Page:Federal Cases, Volume 15.djvu/32

LAWRENCE (Case No. 8,136) [15 Fed. Cas. page 28] . If a person dealing with trusty property omits to inquire, he is then chargeable with all the knowledge of the facts that by proper inquiry he might have learned. . Inquiry is a moral duty whenever the cir- cumstances are such that a person of ordinary prudence would refuse to act. If a party under such circumstances shuts his eyes to the means of knowledge which he knows is at hand, he then forfeits every pretence of defence, as such con- duet is equivalent to actual notice of all the facts he might have ascertained by a performance of his duty, . Expiert testimony was put into the case upon a comparison of two editions of a book, up- on the point whether the two editions were or were not of the same character. Held, that though admissible in such a case, the opinions of the experts were in the nature of secondary evi- dence, . The court found it necessary to examine the comparisons itself in order to come to a satisfac- tory conclusion, although much aid was derived from tile comparisons made by the experts. - In this case it was lieU that the question of fact was, what use did the respondent, who edited the edition in question, make of the com- plainant's notes? - The question of law was, was the use which it was admitted he did make of those notes a lawful use, or did it infringe the complainant's rights? . AlthouErh it may be difficult to make proof, still the complainant is not entitled to any decree, unless he proves infringement as alleged, to the satisfaction of the court, because the burden is on the party making the charge. In a case of this character the parties are compelled to rely chiefly upon a comparison of the contents of the respec- tive books upon the question of infringement. . Great latitude is given in the reception of circumstantial evidence, the aid of which is con- stantly required in the administration of justice, . "Whenever the necessity for the use of such evidence arises, either from the nature of the inquiry, or the failure of direct proof, objections to the relevancy of evidence are not favored, for the reason that the force and effect of circumstan- tial facts usually and almost always depend up- on their connection with each other. - Circumstances altogether inconclusive, if separately considered, may, by their number and joint operation, especially if corroborated by moral coincidences, be suflieient to constitute full and conclusive proof. . In cases for infringement of copyright, the strongest proof of copying may sometimes be de- rived from the coincidence of errors in two works. [Cited in List Pub. Co. v. Keller, 30 Fed. 774,1 . Coincidence of citation is another evidence of copying; so, also, is identity of plan and ar- rangement. . Copyright may be justly claimed by an au- thor of a book who has taken existing materials from sources common to all writers, and ar- ranged and combined them in a new form, and given them an application unknown before, be- cause skill and discretion were exercised in mak- ing the selections, arrangement, and combina- tion, and something new and useful has been achieved, [Cited in Hanson v. Jaccard Jewelry Co., 32 Fed. 203,] . The author of such a work has as much right in his plan, method, and arrangement, as he has in his thoughts, reflections, or opinions, . Others may use the old materials for a different purpose, but they cannot copy his plan, arrangement, or combination of those materials, . A person could take the old materials, as found in the sources from which they were drawn, and use them as he pleased in illustration of new and original propositions, or for any oth- er purpose not substantially the same as that to which they were applied in works protected by a copyright on fome particular plan or com- bination, . One cannot, however, use the materials as collected and furnished in the copyrighted work, or tiie plan and arrangement therein, beyond the extent falling within the definition of fair use, which rule is applicable only to the materials and not to tie plan and arrangement, . In this case respondent had used the facts, citations, and authorities as collected, arranged, and combined by the complainant, and the work occupied the same field, and was made and com- posed for the same general purpose. . The sole right and liberty of printing, re- printing, publishing, and vending a book, secured by the copjTight law, means the exclusive right of multiplying copies for the benefit of the author or his assigns, [Cited in Henry Bill Pub, Co. v. Smytiie, 27 Fed, 921.] . An abridgment of an orisiinal work, where intellectual labor and judgment are involved, made and condensed by another person, without the consent of iie author, is not an infringement of a copyright on the original, . What constitutes a fair and bona fide abridgment is a very difficult question for judi- cial decision. In this case the book of the re- spondent was not an abridgment, . Copying is not confined to literal repetition, but includes also the various modes in which the matter of any publication may be adopted, imitat- ed, or transferred, with more or less colorable variations to disguise the source from which the material was derived, . It is not necessary that the whole, or the larger part, of a work should be copied in order to constitute an invasion of a CQpyright. . Some use may be made, by a subsequent writer, of a book antecedentiy made, composed, and copyrighted oy another, whether such former book were wholly or partiy original, . Copyrights differ in this respect from pat- ents, which admit of no use of the patented thing without consent of the patentee, . The recomposition of the same book, with- out copying, though not likely to occur, would not be an infringement. . Identity of contents, arrangement, and com- bination is strong evidence that the second book was borrowed from the first, because it is highly improbable that two authors would express their thoughts and sentiments in the same language, or adopt tie same method and arrangement . Absence of intent, alone, to copy a copy- righted work would not free a person from the charge of copying; the court looks at the result, and not the intention in the man's mind at the time of doing the act complained of. . Evidence of intent might have some bear- ing on the question of fair use, but it is not a defence where the party setting it up has in- vaded the copyright of the complaining party, . If so much is taken from a copyrighted work that its value is sensibly diminished, or the labors of tiie original author, to an injurious extent, ap- propriated by another, it is sufficient to constitute infringement. . In a review of a work, sufficient may be taken to give a correct view of the whole, but tiie privilege of making extracts is limited to those ob- jects, and cannot be exercised so that the review may become a substitute for the work reviewed, . Equity will not interfere, by injunction, to prevent further use of a copyrighted book, when the amount copied is small and of little value,