# De Acosta v. Brown > Court of Appeals for the Second Circuit · December 13, 1944 · 146 F.2d 408 URL: https://www.frixlaw.com/law-library/cases/9651482 ## Case - **Full name:** DE ACOSTA v. BROWN Et Al. - **Court:** Court of Appeals for the Second Circuit - **Decided:** December 13, 1944 - **Citations:** 146 F.2d 408; 63 U.S.P.Q. (BNA) 311; 1944 U.S. App. LEXIS 2309 - **Precedential status:** Published - **Opinion:** Dissent by Hand - **Judges:** Hand, Chase, Clark - **Cited by:** 45 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9651482 ## How later opinions describe it (automated extraction) - affirming injunction where defendant had consulted directly with intermediary ## Opinion text L. HAND, Circuit Judge (dissenting). I agree in all that my brothers are deciding and in all they say, except as to the liability for damages of the Cosmopolitan Magazine. The chances are slight that these will be substantial, and I should have been silent, were it not that we are, in my opinion, committing ourselves to a doctrine which is wrong in theory, which the cases do not require us to adopt, and which imposes a risk upon publishers that is likely to prove an appreciable and very undesirable burden upon the freedom of the press. It is universally agreed that copyright — I do not distinguish “literary prop *413 erty” — grants to an author only a monopoly of making and selling copies of his work; for this we need indeed look no further than to section one of the Copyright Act itself. I agree that, when a person directly copies a work he invades that monopoly, and makes himself absolutely liable, however little he may know that it is not in the public demesne. Further, I agree that when one copies a copy, he copies the original, even though he supposes that the copy —his own immediate source — is itself an original: he has in fact made use of the unknown original as his source, however unwittingly. Indeed, were this not true, it would be impossible to hold as an in-fringer one who used as his source even that which he knew to be a copy; at least unless the copy which he used was itself an infringement, when perhaps he might be held as a confederate. However, it by no means follows that he who copies a copy, supposing it to be an original, although he has in fact invaded the author’s monopoly, is liable as an in-fringer. To hold him when he has directly used the author’s work as his source is one thing; he intends to copy what he has in fact copied, .and he takes his chances of his right to do so, as I have just said. But when he supposes that what he has copied is an original, he has not intended to do, and does not suppose he is doing, that which alone is the wrong — copying the author’s work. He may of course have such notice as charges him with knowledge that he is doing so, and he will then be liable; but the plaintiff at bar did not fasten such a notice upon the Cosmopolitan Magazine; and in my opinion she had the burden of so doing. Ordinarily an act does not become a wrong, when to make it so, one must resort to consequences arising from it in the actual sequence of events which reasonable persons would not anticipate. True, once a man is found to have committed a wrong, the law does at times hold him for consequences which he could not anticipate; but that is another matter. I can see no reason why the ordinary rule of liability for torts should not apply to copying a copy; and I see very strong reasons why it should, as I shall show. I accept the analogy of conversion; it is true that if, for instance, I carry off as mine another’s watch in my bag, it is no excuse that I think it mine. However, I do not convert it, whatever acts of dominion I exercise over my bag, if I do not know, or am not chargeable with notice,, that there is a watch in the bag, though I may have equally denied the owner’s right. Restatement of Torts § 222 Comment (d) “Necessity of Intention,” Comment (d) (sic) “Character of Intent Necessary.” This distinction which I seek to make is certainly not formal, or legalistic; it entails momentous results; for, unless some such limitation is imposed, an indefinite regress of liability emerges. He becomes unconditionally liable, who copies the copy of a copy, or the copy of a copy’s copy, and so on; no matter how far we must go-to reach the eventual author. When one considers that for infringement it is not necessary to reproduce the work in ipsissi-mis verbis; but that it is enough to take the substance of its “expression,” as distinct from its “ideas,” the resulting liability becomes unique in severity, and one, against which no degree of care will for-fend. That it may prove, as I have sugr gested, an appreciable incubus upon the freedom of the press, appears to me by no means far-fetched. If my brothers are-right, a publisher must be prepared to respond in damages to any author who can prove that the publisher has incorporated, however innocently, and at whatever remove, any part of the author’s work. If that possibility is to hover over all publications, it would, I believe, be a not negligible depressant upon the dissemination of knowledge. By far the greater part of those copious citations which my brothers’ industry has gathered, touch the liability of one who directly, though innocently, copies the author’s work; they do not help us to a decision here. So far as I can find, the point has been dealt with in only three, and I agree that those bear them out. The point was squarely decided in American Press Association v. Daily Story Publishing Co., 7 Cir., 120 F. 766 , 66 L.R.A. 444 , although, with a little doubt, I read the opinion of Grosscup, J. as dissenting on this point. The English Court of Appeal held the copier liable in Mansell v. Valley Printing Co. (1908), 2 Ch. 441, affirming Swinfin Eady, J. in (1908), 1 Ch. 567. In Norris v. No-Leak-0 Piston Ring Co., D.C., 271 F. 536 , Rose, J. assumed without any discussion that the copier infringed; but, although the Circuit Court of Appeals for the Fourth Circuit affirmed his judgment 277 F. 951 , this point does not appear to *414 have been even raised. In Haas v. Leo Feist, Inc., D.C.2 234 F. 105, 106 , a publisher had employed one, Piantadosi, “as a casual composer of melodies” which it published, after they had been properly prepared by another employee. Piantadosi copied the melody of a song from the plaintiff, the defendant innocently published it, and I held the publisher liable for damages. That still seems to me right, for the defendant, being Piantadosi’s employer to provide it with melodies, was liable for his .torts. These decisions do not form so impressive a body of authority that one must yield to it, if, like me, he thinks them wrong in principle and unfortunate in result. On the other hand, I regard § 20 of the Copyright Act as confirming the view I take. That provides that if “by accident or mistake” the owner of a copyright omits the statutory notice from “a particular copy or copies” the omission shall not “prevent recovery * * * against any person who, after actual notice” infringes “but shall prevent the recovery of damages against an innocent infringer who has been misled by the omission of the notice”; and indeed even the injunction is made conditional upon the owner’s reimbursing the infringer for any “reasonable outlay innocently incurred,” at the court’s discretion. That section does not of course apply to the case at bar; but it shows that when Congress provided for the general subject of an “innocent infringer,” not only did it deny liability in the situation before us, but even when the infringement had been by directly copying from the author’s own copies: i.e. from the very work itself. Certainly the liability of one who innocently copies from an infringer ought not to be greater than that of one who uses the author’s copy. Whether the courts of New York would consider the action of Congress a makeweight in deciding the law of “literary property” of that state, I cannot of course be sure; but it seems to me probable that .they would; I can only say that, anticipating any decision of theirs upon the point, I should so assume. The. situation is obviously different as to profits and an injunction. As soon as a publisher learns that his original was a copy, he may of course be enjoined. Prince Albert v. Strange, 2 DeG. & S. 652; affirmed, 1 Macn. & G. 25. As for profits from earlier publication, to allow even an innocent publisher to retain whatever can be traced as the fruit of an author’s work, would unjustly enrich him at that author’s expense, quite regardless of whether he had invaded the author’s monopoly. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9651482. Public record. Not legal advice.