4 Cliff. 306 | U.S. Circuit Court for the District of New Hampshire | 1874
Authors of any book or books, map, chart, or musical composition, if citizens of the United States, shall have the sole right and liberty of printing, reprinting, publishing, and vending the-same for the term of twenly-eight years from the time of recording the title thereof, as directed by law. 4 Stat. 4SG. Besides that it was required at that date that a printed copy of the title of such book or books, &c., should be deposited in the clerk’s office'cf the district court of the district wherein the author or proprietor resided, and it was made the duty of such clerk to record the same in a book to be kept for that purpose, in the form prescribed in section 4 of that act. Such author or proprietor was also required, within three months from the publication of the book or books, &e., to deliver a copy of the same to the clerk of said district court. He was also required to give information that copyright was secured of the' book, by inserting in the several copies of each edition published the formula prescribed in section 5 of that act, and the provision was that no person not complying with such requirement should be entitled to the benefit of the act. Instead of delivering a copy of the book, &c., to the clerk of the distinct court, the requirement now is that ihe author or proprietor shall transmit such copy free of postage within one month of the date of publication to the library of congress for the use of said library. 13 Stat. 540.
(After a reference to the master's report the court proceeds to say: — -)
Viewed in the light of that report, it is clear that the complainant is not entitled to an ac-* count nor to an injunction. Nothing remains for consideration except the question whether the complainant is entitled to nominal damages, as it is veiy clear that substantial damages cannot be allowed in a case where it appears thatthe matters charged havenotwork-ed any prejudice to the complaining party. Nominal damages may perhaps be allowed, unless some one or more of the defences are sustained, which remains to be considered.
Sufficient evidence was introduced by the complainant to show that a printed copy of the title-page was deposited in the clerk's office of the district court of the district wherein the author or proprietor of the several volumes of reports mentioned in the bill of complaint resided; but there is no evidence in the case that such deposit was made before publication, as required by section 4 of the copyright act. 4 Stat. 437. Proof was also introduced sufficient to show that the author or proprietor did deliver or cause to be delivered a copy of the said several volumes to the clerk of the said district court; but there is no evidence that the same were, in any case, so delivered within three months from the publication of the book, nor are there any facts or circumstances from which the court can supply, by inference, the want of direct evidence upon the subject, as there is no evidence whatever when publication was made. Persons claiming that they own the copyright of a book, in a suit for infringement, must prove their ownership by competent evidence, else their suit cannot be maintained, as the burden is upon the complainant to prove his title to copyright, as well as to prove infringement. Power is vested in congress to secure to authors and inventors, for limited times, the exclusive right to their respective writings and discoveries; and congress having exercised that power, authors, as well as inventors, must comply with the conditions which congress has seen fit to annex to the enjoyment of such exclusive right. Deposit of a printed copy of the title of the book must be made, before publication, in the clerk’s office of the district court of the district wherein the author or proprietor shall reside, and he, the author or proprietor, must deliver a copy of the book to the clerk of said district court within three months from the publication of the same, else he is not entitled to the benefit of the act. Such are the abstract requirements of the "act of congress; nor is it competent for the circuit court to disregard the requirement. Wheaton v. Peters, 8 Pet. [33 U. S.] 653; Reade v. Conquest, 9 C. B. (N. S.) 755.
3. Suppose it were otherwise, still the court is of the opinion that the complainant is not entitled to recover even nominal damages, as, by the statute law of the state, the judges of the court respectively were the authors of their opinions. Reporters of the decisions of the superior court were appointed by the governor with the advice of the council; but the second section of the same statute provides that each justice of said court shall prepare for the press, and furnish to the reporter, concise reports of the cases in which the judgment or opinion of the court, in matters of law pending at the law terms, was pronounced by him, within six months after the same is pronounced. Rev. St. 405. Section 5 of the same statute enacts that said reporter shall edit said reports as early as practicable, provide for the sale thereof by disposing of the copyright, or otherwise, as he may deem expedient, and the direction is that he shall pay into the state treasury the net proceeds, after deducting the reasonable and necessary expenses of publishing and selling. Of course, the judges respectively prepare the opinions, and the proof is equally full and decisive that they also prepared the head-notes to each of the cases reported in the several volumes of reports in question. Even grant that the copyright is not defective, still it cannot secure to the complainant what he does not own, nor could their vendors convey to them what they never owned. “Nemo dat quod non habet.” Persons, therefore, who buy from one not the owner, acquire no property whatever in the tiling purchased, as no one, in such a case, can convey any better title than he owns; unless the sale is made in market overt or under circumstances which show that the seller lawfully represented the owner. Foxley’s Case, 5 Coke, 109a; 2 Bl. Comm. 449; 2 Kent, Comm. (11th Ed.) 224; Marsh v. Keating, 2 Clark & F. 260; Benj. Sales, 4; 1 Pars. Am. Raw (5th Ed.) 520; Mitchell v. Hawley, 16 Wall. [83 U. S.] 550. None of the reporters were the authors of the opinions nor of the head-notes, and of course they had no copyright in the same, and it follows that, inasmuch as they had no such copyright in the opinions or head-notes, they could not convey any title to the grantor of the complainant, and that the latter acquired nothing in that regard by virtue of the several conveyances under which he claims. Having come to this conclusion, it is not necessary to decide whether the proofs introduced by the complainant show an infringement or not, as it is quite plain that the bill of complaint must be dismissed.
Bill of complaint dismissed, with costs.