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
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
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 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