The Court of Federal Claims (“CFC”) recently held that claims of copyright infringement related to the distribution and display of a photograph posted online in 2004 were timely and could proceed to discovery.
In 1996, APL Microscopic, LLC (“APL”) created a photograph of human bone marrow stem cells (the “Work”). In August 2004, the United States of America (the “Government”), through the National Aeronautics and Space Administration (“NASA”), allegedly posted the Work on its webpage. Fourteen years later, in December 2018, APL sued the Government, alleging that NASA violated three of APL’s rights under the Copyright Act: (1) the right of reproduction, (2) the right of public distribution, and (3) the right of public display.
The Government moved to dismiss based on lack of subject matter jurisdiction and failure to state a claim upon which relief may be granted. At issue was when a reproduction, display, and/or distribution of a work occurs for the purposes of evaluating a statute of limitations defense. The Government argued that a reproduction, display, and/or distribution occurs only when a website owner uploads a work onto its server where it is made available for viewing and downloading to...
