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 Questions of fact and intent

Infringement is a question of fact rather than of intent. It is not a

valid defense that the infringer is ignorant; nor, on the other hand,
can any one be held for intention to infringe, where the act of
infringement has not been accomplished. The new American code,
nevertheless, recognizes knowledge and intent in certain cases of
punishment or damages by the use of the words "willfully" and
"knowingly." The letter of the law is in general that the infringer
must be held responsible and must make good any damages
suffered by the copyright proprietor, but proof that he had no guilty
knowledge or intent may effect mitigation of punitive damages. The
trend of court decisions and of judicial opinion does not seem to be
evident and consistent in this development; but it may perhaps be
said that while copyright law is more closely applied from the letter
of the statutes, in the legal aspect, the principles of equity have
been given freer play where the statute is not specific and definite.
In 1899, in Green v. Irish Independent, the English Court of Appeal
held that the proprietors of a newspaper who had printed an
advertisement containing an illustration which the advertiser had
license to use only for specified purposes, were liable for penalties,
though they did not know that the illustration was copyrighted; and
in 1902, in American Press Assoc. v. Daily Story Pub. Co., the U. S.
Circuit Court of Appeals held the defendants liable, though they had
innocently copied from a newspaper reprint which had inadvertently
omitted the copyright notice. But in 1898 Justice Mathew, in Bolton
v. London Exhibitions, declined to hold the defendants punishable,
because they did not know that the lithographer from whom they
had ordered a poster had infringed the copyright of a photograph.
"Fair use"

"Fair use" means quotation from or other use of an author's work

within the evident meaning or judicial construction of the copyright
statute, and is the usual answer of the defendant to a complaint that
he has taken without authority some portion of the author's work or
utilized in some way the result of the author's labors. The borderland
between infringement and "fair use" is peculiarly and necessarily one
of uncertainty, not so much because of ambiguity in the statute as of
difficulty in determining the extent of use within which it is said non
curat lex. No statute can be so clear or so complete as to obviate
questions of this kind. In general there must be copying of a
material or substantial part. What is a material or substantial part,
constituting infringement, is a difficult question of fact.
Principle of infringement

"Copying is not confined to literal repetition," said Judge Clifford, in

Lawrence v. Dana, in the U. S. Circuit Court in 1869, "but includes
also the various modes in which the matter of any publication may
be adopted, imitated, or transferred, with more or less colorable
alterations to disguise the source from which the material was
derived; nor is it necessary that the whole, or even the larger
portion of the work, should be taken in order to constitute an
invasion of copyright." The Chancery Division, through Lord Chief
Justice Alverstone, took the extreme course in Trengrouse v. "Sol"
Syndicate, in 1901, of holding a work an infringement, though less
than a page was taken from the plaintiff's football guide.
Infringement by indirect copying

Infringement may be by indirect as well as by direct copying. In the

case of Cate v. Devon in 1889, in the Chancery Court, the defense
that the copying was not from the original copyright work but from a
newspaper reprint, was rejected. Infringement may be through quite
a different medium from the original; thus a shorthand reproduction
of a lecture on "The dog as the friend of man," published in a text-
book of shorthand, was held in the Chancery case of Nichols v.
Pitman, in 1884, to be an infringement of the lecture as much as if
in ordinary type.
Exceptions from infringement

The doctrine of infringement cannot be invoked to obtain monopoly

of any particular subject, and the authorized biographer of President
Garfield was denied relief in 1889, in Gilmore v. Anderson, when he
sought to prevent the publication of a life of Garfield by another
writer. Nor will mere similarity of treatment of the same subject
constitute infringement. A copyright owner cannot prevent another
person from publishing the matter contained in his book, if invented
or collected independently, or from making "fair use" of its contents.
Two map-makers, collecting at first hand the same data, would
naturally make the same map, and each would equally be entitled to
copyright. In this respect, copyright law differs from patent law,
where a first use bars others from the same field. It has even been
held that the collected material might be used by a second compiler
as a guide in a second compilation, if subjected to original
verification, as in the case of a street directory. But in the case of
rival Boston directories in 1905, the U. S. Circuit Court of Appeals
held, in Sampson & Murdock Co. v. Seaver Radford Co., that a
verification by actual canvass from a list of discrepancies made up
from the earlier work was beyond fair use.
Infringement by abridgment and compilation

Abridgments were construed by early English decisions not to be

infringements, and this precedent was followed, reluctantly and
often with protest, in later cases by English and American judges, as
set forth in the chapter on subject-matter. Later copyright provisions,
—as by use of the word "retranchements" in the Berne-Berlin
conventions, and the specific authorization in the American code "to
make any other version thereof," and for copyright of an abridgment
of a work in the public domain,—directly or by implication, make
abridgment an infringement and free the courts to take this view.
Compilations also constitute infringement if they extract substantial
parts of a copyright work, beyond the limits of "fair use," or even if
they adopt the plan or arrangement or bodily transfer the material of
a copyright compilation of non-copyright matter.
Abridged compilations

A curious complaint of infringement by abridgment was made in

Gabriel v. McCabe, in 1896, before Judge Grosscup in the U. S.
Circuit Court in Illinois, where the plaintiff had licensed the use of a
copyright song, "When the roll is called up yonder," in a collection of
religious poetry, "The finest of the wheat, no. 2," published by the
defendant, who included the song also in an abridged edition of this
collection and in a combined edition of this and another collection.
Judge Grosscup held that: "Future editions of a book may contain a
composition published in an earlier edition by license, even though
parts of the earlier edition are omitted.... To hold otherwise would
practically forbid any new editions of books of compilations, for the
consent of all the authors contributing could not, in many instances,
be obtained." But if the collection had been so abridged as to result
in the publication of the song alone as sheet music, it would have
been an unfair use under the license.
Separation of infringing parts

The general principles as to quotation beyond "fair use" were well

laid down by Lord Chancellor Eldon, in the early English case of
Mawman v. Tegg, in 1826: "If the parts which have been copied
cannot be separated from those which are original, without
destroying the use and value of the original matter, he who has
made an improper use of that which did not belong to him must
suffer the consequences of so doing. If a man mixes what belongs
to him with what belongs to me, and the mixture be forbidden by
law, he must again separate them, and he must bear all the mischief
and loss which the separation may occasion. If an individual chooses
in any work to mix my literary matter with his own, he must be
restrained from publishing the literary matter which belongs to me;
and if the parts of the work cannot be separated, and if by that
means the injunction, which restrained the publication of my literary
matter, prevents also the publication of his own literary matter, he
has only himself to blame."
Law digests

The difficult question of the extent to which a compiler may utilize

the materials of another has come especially to the front in the
American courts with reference to law digests and reports, within
recent years. In 1896, in Mead v. West Pub. Co., concerning rival
annotated editions of "Stephen on pleading," then out of copyright,
where the defendant's editor admitted having clipped the text from
the complainant's edition and having obtained some ideas or
suggestions from it, Judge Lochren, in the U. S. Circuit Court in
Minnesota, held that there was no infringement because non-
copyright matter could not be protected in a copyright work from
such clipping, because the defendant's notes were original even
though suggested from the other, and because the few errors and
citations in common were immaterial since there were many new
citations and the work was on the whole the result of original
research. That bodily transfer of citations is beyond "fair use" was
emphasized by Judge Ray in White v. Bender, in 1911.
Proof from common errors

As to proof from common errors, it had been held in 1895, in the

case of Chicago Dollar Directory Co. v. Chicago Directory Co., that
the later work, containing sixty-seven errors found in the other, was
evidently an infringement of the earlier compilation. In Bisel v.
Welsh, Re Brightly Pennsylvania reports, in 1904, the U. S. Circuit
Court held that repetitions of errors in citations were evidence of
infringement by the author of his own reports published under an
earlier contract by the plaintiffs; and in 1911, in Shepard v. Taylor,
Judge Hazel held that common errors were prima facie proof of
infringement.
Infringement in part
No infringement of piracies or frauds

In the important case of West Pub. Co. v. Lawyers' Pub. Co., where a
collection of selected cases and a general digest were alleged to be
infringements of the plaintiff's reports and monthly digests, Judge
Coxe in the U. S. Circuit Court enjoined 303 proved "instances of
piracy" but not the remaining portions of the digest, but in 1897 the
U. S. Circuit Court of Appeals, through Judge Lacombe, held that
under such circumstances the burden of proof must be on the unfair
user and broadened the decision by issuing an injunction against the
work as a whole, excepting those parts which were public property.
In 1910, in Park & Pollard v. Kellerstrass, Judge Philips enjoined the
whole work because the infringing parts were not separable. In
1903, in Thompson Co. v. American Law Book Co., where the editor
of the defendant's law encyclopædia had made a list of cases cited
in complainant's work, which included material "pirated" by the
complainant from copyright works, the Circuit Court of Appeals,
reversing the lower court, held through Judge Coxe that there was
no infringement, because the only use made of the list was to guide
the defendant to the reports and because the complainant had no
standing in equity. "If the defendant was guilty of piracy, so was the
complainant; and equity will not protect a pirate from infringements
of his piratical work." To like effect in Slingsby v. Bradford Co., in
1905, Justice Warrington, in the Chancery Division, held that the
plaintiff could not recover against an evident copying because his
own catalogue was fraudulent in advertising as patented articles not
so protected, and a fraud will not be protected. In the later case of
West Pub. Co. v. Thompson Co., where the publishers of the original
reports and digests sought to restrain the Thompson encyclopædias,
the Circuit Court of Appeals held that while a compiler may use a
copyright digest by making lists from which to run down cases,
which is "fair use," extensive copying or paraphrasing of the
language of the digest, whether to save literary work or mechanical
labor, constitutes an infringement. The case was sent back to the
lower court for rehearing and assessment of damages and was
settled in 1911 by an agreement involving transfer of the
encyclopædia to the plaintiff. Reference to a copyright work giving
pagination is not an infringement, as was decided in 1909, in Banks
Law Pub. Co. v. Lawyers Co-operative Pub. Co., in the U. S. Circuit
Court of Appeals.
Quotation

Whether simple quotation constitutes an infringement or is "fair

use," depends upon extent and in some respects upon purpose. In
1892 Justice North, in the English Court of Chancery, in Walter v.
Steinkopff, held that the use by the St. James Gazette of two fifths
of an article by Kipling, copyrighted by the Times, was beyond "fair
use" of quotations, notwithstanding the newspaper custom of
copying from one another. On the other hand, quotations in a review
of a book made to reasonable extent for the purposes of criticism,
have usually been considered "fair use," provided they do not go to
the extent of a description or abridgment which would be
measurably a substitute for the book.
Private use

The multiplication of copies by handwriting or other process for

private use, as among the members of an orchestra or in a business
office, has been held an infringement in English decisions, though
prohibition of the making of a single copy for personal use would be
an extreme application of this doctrine, and such use is specifically
permitted in the new English code.
The doctrine of "unfair competition"

Beyond the purview of copyright law, there is a means of legal

remedy for the copyright proprietor which can be enforced by state
as well as by federal courts, resting either upon statutes outside the
copyright law, or on the general principles of equity. This is the
application of the doctrine of "unfair competition" especially in cases
involving "fraud" or fraudulent representation, direct or implied,
leading the purchaser to buy something other than what he
supposes he is buying. Thus if a publisher prints and binds a book
with a title and in a style that leads a purchaser to suppose that it is
another book which he is buying, the publisher of the other book
has the right to obtain equitable relief by an injunction from the
transgressor on the ground of unfair competition without any
reference to copyright law, although this doctrine is more applied in
the case of patents, trade-marks and copyrights than perhaps any
other field.
The doctrine of deceptive intent

There is also evident a growing tendency on the part of the courts to

protect the public from possible deception especially if done with
fraudulent intent, where some distinctive name or symbol or form
associated with some line of product is used for another line of
product of different origin and character, though there may be here
no direct competition; but this comparatively new doctrine is more
likely to be used in regard to trade-mark articles than in respect to
literary and like property. It might, however, apply in a case where a
well-known publishing house had published, for instance, a popular
series of school books as Smith's Arithmetical Readers and another
firm containing the same name had started to publish a Smith's
Algebraic Readers—but the application would be extremely doubtful.
The "Chatterbox" cases

In the Chatterbox cases, 1884-1887, previously referred to, the final

decision of Judge Shipman emphasized the view that the use of the
title "Chatterbox" on a similar publication was misleading to the
public, thus bringing both trade-mark law and common law
protection to the rescue against unfair competition.
Encyclopædia Britannica cases

In the series of Encyclopædia Britannica cases, 1890-1904, the

English publishers Black or their American representatives Scribner
sought to protect in this country the English edition, or an American
authorized edition, under the copyright law previous to 1891,
copyrighted articles by Americans being included, and under
common law because of the alleged fraudulent misuse of the name
to mislead the public. In 1893, in Black v. Allen, Judge Townsend
held that the use of copyrighted material in a non-copyright work did
not vitiate the copyright, that the American author was entitled to
secure and protect copyright even though the right to use was
assigned to an English house which could not directly secure
copyright, and that the fact of discrepancy in the title of the
copyrighted articles as registered for copyright on separate
publication and deposit and in the cyclopædia, did not endanger the
copyright. In 1904, in Encyclopædia Britannica Co. v. Tribune
Association, Judge Lacombe in the U. S. Circuit Court enjoined
condensations of the copyrighted American articles. But in Black v.
Ehrich and other cases, the complainants were not successful in
obtaining an injunction against the use of the title Encyclopædia
Britannica on reprints of non-copyright material which did not
mislead the public.
Webster Dictionary cases

In the Webster Dictionary cases in 1890-1909, a long litigation

between the Merriams, as authorized publishers of Webster, and
Ogilvie and other defendants, the courts held that the use of the
name Webster or the title Webster's Dictionary could not be
restrained when used in connection with a reprint of the original
Webster Dictionary, then out of copyright, or otherwise in a manner
not likely to mislead the public; but injunctions were granted and
sustained against the use of these names on dictionaries issued in
form so like the Merriam editions as to deceive the public, or in
connection with misleading advertisements or circulars.
"Old sleuth" cases

In 1888-1890 George Munro, publisher of the "Old sleuth" detective

series, sought in actions against several defendants to protect the
use of the name "Sleuth" and was upheld in the N. Y. Supreme Court
in separate decisions by Judges Andrews, O'Brien, and Patterson,
while in one of the cases Judge Ingraham held that "sleuth" was a
dictionary word and could not be protected; in 1889 the N. Y. Court
of Appeals through Chief Judge Parker decided that the name
"Sleuth" was protectable, and in 1890 Judge Macomber of the N. Y.
Supreme Court held that "Sleuth" was properly a subject of trade-
mark. But in 1890 also, Judge Shipman in the U. S. District Court
dismissed the complaint in another Munro case, as to an illustration
picturing "Old Sleuth," on the ground that though of the same
subject it was not of the same character. These cases illustrate the
difficulty of decisions in this borderland of equity.
Other title decisions

In 1894 Judge Green, in the U. S. Circuit Court in New Jersey, in

Social Register Association v. Howard, protected on grounds of
equity the title "Social register" as descriptive of a social directory
covering Orange, N. J., and enjoined the use of "Howard's Social
register" as unfair competition. In 1887 the Harper house, as
publishers of the Franklin Square Library, obtained from the U. S.
Circuit Court, through Judge Waite, an injunction against the
Franklin Square Library Company for violation of their trade-mark
rights in the name.
Rebound copies

Where the American Book Co. brought suit against Doan & Hanson,
who had restored and rebound used copies of school books, the
U. S. Circuit Court of Appeals held in 1901 that there was no
violation of law, but required notice that the books were second-
hand copies by conspicuous stamp on the cover. In 1891 the
Pennsylvania Supreme Court, in Dodd v. Smith, declined to grant
Dodd, Mead & Co. an injunction against rebinders who had
purchased from them sheets of a fifty-cent paper-covered edition of
a novel by E. P. Roe and bound these in cloth to sell at sixty cents in
competition with the plaintiff's $1.50 cloth edition.
The Kipling case

In 1899 G. P. Putnam's Sons purchased from Kipling's authorized

publishers sheets of twelve volumes, added three volumes of non-
copyright or otherwise authorized material and published the fifteen
volumes, "Brushwood edition," of Kipling's works, with the design of
an elephant's head on the binding. Kipling sought an injunction for
infringement of copyright, use of trade-mark and unfair competition
with the "Outward bound edition" of his works, which also bore an
elephant's head. In 1903 the U. S. Circuit Court of Appeals, through
Judge Coxe, affirmed a decision holding as "a well-recognized
principle of law" that "the defendants, having purchased unbound
copyrighted volumes, were at liberty, so far as the copyright statute
is concerned, to bind and resell them"; that the elephant's head, not
being a registered trade-mark, could not be protected as a trade-
mark; and that there was no similarity of editions constituting unfair
competition. But in 1907, in Dutton v. Cupples & Leon, the plaintiffs
obtained damages for a series of books closely imitating the get-up
of their "Gem" or "Dainty" series. Passing off, however, cannot be
made ground of action when material protectable by copyright has
not been copyrighted, as was held in 1908, in Bamforth v. Douglas
Post Card Co., by Judge McPherson in the U. S. Circuit Court.
Burlesqued title

The suit to enjoin the use of a reversed or burlesque title, when the
Boston Herald printed, under the title of "Letters of a son to his self-
made father," a skit on Lorimer's "Letters of a self-made merchant to
his son," was denied by Judge Morton in the Massachusetts Supreme
Court in 1903 as involving no deception.
The Drummond case

In 1894 Henry Drummond, a British subject, obtained from Judge

Dallas, in the U. S. Circuit Court, an injunction restraining Henry
Altemus from publishing what purported to be exact reports of
twelve lectures, of which eight only had been imperfectly reported in
the British Weekly, on the ground that the author had a common law
right to restrain the publication "of any literary matter as the
plaintiff's, which was not actually his creation, and to prevent fraud."
The new British code

The new British measure comprehensively defines infringement as

the doing without consent of the owner of the copyright of "anything
the sole right to do which is by this act conferred on the owner of
the copyright," but specifically excepts (1) fair dealing for private
study, research, criticism, review or newspaper summary; (2) use by
an artist of sketches, etc., made for a work of which he has sold the
copyright, provided he does not repeat or imitate that work; (3)
graphic reproduction of objects, or photographing of paintings, etc.,
in a public place; (4) limited extracts for use in school books; (5)
report of lectures unless prohibited by placard; (6) reading or
recitation of reasonable extracts.
 XV

REMEDIES AND PROCEDURE

Protection and procedure

It was for the protection of copyrights that the statute of Anne was
passed and that statutory law thus began to replace English
common law—a gain to authors sadly offset by its losses. But it was
undoubtedly true that without statutory provision the proprietor of
literary and similar property could not obtain the protection
necessary for the enforcement of his rights. The new American code
is comprehensive, detailed and specific in its legal provisions for
protection and procedure, and in respect to punishment far beyond
any copyright legislation on the statute books of any other nation.
Injunction

The first protection given by the statute is the injunction usual in

equity proceedings, following the precedent of early legislation.
Damages

Under previous American law, damages were levied primarily on

infringing copies found in possession of the infringer or his agents,
with the unfortunate result that when an infringer was successful in
selling his edition, few, if any, copies were found on which to levy
damages. The new code thoroughly corrects this defect by providing
for specified damages on infringing copies "made or sold by or found
in the possession of the infringer or his agents or employees." The
plaintiff is entitled to damages and all profits and is required only to
prove sales, while the defendant is required to prove the elements of
cost. The damages—assessed as such and not as penalties so as to
free copyright litigation from the restrictions of penal proceedings—
are stated as one dollar for each infringing copy, except copies of a
painting, statue or sculpture on which they are ten dollars per copy;
fifty dollars for each infringing delivery of an oral work; one hundred
dollars for the first and fifty dollars for each subsequent infringing
performance of a dramatic, dramatico-musical, choral or orchestral
work; and ten dollars for each infringing performance of any other
musical work. These damages shall not be less than $250 or more
than $5000 in any one case, with the exception that for a newspaper
reproduction of a photograph the minimum shall be fifty dollars and
the maximum two hundred dollars, a concession insisted upon by
newspaper proprietors.
One suit sufficing

Injunction, damages and profits, and delivery of infringing copies or

means of production, are covered in the single suit to protect the
copyright.
Deposit of infringing articles

During the pendency of an action the defendant may be required to

deposit all articles alleged to infringe copyright, making oath that he
has deposited all such, under regulations for his protection
prescribed, as the law directs, by the Supreme Court, which
regulations are given in full in the appendix of this volume; and
when such articles are adjudged to be infringements, he must
deliver up for destruction not only such infringing copies or devices,
but also all plates, molds, matrices or other means for making such
infringing copies as the court may order, making oath that he has
delivered up all such.
The text covering these provisions, with the exception of subsection
(e), referring to mechanical musical reproductions, given in the
chapter on that subject, is as follows:
"(Sec. 25.) That if any person shall infringe the copyright in any
work protected under the copyright laws of the United States such
person shall be liable:
 Remedies specified

"(a) To an injunction restraining such infringement;

"(b) To pay to the copyright proprietor such damages as the
copyright proprietor may have suffered due to the infringement, as
well as all the profits which the infringer shall have made from such
infringement, and in proving profits the plaintiff shall be required to
prove sales only and the defendant shall be required to prove every
element of cost which he claims, or in lieu of actual damages and
profits such damages as to the court shall appear to be just, and in
assessing such damages the court may, in its discretion, allow the
amounts as hereinafter stated, but in the case of a newspaper
reproduction of a copyrighted photograph such damages shall not
exceed the sum of two hundred dollars nor be less than the sum of
fifty dollars, and such damages shall in no other case exceed the
sum of five thousand dollars nor be less than the sum of two
hundred and fifty dollars, and shall not be regarded as a penalty:
"First. In the case of a painting, statue, or sculpture, ten dollars for
every infringing copy made or sold by or found in the possession of
the infringer or his agents or employees;
"Second. In the case of any work enumerated in section five of this
Act, except a painting, statue, or sculpture, one dollar for every
infringing copy made or sold by or found in the possession of the
infringer or his agents or employees;
"Third. In the case of a lecture, sermon, or address, fifty dollars for
every infringing delivery;
"Fourth. In the case of dramatic or dramatico-musical or a choral or
orchestral composition, one hundred dollars for the first and fifty
dollars for every subsequent infringing performance; in the case of
other musical compositions, ten dollars for every infringing
performance;
Impounding
"(c) To deliver up on oath, to be impounded during the pendency of
the action, upon such terms and conditions as the court may
prescribe, all articles alleged to infringe a copyright;
"(d) To deliver up on oath for destruction all the infringing copies or
devices, as well as all plates, molds, matrices, or other means for
making such infringing copies as the court may order;
Supreme Court rules

"Rules and regulations for practice and procedure under this section
shall be prescribed by the Supreme Court of the United States," for
which see appendix.
Court jurisdiction

The Circuit Court, or District or other courts having circuit

jurisdiction, of the United States, have original jurisdiction "of all
suits at law or in equity arising under the patent or copyright laws of
the United States" with appeal or writ of error to the Supreme Court
of the United States. Copyright cases are brought in the first
instance before a single judge sitting in Circuit Court or District
Court, and thence are appealed to the Circuit Court of Appeals
consisting of three or more circuit judges, and thence again to the
United States Supreme Court, the final authority. These federal
courts have sole jurisdiction under the copyright law as such; but
copyright cases are often adjudicated in State courts on questions
arising under the law of contracts or other statute or common law,
regard being always given to the decisions of the federal courts as to
copyright questions proper which may be involved. In other words,
the State courts do not pass upon copyright law, but may apply,
within the respective states, the copyright decisions of federal
courts. Thus in Hoyt v. Bates, in 1897, Judge Putnam in the U. S.
Circuit Court in Massachusetts remanded the case back to the State
courts because the question was not under the copyright law as
such, but regarding the ownership of copyright property. In this case
the author of a play "A black sheep," containing a song "Sweet Daisy
Stokes," licensed the defendant to print the song. The defendant
copyrighted the song and the plaintiff sued to compel him to assign
his copyright. The case illustrates the respective jurisdictions of
federal and State courts in copyright matters.
Limitation

The United States courts have authority to enter the decrees

necessary to enforce the remedies provided by the law. Important
provisions of the new code provide that civil action in copyright
cases may be brought "in the district of which the defendant or his
agent is an inhabitant or in which he may be found"—thus
preventing avoidance by the defendant possible under earlier law;
and also that any injunction granted in any one district may be
operative throughout the United States—a provision adopted into the
law from recent legislation intended to prevent the evasion of
injunctions, particularly by "fly by night" dramatic companies passing
from one state or court jurisdiction into another, but usefully
applicable also throughout the whole range of copyright
infringements. Criminal proceedings under the copyright act may not
be brought after three years from the commission of the offense.
Under the former laws the District courts also had certain—or
uncertain—jurisdiction. The distinction between the District courts
and the Circuit courts of the United States, both of which are courts
of first instance, has been so complicated and uncertain as to be
practically impossible of statement—a situation which has led to a
measure for the abolition of the distinction and the provision of a
single court in each federal district having original jurisdiction in the
first instance, from which appeal will go to the Circuit Court of
Appeals and thence to the U. S. Supreme Court, or in certain cases
direct to the Supreme Court.
Text of procedure provisions

The text of these provisions is as follows:

"(Sec. 26.) That any court given jurisdiction under section thirty-four
of this Act may proceed in any action, suit, or proceeding instituted
for violation of any provision hereof to enter a judgment or decree
enforcing the remedies herein provided.
Proceedings united in one action

"(Sec. 27.) That the proceedings for an injunction, damages, and

profits, and those for the seizure of infringing copies, plates, molds,
matrices, and so forth, aforementioned, may be united in one
action."
Jurisdiction in copyright cases

"(Sec. 34.) That all actions, suits, or proceedings arising under the
copyright laws of the United States shall be originally cognizable by
the circuit courts of the United States, the district court of any
Territory, the supreme court of the District of Columbia, the district
courts of Alaska, Hawaii, and Porto Rico, and the courts of first
instance of the Philippine Islands.
"(Sec. 35.) That civil actions, suits, or proceedings arising under this
Act may be instituted in the district of which the defendant or his
agent is an inhabitant, or in which he may be found.
Injunction provisions

"(Sec. 36.) That any such court or judge thereof shall have power,
upon bill in equity filed by any party aggrieved, to grant injunctions
to prevent and restrain the violation of any right secured by said
laws, according to the course and principles of courts of equity, on
such terms as said court or judge may deem reasonable. Any
injunction that may be granted restraining and enjoining the doing
of anything forbidden by this Act may be served on the parties
against whom such injunction may be granted anywhere in the
United States, and shall be operative throughout the United States
and be enforceable by proceedings in contempt or otherwise by any
other court or judge possessing jurisdiction of the defendants.
"(Sec. 37.) That the clerk of the court, or judge granting the
injunction, shall, when required so to do by the court hearing the
application to enforce said injunction, transmit without delay to said
court a certified copy of all the papers in said cause that are on file
in his office.
Appeal

"(Sec. 38.) That the orders, judgments, or decrees of any court

mentioned in section thirty-four of this Act arising under the
copyright laws of the United States may be reviewed on appeal or
writ of error in the manner and to the extent now provided by law
for the review of cases determined in said courts, respectively.
No criminal proceedings after three years

"(Sec. 39.) That no criminal proceeding shall be maintained under

the provisions of this Act unless the same is commenced within three
years after the cause of action arose."
Strict compliance requisite

The copyright statutes are construed strictly, by the letter of the law,
in respect to procedure as well as to other features. This is especially
the case in respect to forfeiture and penalties, as where, in Falk v.
Heffron, in 1893, 2400 copies of a copyright portrait of Lillian Russell
had been lithographed, twenty-one on a sheet. Judge Wheeler in the
U. S. Circuit Court in New York held with the jury that only one dollar
per sheet could be recovered as penalty, because the law specified
"sheets." In McDonald v. Hearst, in 1899, in the U. S. Circuit Court in
California, Judge DeHaven held that the proprietor of the San
Francisco Examiner could not be held liable for copyright penalties
because an employer could not be held to penal responsibility for the
act of his agent. In a suit to obtain damages based on forfeiture, in
Wheeler v. Cobbey, in 1895, Judge Shiras in the U. S. Circuit Court in
Nebraska sustained a demurrer on the ground that the damages
asked for depended on forfeiture and could not be obtained unless
the actual forfeiture was had within the statutory limit of two years.
In Morrison v. Pettibone, in 1897, in the U. S. Circuit Court in Illinois,
Judge Seaman held that certain sheets, seized during the process of
lithographing, when only one color had been printed, were not exact
copies and therefore could not be forfeited. In Bennett v. Boston
Traveler Co., in 1900, the Circuit Court of Appeals, through Judge
Colt, refused relief because the plaintiff had alleged infringement of
a cartoon published in the New York Herald, which was not
specifically copyrighted, instead of alleging infringement of the
copyrighted newspaper of which it was a part. An extreme case was
that of Child v. N. Y. Times Co., in 1901, where the plaintiff had
purchased infringing copies from the defendant, in which case Judge
Hazel in the U. S. Circuit Court in New York held that as these were
not literally "found in possession" of defendant, a penalty could not
be collected. Several of these cases illustrate escapes from justice
which will not be possible under the code of 1909, which uses
broader phraseology. In Walker v. Globe Newspaper Co., in 1908,
where no copies of a pirated map were found in possession of the
defendants, the U. S. Supreme Court held that outside of statutory
remedies no suit for damages could be maintained.
Damage not penalty

On the other hand, in the case of Brady v. Daly, which came before
the U. S. Supreme Court in 1899, the defendants, on a question of
jurisdiction, raised the issue that the old law provided for a penalty
and not for damages, in denying which Justice Peckham held that:
"The statute in using the word 'damages' did not mean a forfeiture
or penalty, as it is difficult to prove the exact amount which the
proprietor of a play may suffer by reason of an infringement. It is
probable that Congress intended to provide a remedy so that the
proprietor could recover a certain amount of damages without proof
of what his actual loss had been. In the face of the difficulty of
determining the amount of damages, a minimum sum is provided in
any case, with the possibility of recovering a larger amount on proof
of greater damage. The idea of punishment is not so much
suggested as the desire to provide for compensation to the
proprietor." This rule was applied by Judge Lacombe in Patterson v.
Ogilvie, in 1902.
Other procedure decisions
In the case of Falk v. Curtis Pub. Co., which came before the U. S.
Circuit Court in Pennsylvania twice in 1900, some important
decisions or indications as to copyright procedure were given. The
defense that under the copyright act the words "any person" did not
include a corporation was overruled by Judge Dallas on the ground
that the general statute specifically construed the word "person" to
extend to partnerships and corporations. In this case an action to
recover penalties and an action to replevin copies in possession were
started independently and simultaneously, and the Circuit Court of
Appeals through Judge Buffington affirmed the decision that as the
penalties under the old act were restricted to copies "found in
possession," the suit for penalties was premature. In the later case
of Rinehart v. Smith, also in the Pennsylvania circuit, it was pointed
out that an action for replevin was not the proper form of suit
because in such actions bonds might be given and the forfeiture of
copies thus be barred; and in Hegeman v. Springer, the Circuit Court
in New York held, in 1901, that a replevin suit, involving prior
demand, was not necessary and that the copyright statute itself
gave authority for an action for seizure without previous demand, as
would be necessary in replevin proceedings. It was held, however, in
the Illinois circuit in an earlier case, that a suit of replevin will lie to
enforce forfeiture under the copyright act. Several of these
perplexities, however, are removed by the code of 1909, which
expressly (sec. 27) authorizes the bringing together of all the
remedies in one action.
Preventive action

That there can be no infringement of copyright by acts committed

before the copyright was obtained, was decided in 1900 in the U. S.
Circuit Court in the case of Maloney v. Foote, where the two parties
were jointly engaged in preparing directories, and the plaintiff
obtained the copyright and brought suit for infringement for the
prior use of material, the question being of contract and not of
copyright. On the other hand, as far as practicable, "it is the policy
of the law to arrest the pirate before he actually makes off with the