Big things going on in NY Fed Courts. Until I read the update at the bottom, I was blown away, since the decision in Hotaling v. Church of Jesus Christ of Latter-Day Saints (4th Cir) has been pretty good law since 1997 standing for the proposition that a library, once it's made the materials available, is liable for any improper copying regardless of whether any copying actually took place.
But after reading the update, it looks like the judge hasn't forgotten all his copyright law, and is just adding onto the Hotaling doctrine by requiring that the plaintiffs prove "offer to distribute," an element that wasn't particularly important in the Hotaling case (libraries, by existing, imply an offer to distribute), but has become ever more important in the Internet age.
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2 comments:
Brian, I was wondering if you could help me understand the way in which the judge in the Hotaling v. Mormons verdict uses the word "prejudice". It appears in the final paragraphs of sections III and V.
I'm also interested in the putative force of a dissenting opinion, but that might be a conversation for a different time.
Ah, a fair question. The two uses:
"Were this not to be considered distribution within the meaning of § 106(3), a copyright holder would be prejudiced by a library that does not keep records of public use, and the library would unjustly profit by its own omission."
"To reiterate, a copyright holder should not be prejudiced in this manner, nor should an infringer benefit from its failure to keep records."
The word is being used here not in the popular "racism / stereotyping" sense, but in the more literal sense you get when you break the word down to its Latin roots. The idea is that we don't want to give an unsurmountable advantage to either side in a lawsuit (thus pre-judging the case).
In Hotaling, the court basically reasoned like this:
1) We could run with the general rule that in order to show infringement, you have to show actual evidence of copying.
2) BUT if we did that, then libraries would decide not to keep records, because that would mean that no one could ever prove copying. All plaintiffs' suits would be pre-judged by virtue of an empty evidence record.
3) Unfortunately, we can't legally require libraries to keep records, because that's a decision that has to be made by the legislature.
4) Therefore, we have to hold that inclusion in the library of unauthorized works is automatically a copyright violation, because holding otherwise would render all potentially legitimate suits meaningless.
Hope that helps clear things up. What do you mean by putative force of a dissenting opinion?
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