Plaintiff not Responsible for Delay when Ignorant of Piracy. The plaintiff will not be considered guilty of culpable delay during the time that he had no knowledge of the infringement.1 Where it appeared that the printing of the defendant's work had been begun in 1832, and completed in 1834, that the plaintiffs learned at the end of 1837 that the sale of their work was interfered with by a Scotch publication, which in February, 1838, they ascertained to be the defendant's Gazetteer, and that they discovered the piracy by an examination of the work in June, and applied for an injunction in the following month, Lord Langdale held that there had not been any improper or unnecessary delay.2

The burden of showing that the plaintiff was aware of the piratical publication is on the defendant. "The plaintiffs have to purge themselves from the imputation of laches; but the onus of proving the laches is on the defendants. They must show a clear knowledge in the plaintiffs of the former infringements, and of their having put up with them for a length of time, if they wish to fix the plaintiffs with the consequences of that laches so as to prevent them from having protection against any other depredations." 3

Delay may be Explained. When the delay is explained to the satisfaction of the court, it will not be allowed to defeat the complainant's suit. Where it appeared that the first part of the work complained of, the London Encyclopædia, had been published in January, 1826, and that the plaintiffs first learned in March that many articles in it had been copied from the Encyclopædia Metropolitana, but did not file their bill till August, Lord Eldon thought that the delay was "in a great degree accounted for by the necessity of comparing the whole of the two works, for the purpose of seeing how much of the Encyclopædia Metropolitana had been in a substantial sense taken from it and infused into the London Encyclopædia, before any application could be made to this court."4 So in

2 Lewis v. Fullarton, 2 Beav. 6.

8 Wood, V. C., Chappell v. Sheard,

1 Lewis v. Fullarton, Chappell v. Sheard, infra. See also Greene v. Bishop, 1 Cliff. 186, 202; Boucicault 1 Jur. N. s. 997. v. Fox, 5 Blatchf. 87; Boucicault v. Wood, 7 Am. Law Reg. N. s. 539, 550; s. c. 2 Biss. 34.

4 Mawman v. Tegg, 2 Russ. 393.

Buxton v. James, it was shown that the piratical work had appeared in November, 1849, when the plaintiffs promptly protested against its publication; but they did not then begin legal proceedings owing to the doubtful state of the law as to the validity of the copyright in the work of a foreign author. This doubt was apparently removed by the decision in Boosey v. Jefferys, rendered May 20, 1851. On August 20, the plaintiff again notified the defendant of the violation of his rights, and soon after filed his bill for an injunction. The delay was held to be justifiable.'

Plaintiff's Rights not Prejudiced by Custom. The plaintiff's case is not prejudiced by the fact that he chooses to assert a right which other authors have not sought to enforce. Thus where the plaintiff moved to restrain the publication of a dramatization of his novel, and it was objected that other authors had not complained of the dramatization of their works, the court said: "It is no answer to say that similar infringements have often been committed. Although Sir Walter Scott and others did not choose to assert any claim of this kind, this does not affect the rights of the plaintiff; and it is to be observed, moreover, that there has been a considerable alteration of the law since the time referred to by the extension of copyright to dramatic performances."2 Nor can the custom of the trade be successfully pleaded against the plaintiff's right to sue.3

Stronger Case of Acquiescence on Final Hearing than Preliminary Application. A stronger case of acquiescence on the part of the plaintiff is required to justify the refusal of an injunction at the final hearing than on a preliminary application; "for at the hearing of a cause it is the duty of a court to decide upon the rights of the parties, and the dismissal of the bill upon the ground of acquiescence amounts to a decision that a right which has once existed is absolutely and for ever lost." 4

Are Plaintiff's Rights Lost by Apparent Acquiescence ? — In cases wherein the plaintiff seeks to enforce his rights after

1 5 De G. & Sm. 80.

considered ante, pp. 503, 504. See re

2 Wood, V. C., Tinsley v. Lacy, 1 marks of Lord Cottenham in Saunders Hem. & M. 752. v. Smith, 3 My. & Cr. 729.

3 Campbell v. Scott, 11 Sim. 31; Maxwell v. Somerton, 30 L. T. N. s. 11,

4 Turner, L. J., Johnson v. Wyatt,

2 De G. J. & S. 18, 25.

having knowingly suffered them to be invaded for an unusually long time without protest, and wherein he offers no explanation of his delay, the practice of the courts and the views of the law expressed by them are by no means uniform. In Rundell v. Murray, where it appeared that the plaintiff had given a manuscript to the defendant, and permitted him to publish it as his own for fourteen years, at the end of which period she claimed the exclusive property in it, and sought to restrain the defendant from further publishing it, Lord Eldon, in refusing to grant an injunction, said: "There has often been great difficulty about granting injunctions, where the plaintiff has previously, by acquiescing, permitted many others to publish the work; where ten have been allowed to publish, the court will not restrain the eleventh. A court of equity frequently refuses an injunction where it acknowledges a right, when the conduct of the party complaining has led to the state of things that occasions the application; and, therefore, without saying with whom the right is, whether it is in this lady, or whether it is concurrently in both, I think it is a case in which strict law ought to govern.'

In Lewis v. Chapman, the injunction was refused, because it appeared that the publication complained of had been issued, and the attention of the plaintiff called to it, six years before the bill was filed; and that, more than a year before beginning proceedings, the plaintiff had obtained a copy of the work for the express purpose of ascertaining whether it was piratical.2 In Chappell v. Sheard, the defence was set up that the plaintiffs had been aware of the defendant's publication for about two months before applying for an injunction, and that they had suffered other piracies to be committed without proceeding against the offenders. Vice-Chancellor Wood refused to interfere, until the plaintiffs should make an affidavit as to whether they had had knowledge of these piracies as charged by the defendants.3

1 Rundell v. Murray, Jac. 316. 23 Beav. 133.

31 Jur. N. s. 996. "There must be a further affidavit," said the ViceChancellor, "on the point of knowledge by any of the partners. It appears strange that this imitation should have

been out so long ago as the 14th April, and the managing partner of the plaintiff's not to be aware of it till June; and if it turn out that he was aware of it all that time such laches would be very important."

The plaintiffs having satisfied the court that they had acted without delay when they learned that their rights had been invaded, the injunction was granted. "The only doubt," said the ViceChancellor, "I have felt in this case was as to the laches; I have no doubt as to the infringement. But the principle is this; that, if the owner of a copyright suffers one depredation to go unchallenged, the court will not allow him to call another's infringement in question."

In Rundell v. Murray, the controlling question was, not whether the plaintiff had forfeited her right to equitable relief solely by delay, but whether by agreement she had not in equity conveyed her copyright to the defendant. In Lewis v. Chapman, the injunction was refused on the sole ground of delay on the part of the plaintiff, and the same principle was recognized in Chappell v. Sheard.

Tendency of Recent Decisions toward Doctrine that Plaintiff's Rights are not Lost by Mere Delay. - But the tendency of more recent decisions has been toward the doctrine that the plaintiff's rights in equity are not lost by mere delay in asserting those rights. The defendant must show that he has acted with the express or implied consent of the owner of the copyright; and such consent is not proved by the mere fact that the owner was long aware of the piracy without protesting against it, or that he has not chosen sooner to assert his rights in a court of law or equity, against either the defendant or any other wrongdoer. In other words, the principle seems to have been recog nized, though it may be going too far to say that it is established, that the defendant will not be allowed to escape the legal consequences of his wrongful acts by pleading mere delay or lack of protest on the part of the plaintiff. No person has a right to use property without the consent of the owner; and, when he does so, he must suffer the consequences.1

As early as 1815, Lord Eldon intimated that a year's delay would not deprive the plaintiff of his remedies in equity.2 And,

1 Br. Hogg v. Scott, Law Rep. 18 Eq. 444; Maxwell v. Somerton, 30 L. T. N. s. 11; Morris v. Ashbee, Law Rep. 7 Eq. 34. See also Strahan v. Graham, 17 L. T. N. s. 457. Am. Greene v. Bishop, 1 Cliff. 186, 202;

Boucicault v. Fox, 5 Blatchf. 87; Boucicault v. Wood, 7 Am. Law Reg. N. s. 539, 550; s. c. 2 Biss. 34.

2 Platt v. Button, 19 Ves. 447. "The plaintiff has permitted several persons to publish these dances," said

in 1818, the opinion was expressed by the King's Bench in an action at law, wherein it appeared that the defendant had been publishing a sonata for about six years without objection on the part of the plaintiff, that," although from the publication so long ago as the year 1812, without any complaint having been made, it might be inferred that the defendant had authority from the plaintiff to publish at that time; yet that it was impossible to infer for what time that authority might have been given, and whether it subsisted at the time of the publication of which the plaintiff complained in the present case." 1

In the recent case of Hogg v. Scott, it appeared that the plaintiff had published in 1868 the first, and in the latter part of 1872 the second, edition of The Orchardist, which contained matter pirated from the plaintiff's works. In 1869, the plaintiff received a copy of the book, and wrote a friendly letter to the defendant concerning part of its contents, without intimating that it contained any thing copied from his own publications. In June, 1873, the plaintiff, being about to publish a new edition of one of his books, and having discovered, as he alleged, in the preceding April, the piratical nature of the defendant's work, moved to restrain its further publication or sale. The bill was dismissed in July, on the ground that the plaintiff's work had not been properly registered, and a new suit was begun in August. The defence was set up that the plaintiff had knowledge in 1869 of the piracy, and was, therefore, barred by delay from bringing suit; that the defendant was about to issue a third edition of his work, and that he was entitled to republish any thing that had appeared in the earlier editions. The court held that, even if the plaintiff had been aware of the piratical nature of the defendant's book for four years before beginning suit, he was not thereby deprived of his remedies in equity. "The omission to take any proceedings at law or in equity for a time," said Vice-Chancellor Hall, "does not in itself appear to me an encouragement to the de

the Lord Chancellor, "some of them for fifteen years; thus encouraging others to do so. That, it is true, is not a justification; but under these circumstances a court of equity will not interfere in the first instance. If, as is

represented, some of them were published, only last year, and one two months ago, the bill ought to have been confined to those." See also Baily v. Taylor, 3 L. J. (Ch.) 66.

1 Latour v. Bland, 2 Stark. 383.