On 10/8/98, Wes Cochran <xpjwc[_at_]ttacs.ttu.edu> wrote:
>
> On 10/7/98, Laurence R. Helfer <larry.helfer[_at_]lls.edu> wrote:
> >
> > Does publication occur when the author places one copy of a copyrighted
> > work on the top shelf in the back of a public library? The book is not
> > listed in the library's card catalogue.
>
> As to this hypothetical, I think that 4th Circuit would hold that
> distribution occurred, based on its decision in Hotaling v. Church of
> Jesus Christ of Latter-Day Saints, 118 F.3d 199. An infringing copy
> in a church's library, though with a listing in the catalgue, was
> distribution. As I recall, there was no evidence that anyone actually
> found or used the copy in the library. The church argued that placement
> on a library constituted, at best, an offer to distribute, but the court
> found distribution. The copy there was listed in the catalogue, but I
> think that as long as the copy could be discovered by someone browsing
> the shelves (which a lot of library users do) that a court would find
> distribution.
An interesting case. Judge Hall wrote a thoughtful and brief dissent. At least Hall, unlike the majority, quoted the statutory language of the distribution right in section 106:
"to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending."
17 U.S.C. sec. 106(3).
Hall said it couldn't be sale or other transfer of ownership because the libraries don't transfer ownership of their books to patrons. Generally, libraries don't rent or lease their materials, either, which, as Hall correctly noted, left only lending, something libraries do, but if I understood properly, because this work was in microfiche, it couldn't be lent, only looked at. Thus, Hall said, the only lending that could occur would be lending on the premises, permitting the user to look at the microfiche. And this, said Hall, is not really lending, but using. He substantiated that conclusion by saying that the patrons would not, in these circumstances, say that the microfiche was lent, but that they used it. Lend, though, is defined as follows: "to give for temporary use on condition that the same or its equivalent be returned."
http://www.m-w.com/cgi-bin/dictionary
Seems to me, therefore, that if the work was used by a patron with the library's permission, it was lent. And this brings us back to whether a copyright owner has to prove that a work in these circumstances was actually looked at or only stayed on the shelf. As Hall said:
"In closing, I should say that I have some sympathy for the result reached by the majority. A library's allowing on-premises public use of an unauthorized copy should probably infringe a copyright. Nonetheless, I believe that current law does not deem this sort of use an infringing "distribution," and that, in any event, there is no evidence of such use in this case."
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