SCHOONMAKER, District Judge.
In our opinion filed herein on Cotober 10, 1940, we held that although there were five publications of the infringing material in an Erie newspaper, there was only one act of infringement.We came to this conclusion on the opinion of the 6th Circuit Court of Appeals, in Westermann Co. v. Dispatch Printing Company, 233 F. 609; Sauer v. Detroit Times Co., D.C.E.D.Mich., 247 F. 687.
Since the opinion was filed, counsel for the plaintiff has called our attention to the fact that the case of Westermann Co. v. Dispatch Printing Co., supra, went to the Supreme Court, and that court reversed the decision of the Circuit Court of Appeals of the 6th Circuit, holding that the seven publications in the newspaper there complained of constituted seven cases of infringement, to each of which the plaintiff was entitled to an award of damages of not less than $250. See Westermann Co. v. Dispatch Printing Co., 249 U.S. 100, 39 S. Ct. 194, 63 L. Ed. 499.
We, therefore, conclude that we erred in our opinion of October 10, 1940, and now hold there were five separate acts of infringement; and that the plaintiff is entitled to $250 damages in each case, or a total of $1,250.
A decree in accordance with this opinion is filed herewith.
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