The following excerpt is from Goldmark v. Kreling, 25 F. 349 (U.S. Cir. Ct., D. Cal. 1885):
In view of these considerations, I think the distinction between the cases of patents and copyrights, and this case, very broad. It is true, in one or two cases recently reported in the newspapers a similar order was made, but it was not made under similar circumstances. That order was made on the hearing of an application for the injunction, where the defendants came in and put in their proofs, and made a very strong case. Take the most prominent case, Tracy v. Janisch. The defendant put in her proofs fully by affidavits. It appears, according to the numerous affidavits, that defendant was a citizen and resident of Paris, and she alleges-- and the proofs went far to show-- that the work had been published in that city from year to year for some years, with the owner's knowledge and consent, and that the complainant's right had been consequently lost. A number of affidavits were put in to sustain the proposition. It was extremely doubtful whether the complainant had any rights at all. That was on the hearing of the application. If this was on the hearing, that case would have some application, and it would be proper to quote it. But there it was a case of extreme doubt whether the party was entitled to an injunction at all. If not, the hardship on defendant was peculiar and great. Her injury would have been irreparable had she been enjoined, and the court exercised its power, under the great hardship of the case, because the defendant had had the work prepared from what she maintained was a public work in Paris; had come to this country expressly to perform it; had organized her troupe; and had no other piece to perform. The failure to produce that piece would be the loss of her season, and the entire destruction of her enterprise. Under these circumstances and proofs it was extremely doubtful whether the injunction should be granted at all.
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