Journal of Commerce & Commercial Bulletin v. Boston Transcript Co.
| Citation | 292 F. 311 |
| Decision Date | 11 August 1923 |
| Docket Number | 1972. |
| Parties | JOURNAL OF COMMERCE & COMMERCIAL BULLETIN v. BOSTON TRANSCRIPT CO. |
| Court | U.S. District Court — District of Massachusetts |
Storey Thorndike, Palmer & Dodge and Harold S. Davis, all of Boston Mass., for plaintiff.
Felix Rackemann, Dunbar & Rackemann, and Oliver Mitchell, all of Boston, Mass., for defendant.
The plaintiff publishes in New York the Journal of Commerce & Commercial Bulletin. The defendant publishes in Boston the Boston Evening Transcript. The plaintiff brings this action on the law side of the court to recover for alleged infringement of copyrighted matter. The declaration contains 525 counts. Each of them contains a passage taken from the Boston Evening Transcript and a passage from the Journal of Commerce & Commercial Bulletin alleged to be infringed, and in each the plaintiff declares for such damages as the court may award under the provisions of section 25 of the Act of March 4, 1909, 35 Stat. 1081 (Comp. Stat. 9546).
To this declaration the defendant demurred and assigned for grounds (a) That a copy of the alleged infringement of copyright and a copy of the work alleged to be infringed did not accompany the declaration, and their absence was not explained; (b) that one alleged cause of action has been 'split' into several counts; and (c) that the declaration does not allege actual damage, and the statutory award of $250 minimum damage, regardless of actual damage, is unconstitutional and void. While not waiving this third ground for demurrer, the arguments and briefs of defendant's counsel are addressed to the first two causes assigned.
Section 25 of the Act of March 4, 1909, provides that rules and regulations for practice and procedure under this section shall be prescribed by the Supreme Court. In accordance with these provisions, the Supreme Court prescribed 13 rules. The first and second rule only are pertinent in this case. Rule No. 1 is to the effect that the existing rules of equity practice, so far as they may be applicable, shall be enforced in proceedings instituted under section 25. Rule No. 2 requires that a copy of the alleged infringement of copyright, if actually made, and a copy of the work alleged to be infringed, shall accompany the 'petition' or its absence be explained 'except * * * in any case where it is not feasible.'
I am inclined to the opinion that both rules contemplate proceedings brought on the equity side leaving parties to proceed under the Conformity Act (R.S. 914; Comp. Stat. 1537) in cases where actions at law are instituted under section 25. When injunction relief is sought, a necessity for exact copies would exist that would not obtain in an action at law. Tully v. Triangle Film Corp. (D.C.) 229 F. 297.
But if it should be held that the rule applied, by its express terms, cases where copies would not be feasible are excepted. A declaration containing 525 counts alleging infringements in 90 issues of defendant's publication infringing matter copyrighted in 196 issues of plaintiff's paper carries this case within the excepted class. Spaulding v. Groton, 68 N.H. 77, 44 A. 88.
Again assuming the rule applies, I doubt whether a demurrer would lie for failure to file copies. In my opinion the better practice would be to file a motion to compel plaintiff to file as was done in Lesser v. George Borgfeldt & Co. (C.C.) 188 F. 864. If the court found that copies were feasible and their absence not explained, it could order plaintiff to file them and could enforce such an order. I am far from persuaded that the rights of the plaintiff to recover under section 25 are conditioned upon compliance with Rule No. 2.
From an examination of plaintiff's declaration it appears that in many instances two or more counts set forth different passages culled from one issue of defendant's paper which, it is alleged, infringe matter appearing earlier in one issue of plaintiff's publication. To illustrate counts 6, 7, 8, and 9 each contain a copyrighted passage taken from plaintiff's...
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Arnstein v. Porter
...enforced * * *." This did not eliminate a jury trial where plaintiff sought no equitable relief. See Journal of Commerce & Commercial Bulletin v. Boston Transcript, D. C., 292 F. 311, 312; note that Mail & Express Co. v. Life Pub. Co., supra, and Turner & Dahnken v. Crowley, supra, were dec......
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Markham v. AE Borden Co.
...one infringement no matter what the amount of copying therefrom by a defendant in a given publication. See The Journal of Commerce, etc., v. Boston Transcript Co., D.C., 292 F. 311, where the Court held that the unlawful reproduction in one issue of the defendant's paper of several passages......
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...suits under the copyright statute. This objection to the action must be overruled on the authority of Journal of Commerce & Commercial Bulletin v. Boston Transcript Co., D.C., 292 F. 311, in which this court said that the Equity Rules contemplated proceedings on the equity side, leaving par......