712 F.2d 1112 (7th Cir. 1983), 83-1098, Taylor v. Meirick

Docket Nº:83-1098.
Citation:712 F.2d 1112
Party Name:548 Darrell TAYLOR, d/b/a Darrell Taylor Topographic Charts, Plaintiff-Appellee, v. Joseph B. MEIRICK, d/b/a Lakes Illustrated, Defendant-Appellant.
Case Date:July 07, 1983
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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712 F.2d 1112 (7th Cir. 1983)

548

Darrell TAYLOR, d/b/a Darrell Taylor Topographic Charts,

Plaintiff-Appellee,

v.

Joseph B. MEIRICK, d/b/a Lakes Illustrated, Defendant-Appellant.

No. 83-1098.

United States Court of Appeals, Seventh Circuit

July 7, 1983

Argued May 9, 1983.

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James Van Santen, Hill, Van Santen, Steadman, Chiara & Simpson, Chicago, Ill., for defendant-appellant.

Curtis Eric Edlund, Park Ridge, Ill., for plaintiff-appellee.

Before CUMMINGS, Chief Judge, POSNER, Circuit Judge, and ROSENN, Senior Circuit Judge. [*]

POSNER, Circuit Judge.

This appeal from a judgment for the plaintiff in a suit for copyright infringement raises questions regarding the statute of limitations in the Copyright Act of 1976 and the methods for determining damages

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in copyright and, by implication, other business-tort cases.

In 1974 the plaintiff, Taylor, doing business as Darrell Taylor Topographic Charts, copyrighted maps for use by fishermen of three Illinois lakes. The validity of his copyrights is conceded, as is the fact that the defendant, Meirick, doing business as Lakes Illustrated, copied the maps in 1976 and 1977 without Taylor's authorization. But this suit was not filed till May 8, 1980, and Meirick argues that it is barred by the three-year statute of limitations in the Copyright Act of 1976 (which is conceded to govern this case). The magistrate who tried the case with the consent of the parties disagreed, and awarded Taylor damages of $22,700 and attorney's fees of $10,000.

The Copyright Act provides that "no civil action shall be maintained under the provisions of this title unless it is commenced within three years after the claim accrued." 17 U.S.C. § 507(b). If Meirick had quit selling the infringing maps before May 8, 1977, and had taken reasonable steps by then to get them back from his dealers before the maps were resold to consumers, this suit would be time-barred even if--as happened--the maps were still being sold years later by dealers who had bought them from Meirick before May 8, 1977, but had not gotten, or had ignored, the message and continued selling them to the public. See Mount v. Book-of-the-Month Club, Inc., 555 F.2d 1108, 1110 (2d Cir.1977); Maloney v. Stone, 171 F.Supp. 29, 32 (D.Mass.1959) (Wyzanski, J.). But knowing that he had placed infringing copies in the hands of his dealers Meirick could not sit on his hands while they sold them. A tortfeasor has a duty to assist his victim. The initial injury creates a duty of aid and the breach of the duty is an independent tort. See Restatement (Second) of Torts § 322, Comment c (1965). This principle applies to a statutory tort such as copyright infringement. So if Meirick failed to take reasonable steps to prevent infringement by his dealers he became a participant in their infringements. Since there was abundant evidence that retailers were selling the infringing maps even after the trial began, it was Meirick's burden to prove that the selling had continued despite his reasonable efforts to recall the maps. The magistrate found that Meirick had not carried this burden and we cannot say that her finding was clearly erroneous.

And this assumes that Meirick really did stop selling the maps before May 8, 1977, as he testified. The magistrate believed Taylor's testimony that he ordered and received infringing maps from Lakes Illustrated in 1979. This testimony was vague, self-serving, and uncorroborated; the maps themselves were not put into evidence; and Taylor's general credibility as a witness was undermined by the testimony he gave about the costs he would have incurred in selling more maps had there been no infringement--of which more anon. But it makes no difference whether Meirick himself was selling infringing maps in 1979, since his retailers were and he made insufficient efforts to prevent them from doing so.

The irrelevance of when Meirick himself stopped infringing is further shown by the uncontested fact that Taylor did not learn of the infringements until 1979. Often, whether or not the defendant has done anything to conceal from the plaintiff the existence of the cause of action, the statute of limitations is tolled until the plaintiff learned or by reasonable diligence could have learned that he had a cause of action. Consider liability for defective products: although the tort is complete when the victim is injured, if the etiology of the injury is mysterious--as is often the case with injuries from drugs and chemicals--the tendency in modern law is to toll the statute of limitations until the victim could reasonably have discovered the cause of his woe. See, e.g., Needham v. White Laboratories, Inc., 639 F.2d 394, 399 (7th Cir.1981); Ricciuti v. Voltarc Tubes, Inc., 277 F.2d 809, 813 (2d Cir.1960). The approach is not limited to personal-injury cases. For example, Pollock v. Hafner, 108 Ill.App.3d 410, 64 Ill.Dec. 156, 439 N.E.2d 85 (1982), applies it to architectural malpractice. Although we

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cannot find a copyright case on point, a similar principle may apply in such cases. The fact that a publisher loses sales to a competitor is not in itself a clue to copyright infringement, since there is vigorous competition among copyrighted works. So we doubt that every time the sales of a publication dip, the publisher must, to preserve his right to sue for copyright infringement, examine all of his competitors' publications to make sure none is infringing any of his copyrights. Probably it should be enough to toll the statute of limitations that a reasonable man would not have discovered the infringement; and there is no evidence that Taylor was unreasonable in failing to...

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