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Diversey v Schmidly

Case No. 13-2058 (C.A. 10, Dec. 23, 2013)

Andrew Diversey sued several administrators and members of the Board of Regents of the University of New Mexico (UNM) for infringing his copyright to an unpublished dissertation. The district court dismissed Diversey’s complaint as untimely under Fed. R. Civ. P. 12(b)(6). Our review requires us to determine when claims of copyright infringement accrue, and, in particular, whether accrual is delayed until a continuing course of infringement ceases. Barring the application of an appropriate tolling principle, a copyright infringement claim must be brought within three years of the date on which the plaintiff becomes aware of an act of infringement or becomes chargeable with knowledge of it. Applying this rule, we affirm in part and reverse in part.


Since we accept all well pleaded facts as true, our factual recitation comes primarily from Diversey’s amended complaint. He was a doctor-of-philosophy (Ph.D.) student studying linguistics at the University of New Mexico. His complaint paints a picture of intractable difficulties with the members of his dissertation committee. The members did not provide him with mentorship or feedback on his dissertation drafts, even after he complained to departmental and university administrators, including Charles Fleddermann, UNM’s Dean of Graduate Studies. Diversey claims the dissertation committee failed to review the final draft of the dissertation, and says, “[t]he dissertation must . . . be fully reviewed and evaluated in its final form by the committee members and director before being officially approved and submitted; otherwise it is illegitimate and thus of no academic value. “ (R. Vol. I at 68.)

As Diversey continued to attempt to convince UNM officials to correct the deficiencies in the dissertation process, he provided a copy of the draft dissertation to UNM Dissertation Coordinator Doug Weintraub, who volunteered to proofread it. Before Weintraub could do so, Fleddermann allegedly confiscated the draft. On February 7, 2008, UNM Deputy Provost Richard Holder wrote Diversey to advise him the dissertation had been deposited in the Zimmerman Library at UNM. The draft dissertation was also sent to ProQuest, UNM’s dissertation publisher. On February 20, 2008, a ProQuest representative confirmed receipt of the draft dissertation. On Diversey’s protest, ProQuest returned the manuscript to UNM.


Judge(s): Terrence O'Brien
Jurisdiction: U.S. Court of Appeals, Tenth Circuit
Related Categories: Civil Procedure
Circuit Court Judge(s)
Scott Matheson
Terrence O'Brien
John Porfilio

Plaintiff Lawyer(s) Plaintiff Law Firm(s)
Andrew Diversey Pro se

Defendant Lawyer(s) Defendant Law Firm(s)
Kimberly Bell The University of New Mexico



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nor does it provide for any reach back if an act of infringement occurs within the defendant may be vicariously liable even when he or she is not aware of the infringing andrew diversey, plaintiff-appellant, pro se. however, diversey’s claim of unauthorized distribution under § 106(3) must be title ins. co., 642 f.3d 876, 886 (10th cir. 2011). we accept the well-pled factual o’brien, senior circuit judge. continuing course of infringement ceases. barring the application of an appropriate [we] should do so despite the plaintiff’s failure to cite proper legal authority, his period, which applies a “continuing wrong” exception. the most prominent of the cases as diversey continued to attempt to convince unm officials to correct the 9 on the contrary, this is exactly what the complaint alleges with respect to zimmerman library and became aware it had been sent to proquest. thus, he right to distribute his work was allegedly infringed when the university listed his work in appeal from the united states district court we are, however, reluctant to extend our analysis beyond fleddermann.9 support a special limitation rule for “continuing wrongs.” see 17 u.s.c. § 507(b); roley, copyrighted work—is somewhat harder to assess. diversey does not allege his work was conclusion was an error.8 fleddermann. it alleges he confiscated the draft dissertation from weintraub’s office and 1118-19. defendants – appellees. (3) the amount and substantiality of the portion used in diversey wrote each of the appellees, including the dean of university libraries, citing university libraries and to catalog the work.” (r. vol. i at 85.) - 15 - research. this notice appears to have been effective, as it prompted diversey to contact the infringement. roley, 19 f.3d at 481. moreover, when an infringer’s actions are publ’g corp. v. columbia artists mgmt., inc., 443 f.2d 1159, 1162 (2d cir. 1971). a the explicit immunity-stripping provisions of 17 u.s.c. §§ 501(a) and 511(a). see also without oral argument. - 5 - 1297, 1313-15 (11th cir. 2011) (discussing immunity issues in copyright infringement 1996); see 17 u.s.c. §§ 106, 501(a). however, a defendant can also be secondarily after examining the briefs and appellate record, this panel has determined in other words, the majority view rejects the notion that a plaintiff can the copyright act of 1976 recognizes the common-law defense of fair use. 17 the transcript of the district court’s motion on the appellee’s motion to dismiss 19 f.3d at 481 (observing that a copyright infringement claim “may be brought for all the third factor—the amount and substantiality of the portion used in relation to infringement accrues when one has knowledge of a violation or is chargeable with such proquest, unm’s dissertation publisher, to inquire as to whether it, too, had received a diversey named as defendants three members and officers of unm’s board of - 9 - regents (james koch, raymond sanchez, and jack fortner) with whom he we see no a claim for copyright infringement must be brought “within three years after the control the first public appearance of his undisseminated expression will outweigh a to liability. in the appellees’ view, the complaint fails to allege any of them personally infringing acts are obfuscated by the stream of commerce, the majority accrual rule and taylor plaintiff relief from the statute of limitations. id. at 1119 (“[e]ither of the tolling the district courts within this circuit have generally taken this view. see appeal. see fed. r. app. p. 34(f); 10th cir. r. 34.1(g). the case is therefore submitted february 7, 2008, unm deputy provost richard holder wrote diversey to advise him okla. 2005); fisher v. united feature syndicate, inc., 37 f. supp. 2d 1213, 1217 (d. to recognize separate . . . accrual dates for each distinct infringement.” (appellant br. at facts as alleged in the amended complaint, the fair-use analysis favors diversey. the exclusive right “to distribute copies . . . of the copyrighted work to the public by accrual date.” (appellant br. at 17.) according to his amended complaint, there were our review of a fed. r. civ. p. 12(b)(6) dismissal is de novo. coll v. first am. f.3d 883, 889 (6th cir. 2004); hotaling, 118 f.3d at 202; makedwde pub. co. v. our resolution of this issue in diversey’s favor makes the resolution of his here, only the first factor—purpose and character of use—weighs strongly in the knowledge.” roley v. new world pictures, ltd., 19 f.3d 479, 481 (9th cir. 1994); see corp. v. twombly, 550 u.s. 544 (2007)). we also liberally construe diversey’s pro se distribution to the public.”); 2 melville nimmer & david nimmer, nimmer on copyright letter demanding they cease unm’s infringement of his copyright. (d.c. no. 1:12-cv-00651-smv-wds) harper & row, 471 u.s. at 553 (noting the copyright owner’s heightened interest in the arguments about the judge having made “false inferences and factual misrepresentations” discovered them . . . .”). accordingly, we reject as unnecessary the “continuing wrong” rise to several independent claims for relief, each of which has its own corresponding . . . his claim for unauthorized copying under § 106(1) accrued no later than february 20, 2008) to suggest “‘§ 106(3) is not violated unless the defendant has actually distributed public. david schmidly; richard distributing the entire dissertation. tolling principle, a copyright infringement claim must be brought within three years of 3 david schmidly, unm’s former president, and former deputy provost richard holder. owner. country kids ‘n city slicks, inc. v. sheen, 77 f.3d 1280, 1284 & n.2 (10th cir. prosecutions of copyright infringements in a comparable fashion);5 to the borrowing or browsing public, it has completed all the steps necessary for to resolve on remand. colo. 1999); in re indep. servs. orgs. antitrust litig., 964 f. supp. 1469, 1478 (d. kan. 1997). memorandum opinion. because diversey’s claims include allegations of secondary furrow in the plowing of such rocky ground is best turned by the district court. all individually and in their official elisabeth a. shumaker (2) the nature of the copyrighted work; the december 23, 2013 concluded, the three-year limitation period elapsed by february 2011, and diversey’s tenth circuit the second factor—the nature of the copyrighted work—weighs strongly in it by the faculty, he had a legitimate reason to believe unm might indeed change course - 11 - ordinarily, there are two elements to a claim for liability for copyright copy of the draft dissertation.6 in defense of the dismissal.3 reason diversey should have known about the unm libraries’ distribution of his work infringed work, and (2) the defendant violated one of his exclusive rights as copyright 4 opinion to rely on a continuing tort type theory.”). diversey’s claims. then, we examine the two alternative rationales the appellees assert baxter v. curtis amended complaint fails to allege any of them personally “undertook any act to cause the infringing sales of retailers to whom the defendant wholesaled his infringing copies, as before june 16, 2009, when he discovered his draft dissertation’s entry in the unm authorized copy diversey handed over to weintraub. thus, it appears only the copies fleddermann, unm’s dean of graduate studies. diversey claims the dissertation in addition to his other contacts with the appellees, diversey sent each of the appellees a two alleged infringements. first, his exclusive right to make copies was infringed when allegations in the complaint as true, “resolve all reasonable inferences in the plaintiff’s 2009. further, given diversey’s continued efforts to work with unm officials to both (2d cir. 1992).4 copyright infringement accrue, and, in particular, whether accrual is delayed until a deprived him of the value of the dissertation. this factor weighs in his favor. 2008, a proquest representative confirmed receipt of the draft dissertation. on 106).) indeed, at common law, the defense of fair use could never be applied to alleged - 16 - andrew diversey sued several administrators and members of the board of reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, dissertation was also sent to proquest, unm’s dissertation publisher. on february 20, advancing this minority interpretation is the seventh circuit’s decision in taylor v. appellees from liability for their actions. during this discussion, neither party discussed hotaling v. church of jesus christ of latter-day saints, 118 f.3d 199, 202 (4th cir. since we accept all well pleaded facts as true, our factual recitation comes after he complained to departmental and university administrators, including charles must . . . be fully reviewed and evaluated in its final form by the committee members and - 12 - statutory period.’” roley, 19 f.3d at 481 (quoting hoey v. dexel sys. corp., 716 f. supp. 596 f.3d 751, 756 (10th cir. 2010) (quotations omitted) (applying the “plausibility” complaint merely because some related act of infringement occurs within the limitation applicability of hotaling’s holding to cases of internet file-sharing. we need not delve d. involvement of each of the appellees diversey’s protest, proquest returned the manuscript to unm. holder’s february 7, 2008, letter apprised diversey of the deposit of his dissertation in 712 f.2d at 1118 (observing a copyright infringement plaintiff is entitled to tolling when the whole—also weighs strongly in diversey’s favor because the unm libraries are james koch; raymond sanchez; it affords him to properly complete his doctoral program, compete for academic jobs, and relation to the copyrighted work as a whole; and limitation period never begins to run until the plaintiff knows or has reason to know of violation of the copyright owner’s exclusive right to distribute his work via lending. see intended for the commercial market. rather, the value of the work is in the opportunities making “the work available to the borrowing or browsing public.” hotaling, 118 f.3d at further proceedings consistent with this opinion. diversey’s claim of infringement of his right to distribution accrued on june 16, exclusive right “to reproduce the copyrighted work in copies”). second, his exclusive united states court of appeals prevent his dissertation from being distributed and to rectify the lack of attention given to 8 infringement more than three years in the past, at least if he acted promptly once he as an alternative basis for affirmance, the appellees contend their use was into the file-sharing issue today. hotaling, like this case, involves a public library ongoing distribution of his work in its libraries was a continuing infringement for which and “ask whether it is plausible that the plaintiff is entitled to relief.” bixler v. foster, the infringement. id. at 264. one way of establishing contributory liability is by showing diversey escalated his complaints: he contacted unm’s president, its dean of - 13 - not time-barred. - 7 - zimmerman library, which also houses the collection of the center for southwest (4) the effect of the use upon the potential market for or value submitted on the briefs: avail. then, on june 16, 2009, diversey discovered two copies of his dissertation: one in tolling principles adequately protect copyright owners’ rights in such situations. the of the copyrighted work. calculated to deceive the plaintiff, the accrual may be tolled even further. see taylor, february 20, 2008, diversey knew at least one unauthorized copy had been made. thus, with respect to diversey’s claims of infringement of his exclusive right to copy primarily from diversey’s amended complaint. he was a doctor-of-philosophy (ph.d.) andrew diversey, 2009, unm’s counsel sent diversey a letter refusing diversey’s request.1 615, 621 (6th cir. 2004) (“[e]ach act of infringement is a distinct harm.”); see also roley, - 14 - members did not provide him with mentorship or feedback on his dissertation drafts, even placed in zimmerman library were unauthorized. right of first publication relative to the other exclusive rights provided under 17 u.s.c. § diversey relies in part on the minority interpretation of § 507(b)’s limitation picture of intractable difficulties with the members of his dissertation committee. the dissertation weighs heavily against the appellees under the second fair-use factor. see 17 plausible claim against each appellee. we decline to decide this issue in the first they confirmed the work was not “distributed,” in the parlance of § 106(3), until june 16, id. as amended, § 107 tells us the unpublished nature of a work does “not itself bar a infringing activity” and “has a direct financial interest in such activities.” gershwin judge did not address the arguments with respect to any of the other appellees in his 5 june 2012 complaint was not timely. he also rejected diversey’s argument that unm’s - 17 - rights in the dissertation, e.g., an implied license to keep copies of the dissertation at the communicated during his efforts to resolve his concerns. he also named three provided it to the unm libraries for inclusion in their collections. as this resulted in the (quoting howell, 554 f. supp. 2d at 883).) pleading standard articulated in ashcroft v. iqbal, 556 u.s. 662 (2009), and bell atl. under fed. r. civ. p. 12(b)(6). our review requires us to determine when claims of the draft dissertation was reproduced for deposit in unm’s zimmerman library and its claim of fair use.” (appellant br. at 28 (quoting harper & row, 471 u.s. at 555).); see 19 f.3d at 481 (“section 507(b) is clear on its face.”). second, although the minority public.” see hotaling, 118 f.3d at 203. until the work was available in the catalog of infringement of his exclusive right of distribution, we reverse and remand for johnson, 37 f.3d 180, 182 (5th cir. 1994); stone v. williams, 970 f.2d 1043, 1049-50 - 2 - before weintraub could do so, fleddermann allegedly confiscated the draft. on clerk of court (1985) (noting § 106(3) gives the copyright owner “the right to control the first public sale . . . or by rental, lease, or lending”). city studios, inc., 464 u.s. 417, 437 (1984)). doctrine in the copyright infringement context and adopt the majority view. center for southwest research. see 17 u.s.c. § 106(1) (giving the copyright owner the indus., 201 f. supp. 100, 101 (n.d. ohio 1962). even though some of the plaintiff’s conclusion 16.) we agree and conclude diversey’s claim for infringement of his distribution right is pleadings. hall v. bellmon, 935 f.2d 1106, 1110 (10th cir. 1991). thus, if we “can deficiencies in the dissertation process, he provided a copy of the draft dissertation to 203. a patron could “visit the library and use the work.” see id. this is the essence of a howell does reflect some dissensus, particularly among district courts, about the 222, 223 (e.d. va. 1989)); accord bridgeport music, inc. v. diamond time, ltd., 371 1 unfamiliarity with pleading requirements.” id. 1536, 1540 (11th cir. 1984) (applying the then-three-year limitation period for criminal a defendant “authorized the infringing use.” softel, inc. v. dragon med. & scientific see 28 u.s.c. § 636(c); fed. r. civ. p. 73(a). under this procedure, diversey properly period. principles discussed earlier would allow [plaintiff] to collect damages for acts of albuquerque, new mexico, for defendants – appellees. discussion under the three-year limitation period. in particular, he argues the judge erred by “failing vicarious liability attaches when the defendant “has the right and ability to supervise the unpublished dissertation. the district court dismissed diversey’s complaint as untimely unm’s zimmerman library and another in the collection of the zimmerman library’s nat’l ass’n of bds. of pharmacy v. bd. of regents of the univ. sys. of ga., 633 f.3d the date on which the plaintiff becomes aware of an act of infringement or becomes accrued in february 2008 when diversey was notified of the dissertation’s deposit in the because, at this stage, the fair-use factors tilt heavily against the appellees, their filed martha bedard; jack fortner, diversey contends the district court erred in concluding his claims were barred liable for another’s copyright infringement under principles of vicarious and contributory (1) the purpose and character of the use, including whether the amended complaint adequately alleges sufficient involvement to expose each of them infringement claims from the statute of limitations; under ordinary tort principles, it c. fair use distribution of his dissertation was infringed. the appellees ask us to determine whether view seems intended to ensure copyright infringers do not escape liability when their infringements of unpublished works. harper & row, 471 u.s. at 550-51; salinger v. claims against the defendant’s own copyright infringements may have been barred under below.”). the defendant’s actions are “calculated to obstruct any inquiry [plaintiff] might have no. 13-2058 kimberly n. bell, associate university counsel, the university of new mexico, library was not tantamount to the distribution of the work. the essence of distribution in his copyright and requesting the return of all copies of his dissertation. on october 5, the dissertation had been deposited in the zimmerman library at unm. the draft libraries’ catalog information system. according to the amended complaint, he diligently the parties consented to have their case heard and decided by a magistrate judge. such use is of a commercial nature or is for nonprofit when proquest confirmed it had received a copy on cases). because the appellees have not urged affirmance on this alternative ground and but see makedwde, 37 f.3d at 181 n.2 (“we do not understand the shabazz - 10 - (r. vol. i at 84.) as his prior searches failed to discover any reference to his dissertation, system does not violate diversey’s distribution right. they say diversey must (but has  concluded the copyright infringement claims finding of fair use if such finding is made upon consideration of all the above factors.” before matheson, circuit judge, porfilio, and o'brien, senior circuit judges. the library lending context is the work’s availability “to the borrowing or browsing recover for acts of infringement occurring more than three years before the filing of a appealed directly to this court. see 28 u.s.c. § 636(c)(3); fed. r. civ. p. 73(c). advance the scholarship in his discipline. at this stage, we accept as true his assertion copyright’s lost ark: interpreting the right to distribute in the internet age, 59 j. permissible under the statutory provisions for fair use. see 17 u.s.c. § 107. under the libraries. this is a non-commercial, educational purpose at the heart of the protection for activity. fonovisa, 76 f.3d at 262. by contrast, contributory liability attaches when the separately considered. see bridgeport music, inc. v. rhyme syndicate music, 376 f.3d diversey’s favor. as he notes, “[u]nder ordinary circumstances, the author’s right to the minority view is not compelling. first, the statute itself says nothing to public. they cite atlantic recording corp. v. howell, 554 f. supp. 2d 976 (d. ariz. copies by lending. see hotaling, 118 f.3d at 203 (“when a public library adds a work to according to the amended complaint, the copy sent to proquest was the an unauthorized copy of the work to a member of the public.’” (appellee’s br. 14 (but non-exclusive) factors to determine whether a particular use is fair: zimmerman library’ on february 7, 2008.” (appellee br. 8.) this assertion elides the here, there appears to be no dispute as to the validity of diversey’s copyright. committee failed to review the final draft of the dissertation, and says, “[t]he dissertation and elect not to distribute the dissertation in its libraries. long as those sales occurred before the limitation period elapsed. see taylor, 712 f.2d at u.s.c. § 107; harper & row publishers, inc. v. nation enters., 471 u.s. 539, 549 use cannot be considered fair under 17 u.s.c. § 107. demonstrated . . . to implicate the copyright owner’s distribution right.”).7 points out, § 106(3) explicitly protects the copyright owner’s exclusive right to distribute its library catalog for public lending. see 17 u.s.c. § 106(3) (giving the copyright owner united states court of appeals (1985). the fair-use defense insulates from liability certain violations of a copyright favor,” morse v. regents of the univ. of colo., 154 f.3d 1124, 1126-27 (10th cir. 1998), we first examine and apply the law relating to the limitation period applicable to instance. see lowe v. town of fairland, okla., 143 f.3d 1378, 1381 (10th cir. 1998) random house, inc., 811 f.2d 90, 95 (2d cir. 1987). although this restriction has b. copying and distribution claims - 6 - capacities, - 3 - director before being officially approved and submitted; otherwise it is illegitimate and (“as a general rule an appellate court does not consider an issue not passed upon comms., inc., 118 f.3d 955, 971 (2d cir. 1997) (quoting sony corp. of am. v. universal educational purposes; part. libraries’ distribution of the dissertation, diversey has stated a plausible claim of publish system, diversey had no reason to believe it was available to the borrowing or browsing his dissertation, we affirm the judgment of the district court. with respect to his claim institution while unm still lists his work in its libraries’ catalogs. this has completely failed to) allege the libraries actually distributed an unauthorized copy to a member of the v. wrong is over and done with.” id. at 1118; see also united states v. shabazz, 724 f.2d center for southwest research. these copies were available to the general public. 1997). the statute is evenhanded; “‘[i]t does not provide for a waiver of infringing acts the fourth factor—the effect of the use on the potential market for or value of the student affairs, and several members and officers of unm’s board of regents to no libraries to add the dissertation to their collections, the deposit of the dissertation in the unauthorized copy is unwarranted). in the appellees’ view, diversey had actual notice of the alleged infringement of because the issue presents possibly thorny questions, we do not address it. the initial 2008. his june 15, 2012, complaint was not timely. unm dissertation coordinator doug weintraub, who volunteered to proofread it. - 8 - distribution right and concluding the requirement of actual distribution of an contributory copyright infringement claim against fleddermann. 17 u.s.c. § 106(3); harper & row publishers, inc. v. nation enters., 471 u.s. 539, 552 rocking chair enters. v. macerich scg ltd., 407 f. supp. 2d 1263, 1266-67 (w.d. on june 15, 2012, diversey filed a complaint for copyright infringement. in his distribution right when he was informed his dissertation “‘had been deposited in holder; charles fleddermann; the cause of action did not accrue until the infringement ceased. regents of the university of new mexico (unm) for infringing his copyright to an a. limitation period for copyright infringement claims subsequently softened, see salinger, 811 f.2d at 95, the unpublished nature of diversey’s 2 as another alternative basis for affirmance, the appellees contend diversey’s - 4 - chargeable with knowledge of it. applying this rule, we affirm in part and reverse in owner’s exclusive rights “for purposes such as criticism, comment, news reporting, confusion of various legal theories, his poor syntax and sentence construction, or his made”). indeed, this tolling principle alone would have been sufficient to allow the 6 distribution . . . of his work” (quotation omitted)); peter s. menell, in search of plaintiff – appellant, as to the copies made for deposit in the libraries, the judge’s analysis was correct. tenth circuit meirick,712 f.2d 1112 (7th cir. 1983). there, the court rescued a plaintiff’s contributory § 507(b), the taylor court concluded the defendant was still contributorily liable for the listed the dissertation in the libraries’ catalog system or asked anyone else to do so. acts that accrued within the three years preceding the filing of the suit.”). as diversey appellees’ favor. the use at issue is the distribution of the dissertation via the unm u.s.c. § 107(2); salinger, 811 f.2d at 96-97. unnecessary. (appellant br. at 34.) teaching . . ., scholarship, or research.” 17 u.s.c. § 107. it establishes the four primary claim accrued.” 17 u.s.c. § 507(b). under the majority view, a claim “for copyright background and procedural history liability. see fonovisa, inc. v. cherry auction, inc., 76 f.3d 259, 261-65 (9th cir. 1996). reasoned, the limitation period “does not begin to run on a continuing wrong till the and, in light of the above discussion, diversey’s exclusive right to control the copyright soc’y u.s.a. 1, 52-66 (2011) (analyzing the legislative history regarding the checked this information system “[a]t regular weekly (and often even daily) intervals.” reflects some discussion as to whether the doctrine of qualified immunity protects the fair use. the libraries themselves, while they apparently serve the public, are academic within the limitation period if earlier infringements were discovered and not sued upon, the work. given diversey’s objections and the routine processing time necessary for the liability, a fact-intensive analysis will be necessary to determine whether he has stated a thus of no academic value. “ (r. vol. i at 68.) infringement. a plaintiff must show (1) he owns a valid copyright to the allegedly 7 dismissing the case, the magistrate judge2 § 8.11[b][4][d] at 8-154.10 (2013) (“no consummated act of actual distribution need be diversey argues “there are actually several distinct copyright infringements giving for the district of new mexico distinction between the deposit in the library and the library’s subsequent distribution of administrators he contacted: martha bedard, unm’s dean of university libraries, student studying linguistics at the university of new mexico. his complaint paints a dissertation to be cataloged.” (appellee br. 13.) we leave this issue for the district court id. the appellees argue merely listing the work in the libraries’ catalog information according to the letter, unm officials believed they had “certain non-exclusive libraries existing primarily for scholarly and research purposes. unanimously that oral argument would not materially assist the determination of this its collection, lists the work in its index or catalog system, and makes the work available 2009, and his june 15, 2012, complaint was timely as to this claim. the judge’s contrary that he cannot effectively complete the dissertation review and defense process at another defendant causes or materially contributes to another’s infringing activities and knows of

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