LITIGATION TRENDS 2025 | 77 T O C E M P E S G A N T I I P C A P R O W C S P O R T C O N T A C T I N T A P P P A T C C L S E C IP/Media without reference to when the damages occurred. See id. at 368, 372. While the majority abstained from deciding whether a claim could be “timely” under the discovery rule, the dissent addressed the merits of this doctrine head on, criticizing its use in the Copyright Act and in general. See id. at 374-75. Justice Gorsuch, joined by Justices Thomas and Alito, cited Supreme Court precedent showing that the “standard” tolling rule under any statute is the incident of injury rule, and that the discovery rule applies only “in cases of fraud or concealment.” See id. at 375. The dissenting justices found “little reason” to think that the Copyright Act would depart from these usual rules. Id. The dissent called for a case that “squarely present[s] the question of whether the Copyright Act authorizes the discovery rule.” Id. at 376. However, just weeks after ruling in Nealy, the Court denied certiorari in Hearst Newspapers, LLC v. Martinelli, a copyright infringement case that was appealed on this precise issue. The Court will have another chance to address the issue this term, as the discovery rule for Copyright Act claims is also at the center of the recent petition for certiorari in RADesign, Inc. v. Michael Grecco Productions, Inc., No. 24-768 (U.S. filed Jan. 17, 2025). (Weil represents the petitioner in that matter.) Whether the Court tacitly stamped its approval on the discovery rule by avoiding the question in Nealy and denying certiorari in Martinelli is up for debate. However, parties in all jurisdictions that follow the discovery rule should be aware that damages beyond a three-year period are now recoverable. Supreme Court Largely Punts on Social Media Content Moderation While many expected the Supreme Court’s 2023-2024 term to change the manner in which social media platforms monitor content, the Court largely punted on First Amendment challenges to Florida and Texas state laws animated by perceived censorship of conservative viewpoints. Decisions on the constitutionality of these laws set up a clear split between the Fifth and Eleventh Circuits, which the Court resolved on the last day of the 20232024 term in the consolidated cases Moody et al. v. NetChoice LLC et al., case number 22-277, and NetChoice LLC et al. v. Paxton, case number 22555. The laws at issue, Florida’s S.B. 7072 and Texas’s H.B. 20, “restrict the ability of social-media platforms to control whether and how third-party posts are presented to other users” by “limit[ing] the platforms’ capacity to engage in content moderation.” Moody v. NetChoice, LLC 603 U.S. 707, 717 (2024). On July 1, 2024, Justice Kagan delivered the Court’s opinion, which unanimously vacated and remanded the cases, albeit with the Justices providing four concurring opinions and numerous partial joinders. The Court remanded the cases because neither Court of Appeals “properly considered the facial nature” of plaintiffs’ challenge and instead reviewed the laws as if they applied only to “the curated feeds offered by the largest and most pragmatic social-media platforms” whereas, on plain reading, the laws might apply to countless other types of websites and apps. Id. at 717-718. Because plaintiffs presented a facial challenge to the laws, the courts should have analyzed Parties in all jurisdictions that follow the discovery rule should be aware that damages beyond a three-year period are now recoverable. IAI P 76 | Weil, Gotshal & Manges LLP
RkJQdWJsaXNoZXIy MTI5NDgyMg==