entered into the commercial agreements for the arrangements for the next two years. It would be reasonable for a court saving an equity to say, let's balance the hardships. The hardships between now and 2015 might look different from the hardships in 2015 until the middle of the 21st century. We might tailor the duration and the scope of injunctive relief to say some damages, some royalties for a few years, but that's not a reason to defeat her right to exclude for the next four decades. Kagan-Mr. Babies, I would have thought that there's something in the copyright context that cuts against you, and that's that because of the separate accrual role in the feature of these rolling statutes of limitations combined with very, very lengthy copyright terms, that essentially a plaintiff can not bring suit for years, decades, and time the suit in order to maximize her own gain. That strikes me as something that's, we don't usually see in statute of limitations cases. I mean, we don't have very many cases where courts have applied latches as against a statute of limitations, but that's because you can't think of many instances in which it would be considered unfair to take the entire statute of limitations to bring a suit. But in this context, you look at something that seems very different. A plaintiff can wait 20 years given the way the separate accrual role works. Kagan-Mr. Babies, I think your consideration is cut in favor of our position. Whether our client brings suit now or 20 years from now, she gets three and only three years damages. The evidence in this case is that creative works are worth the most right after their release. And so the value of the claim goes down. Respondents get to keep the first 17 years of profits if she waits. So she has every incentive as the Amicus briefs indicate to file suit early. And indeed, courts can use adverse inferences against plaintiffs who delay, draw inferences or missing witness instructions from their delay. But let me point out that there are plenty of situations in which there is a delay in suit. Take Bay Area laundry. Take a standard 30-year mortgage. The mortgage who waits until your 20 doesn't get to claim 20 years worth of payments. But there's nothing that debars that mortgage from claiming payments for your 17 to 20. It would radically upend the law to say that. And to come back to your point that we don't see latches in these cases, that again cuts our direction. This is not- The mortgage does not invest substantial amounts of money the way MGM did here. On the assumption that since suit hasn't been brought for 20 years, there's no valid claim. I mean, that's the difference in that situation. You're talking about inducing or causing at least people who proceed in good faith on the assumption that 20 years have gone by. Nobody- Nobody is questioned or doing it. They invest substantial amounts of money. And then when that money starts to pay off, you file suit and you get three years worth of their profits. Under the Copyright Act, they are entitled to deduct all the expenses that are attributable to earning the profits from infringement. So, pant plaintiffs don't get a dime until respondents recoup those expenses. Moreover, one who has noticed of a registered copyright in the face of protest has no legitimate good faith expectation and continue to infringe. I've filed a Declaratory Judgment Act, Engaged in Settlement Negotiations or in Fringe at your peril. I'd like to reserve the balance of my time for a bottle. Thank you, Council. Mr. Hars. Mr. Chief Justice, and may it please the Court. The only question before the Court is whether the courts below were right to bar the suit entirely on Latch's ground, and on that question we agree entirely with Petitioner that the suit should not have been barred at the outset. But it is the government's view that Latches is available in extraordinary cases to bar copyright infringement claims brought within the statute of limitations for two reasons. First of all, Latches, like equitable tolling and other equitable principles, principles, was a background principle that Congress acted against when it enacted the statute of limitations and it said nothing to bar it. We've already had the discussion here at Court today about the tax and how it doesn't barred. But second, for the reasons that Justice Kagan gave, the copyright's situation is unique in that there is this separate accrual which allows a person to sue many years after the infringing conduct started so that it makes sense to at least be able to consider Latches. Now, our view on damages as well as injunctive relief, I thought your brief said injunctive relief along damages. Right. We would distinguish between equitable relief and legal relief, and that's because that distinction was well established in the courts of equity and in the courts of law and post-merger at the time this Court enacted in 1957. We don't make that distinction with respect to equitable tolling. Why would we make it here? Well, because the history is different. The history that this Court recognized in cases like MAC, for example, 1935 case, where that was a legal claim, the Court said Latches within a term of the statute of limitations is no defense at law, and the Court has continued to pick up that language in case after case. There are numerous cases cited in the brief. Why can't we change our mind? Why can't we change our mind? Because this is a statutory claim and a statute of limitations that Congress put in place. And the question is, what is the background rule against which Congress was acting? Congress could change the background rule, but because this is a statutory action, it's for Congress to do it as opposed to the Court. And you say that none of the other instances in which we brought into law equitable doctrines, none of those were applied with respect to a prior enacted Federal statute. Is that your position? No. I have to look it up. Right. What I'm saying is specific to the Latches defense, and what I'm saying there is that there is a long history that Latches did not apply at law, and that this Court has continued to recognize that in the law. There was a long history that tolling didn't apply at law, and then we changed our mind. Right. But I'm saying that you're saying we never changed our mind where there was a statute of limitations. I don't believe that. I'm saying that in the Latches context, we are not aware of any instances in which this Court has used Latches to bar a claim at law. That's not surprising because to show Latches, you have to show unreasonable delay plus reliance. So normally it won't be unreasonable within a limitation period, but this is a unique statute. The uniqueness is not in the words, but in the facts. And therefore, the uniqueness is that it's rolling. And as long as you have a movie that's going to make money over 30 years, in year 33, they bring an action against something that didn't happen until year 30. So when the government comes in and says, oh, we'll just allow it as a defense to law, but not to injunction, law here has the same effect as an injunction. If you just leave it up to the legal part, it can bring whenever they want, as long as the movie is still making money, and therefore it has exactly the same effect to let them, you say, oh, you can't recover, I mean, you can recover under law, I just can't have an injunction. Who in their right mind would go ahead and make this year after year if the huge amount of money is going to be paid to this copyright owner who delayed for 30 years and didn't even seem to own it? Well, two responses to that. First, as a general matter, we think it makes sense for the Latches defense to apply in fashioning equitable relief because that is a place where judges are exercising discretion. I understand the words. My specific question is in the copyright area, as here. Once you have given them the right to apply Latches to an injunction, you have given them precisely nothing because exactly the same thing will happen to them once you bring 15 legal actions as if you gave them the injunction. And if there is a difference there, I haven't been able to think of it yet. So I don't really understand the government's position in terms of the practice. Okay. In terms of the practical offense, the Stat-the Copyright Act Statute specifies the particular remedies that are available, and it's fairly clearly distinguished between legal and equitable remedies. The legal remedies are actual or statutory damages, and those are limited to the past three years. And then the equitable remedies are the profits of the defendant, the essentially unjust enrichment of the defendant, and then as you mentioned, Justice Breyer, the injunction situation. Now, we are not saying that if a plaintiff has established copyright infringement, that it's an all or nothing on injunctions, this Court recognized in eBay. You still haven't answered my question. We're trying to hums to the same thing. You're giving me legal arguments. You may be right in that. I'll look into that. But I'm saying in practice, no one in his right mind could go and continue to produce this movie when every penny is going to have to go to the copyright owner, not every penny of the day spent, but every penny of profit. And who's going to do it? Because you see every three years they face a lawsuit. Well, that's what I'm trying to say is that I don't think that that would be the case if infringement were shown. This Court, for example, recognized in the New York v. Tassini case that in fashioning injunctive relief, it's not just that you give an injunction or you don't give an injunction. It could be the case that in a situation like this one, for example, the Court could say, I will allow the defendant to continue with these contracts that it has entered into to continue using this film as a derivative work, but I will pay a reasonable royalty or I will put forth call for a reasonable royalty to the plaintiff. So there is some splitting of the difference available to the Court in fashioning equitable remedies. So I don't think the Court is that equitable remedy overruled the statement that you're entitled to sue for all the profits within that three-year period. Are you saying the injunction can in effect say you don't have to pay? Well, these are two different remedies. There's the profits of- I understand that, but does the Second eliminate the First? If it doesn't eliminate the First Justice, Breyer's point is absolutely correct. I think that both are susceptible to the Court's equitable consideration. The profits, the way that that is addressed in the Copyright Act, is that it is the profits of the defendant and you subtract out what the defendant contributed. Well, then you say both are subject to equitable consideration. We were told by the petitioner that the equitable rule of latches simply can't apply. I was going to ask, a stopper applies. Why isn't latches just the first cousin of the stopper? A stopper is an affirmative misrepresentation. Why isn't latches here almost a misrepresentation? And I don't understand the difference between latches and a stopper in this. But a stopper was an equitable remedy that's been taken into the law. Right. They are related, but different. Latches involves sitting on your rights to the detriment of the defendant, whereas equitable a stopper involves affirmative thing that- But suppose sitting on your rights amounted really to an affirmative representation. It succinctly very close enough so that I'm not sure that we should distinguish between latches and a stopper as being so that the former is unavailable at all. Well, you're right that latches can- is a cousin of equitable a stopper and that it's right that equitable a stopper could bar the claim entirely. The reason that we are distinguishing in between law and equity are two reasons. First of all, there is a very long history that latches is unique to the courts of equity. And this court has recognized it, recognized in a MAC, it recognized in the United case, it recognized in a MAC, it was in the Pomeroy treatis, that this was a classic division that was only in equity. And this court has continued to recognize it. But the second reason is that it makes sense to- to look to latches principles in fashion equitable relief in this context as opposed to the legal relief, because under the Copyright Act, when a person shows a plaintiff's shows infringement, that person is entitled to actual or statutory damages in a certain amount. And that is a mechanical calculation that we expect juries to make. And so I have to summarize this. Before you sit down, this one puzzle I'd like you to address for us. And that is- but your position is damages within the three years, okay, in junction, you can adjust for the latches. In the patent area, also intellectual property, the Federal Circuit has said that latches may bar as it goes. It's just the reverse. Latches may bar monetary relief, but not in junct of relief. What explains the difference between in the patent area, no monetary relief, but yes in junct of relief, in your position in the Copyright area, monetary relief, but no injunction or a modified injunction? You're right that there is that difference. The patent deck is different in several respects. First of all, in terms of the time period, it doesn't have a statute of limitations in which- after which a claim is barred, it says that you can only recover damages for a certain period of time. There's actually a shorter period of limitation- or a shorter period of protection in the patent deck, and you have the patent deck time period that was enacted well before the Copyright period here. So we think that the patent context is different, but I take your point that the analysis that the Federal Circuit underwent is not the same type of analysis that we are undertaking now, ours is based on the background principle at which Congress acted as opposed to that analysis, which was more on policy grounds. Thank you, counsel. Thank you. Mr. Perry? Mr. Chief Justice, to me, please the Court. The government agrees with us that the 1957 amendment did not abrogate the Lachee's doctrine, since that's the only question presented we submit that the Court should affirm. Now, the government has gone at great length about this law equity distinction. The Copyright Act of 1909 and Section 27 abolished the distinction between law and equity or copyright. Section 27 of the 1999 Act. The Law and Equity Act of 1915 abolished the same distinction for all civil actions. It says, in any action at law, all equitable defenses may be asserted. And if one looks in blacks, for example, a reactive source, not a predictive source, what is an equitable defense? It says, a defense formally available at equity, now available in all actions. And examples are, unclean hands, lachees, and a stopper. That's in the blacks law dictionary. And then this Court, after the rules enabling Act of 1934, which is different, by the way, in 2072 in the current statute, the 34 version, which is in the back of our brief, broke out law and equity, retained the Court's equitable powers, and authorized the Court to merge them. And in Rule 8, this Court, and the fact of that, this Court surveyed, counseled, how do you deal with the language in Homeburg, Mac, and Russell? You're on a line. And your after, I've looked, I've had not myself, but my law clerk, look at all of the cases, and they're absolutely right. That in every case we've applied, lachees, it's only where there's not been an underlying statute of limitations. And in every case in which there's an underlying statute of limitations, we have said, no lachees. Just to so to remember, let me answer that in two steps. The Morgan case involved a statute of limitations. The Court applied lachees or said lachees have available five times. And that's an action at law. That, that plaintiff brought a claim for compensatory and punitive damages. So that's the most recent version where all of those things are not true that the petitioner says. Also, the patterns. There's all's there. Sorry? They didn't apply lachees there. Your Honor, this Court said that lachees was available five times. But that's didn't support that. Meaning that they didn't grant. It wasn't raised, Your Honor. That point wasn't raised. This Court said, however, five times that where you have a rolling statute of limitations, lachees is a necessary protection for the defendant because the events may move so far away from the underlying facts, which is very true here. The Homeberg case is in many ways our best case, Justice Sotomayor. Looks to look what Homeberg said. Homeberg was remembered disgust in the legislative history. Congress, somebody in Congress focused on it. It says first, when Congress leaves to the federal courts the formulation of remedial details, it can hardly expect them to break with historic principles of equity. And we know from the, both the House and the Senate report, this 1957 statute specifically said that the remedial details are up to the Court because we want the courts to continue to apply equitable considerations. So what are those equitable principles? This Court went on in Homeberg and said first, a suit in equity may fail, though not barred by the act of limitations. That's a pretty clear equitable principle. And of course, we win this case under that principle. And then the Court went on and articulated the Goose and Gander rule. That these are two sides of the same coin. That lachees and tolling go together. They travel together. They're not cousins, Justice Kennedy. They're fraternal twins. You don't get one without the other. And what the Court said is if want to do diligence by the plaintiff may make it unfair to pursue the defendant, laches, then also fraudulent conduct on the part of the defendant may make it unfair for the plaintiff to proceed. Fraudulent concealment. And then the Court said, and this is the critical point, cited Bailey versus Glover, which also had the Goose and Gander rule embedded in it. It said, this equitable doctrine is read into every federal statute of limitations. Not fraudulent concealment, but the twin nature of tolling plus laches. That every time the courts have the power to adjust the rights and obligations of the parties using their equitable powers, that happens on the front end and on the back end. My friend, Mr. Beavis, has to respond to that by saying tolling is available, discovery is available, waiver, abandonment, acquiescence, estoppel, and all of the other equitable doctrines, eight of which are listed in rule eight, that this Court has determined are available in all civil actions. But he says laches, which this Court also listed in rule eight, is not available in this civil action. That is a bizarre argument, Your Honor, and it has no support whatsoever. This Court confronted the same point. Excuse me. Bizarre seems to me a little strong. I mean, because I take it that Mr. Beavis is making a statutory argument. I mean, he's saying not the language of the statute, but he's saying what was Congress thinking at the time? Congress was faced with all these precedents, essentially saying laches was not available. There are no cases out there, really, where laches does cut into a defined statute of limitations period. And then you have the feature that Congress knew that it was enacting these role in statute of limitations. You would have thought that it might have been foremost in their head, how are we going to prevent somebody from suing 30 years later? And they did nothing of the kind. They could very easily have made it clear that laches applied, or they could have set an outer limit, or they could have done a number of things, and they really didn't do any of them. So how are we to account for all that? Just as Kagan, the Congress cited Homeberg, which cites Patterson as the leading laches case and cites Russell as well, and Patterson dealt with this very point. Patterson, which did hold. The Congress cited what? I'm sorry. The legislature, the committee reports, cites the Homeberg case, not Congress cited. Thank you, Your Honor. Patterson case, however, squarely held in Justice Sotomayor of this goes to your question too, that a claim brought within the statute of limitations, a state statute borrowed for a federal claim, and this involved property, copyrights of property, this involved to Goldmine. And it's exactly analogous. What happened there is a plaintiff sat around how to part interest in the Goldmine, sat around and waited until these somebody else developed it enough to make a profit, and then rushed in and demanded a share. That is what Mr. Trella did in this case. She is demanding her share in the Goldmine after my clients spent years developing. Okay? What Congress is doing? It is true, however, that your why you take this out of the Court. That your, all of your investment in this is going to be offset against your profits, correct? That is not exactly clear, Your Honor. She sued in January of 2009 to pick up the profits back to January of 2006. The biggest investment was in 2005 for the 25th anniversary edition. We think she's going to go into court and say, I don't have to offset that because it's more than three years old, so that she wants only, she wants to skim the cream. She gets to look back and pick her three. You didn't own it. What's so bad about that? Because why should you, you've gotten a lot of profits in those 18 years, and in fact that one point when she did reach out to you, you told her, why sue? You're not going to get any money. We're not making any. Your Honor, on a net basis, the film still has never made a profit for one. Well, it's not that we're back to the point I made. And are you disagreeing with the government's position that the Court has equitable power in junk to relieve, to decide how much you pay forward? Two answers, Your Honor. First, Congress looked at that, and this is the reason that the statutory damages remedy is in the statute, to encourage rights assurders to early go into court and establish priority and availability of their rights if they have them, so that if there are no profits, if there are no damages, and of course this plaintiff has no damage. I don't understand. Why don't you just go in and get a declaratory judgment when you first heard from her? Because, Your Honor, we sent, she made a demand which we refused. We get lots of demands, and we refused them. And the last letter in the series was, you have no claim. Then she did nothing, actually she did more than nothing. She showed up at our guest at a party for the 25th anniversary, suggesting that she agreed with our interpretation of this. And then she didn't sue for years and years later. The events in question, the reason that the three year, the rolling three years is, as in a Title VII case, what's not being litigated in this case, if it were to go to trial, is the last three years, is 1961, 62, and 63. Whenever the film is released, the disputed events happened in the early 1960s, so that every year she waits for her own strategic reasons, she's getting farther away from those events. And this Court answered the same point in Patterson about the mine. Instead, of course, you could have portioned the profits to account for the investment, but you can never, you can never reimburse the developers for the risk of getting not. You can never reimburse them for the work they did while she was sitting on the sidelines. And therefore, at some point, the reliance interests are so great. And then we haven't talked yet about the evidentiary prejudice. These cases get so old, the witnesses have died. They are unavailable. And she is now trying to tell the Court, the Court's, the judicial system, that her father lied in a written representation, yet her mother, who could have testified to that? Councillor Kaston. She was going to get this copyright when her father died. Under no circumstance, even if she had sued in 92, could she have brought a claim in the 1960s? She didn't have a copyright then. Your property is not against the witness dying. Your complaint is about what Congress does, which is to give a person the right to keep a copyright or renew it, when the individual with whom you probably dealt with is dead. That's always going to be the case. Justice Sotomayor, she still has her copyright. She can enforce it against the world, and she still has a contractual right with MGM in which she will get participation rights pursuant to the contract. She wants to renegotiate that contract. That's what this case is about. She could have done that in 1991. She could have brought this lawsuit in 1991. We are not seeking to task her with her father's death or anything that happened before in 1991. After 1991, however, Mr. Lamada, he witnesses to the collaboration of the 1963 screenplay, has become unavailable to testify. Vicky Lamada, who could have established our defense that the screenplay reflects real life rather than imaginary events because she is a central character in that, has to weigh. And Mrs. Petrella, who, if you read, Paula Petrella's declaration, she says my mother was up late at night typing something in implying that it was the book, had she sued in 1991, we would have put her mother under oath and said, what were you typing? And she would have said the screenplay or something else. She would not have said the book, we believe, but we can't ask her that question because she waited long enough for all of the witnesses, not her father, all the other witnesses who have recipient knowledge to pass away. And Latches is a prejudice doctrine. It's not a timeless doctrine. It requires delay as a trigger, but it turns on prejudice. The ninth circuit here used the slanguage of presumption. It said, if any part of the alleged wrongful conduct occurred outside of the limitations period, the courts presume that the plaintiffs' claims are barred by Latches. And as you just said, Latches is, at least in part, a prejudice doctrine. Do you concede that that presumption is wrong? No, you're wrong. First, I think the spoke of a presumption and then didn't apply it, and certainly the district court didn't know that. Well, that's one, you know, one understanding of the opinion is, look, that's just a, this court, this court said, you agree with it. This court, Justice Kagan, and the Foster versus Mansfield case in 1892 said, my quote, after 10 years, quote, there is certainly a presumption of Latches, which is as incumbent on the plaintiff to rebut. Which is the same concept that the ninth circuit articulated, although we submit to not apply. And the federal circuit, in the Ockerman case, very carefully explained what this means. It's a federal rule of evidence 301 type presumption, sometimes called a bursting bubble presumption, which says that when the defendant raises this defense, it requires the plaintiff to come forward with the burden of production of an excuse or a rationale for the delay, but the burden of persuasion always rests on the defendant because it is an affirmative defense. And the Ockerman decision is very clear on this and to the extent that the ninth circuit spoke of presumptions, that's exactly what it meant. Because in no place was an evidentiary presumption applied against her, and in fact, of course, this was a summary judgment case, so the evidence was undisputed. The record was irrefutable as to the prejudice. Well, I guess partly that suggests a burden of persuasion, but partly it suggests just a kind of, our starting position is that if there was conduct outside the limitations period, it was prejudicial. And I guess I want to know why that would be. You Honor, I think there's a common sense concept that if you were within, if the claim were brought within the initial three-year period after the claim first occurred in 1991, you might say colloquially there's a presumption that Lachis doesn't apply. In fact, the sixth circuit said that in the Cherk case. Once you move farther and farther away from the initial act that starts the clock for Lachis purposes, which may not be the same event as for statute of limitations purposes, it's another one of the disconnects between these two doctrines. The farther one gets away, it is a reality of the world, as the government notes in its brief, that the evidentiary prejudice is likely to increase because documents get destroyed, witnesses lose their memory. Well, one can agree with that and not think that if a conduct happened three years and two days earlier, the burden of coming forward and the necessity to give a reason flips to the other side. I agree with that, Your Honor. And to be clear, the district court didn't apply any such presumption and didn't put any such burden on Mr. Trellis. So the language in the Ninth Circuit of Opinion is irrelevant to a case was tried in the district court at the summer regurgiment stage, and certainly irrelevant to the district court's conclusion, which is reviewed, of course, for an abuse of discretion standard, you know, on the merits of the applicability of the Lachis doctrine, all of which, by the way, the petitioner never raised in the district court, in the Ninth Circuit, in the cert petition. You know, the presumption appears for the first time in the petitioner's reply brief. The government has brought it up, but it was not, you know, it's not probably preserved. We're not afraid of it, but it's, you know, this case came here on a very simple legal question, a binary question, is Lachis available? Of course, it answered that question, yes, the details of this particular case, you know, has been reviewed by two courts on an undisputed record, and we think they got it right. Mr. Perry, you said that the, the, the, that's the objective is to get the copyright holder to sue early on and not to wait. But if the, if no profits are being made in that early period, and it would cost the plaintiff more to mount the lawsuit, then the plaintiff could possibly receive endamages, why should the plaintiff who has a copyright that's going to run a long, long time sue if things stay the same? No, it will ever be bought. Why is it unreasonable for the plaintiff to see if the copyright is worth anything? Justice Ginsburg, that's why Congress put in the statutory damages and also an attorney's fee provision so that even if there are no profits, and many works of authorship never become profitable, there is an incentive, an economic incentive for the rights assurder to come forward to court and clarify those rights because these are valuable assets, even money-losing films, books, songs, and so forth are traded, are financed, are bought and sold, either individually as part of companies, and the entire economic system benefits from greater clarity and earlier resolution of rights, and I should point out in this respect, you know, my clients and the studios generally own mini, mini copyrights. We are on both sides of the V. This is not a plaintiff versus defendant. But I take it in the example that Justice Ginsburg came, gay, your position, tell me if I'm wrong, is of course the defense lashes in principle applies, but the defendant will lose because the plaintiff did not wait an unreasonably long time. Yes. She waited a reasonably long time for the reason that Justice Ginsburg came. Justice Breyer, thank you, and I entirely agree. There is a distinction in this case. It might agree. Between the availability of latches and the applicability of latches, our position is that latches is an available defense in every civil action. That's what Rule 8C says. Rule 8C has a list of affirmative defenses, and it's in there. It may not be a good defense. And that may just mean, you know, where it is a defense, it is an affirmative defense that has to be treated the way the Rule 8C says. I don't think that Rule 8C establishes that it applies in law as well as inequity. And that's the question I want to ask you. How? Do you say that latches was a defense available at law before the Federal Rules were enacted? Or do you say that courts continue to have the power to bring it from equity into law after the rules were enacted? And if the latter, why so? The latter, your honor, for three reasons. First, the Law and Equity Act of 1915 authorized the Court to do that. Second, the Rules Nabling Act of 1934 authorized the Court to do that. And third, this Court's historical practice of doing exactly the same thing with tolling in the Erwin case with unclean hands in the Precision Instruments case, with fraud in the case that they had been used in law before the rules. I don't believe unclean hands ever had been before presenting instruments, your honor. And certainly it is the case that every other equitable defense that this Court has ever looked at applies in law. This Court has never said in the modern era that any of the traditionally equitable defenses, and there are eight of them listed in Rule 8, is not available in an action that would historically have been brought at law. And by the way, I should put note here that this is an action inequity. Had she brought this action, should the only relief sought in the prayer is an accounting for profits and an injunction, both of which Chance 3 could have awarded, so that the claim that question is hypothetical in this case. This is an equitable case. She seeks equitable remedies. They are subject to equitable defenses. But as a philosophical matter, Justice Scalia, if totally, lachis, or excuse me, the Stoppell waiver, abandonment, unclean hands, fraud, all apply law. What makes every, if we search every Federal, every reported Federal decision since 1938, how many would we find in which the Court recognized the available of laches as a defense to a claim for legal relief? In this Court, you are on you would find the Morgan case. You would find the Bay Area Laundry case, which is a muppa case that I believe under the toll seventh amendment analysis would be viewed as legal because it had no analog at common law, both of which recognize that where you have a rolling statute of limitations that an action at law, laches is an available police remedy to police the abuses. Do you want to ask the argument limited to that? Would you say laches is also available when there is no continuing violation or when there is no rolling period? Yes, Your Honor. Absolutely. It is a complementary or supplementary doctrine that has always traveled together. It becomes more apparent and frankly more useful in the rolling statute of limitations context as the Morgan Court made clear, it is that the kinds of cases where because of a structural feature of the statute, the action may be temporally varied, divorced or separated from the events that are being disputed that laches may have its role to play. Can you tell us in response to Justice Alito's second part of this question about the other cases, you talk about the two Supreme Court cases, and he said, if you read every Federal decisions beginning of time. So, in the copyright context, every Court of Appeals to have considered the question has applied it to copyright cases, including legal claims, except the fourth circuit, although the fourth circuit has a subsequent trademark case that calls that, we believe, into question. Outside of the copyright context and the patent context, the Federal Circuit, the Okerman case, I cited clearly applies it. And in other contexts, there are some that doesn't come up all that often. We cited several cases, the Teamsters case and the Maxim case from the seventh circuit, which has the most developed jurisprudence, both of which in very detailed analyses by Judge Posner, which addressed all of the circuit court authorities pretty much conclude that laches applies to actions and equity as well as actions of law, if that old distinction makes sense. And again, I'd point the Court back as well to the Gulf Stream case, where this Court, the last time it looked at the law and equity act of 1915, determined that for purposes of establishing a Federal jurisdiction, the old law actually divide was, quote, in felicitous and not necessary anymore, because of the merger and that that was no longer necessary. And so- Sotomayor, we have an interest, just assume we do, in not having too many suits simply to protect your rights in cases where the copyright may not be worth much or may not be worth much. Which rule, yours or the petitioners, is more helpful in this regard? Kagan, so our rule, the availability of laches has been the rule since the 19th century, this Court recognized laches in the Callahan case and a copyright case, and has been applied in every circuit except the fourth, which doesn't get many copyright cases. 90 plus percent of all copyright cases, your honor, are filed in the second circuit of the ninth circuit, both of those words. Sotomayor, that is true about the ninth circuit, but between the second, sixth, tenth, and eleventh, I always, I thought those circuits announced laches are available but only in an exceptional circumstance. And I actually don't know how many cases they barred a suit, copyright suit, completely on the basis of laches. Sotomayor, we agree it's an exceptional circumstance, and this goes back to Justice Breyer's question. There's a different, you have a different ability. Kagan, you find any case where they actually apply laches. Sure, the second circuit in the new era case applied laches to bar an injunction against a Scientology. Injunction, but not the suit completely. I don't remember, actually. Certainly the Dan Jack case in the ninth circuit canvases this question. And the ninth circuit, I know. And this Court, of course, has recorded it. Could you finish answering my question? Yes, Your Honor. Justice Kennedy, all rule, the availability of laches is the status quo. It has been the status quo for more than 100 years. It has not led to a plethora of litigation, it has not led to a bunch of frivolous suits. One of Petitioners Amiki says that laches appears in something like 1 percent of all reported cases as an issue, not even, you know, the central issue. However, if the Court were to change the rule, depart from the status quo, announced for the first time in its history that this equitable doctrine is not available in this class of cases, or by the way, Petitioners rationale is not limited to this case, it's every case, then the studios and other potential defendants would have the economic incentive to bring to the territory actions or contract actions or other preemptive suits to clarify rights, increasing litigation, increasing complexity. It is absolutely undisputed, I would think, or indisputable at least, that the rule proposed by Petitioner would lead more litigation, our rule leads to the class. Our rule is what has always been the law. You know, our rule goes to this. And just a sort of mayor, if I could pick up on the question about outcomes, it is a discretionary doctrine. So some cases, bar injunctions, some cases don't. This Court in the 19th century, the Sax Laneer cases, the Mineral Water Cases, barred the injunctions. The McClain Liverpool case, didn't bar the injunction. That is because the discretionary nature of the doctrine allows flexibility in its application. But it has always been known and understood, particularly in the gold mine cases. And this is just like a gold mine case, like the Patterson case, it barred the action. It said you can't get damages and you can't get an injunction. That's the defense we asserted in this case. And again, the petitioner did not dispute that in the district court, did not dispute that in the Ninth Circuit, did not dispute that in the Serpentish. You know, that issue, we think is a good issue. She did not dispute what? What? That if Latchee is available, it bars the entire suit. I'm okay, Your Honor. Mr. Pary, what troubles me a bit about your argument is, is I think that the derth of cases on this is probably explainable. But in fact, people just haven't thought that they had a Latches defense once, when a plaintiff brought a suit within a statute of limitations period. And now, if we open this all up, granted in a statutory context in which it makes some sense to give people a Latches defense, if we open this all up, we'll be seeing motions that nobody ever dreamed of before. Your Honor, let me answer in two steps. In copyright cases, this has been a well understood and available defense since Judge Lerner's hands opinion in the hast case at least, and gets asserted with some regularity. And there's a decision from every circuit just about that here's these kind of cases. So I think empirically, I'm not sure that's right. Why should it be different from the patent? Okay. Your Honor, we don't think it should be different than patent case. We think it the same when the availability should be there. So you think the Federal Circuit's decisions are wrong? To the extent it says that there's a categorical bar on applying Latches to injunctions, that can't be right. They can't be right after eBay. That was a pre-EBAY decision that reflected the Federal Circuit's pretelection for categorical rules. This Court made clear in eBay that all equitable doctrines are discretionary. Justice Kagan, the second answer to your question is, this Court wouldn't be announcing it for the first time. This Court has twice looked at this very question, rolling statute's limitations in Bay Area, Laundry, and in Morton. And in both times, the Court said the statute of limitations rolls forward. And in both times, the said, the potential abuse of that is policed by the Latches doctrines. But I think you've said that it would apply to ordinary statute of limitations. So that if you have a six-year statute of limitations and you don't sue until five years after you're subject to the defense, well, you should have said that. You should have sued sooner. That's correct, Your Honor. You can think of why. I share Justice Kagan's reservation about that. Could we limit our opinion just to rolling statutes? Your Honor, it's an equitable doctrine, and of course, it can be adjusted. It can also be clarified, though, that within the initial term of statute of limitations, it very rarely will apply. But there will be cases. The Patterson case, this Court's decision of Patterson is on all fours with this case. And this Court held that Latches barred the suit, even though the statute of limitations had not run. The Second Circuit's decision in New Era is an example of a copyright case where, because the books had already been published and put on the retailer's shelves, the injunctive request that would have required the recall and destruction of those books came too late, because the petitioner had actual knowledge, the plaintiff had actual knowledge, and could have sued earlier. Or you can think of a strategic situation where you know the key witness is on death store, and you wait for that witness to keel over before you file suit. Even if you're within the statute, that, you know, she who seeks equity must do equity. And there will be situations just as Scalia, where within that same period, it will be extraordinary, it will be unusual, but on a rolling statute, it will happen with increasing frequency, because the farther you get away from the events in question, the more likely the prejudice will arise, the evidentiary prejudice, and the expectations based over alliance prejudice, both of which were established on this record, both of which were found by the district court, reviewed by the Ninth Circuit for an abuse of discretion not found. There's the latches defense bar everything in the future. It is after all a rolling statute of limitations. Your Honor, the extension concern is reliance, okay, wait until the reliance is, you know, off the table, then you've got three years to go ahead. We think at Barr's earth claim against MGM to renegotiate this contract because of those unique sequence of events. If there were no question about a past historical act, it may be that an ongoing infringement particularly a willful infringement, which comes up often, the courts have said that past stuff isn't going to be barred, but future, excuse me, past remedies are barred, but future injunctions may not be. Effectively, this court said that in McLean and Menendez, the trademark cases where the liability for trademark infringement willful trademark infringement was clear. Here we have a fine injunctions. I mean, let's say they, you know, released the Blu-ray version or whatever, and so, in a particular two-year period, you make a lot of money and the suits should have been brought before that. Well, starting when the sales go down, you still have a three-year period where you're making the routine. So here is where film is different. She doesn't have any right in the film to be clear. She claims a right in the screenplay and she claims the film is a derivative work. The re-release of the film, on film, on television, VHS, laser disk, DVD, Blu-ray, whatever gets them in view, it's the same alleged infringement. There's no distinction for this claim. There are other copyright claims, Mr. Chief Justice, that that does matter very much, the format and so forth. For this claim, it makes no difference whatsoever. It is just like the Morgan case, a repeat act of discrimination by the same supervisor over and over and over again, and that is why in the D-Circum-Date. Kagan, how about your creation of another derivative work? Dürrer, I believe, if these studios, well, first of all, if somebody else were to create a different work, this case doesn't bar her at all. She has all of her rights and she can assert them against the world. Latchies is a personal doctrine against two litigants. It's like an assault. It is an assault. Second, briefly, thank you, Your Honor. Second, if studios, these studios were to prepare a new work, a remake or a sequel, we would not take the position that Latchies applies there because it is a new work, as opposed to, in my answer to Mr. Chief Justice, the repeat release of the same work. Thank you, counsel. Mr. Meebis, five minutes. Thank you, Your Honor. Five points. First, Justice Sotomayor was entirely right that Holmberg, Russell, Mac, and Merck just four years ago make this settled law. There is a reason Justice Kagan says that we can't see Latchies in cases like this. We don't see it foreclosing, ongoing, and future wrongs. We've never seen Latchies use to measure the delay before the wrong occurred to foreclose ongoing and future claims. Latchies is normally about the delay between the wrong and the suit, and this invented category of rolling status limitations. This court in Claire carefully distinguished separately accruing discrete wrongs within a limitations period, from continuing violations that reach back beyond the limitations period to claim damages beyond that. When my friend says we could have brought this exact same suit in 1991, he is absolutely incorrect. If they had stopped infringing in 2005, the entire statutory penalty for my client would have been no recovery from 1991 until 2005. Second, the only two precedents my friend can rely upon from this court in the face of the war precedent noted by Justice Sotomayor are Morgan and Bay Area Laundrie. Bay Area Laundrie had a statutory provision, 29 USC 1399 B1, that required an employer to bring claims as soon as practical. The only context in which there was an aside in that case, not even an application are holding, was saying that as soon as practical as a Latchies like doctrine, the only case that looks remotely close might that my friend cites in his brief is the Morgan case, and Morgan is completely distinguishable for two reasons. The first is Morgan involved bootstrapping damages from beyond the limitations period, claiming damages from before the 180 or 300 day filing period. We claim no damages before 2006. Second, my friend is absolutely incorrect in saying there was a statute of limitations in Morgan. Title VII contains no statute of limitations. It contains a filing and timeliness requirement. One of the pillars of this court's decision in Morgan is you can reach back for damages for two years as shown by the back pay provision. Since we don't have a limit on damages, we might possibly consider a Latchies like limitation in a future case that was not the holding, it was not briefed and argued, but there was a mention of it. So Morgan was not within a statute of limitations, there was no statute of limitations. And when this court interpreted it in lead better, it understood. Morgan is about continuing violations, rescuing untimely claims for untimely damages before a limitation period. The lower courts my friend refers to, by the way, he and I have jointly not found a single case that was entirely barred in the second 6th, 10th, or 11th circuits. In the cases that adopt a rare case standard in theory leaving the door open, they have not signed in and we have not found in the 6th, 10th, or 11th circuit, a single case that found that standard met as to damages or injunctive relief. And yes, we do claim damages. Our complaint joined appendix 30, claims damages joined appendix 34. The prayer for relief is phrased in terms of damages, not in accounting for profits. Third, just as, and by the way, the Poesner opinion that was cited said, that's only because there's no statutory limitations period, there's no congressional separation of powers problem because under the statute interpreted in that Poesner opinion, there was no statutory limitation period by Congress. Third, just as Kennedy's point about a stoppile as a cousin, it is not a twin. First, you can have an a stoppile after a one week delay. A stoppile has no element requiring delay. Latches requires a long delay. A stoppile requires affirmative, intentional, misconduct, causing loss. I'd point out those elements are substantially more stringent. Moreover, a stoppile like tolling a discovery rule will settle law as of 1957. Tolling a discovery rule was cited in the legislative history by the legal advisor to the copyright office. But homeberg case that was cited to that court said, very different rule is the background rule as to latches. No latches within a congressional law period. Finally, let me point out that because a stoppile was settled, it remains available to catch the worst cases of prejudice. It remains available for the manipulative scenarios outlined by my friend. Fourth point, uncertainty. I think it's quite salient that Justice Kagan pointed out that if we were to recognize latches here for the first time, for the first time within a congressional station limitations, we'd open a whole new field of litigation over latches. When do I file? This court, just a week ago, in the Ray Hallett Gravel opinion said, time-linus rules need to be clear, simple, predictable. Parties need to know when to file. We frequently see plaintiffs filing on or shortly before the day the limitation period expires. If this court were to cloud that, then there'd be a Russia preemptive litigation coming into court. Moreover, I think Justice Breyer's point is quite right. You shouldn't have to file 15 damages to one after another, from blackstone to story to the Marshall Court. One of the principles of equity was, you don't have to keep filing in Junction relief. Thank you, counsel. The case is submitted

Legal Case Summary

Petrella v. Metro-Goldwyn-Mayer, Inc.

Date Argued: Tue Jan 21 2014

Case Number: 146440

Docket Number: 2602114

Judges:Not available

Duration: 63 minutes

Court Name: Supreme Court

Case Summary

Petrella v. Metro-Goldwyn-Mayer, Inc.

Oral Audio Transcript(Beta version)