210 U.S.

Argument for Defendants in Error.

Law, 179; 1 Pom. Eq. Jur. (2d ed.), § 423; Miller v. Jefferson College, 5 Smed. & M. (Miss.) 661; Stanley v. Earl, 5 Litt. (Ky.) 282; Robinson v. Steamboat Red Jacket, 1 Michigan, 175.

The decision of the Circuit Court of Appeals for the First Circuit (140 Fed. Rep. 305) controls the question raised by the assignment of error.

The Circuit Courts of Appeals have no jurisdiction over appeals and writs of error where the only assignments of error are jurisdictional questions. The Annie Faxon, 87 Fed. Rep. 961; Davis & R. Mfg. Co. v. Barber, 60 Fed. Rep. 465.

Where, however, the assignments include other errors, the Circuit Courts of Appeals can determine the whole case, including the question of jurisdiction. The Alliance, 70 Fed. Rep. 273; United States v. Sutton, 47 Fed. Rep. 129; Cabot v. McMaster, 65 Fed. Rep. 533; and it may certify the jurisdictional question to this court. Rust v. United Water Works Co., 70 Fed. Rep. 129; American S. R. Co. v. Johnston, 60 Fed. Rep. 503; United States v. Jahn, 155 U. S. 109.

Circuit Courts of Appeals have jurisdiction over questions touching the jurisdiction of the Circuit Courts, unless the issue has been made in the court below and certified to the Supreme Court. Cabot v. McMaster, 65 Fed. Rep. 533, 534; limited in King v. McLean, 64 Fed. Rep. 325, 327.

The provisions of the statute permit in the alternative, two methods of procedure to bring before this court the question. of jurisdiction, namely:

To have the question certified directly from the Circuit Court; or to carry the whole case to the Circuit Court of Appeals and the question of jurisdiction then certified by that court to the Supreme Court.

When the unsuccessful party wishes to have the judgment or decree reviewed upon jurisdictional grounds and other grounds as well he cannot appeal to both this court and the Circuit Court of Appeals. United States v. Jahn, supra; Columbus Const. Co. v. Crane, 174 U. S. 600. See also McLish v. Roff, 141 U. S. 661, 667.

Opinion of the Court.

MR. JUSTICE DAY delivered the opinion of the court.

210 U.S.

This case is here upon writ of error to the Circuit Court of the United States for the District of Massachusetts, upon a question of its jurisdiction to entertain a suit to recover damages for an alleged infringement of the copyright of a map.

The Revised Statutes of the United States, §711, par. 5, give jurisdiction to the courts of the United States in cases arising under the patent right or copyright laws of the United States, exclusive of the courts of the several States. The case is one, therefore, which involves the jurisdiction of a Federal court as such.

The defendants in error, plaintiffs below, partners under the style of George H. Walker & Company, are the owners of a certain copyrighted map, known as the "map of the electric railways of the State of Massachusetts accompanying the report of the railroad commissioners." They allege that they had complied with all of the requirements of the copyright statutes of the United States, and that the defendant, Globe Newspaper Company, well knowing the premises, without the plaintiff's consent, printed and sold a large number of the copies of the copyrighted map. And the plaintiffs sought to recover damages in an action at law thus begun for the alleged infringement of the copyright.

The newspaper company demurred upon several grounds, among others:

"1. That the statutes relating to copyrights provide no remedy by a civil action on behalf of the owner of the copyright of a map.

"2. That the declaration confuses two separate and distinct causes of action, neither of which is authorized by the statutes relating to the copyright of maps.

"3. That the declaration contains no allegation that any copy or copies of the alleged infringing map complained of was or were found in the possession of the defendant.

"4. That the declaration contains no allegation that the

alleged infringing map complained of, or any copy thereof, was published with the knowledge or consent of the defendant, or any of its officers, or with any intent to evade the statutes for the protection of the copyright for a map."

Upon hearing the demurrer the Circuit Court at its February term, 1904, sustained the same, on the ground that the copyright law gave no such action, and judgment was entered for the newspaper company. 130 Fed. Rep. 594. Walker & Company took the case to the Court of Appeals, where the judgment of the Circuit Court was reversed. 140 Fed. Rep. 305. That court, holding that the declaration contained a good cause of action for money damages against the newspaper company, the cause was remanded and a new trial had in the Circuit Court, which resulted in a verdict and judgment in the sum of $250 in favor of the Walker Company against the Globe Newspaper Company. At the trial the newspaper company moved that the action be dismissed and a verdict be directed for it, on the ground that the court had no jurisdiction of the action. At the close of the plaintiff's evidence in chief the motion was renewed; the court overruled the motion and the defendant excepted. A like motion and order was made at the close of all the evidence. The court made a certificate that the denial of the motions aforesaid was based in each case solely upon the ground that the cause set forth in the declaration was one, in the opinion of the court, which arose under the copyright laws of the United States, whereof the Circuit Court of the United States had jurisdiction, and, in any event, its action was controlled by the opinion of the Circuit Court of Appeals in 140 Fed. Rep. 305. Thereupon the case came here upon the question of jurisdiction.

A preliminary objection is made that this court cannot entertain jurisdiction of this writ of error, because the case is not one which may properly come here under §5 of the Court of Appeals Act of 1891, and it is contended that, as the case went to the Circuit Court of Appeals and that court determined it, if the present plaintiff in error wished to save the question of

jurisdiction it should have been duly certified to this court from the Court of Appeals. But we are of the opinion that this objection is untenable. The case was taken to the Circuit Court of Appeals by Walker & Company. The judgment of the Circuit Court was in favor of the newspaper company. It had no occasion to take the case to the Court of Appeals. When the Court of Appeals reversed the decision of the Circuit Court and remanded the case for trial, because of its holding that the declaration contained a cause of action in favor of Walker & Company, the Circuit Court was bound by, and of course followed, the decision of the Circuit Court of Appeals.

The newspaper company, in various forms, objected to the jurisdiction of the court as a court of the United States, because there was no such action under the copyright law as was asserted in the declaration filed against it. Its objection to the jurisdiction was overruled. It saved the question in various ways and brought it here upon an adequate certificate, raising solely the question of jurisdiction. We think we have jurisdiction of the case.

Certain propositions arising under the copyright laws are settled by the decisions of this court beyond the necessity of further discussion. In this country the right of an author to multiply copies of books, maps, etc., after publication, is the creation of the Federal statutes. These statutes did not provide for the continuation of the common-law right, but, under constitutional authority, created a new right. new right. This was directly held in the case in this court of Wheaton et al. v. Peters et al., 8 Pet. 590. That case has frequently been followed since, and is directly approved of in subsequent cases in this court. Bobbs-Merrill Co. v. Straus, just decided, ante, page 339, and the previous cases from this court therein cited.

The question in this case, therefore, is, whether in the absence of a statute to that effect, there is a common-law right of action because of the right of property created by the statute to recover money damages against infringers of a copyright. That there is no express statutory provision giving such right

of action is conceded. The Circuit Court (130 Fed. Rep. 594) was of the opinion that the question was determined adversely to plaintiffs below by the well-known case of Wheaton v. Peters, 8 Pet. supra. In that case the court held that there could be no relief at common law in an action brought for the infringement of the copyright of Wheaton's reports, because of the publication, since the passage of the copyright act, of condensed reports of cases decided in the Supreme Court of the United States. It was held that there was no common law of the United States, and that for common-law rights this court looked to the State in which the controversy originated, and the court held that there was no common-law right in Pennsylvania to a perpetual copyright. And, further, held that Congress, by the copyright act of 1790, instead of sanctioning an existing right, created a new one, and said (p. 662) that " If the right of the complainant can be sustained, it must be sustained under the acts of Congress." The judgment of the court below was reversed, and the cause remanded to the Circuit Court with directions to direct an issue of fact to be examined and tried by a jury as to whether Wheaton, the author, or other person as proprietor, had complied with the requirements of the copyright act of the United States of May 31, 1790.

While we agree that the case did not necessarily decide the point made in the present case, yet the reasoning and the decree of the court decidedly favor the conclusion that Congress not only created a new right in the copyright statute, but that the remedies therein given are the only ones open to those seeking the benefit of the statutory right thereby created.

The Circuit Court of Appeals, conceding the effect of the decision in Wheaton v. Peters, supra, as to the origin of property in copyright, says:

"The property right being established, the common-law remedies attach, whether the right arises out of the common law or under a statute, unless there is something in the statute to the contrary."

And in support of this doctrine reliance is had on Beckford v.