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For thirty-eight years, since Mr. Curtis's scholarly volume, published in 1837, no textual work on the American law of copyright has made its appearance in the United States. And although, since then, the importance of the subject has grown
as it must continue to grow-commensurately and parallel with the growth and importance of literature and the multiplication of books, the department of Copyright does not, even to-day, make a large appearance in our Digests.
The reason why this is so, doubtless lies in the fact that comparatively few Copyright cases, in our courts, get beyond a hearing, in the first instance, at a special term or in chambers—they either proceeding at once therefrom to settlement by the parties themselves, or being abandoned by the pursu
If the manager of a theater, for example, who has expended large sums to mount a drasiatic production upon his stage, should be served-upon the threshold of its production—with a temporary injunction, and an order to show cause why such injunction should not be made final, he will hardly keep his properties unemployed and his actors idle, to carry the case to the Court of Appeals, or to Washington, before presenting his play. If he cannot raise the injunction at special term, the next day, he must settle the difficulty the best way he can; and if he does raise it, the pursuit is generally withdrawn. So, likewise, the publisher of a book, whose first sale is interrupted, is generally very loath to abide the dignified and long-drawn leisure of the Law. As chamber and special term hearings, therefore, are reported but rarely, the great majority of these cases do not get into the volumes of reports, and thence into the Digests. Many of them do not even find their way into the newspapers. But all the more, instead of all the less, does this seem to demonstrate the importance of interests too vital for courts beyond, and which must be settled at first hand, by a single judge; and to prove that there is room for a work like the
I am aware that the style I have chosen for this inquiry is an innovation, upon this side of the Atlantic. In the preface to an English work, edited by me, some time ago, I ventured to remark that “there is a wide dissimilarity between the American and the English systems of iegal text-writing. While the plan of the American writer has invariably been to consider, in his text, only principles and rules,-connecting them with the cases in which they have been enunciated by foot-note reference,-the English method is to give, in the body of the text, a sort of running history of the cases themselves, their dicta, rulings, and progress-not unfrequently, even, of the argument, objections, and strategy of counsel,-trusting to the detailed and discursive report itself, to develop the principles and rules for which he is seeking. Neither plan is without its excellences, nor quite without its faults. The American undoubtedly produces, from a literary point of view, the more rounded and finished essay. But the student is possibly in danger of being led along by the author's own reasoning or learning, or by his own ideas as to what the law is or ought to be. The English method, though prolix and inartificial, is, at all events, accurate and reliable, since the student is safe to find out, therefrom, exactly what the law is, and what the precedents which courts are likely to follow.” At the risk, then, of being “prolix and inartificial,” I have, in the following pages, followed the English plan. It is at least a question whether literary merit is any merit at all in a legal work—whether, even, it is not a positive demerit; at all events, if it be accurate and reliable, the lawyer and the student will pardon a lack of unity and style.
There is a vast temptation to the writer of a work upon Literary Property, to allow himself to be led aside by the fascination of the subject; to be dazzled by the great names that glow and sparkle under his pen. The first great case of copyright involved the proprietorship of the assigns of the poet Thompson in his own poems; in its discussion sat Lords Mansfield, De Grey, Aston, Willes, and Yates, and therein Lord Camden delivered his famous argument. Greater than Thompson-Milton, Johnson, Byron, Shelley, Southey, Walter Scott, and Dickens-have been litigants, either personally or through their representatives, in like causes. The History of Clarendon, and the Letters of Chesterfield in England, and-in our own country-the letters of Washington and the Commentaries of Story, have come before the courts for protection; while for the last and most generous encouragement which the British parlia