Hotaling v, Church of Jesus Christ of Latter-Day Saints
118 F.3d 199 (4th Cir. 1997)

  • Hoatling collected a bunch of genealogical research and got a copyright on the collection. It was published on microfiche and the Mormon church bought a single copy of it.
    • The Mormons made multiple copies of the microfiche and mailed them around to a number of Mormon libraries.
  • When Hotaling found out what happened, she sued for copyright infringement.
    • The Mormons contacted all their libraries and told them to destroy them.
  • Hotaling found that the main Mormon library had retained a copy. She sued again for copyright infringement.
    • The Mormons argued that they had legitimately bought one copy, which they had accidentally destroyed while destroying all of their illegitimate copies. So to make up for that they kept one of the copies they made.
  • The Trial Court found for the Mormons. Hotaling appealed.
    • The Trial Court agreed that the copy the Mormons had retained was illegitimate. However, there was no evidence that anyone had ever looked at the copy. Therefore it was not a violation of copyright law because there was no distribution.
  • The Appellate Court reversed.
    • The Appellate Court noted that under 17 U.S.C. 106(3) a copyright holder has the exclusive right to distribution of the work.
    • The Court found that when a library adds a work to its collection and makes it available for borrowing by the public, that counts as distribution for purposes of 106(3).
      • There is no need to establish that the work actually was distributed, only that it was made available for distribution.
        • The library didn't keep records of who looked at their materials, so it wouldn't be fair to place the burden for showing it had actually been distributed on the plaintiff.
  • In a dissent it was argued that 106(3) defines distribution as "sale, or other transfer of ownership, or by rental, lease, or lending." Since the Mormon library was a research library, and didn't actually "lend" their materials (never mind sell or rent them) it was hard to see how they violated 106(3).
  • If the Mormons had owned a legitimate copy of the microfiche, they (like all libraries) would have been protected by the first sale doctrine (17 U.S.C. 109(a)), which basically says that if you buy a book (or dvd or microfiche or whatever), you can resell it or lend it to someone. Since the Mormon's microfiche was an improperly made copy, they were not covered by the first sale doctrine.
  • In theory, the Mormons had also violated Hotaling's exclusive right to reproduction under 17 U.S.C. 106(1). However, there was a statute of limitations and it couldn't be established exactly when the copy was made.
    • The statute of limitations on reproduction begins tolling as soon as the copy is made. But the distribution doesn't start tolling as long as the copy is available for distribution.