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so many questions have been carelessly left in doubt for judicial determination, that often the law can be determined only with the greatest difficulty, and sometimes its meaning baffles all recognized rules of interpretation. These statutes were rightly condemned by the Royal Commissioners on Copyright, when, in their recent report to Parliament, they said: "The law is wholly destitute of any sort of arrangement, incomplete, often obscure, and even when it is intelligible upon long study, it is in many parts so ill-expressed that no one who does not give such study to it can expect to understand it."
The statutes of the United States are free from some of the faults which exist in those of England. But as the former have in many parts been blindly copied from the latter, the same defects are often found in both.
That judges in the front rank of jurists should sometimes err and disagree in determining the meaning of the legislature, even when most clearly expressed, is but natural. In the judicial interpretation of such statutes as have been spoken of, much greater allowance is to be made for mistakes and conflicting opinions. But for much of the error found in this branch of the law the courts alone are responsible. Decisions have been made against fundamental principles which would not have been violated had their governing force been known, against well-grounded authorities which would have been followed. had their application been seen, against statutory provisions which would not have been disregarded had they not been overlooked. One decision has been based on the authority of another when the controlling facts and principles were so different in the two cases that both judgments could not be alike without one being wrong. Opinions, not only wrong in principle but without binding force as authorities, have been blindly followed as supposed precedents. Judicial dicta, as uncalled for as erroneous, have been carelessly expressed in one case only to become in another the
corner-stone of a doctrine still more mischievous. It is hardly necessary to mention that what has been said applies to the smaller and not to the greater part of the decisions on this. subject. But the former are so many, their influence so farreaching, the groundless theories affirmed or recognized in some of them so plausible, that the whole body of the law of copyright is more or less affected by them.
If every decision, however clearly wrong it may be, is to be taken as representing the law until it shall be overruled, then must the rights of authors be in endless doubt and confusion. But if, error being eliminated wherever found, the law is to be determined alone by those authorities whose soundness will stand every test, and by those principles whose governing force is recognized, then, excepting some defects which can be reached only by legislation, will the law of copyright become reasonably clear, simple, and harmonious. Under the circumstances explained, to give the results of the decisions without testing their soundness or explaining their bearing, would be to put forth a digest, whose worth would be as little as the effort required to make it. The task of the juridical writer is to set forth the true principles which govern the law; to point out the proper meaning of the statutes; to show what decisions are right and what are wrong; to explain what is doubtful or obscure; and, generally, to give the law in a form as true, clear, systematic, and harmonious as it is in his power to do. He is without authority to say what construction shall be given to statutes, as he is without power to overrule erroneous decisions. But he may point out the true meaning of the law, and show wherein it has been wrongly interpreted. When this has been done, the judicial affirmance of what is right and the rejection of what is wrong will be in many cases but a question of time. In jurisprudence, as elsewhere, error once exposed must sooner or later be eradicated. The maker of a treatise should never lose sight of the fact that his duty is to give the law as it is. But this cannot always be done by sim
ply recording what has been decided by the courts. Jurisprudence is a science based on principles rather than on single decisions. By the former rather than by the latter the law is to be determined. It is true that one as well as the other are made by judges, and that principles which are not judicially settled or recognized are without force. But principles are fundamental and general. On them decisions are grounded, by them governed, and with them must harmonize. When two authorities are in conflict, both cannot represent the law. One must be set aside. In this, as in other cases, whether one judgment is right and another wrong may sometimes be a matter of opinion. But often the question is capable of conclusive demonstration by the application of governing princi ples which are judicially settled. Dealing thus with principles, the writer of a treatise may determine with reasonable certainty what the law is where it has not been judicially interpreted. In the case of copyright, there are many important questions concerning which the statutes are silent or not clear, and which have not arisen in the courts, though they are likely to come up at any time. Not to consider these, simply because they are not discussed in the reports, is to leave a treatise on this subject lacking, without excuse, in thoroughness and usefulness.
Finding the law in the condition described, my aim has been to treat it on the principles which have been explained. I have given, in the first place, the law as it has been judicially interpreted, however erroneous in any case that interpretation may be. But I have let no important decision or doctrine go unquestioned, knowing or believing it to be wrong. In denying or questioning the soundness of any authority, I have tried to set forth all the facts, principles, and authorities which have any real bearing on the point in question, and to give fully the reasons for what is pointed out as the true meaning of the law. In this way, whatever is essential to a right understanding of the subject is brought together, so that,
if in any case the conclusion I have reached is wrong, the error becomes apparent, and the reader still has before him the law as it has been judicially construed. In treating many questions which have not been decided or discussed by the courts, I have given prominence to the fact that the law remains for judicial determination. Where I have not done what I aimed to do, the failure is due to lack of ability, not of effort.
NEW YORK, January, 1879.
E. S. DRONE.