Page:The librarian's copyright companion, by James S. Heller, Paul Hellyer, Benjamin J. Keele, 2012.djvu/54

38 For example, if your library infringed an author’s copyright by keeping her article on the library’s Web site for the past ten years, you can’t use the statute of limitations to shield your library from liability. Because the article has remained on the library’s Web site, the infringement is ongoing. A more difficult question is whether your library is liable only for damages that resulted during the last three years, or if you’re liable for damages during the entire ten-year period. On this question, courts are split, but most limit damages for continuing infringement to the three-year period.

There is also some disagreement among courts on how to treat plaintiffs who are unaware of the infringement until after the statute of limitations has run. Some courts say that the clock starts running when the infringement occurs, while other courts say that the clock starts only when the plaintiff learns about, or has reason to learn about, the infringement. If the defendant has done something to conceal the infringement, courts will generally follow the latter approach—the clock doesn’t start running until the plaintiff discovers or has reason to discover the infringement.

As we noted in, the law regarding continuing infringements is particularly troublesome for libraries because any infringing work in a library’s collection is being distributed on an ongoing basis. If your library has an infringing copy in its collection, it can be held liable no matter how long ago the copying took place, so long as the work itself continues to be protected by copyright.

What if the library is part of a federal, state, or local government, such as a city or county public library, a state-funded university library, or a federal agency library? Can the government be liable for acts of its employees? The answer is “maybe.” In some circumstances a government has what is called sovereign immunity, meaning that a copyright owner cannot recover damages from it.