Tape Head Company v. RCA Corporation, 71-1714.
| Decision Date | 03 December 1971 |
| Docket Number | No. 71-1714.,71-1714. |
| Parties | TAPE HEAD COMPANY, Inc., et al., Plaintiffs-Appellees, v. R C A CORPORATION et al., Defendants-Appellants. |
| Court | U.S. Court of Appeals — Tenth Circuit |
A. Bob Jordan, Rogers, Travis & Jordan, Oklahoma City, Okl., Fred M. Standley and Boston E. Witt, Santa Fe, N. M., Wayne L. Black, Salt Lake City, Utah, for plaintiffs-appellees.
Howard S. Smith, Los Angeles, Cal., L. R. Gardiner, Jr., Salt Lake City, Utah, for defendants-appellants.
Before McWILLIAMS, BARRETT and DOYLE, Circuit Judges.
On November 30, 1971, the following motions in the above captioned case were orally argued to this court: (1) The motion of all defendants for suspension and stay of the preliminary injunction issued by the district court on November 22, 1971; (2) the motion of the defendants for a stay of all proceedings in the district court pending appeal; and (3) the motion of all defendants for an expedited hearing of appeal.
Some chronology will place the controversy in focus. On November 19, 1971 (a Friday), after hearing, the Honorable Willis W. Ritter, Judge of the United States District Court for the District of Utah, Central Division, announced in open court that he would grant the preliminary injunction sought by the plaintiffs, at which time the defendants immediately made a verbal request for a stay pending appeal of said preliminary injunction with the district court directing counsel to make their application for a stay in writing. On November 20, 1971 (a Saturday), the district court signed the preliminary injunction order, at which time the defendants then tendered to the district court a written motion for a stay with the district court declining to accept the written motion and directing counsel to file the same with the clerk of the court on the following Monday. On November 22, 1971 (the following Monday), when the preliminary injunction which had been signed on the preceding Saturday was filed with the clerk of the court, the defendants filed their motion for a stay with the clerk of the court together with an application for an immediate hearing. Being unable to obtain an immediate hearing the defendants did on November 22, 1971, file a notice of appeal with the district court and on the following day filed with this court a combined motion wherein, as above indicated, the defendants sought: (1) a stay of the preliminary injunction; (2) a stay of all proceedings in the district court pending appeal; and (3) an order expediting hearing on appeal. On November 23, 1971, the aforesaid motion of the defendants was with the apparent consent of all concerned set by Chief Judge Lewis for oral argument before this court on November 30, 1970, at eleven o'clock a. m.
On November 29, 1971, the plaintiffs filed with this court a motion for a continuance grounded on the fact that the district court on November 24, 1971, had set the motion for a stay filed in the district court for hearing on December 6, 1971. This motion for a continuance was also set for hearing on November 30, 1971, at eleven o'clock a.m.
On November 30, 1971, a panel of this court heard oral argument on the several motions thus set for hearing. The plaintiffs' motion for a continuance was denied verbally from the bench and an order to such effect is now entered. In denying the motion for a continuance this court recognized that Rule 8, F.R. A.P. provides that a stay must ordinarily be sought in the first instance in the district court but notes that the rule further provides that a motion may also be made to the court of appeals where, as here, a stay was first requested from the district court and the district court has failed to afford the relief requested and a notice of appeal has thereupon been filed.
Additionally, Rule 62, Fed.R.Civ.P., provides that unless otherwise ordered by the court, an interlocutory or final judgment in an action for an injunction shall not be stayed during the period after its entry and until an appeal is taken or during the pendency of an appeal, thereby recognizing that a trial court having once determined by its entry of a preliminary injunction that the status quo should be changed, generally should not revert back to the status quo by staying its own injunction order.
Oral argument then ensued on the merits of the combined motion of the defendants for a stay of the preliminary injunction, a stay of all proceedings pending appeal, and an expedited hearing on appeal. At the conclusion of this hearing, these matters were taken under advisement.
On November 30, 1971, the plaintiffs filed in open court a motion to dismiss the appeal on the ground that the appeal was premature in that there is no final order from which an appeal could be taken at this time. The motion to dismiss is hereby denied, the court being of the view that the preliminary injunction issued by the trial court is a final and appealable order. 28 U.S.C. § 1292.
The present controversy has to do with the copying and commercial use of musical recordings of the defendants by the plaintiffs. The substance of the action instituted by plaintiffs in the district court is that the defendants are threatening to file state court actions seeking to enjoin the plaintiffs from continuing these practices on the basis that these actions constitute pirating of material in which defendants claim that they have property rights. The complaint alleges that jurisdiction exists by virtue of there being diversity of citizenship between the parties and, secondly, allegedly the matter arises under the copyright laws of the United States. This latter position is based on the enactment by Congress of a statute, effective February 15, 1972, giving copyright protection to musical recordings such as those made by the defendants.
The district court heard evidence and concluded that the plaintiffs were entitled to the relief requested and entered a preliminary injunction in the following terms:
We are of the view that a stay of the district court's preliminary injunction should be and the same hereby is granted for the following reasons:
1. The basic premise of plaintiffs is that Congress, in making the mentioned Act pertaining to recordings effective February 15, 1972, thereby manifested an intention to grant persons in the position of the...
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