Justia Federal District Court Opinions

This interlocutory appeal requires construction of the remedial and compulsory license provisions of the Copyright Act of 1909, 17 U.S.C. Secs. 1(e) and 101(c), (d) and (e). Appellants are a group of music companies which own the copyrights to musical compositions by such diverse and well-known musicians as Elvis Presley, Johnny Cash, Burt Bacharach, Mick Jagger, Joni Mitchell, and Buck Owens. They allege that appellee Pearl Rosner and others are music pirates who make cassette tape recordings of phonograph records legitimately issued by appellants from copyrighted compositions. After a nationwide search, appellants discovered a major pirate haven in Phoenix, Arizona. With the aid of private investigators and the local police, they obtained sufficient information to secure from the District Court an ex parte order to show cause, a temporary restraining order and a writ of seizure, all directed against the alleged pirates.

The writ of seizure, issued pursuant to 17 U.S.C. Sec. 101(c) and the Rules of Practice issued by the Supreme Court,¹ directed the marshal to seize

". . . any and all parts of instruments serving to reproduce mechanically plaintiffs' copyrighted musical works and all means for making the same, comprehending labels, cartridges, tape recordings and machinery utilized in the manufacturing process, including Livingston recording machine-side winder, Jagerberg-Werke AG brand tape machines, Weldotron brand equipment, GRT tape winders and Craig testing tape players . . ."

The marshal seized and impounded 25,000 complete tape recordings and master recordings, which serve to reproduce mechanically appellants' copyrighted musical compositions; blank tapes and cartridges designed for use in the manufacture of tape recordings; printed labels; machinery used to transfer the sounds onto blank tapes; packaging and promotional materials; and other equipment and machinery utilized in the manufacturing process. Appellants filed the requisite bond.

Only appellee Rosner, who does business as National Manufacturing Company, appeared and contested the seizure order. She objected to the order's scope on the ground that the statutory authority for seizure and the Supreme Court rules implementing that authority contemplate the seizure and impoundment only of items of ". . . such nature that they would be the last item of identifiable character used to make an infringing copy." She also contended that since she had filed a statutory Notice of Intention to Use under 17 U.S.C. Sec. 101(e), after the writ of seizure was issued and executed but before the hearing on the preliminary injunction, injunctive relief prohibiting her from using appellants' copyrighted works was unavailable.

The District Court agreed with Rosner on each count. It ordered the return of all ". . . tape recording equipment and machinery, as well as . . . all blank tapes, cartridges, cassettes, labels or any unmarked or unprinted packaging materials. On the other hand, all property which either embodies a mechanical and/or electronic impression of plaintiff publishers' copyrighted works or any packaging or promotional devices identifying or referring to same are still subject to impoundment." The District Court also held that Rosner could avail herself of the compulsory license scheme although she had previously illegally infringed appellants' copyrights and although she intended to continue duplicating the copyrighted material.

The District Court later amended its order, nunc pro tunc, to allow an appeal under 28 U.S.C. Sec. 1292(b). The court also stayed its order pending the outcome of this appeal. The seized materials have not been returned to Rosner. We reverse the District Court on both counts and remand.

* The scope of the seizure order

The Copyright Act of 1909 provides for injunctive and monetary relief for infringement, and also for impoundment and destruction of infringing articles."If any person shall infringe the copyright in any work protected under the copyright laws of the United States such person shall be liable: