anywhere in the United States, and shall be operative throughout the United States and be enforceable by proceedings in contempt or otherwise by any other court or judge possessing jurisdiction of the defendants.

"(Sec. 37.) That the clerk of the court, or judge granting the injunction, shall, when required so to do by the court hearing the application to enforce said injunction, transmit without delay to said court a certified copy of all the papers in said cause that are on file in his office.

"(Sec. 38.) That the orders, judgments, or decrees Appeal of any court mentioned in section thirty-four of this Act arising under the copyright laws of the United States may be reviewed on appeal or writ of error in the manner and to the extent now provided by law for the review of cases determined in said courts, respectively.

after three

years

Strict compliance requisite

“(Sec. 39.) That no criminal proceeding shall be No criminal maintained under the provisions of this Act unless the proceedings same is commenced within three years after the cause of action arose." The copyright statutes are construed strictly, by the letter of the law, in respect to procedure as well as to other features. This is especially the case in respect to forfeiture and penalties, as where, in Falk v. Heffron, in 1893, 2400 copies of a copyright portrait of Lillian Russell had been lithographed, twenty-one on a sheet, Judge Wheeler in the U. S. Circuit Court in New York held with the jury that only one dollar per sheet could be recovered as penalty, because the law specified "sheets." In McDonald v. Hearst, in 1899, in the U. S. Circuit Court in California, Judge DeHaven held that the proprietor of the San Francisco Examiner could not be held liable for copyright penalties because an employer could not be held to penal

Damage not penalty

responsibility for the act of his agent. In a suit to obtain damages based on forfeiture, in Wheeler v. Cobbey, in 1895, Judge Shiras in the U. S. Circuit Court in Nebraska sustained a demurrer on the ground that the damages asked for depended on forfeiture and could not be obtained unless the actual forfeiture was had within the statutory limit of two years. In Morrison v. Pettibone, in 1897, in the U. S. Circuit Court in Illinois, Judge Seaman held that certain sheets, seized during the process of lithographing, when only one color had been printed, were not exact copies and therefore could not be forfeited. In Bennett v. Boston Traveler Co., in 1900, the Circuit Court of Appeals, through Judge Colt, refused relief because the plaintiff had alleged infringement of a cartoon published in the New York Herald, which was not specifically copyrighted, instead of alleging infringement of the copyrighted newspaper of which it was a part. An extreme case was that of Child v. N. Y. Times Co., in 1901, where the plaintiff had purchased infringing copies from the defendant, in which case Judge Hazel in the U. S. Circuit Court in New York held that as these were not literally "found in possession" of defendant, a penalty could not be collected. Several of these cases illustrate escapes from justice which will not be possible under the code of 1909, which uses broader phraseology. In Walker v. Globe Newspaper Co., in 1908, where no copies of a pirated map were found in possession of the defendants, the U. S. Supreme Court held that outside of statutory remedies no suit for damages could be maintained.

On the other hand, in the case of Brady v. Daly, which came before the U. S. Supreme Court in 1899, the defendants, on a question of jurisdiction, raised the issue that the old law provided for a penalty and

not for damages, in denying which Justice Peckham held that: "The statute in using the word 'damages' did not mean a forfeiture or penalty, as it is difficult to prove the exact amount which the proprietor of a play may suffer by reason of an infringement. It is probable that Congress intended to provide a remedy so that the proprietor could recover a certain amount of damages without proof of what his actual loss had been. In the face of the difficulty of determining the amount of damages, a minimum sum is provided in any case, with the possibility of recovering a larger amount on proof of greater damage. The idea of punishment is not so much suggested as the desire to provide for compensation to the proprietor." This rule was applied by Judge Lacombe in Patterson v. Ogilvie, in 1902.

In the case of Falk v. Curtis Pub. Co., which came before the U. S. Circuit Court in Pennsylvania twice in 1900, some important decisions or indications as to copyright procedure were given. The defense that under the copyright act the words "any person" did not include a corporation was overruled by Judge Dallas on the ground that the general statute specifically construed the word "person" to extend to partnerships and corporations. In this case an action to recover penalties and an action to replevin copies in possession were started independently and simultaneously, and the Circuit Court of Appeals through Judge Buffington affirmed the decision that as the penalties under the old act were restricted to copies "found in possession," the suit for penalties was premature. In the later case of Rinehart v. Smith, also in the Pennsylvania circuit, it was pointed out that an action for replevin was not the proper form of suit because in such actions bonds might be given and the forfeiture of copies thus be barred; and in Hegeman v.

Other pro

cedure de

cisions

Preventive action

Party in suit

Suit for injury to reputation

Springer, the Circuit Court in New York held, in 1901, that a replevin suit, involving prior demand, was not necessary and that the copyright statute itself gave authority for an action for seizure without previous demand, as would be necessary in replevin proceedings. It was held, however, in the Illinois circuit in an earlier case, that a suit of replevin will lie to enforce forfeiture under the copyright act. Several of these perplexities, however, are removed by the code of 1909, which expressly (sec. 27) authorizes the bringing together of all the remedies in one action.

That there can be no infringement of copyright by acts committed before the copyright was obtained, was decided in 1900 in the U. S. Circuit Court in the case of Maloney v. Foote, where the two parties were jointly engaged in preparing directories, and the plaintiff obtained the copyright and brought suit for infringement for the prior use of material, the question being of contract and not of copyright. On the other hand, as far as practicable, "it is the policy of the law to arrest the pirate before he actually makes off with the plunder," said Judge Coxe in the U. S. Circuit Court of Appeals, in Gannet v. Rupert, in 1904.

In 1903, in Champney v. Haag, it was held in the U. S. Circuit Court in Pennsylvania, that though a copy of a photograph of a copyright painting was an infringement, it was not the owner of the original copyright but the owner of the photograph who must sue but this is contrary to the English ruling case of Lucas v. Williams, and is probably not good law.

A curious case arose in England in 1892 as to the rights of an author after publication and transfer of copyright, in Lee v. Gibbings, where the plaintiff had prepared for the defendant, a publisher, at an agreed price, an edition with introduction of Lord Herbert's autobiography, which the defendant re-issued in a

condensed edition without the introduction and other matter by the author, though retaining his name. The author sued to restrain the condensation as an injury to his reputation, but Justice Kekewich in the Chancery Division held that this should be a suit for libel and not under copyright, and declined to enjoin the defendant before the question whether this was actually a libel was settled.

In a case of evident bad faith in wholesale copying, Damages in the U. S. Circuit Court in Hartford Printing Co. v. willful case Hartford Directory Co. awarded as damages the

gross receipts less estimated cost.

The provisions for collecting damages and profits Penal proare supplemented in case of infringement, willfully visions and for profit, by penal provisions which make the offense a misdemeanor punishable by imprisonment not exceeding one year or fine not less than $100 or more than $1000, or both, in the discretion of the court, according to the following provision (sec. 28):

"That any person who willfully and for profit shall Penalty for infringe any copyright secured by this Act, or who willful inshall knowingly and willfully aid or abet such in- fringement fringement, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by imprisonment for not exceeding one year or by a fine of not less than one hundred dollars nor more than one thousand dollars, or both, in the discretion of the court."

This provision (sec. 28) includes however a proviso exempting from prevention or punishment the performance of certain musical works for charitable or educational purposes and not for profit, which proviso is given in full in the chapter on dramatic and musical copyright.

Provision is also made in the new statute for the punishment by fine, but not by imprisonment, of any