In Torts. By piracy is understood the plagiarism of a bpok, engraving, or other work for which a copyright has been taken out; infringement of copyright may be by unfair quotation; by piratical copying; by piratical use other than copying.
Where the violation of the copyright con sists of excerpts from plaintiffs book, the court is bound to consider the quantity and quality of the matter appropriated and the extent to which the plaintiff is injured by it and the damage to the defendant by an injunction. It seems that the complainant is not always bound to prove pecuniary dam age to entitle him to an injunction. Where the parts of the complainant's book are scattered through the defendant's book and cannot be separated, the whole will be en joined; Farmer v. Elstner, 33 Fed. 494.
Piratical copying, was held to be estab lished in the case of a society directory by proof that out of 2800 names, 39 common er rors were found to exist ; List Pub. Co. v. Keller, 30 Fed. 772; and by proof that out of 60,000 names there were 67 common er rors; Chicago Dollar Directory Co.- v. Di rectory Co., 66 Fed. 977, 14 C. C. A. 213. Two common errors in maps were held suf ficient to establish the fact that one map had been copied from the other; Chapman v. Ferry, 18 Fed. 539; in a mercantile agency book, the existence of 15 common errors was held sufficient to establish the use of the complainant's book by the defendant; Jewelers' Mercantile Agency v. Pub. Co., 84 Hun 12, 32 N. Y. Supp. 41. It is not neces sary to point out many common errors to establish a presumption of piracy ; Jewelers' Mercantile Agency v. Pub. Co., 66 Hun 38, 20 N. Y. Supp. 749. The court does not feel bound to go through the whole of the de fendant's book to ascertain the extent of the piracy ; 19 L. J. N. S. Ch. 90. In 2 Beay. 6, the court enjoined the defendant who had pirated parts of a topographical dictionary, without waiting until the of the pi rated parts could be ascertained, and held that if the parts which had been copied could not . be separated from those which were original without destroying the use and value of the original matter, the defend, ant must suffer the consequences.
In List Pub. Co. v. Keller, 30 Fed. 772, it was intimated that the injunction would be modified at the final hearing, if the proofs of the defendant tended to segregate any part of the material which had been taade sub ject to the injunction.
The rule is well settled that although the entire copyrighted work is not copied in the infringement, but only portions, if such por tions are so intermingled with the rest of the piratical work that they cannot well be distinguished from it the entire profits real ized by the defendant will be given to the plaintiff ; Belford v.• Scribner, 144 U. S. 488, 12 Sup. Ct. 734, 36 L. Ed. 514. See 2 Russ. 385 ; Elizabeth v. Pay. Co., 97•U. S. 126, 24 L. Ed. 1000.
It is the unfair appropriation of the compiler's labor in the case of the syllabus of a legal opinion that constitutes infringe ment. Identity of language will often prove that the offence was committed, but it is not the sole proof. If the subsequent di gestor has made an unfair use of any part of a syllabus of his predecessor, the burden is on him to show that there were parts of it that he did not use. Where the defendant's editor, in compiling a digest of reports, di gested some 13,300 cases from the complain ant's pamphlet reports and a partial com parison of the copyrighted syllabi with the digest showed internal evidence of piracy in some 400 instances, it was held that this indicated a general, systematic, and unfair use of the copyrighted work, coupled with an attempt to disguise such use, and made out a prima facie which was not rebutted by the simple denial of the defendant's editors that they -had made use of the complain ant's syllabi. It' was held that the whole work, so far as taken from the complain ant's pamphlet reports, should be enjoined, with liberty to defendant to show by further proofs what paragraphs were digested by non-offending editors and to move to have them excluded from the injunction; West Pub. Co. v. Pub. Co., 79 Fed. 756, 25 C. C. A. 648, 35 L. R. A. 400. See COPYRIGHT ; MEM ORIZATION.
A sea-tobber, who, to enrich himself, by subtlety or open force, setteth upon merchants and others trading by sea, despoiling them of their loading, and some times bereaving them of life and sinking their ships. Ridley, View pt. 2, c. 1, S. 3. One guilty of the crime of piracy. Merlin, Repert. See, for the etymology of this word, Bac. Abr. Piracy. See Pma.cy.