It is no defense to a suit for infringement of copyright on musical compositions that the plaintiff is a combination in restraint of trade. Abundant authority settles this. Buck et al. v. Newsreel, Inc., et al., D.C., 25 F.Supp. 787, and cases therein cited; Buck et al. v. Spanish Gables, Inc., et al., D.C., 26 F.Supp. 36. Therefore, the question of unlawful combination will not be concerned in the determination of the rights of the litigants as presented by the complaint and answer. That is a question to be considered solely under the cross-claim.
As to whether there shall be separate trials and separate judgments rests in the sound discretion of the trial judge, and the determining factors are the doing of justice, the avoidance of prejudice, and the furtherance of convenience. Seagram-Distillers Corporation v. Manos, D.C., 25 F.Supp. 233. There being nothing to compel a joint trial of the separate issues, I am constrained, by reason, to agree with the plaintiff that the convenience and fairness of separate trials warrant separation.
Furthermore, the complaint was filed May 16, 1938. For more than two years the pleadings in this case have wended their weary way through a maze of motions that have been disposed of in separate opinions by Judges Dickinson, Kalodner, and Kirkpatrick. By granting separate trials delay will be avoided and the claim set forth in this complaint can be tried on November 13th as listed. To prevent further delay will be doing justice in accord with the spirit of the Rules of Civil Procedure.
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