SUGGESTIONS AND CRITICISMS NOT ACCOMPANIED BY DEFINITE PROPOSALS FOR PHRASEOLOGY. Sec. 34. Print Publishers' Association (W. A. Livingstone, president). We do not think that limitation of action should be restricted to three years. Still, we accept it, because we think it the best compromise that could succeed at this time. (Copyright Hearings, December, 1906, p. 99.) Sec. 34. Edward S. Rogers. Section 34 is as follows: "That no action shall be maintained under the provisions of this Act unless the same is commenced within three years after the cause of action arose." If it is intended to place an arbitrary threeyear period of limitation on all copyright suits, this provision is highly objectionable. If it was intended simply to prevent the enforcement of any of the extraordinary remedies for seizure or for fixed damages under the acts, the provision is reasonable enough, but if this is its intention it is not indicated from the section as drafted. The word "action" has been held by the Supreme Court, in Thompson v. Hubbard, 131 U. S., 123, where used in one of the previous copyright acts, to mean all legal or equitable means of enforcing the rights conferred. Unless, therefore, it is the intention to leave the copyright proprietor without any remedy at all for infringement after the expiration of three years from the date when the cause of action arose, the section should be redrafted as follows: (See opposite.) A section prepared in this way would leave the question of laches to the court to be determined under the circumstances of each case. This is the present rule and it has always worked satisfactorily. See Encyclopedia Britannica Co. v. American Newspaper Ass'n, 130 Fed., 460, where a preliminary injunction was granted after a delay of fourteen years. In Gilmore v. Anderson, 38 Fed., 46, there had been a delay of six years. In Hogg v. Scott, 43 L. J. Ch. 75, L. R. Eq., 144, there was a delay of five years with knowledge. This was held not to constitute laches. See also Myers v. Callahan, 5 Fed., 726. SUGGESTIONS AND CRITICISMS NOT ACCOMPANIED BY DEFINITE PROPOSALS FOR PHRASEOLOGY. Sec. 34. Edward S. Rogers-Continued. The probabilities are that the liberal rule announced by the Supreme Court in McLean v. Fleming, 96 U. S., 245, a trade mark case, would be extended to copyright cases. In that case there was a delay of over forty years with knowledge. The court deprived the complainant of an accounting of the profits, but granted an injunction. The same liberal rule was announced in Menendez v. Holt, 128 U. S., 514, 523; Consolidated Jar Co. v. Thomas, F. C. 3131, and many other cases which might be cited. In trade mark matters the federal courts have taken the position practically that there is no such thing as laches and acquiescence, which will prevent the issuance of an injunction, and that an infringement known and acquiesced in is no more than a revocable license and lasts no longer than the silence from which it springs, and consequently the license can be revoked and the infringement put a stop to at any time. These cases are cited not as controlling or with the idea that they would have any control at all or any effect if an arbitrary limitation of three years were inserted in the proposed law, but to show that the establishment of a period of three years or any fixed period whatever, as far at least as the equitable remedy is concerned, would be a radical departure from the rule well established in this country, as evidenced by well-considered judicial decisions extending over a long period. An arbitrary limitation period of three years for all actions would frequently work great hardship. An infringement might be carried on without the copyright proprietor's knowledge and not be discovered by him until after the expiration of three years. He would, under the terms of section 32 as drafted in the proposed bill, be remediless. A crafty infringer might circulate piratical copies in a surreptitious and limited way, purposely keeping his piracy from the knowledge of the copyright proprietor for three years, and if he succeeded in evading a suit for this period he could thereafter infringe openly and without penalty. This section of the proposed Act would put a premium on such practices. A proprietor might refrain from suing out of an honest Sec. 34. DEFINITE AMENDMENTS PROPOSED. Sec. 36. Edward S. Rogers. In section 36 should be inserted after the word "copyright," in the third line, the following: "Or any violation of literary, artistic, or other intellectual property," so that the section will read: "That nothing in this Act shall prevent, lessen, impeach, or avoid any remedy at law or in equity which any party aggrieved by any infringement of a copyright or any violation of literary, artistic, or other intellectual property might have had if this Act had not been passed." SUGGESTIONS AND CRITICISMS NOT ACCOMPANIED BY DEFINITE PROPOSALS FOR PHRASEOLOGY. Sec. 34. Edward S. Rogers-Continued. ignorance of his rights; if he discovered them after three years he would be remediless. One infringer might, through the proprietor's ignorance or otherwise, escape suit during the three-year period; another infringer of whose piracy the proprietor learns is sued within the period and enjoined; the first infringer is immune and cannot be stopped; this is not fair to the second pirate, who has been enjoined, and it gives the old offender an advantage. In my judgment there should be no fixed period of limitation as applied to anything, but the fixed damages or the seizures provided, but if it be decided that a fixed period of limitation of all actions is desirable it should certainly be for a longer period than three years. With respect to suits for injunction and actions for actual damages, the burden should be on the infringer, who claims a prescriptive right to steal another's intellectual property, to show knowledge and acquiescence on the part of the copyright proprietor. A claimant of title by prescription to real property is required to show open and notorious adverse possession for a long period, and it would seem that the literary trespasser should be in no more advantageous position, |