Background
In March 2020, at the onset of the pandemic, Tiffany Tate — sole member of Multi-State Partnership for Prevention (MSPP) — hired software developer Samuel Kennedy to build PrepMod, a COVID-19 vaccination scheduling and management platform. Kennedy reviewed MSPP’s existing code and found it unusable, agreeing to write PrepMod from scratch at $10,000 per week (later reduced to $7,500). Kennedy and his company Kennedy Technology MK (KTMK) worked from April through August 2020.
The relationship fell apart over money. Kennedy invoiced $135,000 (reduced to $90,000); MSPP paid only $30,000. Kennedy stopped work in August 2020, telling MSPP it needed to pay the outstanding balance before he would assign the copyright. Despite this, MSPP and a related entity (Maryland Partnership for Prevention, or MPP) licensed PrepMod to between 27 and 44 institutions without Kennedy’s authorization. MPP reported program service revenue of $471,000 in 2020, $4.6 million in 2021, and $6.6 million in 2023.
KTMK obtained copyright registration for PrepMod on April 23, 2022, and assigned the copyright to Kennedy. Kennedy filed copyright infringement counterclaims seeking over $11.6 million in actual damages, plus statutory damages of up to $150,000 per infringement and attorney’s fees.
The Court’s Holding
Copyright infringement counterclaim against MSPP: SURVIVES. Kennedy adequately pleaded ownership of a valid copyright and MSPP’s infringement through unauthorized licensing. The court rejected MSPP’s standing and registration challenges.
Statutory damages and attorney’s fees: STRICKEN. Under 17 U.S.C. § 412, a copyright owner cannot recover statutory damages or fees for infringement that commenced before the work’s registration — unless registration was made within three months of first publication. Here, the infringing conduct began in 2020, roughly two years before the April 2022 registration. Applying Fourth Circuit precedent (Bouchat v. Bon-Ton Dep’t Stores), the court held that infringement “commences” when the first act in a series of infringing acts occurs. Since PrepMod was first published and infringed in 2020, the two-year gap before registration eliminated Kennedy’s most powerful remedies.
Copyright claim against MPP: DISMISSED WITHOUT PREJUDICE. Kennedy did not discover MPP’s infringement (via subpoena responses from SHI International) until February 2025, but failed to plead that discovery date in his amended counterclaims. The court dismissed with leave to amend.
Breach of contract: DISMISSED WITH PREJUDICE. Under Maryland’s three-year statute of limitations, the breach accrued no later than September 2020 when MSPP failed to pay. Kennedy’s suit, filed in March 2024, came too late.
Key Takeaways
- Register early. Section 412 is a trap for developers who build first and register later. Kennedy lost access to statutory damages (up to $150,000 per infringement) and attorney’s fees — his most powerful leverage — because he waited two years to register.
- Actual damages remain available. Kennedy can still pursue the $11.6 million in actual damages. Section 412 only bars statutory damages and fees, not the actual-damages remedy under § 504(b).
- Plead your discovery date. The copyright claim against the more lucrative target (MPP, with $6.6 million in 2023 revenue) failed not on the merits but because Kennedy’s counsel argued the discovery date in briefing rather than pleading it in the complaint. An amendment should fix this.
- Statute of limitations kills stale contract claims. The breach of contract claim was dead on arrival. Developers who suspect nonpayment should act within the limitations period.
Why It Matters
This case is a cautionary tale for software developers. Kennedy built a platform that generated millions in revenue for entities that licensed it without his permission — but because he did not register the copyright until two years after the infringement began, he lost his most powerful remedies. For freelance developers, independent contractors, and small software companies, the lesson is clear: register your copyright before or within three months of releasing your software. The filing fee is $65. The cost of missing the § 412 window, as Kennedy learned, can be measured in the hundreds of thousands of dollars in fees and statutory damages left on the table.