Wheeler v. Cobbey

• Decision Date: 06 November 1895
• Citation: 70 F. 487
• Parties: WHEELER v. COBBEY.
• Court: U.S. District Court — District of Nebraska

70 F. 487

WHEELER v. COBBEY.

United States Circuit Court, D. Nebraska.

November 6, 1895

Burr &amp Burr, for plaintiff.

G. M Johnston and N. K. Griggs, for defendant.

SHIRAS District Judge.

The petition in this case is based upon section 4964 of the Revised Statutes, and the remedy sought is damages for the alleged violation of a copyright which the plaintiff claims to own in certain editions of a compilation and annotation of the Public Statutes of Nebraska. Upon the face of the petition it appears that the acts of printing, publishing and selling another edition of the public laws of Nebraska on part of the defendant, and which are relied upon as evidence of the violation of the copyright owned by plaintiff, were all done more than two years before the present action at law for damages was begun, and the question presented by the demurrer is whether the lapse of two years bars the action. In support of the demurrer it is said that section 4968 of the Revised Statutes expressly provides that 'no action shall be maintained in any case of forfeiture or penalty under the copyright laws, unless the same is commenced within two years after the cause of action has arisen,' and that all actions for damages based upon section 4964 must be deemed to be in nature of a forfeiture, within the meaning of section 4968. As amended by the act of March 3, 1891, section 4964 reads as follows:

'Every person, who after the recording of the title of any book and the depositing of two copies of such book, as provided by this act, shall contrary to the provisions of this act within the time limited and without the consent of the proprietor of the copyright first obtained in writing, signed in the presence of two or more witnesses, print, publish, dramatize, translate, or import, or knowing the same to be so printed, published, dramatized, translated or imported, shall sell or expose to sale any copy of such book, shall forfeit every copy thereof to such proprietor,' and shall also forfeit and pay such damages as may be recovered in a civil action by such proprietor in any court of competent jurisdiction.'

Both the sections cited form part of chapter 3, tit. 60, of the Revised Statutes, which deals with the subject of copyrights.

The petition avers that both plaintiff and defendant are citizens of the state of Nebraska, and this court could not take jurisdiction of the case except upon the theory that the action arises under the laws of the United States, or, in other words, upon the theory that the plaintiff is seeking to enforce the rights and remedies created or recognized by section 4964. It cannot be questioned that any penalty or any forfeiture arising under the provisions of the copyright laws must be sued for within two years after the cause of action therefor has arisen, for that is the express declaration of section 4968. Therefore the question is narrowed down to the inquiry whether the damages that are recoverable in a civil action for the violation of the provisions of section 4964 are by that section declared to be a forfeiture, within the meaning of section 4968. On part of the plaintiff it is contended that the damages provided for in section 4964 are not in the nature of either a penalty or a forfeit, and therefore the only limitation applicable thereto is the statute of Nebraska, which provides four years as the limit to an action for damages. On behalf of the defendant, as already stated, the contention is that the entire remedy given in that section is in terms declared to be that of forfeiture, and hence the two-years limitation is applicable thereto. As already stated, it must be held that this action is based solely...