fendant amounting to an equitable bar in this court. It is not enough to show that the legal right is not to be protected here." "Knowledge by the plaintiff that the defendant was advertising his work which contained the objectionable matter and that he was going on selling it does not appear to me to amount to that description of acquiescence in the defendant's dealing with the subject-matter, which must be taken to deprive the plaintiff of the interference of this court as from any given time." 1 1 Hogg v. Scott, Law Rep. 18 Eq. 454, 456. The Vice-Chancellor said: "It does not, in the view which I take of this case, appear to me to be necessary to say what is the true conclusion or the legal inference to be drawn in reference to the knowledge of the plaintiff of the contents of the book, more or less, from the time when he received a copy of it. Assuming that he must be taken as, from the time when he received a copy, to have been fully aware of the contents, I still think that that circumstance is not sufficient to deprive him of the relief which he seeks in this suit. I have expressed my opinion upon the construction of the Act of Parliament in reference to the question -a new question, in my view of the period within which the suit ought to have been commenced. The position of things, assuming that he had knowledge at that time, appears to me to be this: The plaintiff was at the time he received the copy of the book, which is relied upon as having given him knowledge of its contents, the undoubted legal owner of the copyright, the piracy of which is complained of. That was his property, and he had a right to say to the defendant, That is my property, and I will neither allow you to make nor recognize your making use of it.' The plaintiff did not take any step founded on his right to property until he filed his bill. He did file his bill soon after he received a copy of the second edition; but, assuming the most in the defendant's favor, all that had taken place in the mean time, beyond the letter which was sent to him, was the acquisition by the plain tiff of knowledge that the defendant was going on publishing The Orchardist for two years afterwards, and that the plaintiff knew in October, 1872, that the defendant was about to publish a new edition of his book, which was to be much larger and more expensive. "Now up to the time of his knowledge of the new edition, in October, 1872, the plaintiff was aware only that the defendant was going on selling copies of The Orchardist. When he became aware of the defendant's intended new edition, there was nothing at all events to induce him to suppose or believe that there would be any new matter introduced into it, taken from the plaintiff's work. The matter stood, so far as the plaintiff was concerned, exactly as it did before. I have first of all to consider whether not taking any proceeding with reference to the old matter in any given time would deprive the plaintiff, on the ground of acquiescence, of the right to come to this court. The omission to take any proceedings at law or in equity for a time does not in itself appear to me to be an encouragement to the defendant amounting to an equitable bar in this court. It is not enough to show that the legal right is not to be protected here. It must not be assumed that the court is satisfied that the plaintiff by his conduct has led the defendant to incur material expenses in reference to his new book. . . . "Now in this case knowledge by the plaintiff that the defendant was advertising his work, which contained the objectionable matter, and that he was going on selling it, does not appear to me to amount to that description of ac So, in Greene v. Bishop, the fact that the first edition of the book alleged to be piratical had been published in 1852, and a second edition in 1853, and that no legal proceedings had been taken against the publisher, was held not to be a bar to the suit brought in 1854 against the defendant as a vendor. It further appeared, however, that the unlicensed publication had taken place in another State than that in which the plaintiff resided, and in which the suit against the defendant was brought.1 In Boucicault v. Fox, which was an action for damages for nine representations of a copyrighted drama, the court ruled that the fact that the plaintiff was aware of the performances during their progress, and made no objection, would not warrant the jury in inferring his assent to them. "If the defend quiescence in the defendant's dealing entitled to, leaving him with his undoubted legal right to proceed in a court of law in respect of the same matter; that is to say, that the court having determined the legal question in his favor, should send him to a court of law to get damages, and refuse an injunction. Under such circumstances, to do so would be playing with justice and the forms of procedure. I have, therefore, come to the conclusion that the plaintiff's right in this court has not been taken away by what has occurred." Ibid. 453, 456. 1 1 Cliff. 186, 202. "Both the bill and the answer," said Mr. Justice Clifford, "disclose the fact that the first edition of the respondent's book was published in 1852, in another State; and the second in 1853, by the same publishers, while the complainant was residing in this district, and this bill was filed during the following year. At what time the complainant became possessed of the knowledge of these publications does not appear; and there is no evidence tending to show that he ever in any manner acquiesced in the claim of the respondent, or recognized the validity of his acts, except what may be inferred from the omission to prosecute. No other laches appears on the face of the bill, and no such defence is set up in the answer." ants," said Mr. Justice Shipman, "had been ignorant of the plaintiff's right, and had gone on under a misapprehension of the facts, or if they had supposed he assented, they might make this claim with a better grace." 1 In Boucicault v. Wood, the court expounded the law to the effect that the owner might lose his common-law rights in an unpublished play, by allowing it "to be represented throughout the community for a long space of time, without license and without objection, knowing the fact to be so. . . . But it must be apparent that it has been done with his knowledge and without objection on his part. That is to say, the facts must exist to indicate that he consented or acquiesced in their performance. Otherwise, he is not prevented from claiming his property in these plays, I mean, of course, his property at common law." 2 HOW PIRATICAL COPYING IS ASCERTAINED. When piracy is denied, it becomes necessary to ascertain whether the defendant's work has been copied from that of the plaintiff; and, if so, to what extent, and what are the piratical parts. The determination of these questions will not only require a careful comparison of the two books, but not unfrequently, especially if the publications in controversy are compilations, a laborious examination of other works. The plaintiff 15 Blatchf. 87, 99. 27 Am. Law Reg. N. s. 539, 550. See also dissenting opinion of Monell, J., in Keene v. Clarke, post, p. 577, note 1. Paige v. Banks was a controversy as to the effect of an agreement by which the plaintiff had sold a manuscript to the defendant. The latter was the undisputed owner of the copyright during the period of twenty-eight years; but, at the expiration of that term in 1858, each party claimed to be entitled to renew the copyright for fourteen years, and each warned the other against the infringement of his alleged rights. The defendant continued to publish the book without in terference by the plaintiff. The latter died in March, 1868; and ten months later his executors sought to restrain the defendant from publishing the book. The Circuit Court, 7 Blatchf 152, dismissed the bill on the ground that the plaintiff by the original agree ment had parted with all his rights, and this judgment was affirmed by the Supreme Court of the United States. It does not appear what view of the law the court would have taken if the decision had turned on the question of delay or acquiescence on the part of the plaintiff. But there is some signifi cance in the fact that this question was not considered by the Circuit Court, and that the Supreme Court referred to the defendant's course only as evidence of his intention in making the original agreement. 13 Wall. 608, 616. This case is considered in connection with another subject, ante, p. 328. is not required to specify the parts of the defendant's publication which are piratical. A general allegation of infringement is enough. The comparison of the two books may be made by the court or by a master. In England, laborious examinations have frequently been made by the judges.2 In the United States, the usual practice in cases involving much labor has been to make a reference to a master. The reference is usually ordered and the master's report made before the final hearing; but, in Lawrence v. Dana, by election of the parties, the decision of the court on the legal questions involved was first rendered, and afterward the case was referred to a master to report on the extent of the piracy. The injunction was withheld until the master's report should be made. "Equity suits for the infringement of a copyright," said Mr. Justice Clifford," are usually referred to a master before the final hearing, to ascertain whether the charge is proved, and, if so, for a final report as to the nature and extent of the infringement; and in such cases the general rule is, that the complainant, if he prevails in the suit, is entitled, if at all, to an injunction at the time the decretal order is entered, to restrain the respondent from any further violation of his rights, as the whole case is then before the court. Even when the case is heard before any such reference and report, if the charges of infringement are few and of a character that the extent of the infringement can be conveniently determined by the court without sending the case to a master, the court, if the case be one Beav. 6; 2 Lewis v. Fullarton, Murray v. Bogue, 1 Drew. 353; Jarrold v. Houlston, 3 Kay & J. 708; Spiers v. Brown, 6 W. R. 352; Pike v. Nicholas, Law Rep. 5 Ch. 251. 1 "As long as I remember the the piracy." Shadwell, V. C., Sweet court, it has never been thought neces- v. Maugham, 11 Sim. 53. See also sary for a party who complains that Rooney v. Kelly, 14 Ir. Law Rep., his copyright has been infringed to N. S. 158. specify, either in his bill or his affidavit, the parts of the defendant's work which he thinks have been pirated from his work; but it has always been considered sufficient to allege generally, that the defendant's work contains several passages which have been pirated from the plaintiff's work, and to verify the rival works by affidavit, Then when the injunction has been moved for, the two works have been brought into court, and the counsel have pointed out to the court the passages which they rely upon as showing 3 Folsom v. Marsh, 2 Story, 100; Webb v. Powers, 2 Woodb. & M. 497; Story v. Derby, 4 McLean, 160; Story's Executors v. Holcombe, Ibid. 306; Greene v. Bishop, 1 Cliff. 186; Lawrence v. Dana, 2 Am. L. T. R. N. s. 402; Chase v. Sanborn, 6 U. S. Pat. Off. Gaz. 932. where an injunction is the proper remedy, will order it at the same time that the decision is announced upon the merits. But where the cause comes to a final hearing without any such report, the court, if the charges of infringement are numerous and of a character to require extended examination before the extent of the infringement can be ascertained, will ordinarily send the case to a master for further examination and report in respect to all matters not previously adjudged by the court; and the general rule in such cases is, that the injunction will not be granted until the nature and extent of the infringement are fully ascertained and determined, as its effects and operation might work great injustice. Obviously the present case falls within the latter rule; and, therefore, an injunction will not be ordered until the court shall have acted finally upon the report of the master." 1 Where it did not satisfactorily appear that what the defendant had done or intended to do would be in violation of the plaintiff's right, the court, on a motion for a preliminary injunction which was denied, refused to make a reference to a master.2 The master may be required not only to report the facts, but also to give his opinion as to whether the plaintiff's work is original, and whether it has been infringed by the defendant;3 and whether the sale of the plaintiff's publication is prejudiced, and to what extent, by the defendant's. The master's opinion is subject to review by the court. In Story's Executors v. Holcombe, the master reported that the defendant's work was a bona fide abridgment of the plaintiff's, and therefore not piratical. But the court found that the first third of the defendant's 1 2 Am. L. T. R. N. s. 432. The same judge further said: "The settled practice in equity is, where the works are voluminous and of a complex character, containing, as in this case, much original matter mixed with common property, the cause will, at some stage of the case, be referred to a master to state the facts, together with his opinion, for the consideration of the court. Much the better course is to make the references before the final hearing; but the parties in this case waived any reference at that stage of the cause, and elected to proceed to final hearing without any such report. Cases arise, where the court, under such circumstances, would not order a reference, but would proceed to compare the books and ascertain the details of the infringement; but the case before the court is far too complex to admit of that course of action." Ibid. 429. 2 Smith v. Johnson, 4 Blatchf. 252. 8 Story v. Derby, 4 McLean, 160; Lawrence v. Dana, 2 Am. L. T. R. N. s. 402. 4 Greene v. Bishop, 1 Cliff. 186; Osgood v. Allen, 1 Holmes, 185. |