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 References

[1] J.R. Clifton, and L.I. Knab, "Service Life of Concrete," NISTIR 89-4086, U.S. Department of Commerce, (1989).

[2] J.M. Pommersheim, and J.R. Clifton, "Models of Transport Processes in Concrete," NISTIR 4405, U.S. Department of Commerce, (1990).

[3] R.B. Bird, W.E. Stewart, and E.N. Lightfoot, Transport Phenomenon, John Wiley & Sons, New York, (1960).

[4] J.C. Slattery, Mass Transport, McGraw-Hill Book Company, New York, (1972).

[5] A. Atkinson, and J.A. Hearne, "Mechanistic Models For The Durability Of Concrete Barriers Exposed To Sulfate-Bearing Groundwaters," MRS Proc., 176, 149-156, (1990).

[6] H.F.W. Taylor, Cement Chemistry, Academic Press, New York, (1990).

[7] Young and Hansen, "Volume Relationships for C-S-H Formation Based on Hydration Stoichiometrics," Proc. MRS, Eds. Struble and Brown, 85, 313-322, (1987).

[8] A. Atkinson, A.K. Nickerson, and T.M. Valentine, "The Mechanism of Leaching From Some Cement-Based Nuclear Wasteforms," Radioactive Waste Management and the Nuclear Fuel Cycle, 4 (4), 357-378, (1984).

[9] J. Walton, L. Plansky, and R. Smith, "Models for Estimation of Service Life of Concrete Barriers in Low-Level Radioactive Waste Disposal," NUREG/CR-5542, EGG2597, (1990).

[10] E.J. Garboczi and D.P. Bentz, "Computer simulation of the diffusivity of cement-based materials," J. Materials Science, 27, 2083-2092, (1992).

[11] T. Luping, and L. Nilsson, "Rapid Determination of the Chloride Diffusivity in Concrete by Applying an Electric Field," ACI Materials Journal, 89 (1), 49–53, (1992).

[12] E.J. Garboczi, L. M. Schwartz, and D.P. Bentz, "Modelling the influence of the interfacial zone on the D.C. electrical conductivity of mortar," (Submitted to) Journal of the ACBM.

[13] N. Hearn, R.D. Hooton, and R.H. Mills, "Pore Structure and Permeability," Significance of Tests and Properties of Concrete and Concrete-Making Materials, Eds. Klieger and Lamond, ASTM, 240-262, (1994).


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license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/


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 [14] D.P. Bentz and E.J. Garboczi, “Guide to Using HYDRA3D: A Three-Dimensional Digital-Image-Based Cement Microstructural Model,” NIST-IR 4746, U.S. Department of Commerce, (1992).

[15] A.J. Katz, and A.H. Thompson, “Quantitative Prediction of Permeability in Porous Rock,” Phys. Rev. B, 34 (11), 8179-8181, (1986).

[16] S. Li, and D.M. Roy, “Investigation Of Relations Between Porosity, Pore Structure, and Cl$-$ Diffusivity Of Fly Ash and Blended Cement Pastes,” Cement and Concrete Research, 16 (5), 749, (1986).

[17] T. Mason and D. Brown, Lex & Yacc, O’Reilly & Associates, Inc., Sebastopol, CA, (1991).


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text: The Zoologist/3rd series, vol 1 (1877)/Issue 10/Proceedings of Scientific Societies


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 Although the California Motor Court broadened the scope of antitrust immunity in some respects, it nonetheless emphasized that the Noerr–Pennington doctrine was not absolute. Expanding on the “sham exception” foreshadowed in Noerr, the Court stated that the doctrine would not apply where a defendant’s invocation of the adjudicative process “ ‘is a mere sham to cover what is actually nothing more than an attempt to interfere directly with the business relationships of a competitor.’ ” California Motor, 404 U.S. at 511, 92 S.Ct. at 612 (quoting Noerr, 365 U.S. at 144, 81 S.Ct. at 538). While the Court did not elaborate on the contours of the sham exception, it did state that “[m]isrepresentations, condoned in the political arena, are not immunized when used in the adjudicatory process,” and that unethical conduct in the latter arena, such as inducing the perjury of witnesses, enforcing a patent obtained by fraud, or bribing an official, could give rise to a finding of sham activity. See id. 404 U.S. at 512–13, 92 S.Ct. at 612–13.

Applying these principles to the case at hand, we are unable to conclude as a “matter of law” that this litigation is protected under the Noerr–Pennington doctrine. MAJ argues that because the action was initiated for a non-sham purpose—namely the protection of its trademark rights—the suit was by definition something other than an attempt to interfere with the business relations of a competitor and therefore fails to fall within the sham exception. We decline to construe Noerr–Pennington so broadly, however, and instead find that if the copyright claims themselves were added for an anticompetitive purpose, that might be sufficient to bring them within the sham exception to the doctrine. Because we cannot adequately assess MAJ’s purpose in adding the copyright claims at this juncture of the proceedings, MAJ’s contention that this litigation is “non-sham” as a matter of law must be rejected.

Rule 9(b).

Peacock’s antitrust claim relies heavily on charges of fraud and therefore those allegations must be scrutinized under Fed.R.Civ.P. 9(b). In order to conform to the requirements of that rule, Peacock’s fraud allegations must specify the time, place, speaker and content of the alleged misrepresentations, see Cosmas v. Hasset, 886 F.2d 8, 11 (2d Cir.1989), and must state specific facts supporting the claims of fraud.

In this instance, Peacock’s fraud charges are premised on allegedly false representations of originality to the Copyright Office. Because those alleged misrepresentations are contained in the applications for copyright registration, each of which Peacock has attached as exhibit C to its amended countercomplaint, they satisfy the rule’s requirement that the misrepresentations be identified with particularity. See Luce v. Edelstein, 802 F.2d 49, 55 (2d Cir.1986) (holding that misrepresentations made in a written document such as an offering memorandum satisfy 9(b)’s requirements as to time, place, and content of the alleged misrepresentations). In addition, by setting forth the detailed history by which MAJ gained access to and allegedly copied the charm designs, Peacock has provided a factual basis for its claim that the representations of originality were false. Finally, Peacock has adequately alleged scienter in stating that MAJ should have known that


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HINA, or INDIAN PINK. . Class 10,. Order:. This gaily painted flower we have taken from the fertile soil of the east to decorate our parterres. Its colours are richer than those of the Sweet William, and it continues in flower for a longer period; but its flowers being placed singly on branching stems, like those of the common pink, they never present that fine mass of colour which the large umbel of the Sweet William exhibits, and they are entirely deficient in that fragrance for which the pink is so much admired.

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text: Flora's Lexicon/China or Indian Pink

title: Flora's Lexicon/China or Indian Pink


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 the charms were not original at the time it applied for copyright protection, given its long history of casting the Old Mr. Craftsman’s charms and the fact that the Old Mr. Craftsman had sold each of the charms prior to the date MAJ claimed to have first published them. See ¶ 142. These allegations are sufficient to survive dismissal under rule 9(b). Accordingly, MAJ’s objections on those grounds are rejected, and the application to dismiss the antitrust counterclaim is denied in all respects.

 * 2. The Civil RICO Counterclaim.

The Racketeer Influenced and Corrupt Organizations Act prohibits four types of conduct: using or investing income derived from a pattern of racketeering to acquire an enterprise engaged in or affecting commerce, 18 U.S.C. § 1962(a); acquiring an interest in or control of such an enterprise through a pattern of racketeering activity, id. § 1962(b); conducting the affairs of an enterprise through a pattern of racketeering activity, id. § 1962(c); and conspiring to commit any of the previously mentioned violations, id. § 1962(d). See Jacobson v. Cooper, 882 F.2d 717, 719 (2d Cir.1989). Section 1964(c) creates a private right of action. Peacock’s amended countercomplaint asserts violations of all four RICO subsections.

In order to satisfy the threshold pleading requirements under any of those subsections, Peacock must allege the following: that the defendants (2) through the commission of two or more predicate acts (3) constituting a pattern (4) of “racketeering activity” (5) directly or indirectly invest in, or maintain an enterprise in or participate in, (6) an “enterprise” (7) the activities of which affect interstate or foreign commerce. Moss v. Morgan Stanley, Inc., 719 F.2d 5, 17 (2d Cir.1983), ''cert. denied'', 465 U.S. 1025, 104 S.Ct 1280, 79 L.Ed.2d 684 (1984). In addition, because this is a civil action, Peacock must demonstrate that it was injured in its business or property “by reason of” the commission of the predicate acts. Sedima, S.P.R.L. v. Imrex, [sic] Co., 473 U.S. 479, 496, 105 S.Ct. 3275, 3285, 87 L.Ed.2d 346 (1985); Sperber v. Boesky, 849 F.2d 60, 61 (2d Cir.1988).

During the first oral argument in September 1991, MAJ asserted that the RICO counterclaim was unduly vague and suffered from a number of substantive deficiencies. Peacock appears to have taken MAJ’s criticisms into account in drafting the amended counterclaim, which attempts to set forth the contours of the RICO violation with greater specificity. According to the amended countercomplaint, “[t]he racketeering enterprise involved in this case is MAJ, and the ‘persons’ involved in directing that enterprise are Michael and Anthony Paolercio.” ¶ 167. The predicate acts are of three types: violations of the Mann Act, state and federal narcotics offenses, and various acts of mail fraud. ¶ 169. The amended countercomplaint further alleges that the commission of these predicate acts comprised “a common scheme to profit from the predicate felonies, and advance MAJ in the market.” ¶ 171.

Despite Peacock’s efforts to clarify the pleading of its RICO claims, MAJ argues that dismissal is still warranted for a number of reasons, including Peacock’s failure to allege two viable predicate acts. As the following discussion of each of the predicate acts will reflect, we agree and therefore dismiss the RICO counterclaim for failure to state a cause of action.

The Narcotics Offenses.

As one of the predicates for its RICO violation, Peacock alleges that MAJ engaged in “[m]ultiple acts of the possession and distribution of controlled substances in violation of state and federal laws.” ¶ 169(c). As the basis for those charges, Peacock points to its allegations regarding the provision of cocaine to MAJ’s customers and employees. MAJ contends that these allegations are too vague to survive even the requirements of “notice pleading” under Fed.R.Civ.P. 8, and that they therefore cannot serve as an adequate predicate for the RICO violation.

We have reviewed Peacock’s allegations with respect to the alleged narcotics offenses, and agree that they are too imprecise to provide MAJ with notice of the conduct with which it is being charged. As


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HINA ASTER, or STARWORT. . Class 19,. Order:. Europe and America are indebted to the missionary,, for this beautiful various-coloured flower; he having first sent it to the “Jardin du Roi,” at Paris, about 1730. At first it produced only simple flowers of one uniform colour; but, by cultivation, they became so doubled and quadrupled in form, and so varied in colour that it now forms one of the principal ornaments of the parterre, from July to November. The Chinese, who have favoured us with this plant, make admirable use of it in decorating their gardens. To prepare them, they first raise the plants in pots; then, separating the colours, they dispose them with such infinite art as to produce one splendid and harmonious whole. This effect is often increased by planting them near the side of a lake.

The China-aster is made the emblem of variety; and owes its principal charms to a careful culture of the skilful gardener, who has surrounded its golden disks with every colour of the rainbow. So study produces an endless variety in the refinement of the human mind. Though majestic and brilliant, the China-aster is not the imprudent rival of the rose, but succeeds it, and consoles us for its absence.

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text: Flora's Lexicon/China Aster

title: Flora's Lexicon/China Aster


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 an initial matter, Peacock’s countercomplaint makes no effort to identify a time frame for the alleged narcotics transactions. Typical of Peacock’s pleading is the allegation that “Michael Paolercio was observed in the possession of at least four ounces of cocaine, and distributed at least four ounces of cocaine to MAJ’s employees” (¶ 127). That statement not only fails to identify the source of the observation, but to provide even an approximate date—whether day, month, or year—for the alleged possession and or distribution. In fact, the only dates mentioned with respect to the alleged narcotics offenses are the introductory observation that MAJ began offering the unlawful inducements “starting in the early 1980’s” (¶ 113), and that a certain Gus Pappas allegedly supplied MAJ with cocaine during the period of “at least” 1983–84 (¶ 128).

In short, we find that Peacock’s generalized allegations that MAJ engaged in an unspecified number of narcotics violations over an imprecise period of as many as 12 years violates even the more lenient rule 8(a)’s requirement that the pleadings provide MAJ with “notice” of the claims against it. Although, as we discuss in Part III infra, we will allow Peacock the opportunity to replead this claim, the alleged narcotics offenses cannot serve as a predicate for Peacock’s RICO violation as set forth in this amended countercomplaint.

The Mann Act Violations.

Peacock next attempts to meet the predicate act requirement by alleging violations of the Mann Act. That act prohibits any person from "knowingly transport[ing] any individual in interstate or foreign commerce, or in any Territory or Possession of the United States, with intent that such individual engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense …"

18 U.S.C. § 2421 (Supp.1992) (as amended November 7, 1986). As was the case with the narcotics violations, the Mann Act violation must be “indictable” to serve as a predicate for the RICO claim. See 18 U.S.C. § 1961(1).

The allegations underlying this aspect of the counterclaim are set forth in paragraphs 119, 120 and 121 of the amended countercomplaint. Although we have construed each of them as generously as is possible, we find that none can support a claim under the Mann Act.

Beginning with the allegation in paragraph 120, Peacock states that on one (unspecified) occasion, “members of the Million Dollar Club were gathered for a celebratory party at which they were advised that prostitutes had been brought in from Paris.” Even assuming that these Parisian prostitutes had been transported in foreign commerce, however, this allegation fails to state a claim under the Mann Act because it does not charge any of the counterclaim defendants with having caused their transport. Peacock next alleges in paragraph 119 that “[u]pon information and belief, at least some of the prostitutes provided by Michael and Anthony Paolercio on behalf of MAJ [at various parties] were brought in interstate or foreign commerce in violation of 18 U.S.C. § 2421.” That allegation must fail, however, because it states a pure legal conclusion and merely parrots the requirements of the statute instead of providing notice of the complained of conduct.

Peacock’s final allegation with respect to the Mann Act gives us greater pause. In paragraph 121, Peacock asserts: “Upon information and belief, on other occasions, members of the Million Dollar Club were brought to Connecticut by Michael Paolercio, to a brothel he frequented in that state.” MAJ argues that this allegation is inadequate because it states only that the customers were brought across state lines, rather than the prostitutes themselves. Our reading of the statute, however, suggests that it is gender-neutral, meaning that it punishes the interstate transportation of either men or women, and that it is meant to punish anyone who transports those individuals with the intent that they “engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense.” Assuming that the customers’ sexual conduct could give rise to some other criminal


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 FARCE IN ONE ACT

, 1904


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 charge, therefore, it is conceivable that Peacock’s allegation could state a violation of the Mann Act.

Despite that conceptual possibility, we are unable to find that the allegation—as currently pleaded—is sufficient. As was the case with the alleged narcotics violations, Peacock’s pleading with respect to the provision of prostitutes makes no reference to dates of occurrence. Instead, the countercomplaint states only that the unlawful inducements, and this term covers both the cocaine charges and the prostitution charges, were provided “starting in the early 1980’s.” ¶ 113. While this lack of specificity has consequences in terms of the notice it affords MAJ, it has particular relevance here because of a November 7, 1986 amendment to the Mann Act. Prior to that amendment, the statute punished only those who transported “any woman or girl.” In light of the fact that MAJ’s transportation of (presumably) male customers would be actionable only if it occurred after the effective date of the amendment, a more detailed pleading is necessary to determine whether it has stated a claim under the Mann Act.

As the above discussion suggests, none of Peacock’s allegations are currently adequate to state an “indictable” violation of the Mann Act. Although we will grant Peacock leave to amend the allegation in paragraph 121, at present, the Mann Act claims may not serve as a predicate for the RICO violation.

The Mail Fraud Charges.

The third type of predicate acts asserted in the RICO counterclaim are various acts of mail fraud under 18 U.S.C. § 1341 (1984). The essential elements of a mail fraud violation are: (1) a scheme to defraud an intended victim; (2) of money or property; and (3) use of the mails to further the scheme. See United States v. Wallach, 935 F.2d 445, 461 (2d Cir.1991). In this instance, the claim of mail fraud is founded on allegations that MAJ mailed “at least thirteen fraudulent applications” for copyright registration to the Register of Copyrights, on at least four different dates spanning from “shortly before” December 22, 1986 to “shortly before” October 19, 1988. See ¶¶ 133–139.

In urging this Court to dismiss the mail fraud claims, MAJ maintains that even assuming it engaged in a scheme to defraud the Copyright Office, Peacock may not assert a violation because it was not deceived by the scheme. As support for this proposition, MAJ relies on dicta from two Second Circuit cases suggesting that the party injured must also be the party deceived to fall within the compass of § 1341. See Corcoran v. American Plan Corp., 886 F.2d 16, 19–20 (2d Cir.1989); United States v. Evans, 844 F.2d 36, 39–40 (2d Cir.1988) (noting that “If a scheme to defraud must involve the deceptive obtaining of property, the conclusion seems logical that the deceived party must lose some money or property”); see also McEvoy Travel Bureau, Inc. v. Heritage Travel, Inc., 904 F.2d 786, 794 n. 13 (1st Cir.), ''cert. denied'', – U.S. —, 111 S.Ct. 536, 112 L.Ed.2d 546 (1990) (citing the Corcoran dicta with approval).

In response to MAJ’s contention that there must be a convergence of the party deceived and injured for the mail fraud statute to apply, Peacock cites Shaw v. Rolex Watch U.S.A., Inc., 726 F.Supp. 969 (S.D.N.Y.1989). In Shaw, Judge Conner distinguished Evans and Corcoran on the grounds that in those cases, the plaintiff was the party deceived and not the party injured, whereas in the case before him, the plaintiff was injured but not deceived. Id. at 973. Judge Conner found that distinction to be significant, and concluded that “A plaintiff who is injured as a proximate result of fraud should be able to recover regardless of whether he or a third party is the one deceived.” Id. Peacock urges us to follow Judge Conner’s approach and conclude that because it was injured by MAJ’s fraudulent scheme, it may assert a violation of the mail fraud statute regardless of whether or not it was deceived.

Although we acknowledge that the issue is an important and potentially dispositive one, we base our decision on an alternative rationale. For the reasons that follow, we find that Peacock has failed to demonstrate


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 SCENES FROM MODERN LIFE

ARRANGED IN FOUR ACTS


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HRYSANTHEMUM, CHINESE. . Class 19,. Order:. Cheerfulness is the best shield that can be found to lighten the strokes of adversity. This flower, that gives so much cheerfulness to the parterre, when nearly all the other children of Flora have withdrawn their smiles, is presented as the emblem of this enviable disposition, and of the loveliness which it adorns.

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text: Flora's Lexicon/Chrysanthemum

title: Flora's Lexicon/Chrysanthemum


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 COMEDY IN THREE ACTS

, 1901


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 COMEDY IN THREE ACTS


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on Sunday morning without any sense of hurry and bustle attendant on an immediate departure. Though the day to be devoted to repose and reflection was spent under such strange circumstances, and in so wonderful a place, the idea was a pleasant one. Besides, we all began to get used to this kind of existence. I had almost ceased to think of the sun, of the moon, of the stars, of the trees, houses, and towns; in fact, about any terrestrial necessities. In our peculiar position we were far above such reflections.

The grotto was a vast and magnificent hall. Along its granitic soil the stream flowed placidly and pleasantly. So great a distance was it now from its fiery source, that its water was scarcely lukewarm, and could be drank without delay or difficulty.

After a frugal breakfast, the Professor made up his mind to devote some hours to putting his notes and calculations in order. "In the first place," he said, "I have a good many to verify and prove, in order that we may know our exact position. I wish to be able on our return to the upper regions, to make a map of our journey, a kind of vertical section of the globe, which will be as it were the profile of the expedition."

"That would indeed be a curious work, uncle; but can you make your observations with anything like certainty and precision?"

"I can. I have never on one occasion failed to note with great care the angles and slopes. I am certain as to having made no mistake. Take the compass and examine how she points."

I looked at the instrument with care. "East one-quarter southeast."

"Very good," resumed the Professor, noting the observation, and going through some rapid calculations. "I make out that we have journeyed two hundred and fifty miles from the point of our departure."

"Then the mighty waves of the Atlantic are rolling over our heads?"

"Certainly."

"And at this very moment it is possible that fierce


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 tempests are raging above, and that men and ships are battling against the angry blasts just over our heads?"

"It is quite within the range of possibility," rejoined my uncle, smiling.

"And that whales are playing in shoals, thrashing the bottom of the sea, the roof of our adamantine prison?"

"Be quite at rest on that point; there is no danger of their breaking through. But to return to our calculations. We are to the southeast, two hundred and fifty miles from the base of Sneffels, and, according to my preceding notes, I think we have gone sixteen leagues in a downward direction."

"Sixteen leagues—fifty miles!" I cried.

"I am sure of it."

"But that is the extreme limit allowed by science for the thickness of the earth's crust," I replied, referring to my geological studies.

"I do not contravene that assertion," was his quiet answer.

"And at this stage of our journey, according to all known laws on the increase of heat, there should be here a temperature of fifteen hundred degrees of Reaumur."

"There should be—you say, my boy."

"In which case this granite would not exist, but be in a state of fusion."

"But you perceive, my boy, that it is not so, and that facts, as usual, are very stubborn things, overruling all theories."

"I am forced to yield to the evidence of my senses, but I am nevertheless very much surprised."

"What heat does the thermometer really indicate?" continued the philosopher.

"Twenty-seven six-tenths."

So that science is wrong by fourteen hundred and seventy-four degrees and four-tenths. According to which, it is demonstrated that the proportional increase in temperature is an exploded error. Humphrey Davy here shines forth in all his glory. He is right, and I have acted wisely to believe him. Have you any answer to make to this statement?

Had I chosen to have spoken, I might have said a great deal. I in no way admitted the theory of Humphrey


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text: Alumni Oxonienses: the Members of the University of Oxford, 1500-1714/Johnes, Walter (5)


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 Davy—I still held out for the theory of proportional increase of heat, though I did not feel it. I was far more willing to allow that this chimney of an extinct volcano was covered by lava of a kind refractory to heat—in fact a bad conductor—which did not allow the great increase of temperature to percolate through its sides. The hot water jet supported my view of the matter.

But without entering on a long and useless discussion, or seeking for new arguments to controvert my uncle, I contented myself with taking up facts as they were. "Well, sir, I take for granted that all your calculations are correct, but allow me to draw from them a rigorous and definite conclusion."

"Go on, my boy—have your say," cried my uncle, good-humoredly.

"At the place where we now are, under the latitude of Iceland, the terrestrial depth is about fifteen hundred and eighty-three leagues."

"Fifteen hundred, eighty-three and a quarter."

"Well, suppose we say sixteen hundred in round numbers. Now, out of a voyage of sixteen hundred leagues we have completed sixteen."

"As you say, what then?"

"At the expense of a diagonal journey of no less than eighty-five leagues."

"Exactly."

"We have been twenty days about it."

"Exactly twenty days."

"Now sixteen is the hundredth part of our contemplated expedition. If we go on in this way we shall be two thousand days, that is about five years and a half, going down."

The Professor folded his arms, listened, but did not speak.

"Without counting that if a vertical descent of sixteen leagues costs us a horizontal of eighty-five, we shall have to go about eight thousand leagues to the southeast, and we must therefore come out somewhere in the circumference long before we can hope to reach the center."

"Bother your calculations," cried my uncle in one of his old rages. "On what basis do they rest? How do you know that this passage does not take us direct to the end we require? Moreover, I have in my favor, fortunately,


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 that the scheme deprived it of “money or property” within the meaning of the statute.

The Money or Property Requirement.

In McNally v. United States, the Supreme Court held that to state a violation of the mail fraud statute, the scheme to defraud must be intended to deprive another of money or property. 483 U.S. 350, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987) (reversing a mail fraud conviction that was predicated on the charge that the defendant had defrauded the citizens of a state of their intangible right to “honest and impartial government”); see also Carpenter v. United States, 484 U.S. 19, 108 S.Ct. 316, 98 L.Ed.2d 275 (1987) (applying McNally to the wire fraud statute). Although McNally has been overruled by the enactment of 18 U.S.C. § 1346, which became effective on November 18, 1988, it applies here because all of the alleged acts of mail fraud occurred prior to its enactment. See Corcoran, 886 F.2d at 19 n. 4 (§ 1346 has no retroactive application). Thus, Peacock must plead facts demonstrating deprivation of a property right or interest in order to support the predicate acts of mail fraud.

We have construed Peacock’s allegations with respect to the mail fraud scheme liberally, taking into account all possible targets of the alleged scheme as well as the fact that a property interest need not be “tangible” to satisfy McNally. See Carpenter, 484 U.S. at 25, 108 S.Ct. at 320; Wallach, 935 F.2d at 461. Nowhere do we find support for the requirement that MAJ’s alleged scheme had as its object the deprivation of a property right.

We begin with Peacock’s apparent attempt to assert that the Copyright Office was defrauded of property, by stating that each of MAJ’s mailings constituted a “ ‘scheme or artifice to defraud the Register of Copyrights and the Library of Congress to obtain for MAJ the valuable property of a United States copyright registration….’ ” ¶ 132. In evaluating the sufficiency of that allegation, we consider McNally’s requirement that “any benefit which the Government derives from the [mail fraud] statute must be limited to the Government’s interests as property holder.” 483 U.S. at 359 n. 8, 107 S.Ct. at 2881 n. 8. In order for such a scheme to come within the purview of the mail fraud statute, therefore, the Register of Copyrights must have a property interest in the copyright registrations it disburses.

Evaluating Peacock’s contention in light of several Second Circuit decisions exploring the scope of the Government’s interest as a property holder, we reject the notion that the Register of Copyrights has any such property interest. In United States v. Evans, for example, the Second Circuit addressed a scheme to deceive the United States about the true destination of arms sold to Iran. According to the mail and wire fraud counts of the indictment, the Government contended that the “property” at issue were the arms themselves, and that the Government’s property interest was the ability to control the transfer of the arms to foreign nations. The Court rejected the notion that the Government had any property interest in the arms, however, finding that because it neither manufactured nor owned them, its interest was only “ancillary to a regulation, not to property.” Evans, 844 F.2d at 40–42. In Corcoran v. American Plan Corp., similarly, the Second Circuit determined that the New York State Superintendent of Insurance, as regulator of the insurance industry, had no property interest in money stolen from private insurance companies. 886 F.2d at 16, 20–21.

The situation presented by Peacock’s alleged scheme to defraud is analogous. While the Register of Copyrights does have an interest in regulating the intellectual property rights of private parties, it has no property interest of its own in either the matter underlying the copyright or in the copyright registration once issued. As such, Peacock’s mail fraud acts cannot be predicated on any scheme to deprive the Register of Copyrights of money or property.


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 a precedent. What I have undertaken to do, another has done, and he having succeeded, why should I not be equally successful?"

"I hope, indeed, you will, but still, I suppose I may be allowed to"

"You are allowed to hold your tongue," cried Professor Hardwigg, "when you talk so unreasonably as this."

I saw at once that the old doctorial Professor was still alive in my uncle—and fearful to rouse his angry passions, I dropped the unpleasant subject.

"Now, then," he explained, "consult the manometer. What does that indicate?"

"A considerable amount of pressure."

"Very good. You see, then, that by descending slowly, and by gradually accustoming ourselves to the density of this lower atmosphere, we shall not suffer.." [sic]

"Well, I suppose not, except it may be a certain amount of pain in the ears," was my rather grim reply.

"That, my dear boy, is nothing, and you will easily get rid of that source of discomfort by bringing the exterior air in communication with the air contained in your lungs."

"Perfectly," said I, for I had quite made up my mind in no wise to contradict my uncle. "I should fancy almost that I should experience a certain amount of satisfaction in making a plunge into this dense atmosphere. Have you taken note of how wonderfully sound is propagated?"

"Of course I have. There can be no doubt that a journey into the interior of the earth would be an excellent cure for deafness."

"But then, uncle," I ventured mildly to observe, "this density will continue to increase."

"Yes—according to a law which, however, is scarcely defined. It is true that the intensity of weight will diminish just in proportion to the depth to which we go. You know very well that it is on the surface of the earth that its action is most powerfully felt, while on the contrary, in the very center of the earth bodies cease to have any weight at all."

"I know that is the case, but as we progress will not the atmosphere finally assume the density of water?"


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 "I know it; when placed under the pressure of seven hundred and ten atmospheres," cried my uncle with imperturbable gravity."

"And when we are still lower down?" I asked with natural anxiety.". [sic]

"Well, lower down, the density will become even greater still."

"Then how shall we be able to make our way through this atmospheric fog?"

"Well, my worthy nephew, we must ballast ourselves by filling our pockets with stones," said Professor Hardwigg.

"Faith, uncle, you have an answer for everything," was my only reply. I began to feel that it was unwise in me to go any farther into the wide field of hypotheses, for I should certainly have revived some difficulty, or rather impossibility that would have enraged the Professor.

It was evident, nevertheless, that the air under a pressure which might be multiplied by thousands of atmospheres, would end by becoming perfectly solid, and that then admitting our bodies resisted the pressure, we should have to stop, in spite of all the reasonings in the world. Facts overcome all arguments.

But I thought it best not to urge this argument. My uncle would simply have quoted the example of Saknussemm. Supposing the learned Icelander's journey ever really to have taken place—there was one simple answer to be made:—In the sixteenth century neither the barometer nor the manometer had been invented—how, then, could Saknussemm have been able to discover when he did reach the center of the earth? This unanswerable and learned objection I, however, kept to myself, and bracing up my courage awaited the course of events—little aware of how adventurous yet were to be the incidents of our remarkable journey.

The rest of this day of leisure and repose was spent in calculation and conversation. I made it a point to agree with the Professor in everything; but I envied the perfect indifference of Hans, who without taking any such trouble about the cause and effect, went blindly onwards wherever destiny chose to lead.


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must in all truth be confessed, things as yet had gone on well, and I should have acted in bad taste to have complained. If our difficulties did not increase, it was within the range of possibility that we might ultimately reach the end of our journey. Then what glory would be ours! I began in the newly aroused ardor of my soul to speak enthusiastically to the Professor. Was I serious? The whole state in which we existed was a mystery—and it was impossible to know whether or not I was in earnest.

For several days after our memorable halt, the slopes became more rapid—some were even of a most frightful character—almost vertical, so that we were for ever going down into the solid interior mass. During some days, we actually descended a league and a half, even two leagues towards the center of the earth. The descents were sufficiently perilous, and while we were engaged in them we learned fully to appreciate the marvelous coolness of our guide, Hans. Without him we should have been wholly lost. The grave and impassible Icelander devoted himself to us with the most incomprehensible sang froid and ease; and, thanks to him, many a dangerous pass was got over, where, but for him, we should inevitably have stuck fast.

His silence increased every day. I think that we began to be influenced by this peculiar trait in his character. It is certain that the inanimate objects by which you are surrounded have a direct action on the brain. It must be that a man who shuts himself up between four walls must lose the faculty of associating ideas and words. How many persons condemned to the horrors of solitary confinement have gone mad—simply because the thinking faculties have lain dormant!

During the two weeks that followed our last interesting conversation, there occurred nothing worthy of being especially recorded. I have, while writing these memoirs, taxed my memory in vain for one incident of travel during this particular period.

But the next event to be related is terrible indeed. Its very memory, even now, makes my soul shudder, and my blood run cold. It was on the seventh of August. Our


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Uncle William/Chapter 10

N the morning the big form was still there. The artist turned to it as he opened his eyes. “You are not gone!”

“Gone? Land, no!” Uncle William sat up from a cat-nap, rubbing his eyes and blinking a little. “I cal’ate to stay quite a spell yet.” He stretched his great legs slowly, first one and then the other, as if testing them.

Reproach filled the artist’s eyes. “You ’ve not lain down all night!”

“Did n’t need to,” said Uncle William. He got to his feet briskly. “I slep’ a good deal comin’ down in the boat. There wa’n’t a great deal goin’ on. If you ’ve got a little water and soap handy, I reckon I could use it.”

The artist half started to get up, but a firm hand held him back. “Now, stay right there. You jest tell me where things be—”

He pointed to a door at the left. “You won’t find it in very good order, I ’m afraid.”

“Don’t you mind.” Uncle William had disappeared through the doorway. “It won’t bother me a mite.” His voice came back sociably. “I ’m considabul ust to havin’ things mussed up.”

The artist lay with a smile, listening to the sounds that came through the half-open door—thumping and blowing and splashing.

Uncle William reappeared with shining face. “It seems good to hev suthin’ bigger ’n a teacup to wash in,” he said. “I like the hull ocean, myself, but a tub does putty well. Now, just let me see.”

He drew up to the bed, looking at the young man with keen glance.

“Oh, I ’m all right—now.”

“Had a fever?”

“A little—yes.”

“You all alone?”

“There ’s a man comes in by and by. He ’ll clean up and get things for me.”

Uncle William ignored the pride in the tone. “Jest roll over a little mite. There—” He placed his broad hand under the thin back. “Feel sore there? Kind o’ hurts, don’t it? I thought so— There.” He laid him back gently. “You just wait a minute.” He was fumbling at the lock that held his box.

“Are you a doctor?” The young man was watching him with half-amused eyes.

“Well, not a doctor exactly.” Uncle William had taken out a small bottle and was holding it up to the light, squinting through it. “But I had a fever once, myself—kep’ a-runnin’.” He had come over to the bedside, the bottle in his hand. “You got a doctor?”

The young man shook his head. “He will come if I send for him.”

Uncle William nodded. “That ’s the best kind.” He held out the bottle. “I ’d like to give you ’bout five on ’em.”

“What are they?”

“Well, that ’s what I don’t know, but it took about five on ’em to break up mine.” He had poured one into the palm of his hand and held it out. It was a small, roughly shaped pill, with grayish surface pitted with black.

The young man eyed it doubtfully.

“It don’t look very nice,” said Uncle William, “and the man that made it never had a stitch of clothes on his back in his life; but I guess you better take it.”

The young man opened his lips. The thing slid down, leaving a sickish, sweetish taste behind it.

Uncle William brought him a glass of water. “I know how it tastes, but I reckon it ’ll do the work. Now, let ’s see.” he stood back, surveying the untidy room, a mellow smile on his lips. “’T is kind o’ cluttered up,” he said. “I ’ll jest make a path through.” He gathered up a handful of shoes and slippers and thrust them under the bed, drawing the spread down to hide them. The cups and glasses and scattered spoons and knives he bore away to the bath-room, and the artist heard them descending into the tub with a sound of rushing water. Uncle William returned triumphant. “I ’ve put ’em a-soak,” he explained. The table-spread, with its stumps of cigars, bits of torn papers, and collars and neckties and books and paint-brushes and tubes, he gathered up by the four corners, dumping it into a half-open drawer. He closed the drawer firmly. “Might ’s well start fresh.” He replaced the spread and stood back, surveying it proudly. “What ’s that door?” He pointed across the room.

“It ’s your bedroom,” said the artist, a little uneasily. “But I don’t believe you can get in.”

Uncle William approached cautiously. He pushed open the door and looked in. He came back beaming. “The’ ’s quite a nice lot of room,” he said, taking hold of the end of his box and dragging it away.

The artist lay looking about the room with brightening eyes. The window-shades were still askew and there were garments here and there, but Uncle William’s path was a success. The sun was coming over the tops of the houses opposite, and Uncle William reappeared with shining face.

“You reely needed a man around,” he said. “I ’m putty glad I come.”

“What made you come?” asked the artist.

“What made me?” Uncle William paused, looking about him. “Where ’s my spectacles? Must ’a’ left ’em in there.” He disappeared once more.

While the artist was waiting for him to return he dozed again, and when he opened his eyes, Uncle William was standing by the bed with a cup of something hot. He slipped a hand under the young man’s head, raising it while he drank.

The artist took his time—in slow, surprised sips. “It ’s good!” he said. He released the cup slowly.

Uncle William nodded. “I ’ve been overhaulin’ your locker a little.”

“You did n’t find that in it.” The artist motioned to the cup.

“Well—all but a drop or two,” said Uncle William, setting it down. “A drop o’ suthin’ hot ’ll make ’most anything tasty, I reckon. I ’ll go out and stock up pretty soon.”

A slow color had come into the artist’s face. He turned it away. “I don’t need much,” he said.

“No more ’n a robin,” said Uncle William, cheerfully; “but I can’t live on bird-seed myself. I reckon I ’ll lay in suthin’—two-three crackers, mebbe, enough to make a chowder.”

The young man laughed out. “I feel better,” he declared.

“It ’s a good pill,” said Uncle William. “Must be ’most time for another.” He pulled out his great watch. “Just about.” He doled out the pill with careful hand.

The young man looked at the bottle. “You have n’t many left?”

“Eight more,” said Uncle William, rapping the cork into place. “That ’lows for one more fever for me afore I die—I don’t cal’ate to have but one more.” He looked about for his hat. “I ’m goin’ out a little while,” he said, settling it on his head.

“Wait a minute, Uncle William.” The young man stretched out his hand. “How did you come to know I needed you?”

Uncle William took the hand in his, patting it slowly. “Why, that was nateral enough,” he said. “When Sergia wrote me, sayin’ you was sick—”

“Sergia wrote you?” the young man had turned away his eyes. “She should not have done it. She had no right—”

“Why not?” said Uncle William. He seated himself by the bed. There was something keen in the glance of his blue eyes. “You ’re goin’ to be married, ain’t you?”

The head on the pillow turned uneasily. “No—not now.”

“Why not?”

“I shall never be able to take care of her.”

“Shucks!” said Uncle William. “Let her take care of you, then.”

The tears of weakness came into the young man’s eyes.

Uncle William’s gaze was fixed on space. “You ’ve been foolish,” he said—“turrible foolish. I don’t doubt she wants to marry you this minute.”

“She shall not do it.” He spoke almost fiercely.

“There, there,” said Uncle William, soothingly, “I would n’t make such a fuss about it. Nobody ’s goin’ to marry you ’thout you want ’em to. You jest quiet down and go to sleep. We ’ll talk it over when I come back.”

title: Uncle William/Chapter 10


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Uncle William/Chapter 11

HEN he returned the artist was awake. His eyes had a clearer look.

Uncle William surveyed them over the top of his parcels. “Feelin’ better?” he said.

“Yes.”

He carried the parcels into the next room, and the artist heard him pottering around and humming. He came out presently in his shirt-sleeves. His spectacles were mounted on the gray tufts. “I ’ve got a chowder going’,” he said. “You take another pill and then you ’ll be about ready to eat some of it, when it ’s done.”

“Can I eat chowder?” The tone was dubious, but meek.

“You ’ve got all your teeth, hain’t you?”

“Yes.”

“Well, then, I guess you can eat it.”

“I have n’t been eating much.”

“I should n’t think you had.” Uncle William spoke dryly. “You need n’t be a mite afraid o’ one o’ my chowders. A baby could eat ’em, if it had got its teeth.”

The artist ate the chowder, when it came, and called for more, but Uncle William refused him sternly. “You jest wait awhile,” he said, bearing away the empty plate. “There ain’t more ’n enough for a comfortable dish for me. You don’t want to eat it all, do you?”

“No,” said the artist, flushing.

“I thought not.” It took Uncle William a long time to eat his portion, and the artist fell asleep again, watching the rhythmic motion of the great jaw as it went slowly back and forth.

When he wakened again it was almost dark in the room. Uncle William sat by the window, looking down into the street. He came across to the bed as the artist stirred. “You ’ve had a good long sleep.” He laid a hand on the moist forehead. “That ’s good. Fever ’s gone.”

“It will come back. It always does.” There was anxious dread in the tone.

“It won’t this time.” Uncle William sat nodding at him mildly. “I know how you feel—kind o’ scared to believe anything—anything that ’s good.”

The artist smiled. “You never felt that way!”

“Just that way,” said Uncle William. “I did n’t want to believe I wa’n’t al’ays goin’ to be sick. I kep’ kind o’ thinkin’ I ’d rather be sick ’n not—jest as if the devil had me.”

“Yes”—the young man spoke almost eagerly—“it ’s the way I ’ve been! Only I did n’t know it till you said so.”

“The’ ’s a good many things we don’t know—not jest exactly know—till somebody says ’em.”

They sat quiet, listening to the hum from the street.

“I ’ve done some queer things,” said the artist.

“Like enough.” Uncle William did not ask what they were.

“They begin to look foolish.” He turned his head a little.

“Do you good—best thing in the world.”

“I don’t see how I could.” The tone was uneasy. “I must have been beastly to her.”

Uncle William said nothing.

“She did n’t tell you?” The artist was looking at him.

“She? Lord, no! women don’t tell anything you ’ve done to ’em—not if it ’s anything bad.”

“I might have known.... I fairly turned her out. But she kept coming back. She wanted me to marry her, so she could stay and take care of me.” He was not looking at Uncle William.

“And you would n’t let her?”

“I could n’t.—There was no money,” he said at last.

Uncle William glanced about him in the clear dusk. “Comf’tabul place,” he said.

The artist flushed. “She pays the rent, I suppose. They would have turned me out long since. I have n’t asked, but I know she pays it. There is no one else.”

“She is rich, probably,” said Uncle William.

“Rich?” The young man smiled bitterly. “She has what she earns. She works day and night. If she should stop, there would be nothing for either of us.”

“Not unless suthin’ come in,” said Uncle William. “Suthin’ might come in.—You ’d kind o’ like to see her, would n’t you?”

The artist held out a hand as if to stop him. “Not till I can pay her back, every cent!”

“Guess you need another pill, likely,” said Uncle William. He got up in the dark and groped about for the bottle. His great form loomed large above the bed as he handed it to the young man. “That ’s four,” he said soothingly. “Jest about one more ’ll fix ye.”

The young man swallowed it almost grudgingly. He lay back upon the pillow. “I can pay her the money sometime.” His gaunt eyes were staring into the dark. “But I can never make up to her for the way I treated her.”

“Mebbe she did n’t mind,” said Uncle William, non-committally. “Sometimes they don’t.”

“Mind? She could n’t help minding. I was a fiend to her. I did everything but strike her.”

A smile grew, out of the dark, in Uncle William’s face. “I was thinkin’ about that ol’ chief,” he said slowly—“the one that give me the pills. I treated him—why, I treated him wuss ’n anything. ’Course, he wa’n’t like white folks; but I was fightin’ crazy with the fever, not sick enough to go to bed, but jest sittin’ around and jawin’ at things. I dunno how he come to take such a likin’ to me. Might ’a’ been on account o’ my size—we was about the same build. I ’d set and jaw at him, callin’ him names.—Don’t s’pose he understood half of ’em, but he could see plain enough I was spittin’ mad. He ’d kind o’ edge up to me, grinnin’ like and noddin’, and fust thing I knew, one day, he ’d fetched a pill and made me take it. I was mad enough to ’a’ killed him easy, but ’fore I could get up to do it, I fell asleep somehow. And when I woke up I felt different. You feel different, don’t you?”

The artist smiled through the soft dark. “I would like to get down on my knees.”

Uncle William smoothed the spread in place. “They ’d feel kind o’ sharp, I guess. I would n’t try it—not yet. You wait till Sergia comes.”

“Will she come?”

“She ’d come to-night if she knew you wanted her. You go to sleep, and in the mornin’ you ’ll take that other pill.” He lifted the pillow and turned it over, patting it in place. “Why, that ol’ chief he was so glad when he see me feelin’ better he acted kind o’ crazy-like. I held out my hand to him when I woke up; but he didn’t know anything about shakin’ hands. He jest got down and took my feet and hugged ’em. It made me feel queer,” said Uncle William. “You do feel queer when you hain’t acted jest right.”

title: Uncle William/Chapter 11


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Uncle William/Chapter 12

AN I see her to-day?” It was the first question in the morning.

“You better?”

“Yes.”

“You feelin’ well enough to sit up?”

“Yes.”

“Well, then, you can stay where you be another day.” Uncle William smiled cheerfully.

“Can I see her?”

“We ’ll see about that. I ’ve got a good many things to tend to.” Uncle William bustled away.

After a time his head was thrust in the door. “I ’ll go see her, myself, byme-by,” he said kindly. “Mebbe she ’ll come back with me.”

“It ’s too late now.” The artist spoke a little bitterly.

“Too late!” Uncle William came out, reproachful and surprised. “What d’ you mean?”

“It ’s quarter to nine. She goes to work at nine. She has pupils—she teaches all day.”

Uncle William’s face dropped a little. “That ’s too bad now, ain’t it! But don’t you mind. I wa’n’t just certain I ’d let you see her to-day, anyhow.”

“When can I?”

Uncle William pondered. “You ’re in a good deal of a hurry, ain’t you?”

“I want to tell her—”

“Yes, yes, I know.—Well,—’bout to-morrow. How ’d that do?”

“You could send her a note,” said the artist.

“I ’m goin’ to see her,” said Uncle William. “She ’ll be to home this evenin’, won’t she?”

“Yes.”

“I ’ll go see her.”

The artist looked doubtful.

“Can’t I got see her?” said Uncle William.

“I was wondering whether you could find the way.”

“H’m-m. Where ’d you say it was?”

“Eighteenth Street, near Broadway.”

“Eighteenth? That ’s somewheres between Seventeenth and Nineteenth, ain’t it?” said Uncle William, dryly.

“Yes.” The artist smiled faintly.

Uncle William nodded. “I thought so. And I don’t s’pose they ’ve changed the lay of Broadway a gre’ deal?”

“No—not much.”

“Well, I reckon I can find it. I gen’ally do; and I can’t get far out o’ the way with this.” He touched the compass that hung from the fob of the great watch. “I ’ve been putty much all over the world with that. I reckon it ’ll p’int about the same in New York as it does in Arichat. Now, I ’ve got your breakfast ’most ready, but I can’t seem to remember about your coffee.—You take sugar and milk in it, don’t you?”

“Yes.” The tone was almost sulky.

Uncle William looked at him shrewdly over his spectacles. “I don’t believe you feel well enough to see anybody for a good while, do you?”

The artist’s face changed subtly—like a child’s. It was almost cheerful.

Uncle William laughed out. “That ’s better—a little mite better. I guess ’bout day after to-morrow you ’ll do to see company.”

The young man stretched out a hand. “I must see her. I shall get up—”

“There, there. I would n’t try to get up if I was you,” said Uncle William, genially. “I ’ve put away your clothes, different places. I don’t jest know where they be, myself. It ’ll be quite a chore to get ’em all together. You jest lie still, and let me manage.”

The young man ate his breakfast with relish. A subtle resolve to get up and do things was in his eye.

Uncle William watched it, chuckling. “Sha’n’t be able to keep him there more ’n a day longer,” he said. “Better feed him well whilst I can.” He prepared clam-broth and toast, and wondered about an omelet, rolling in and out of the room with comfortable gait.

The artist ate everything that was set before him, eagerly. The resolve in his eye yielded to appreciation. “You ought to have been a chef, Uncle William. I never tasted anything better than that.” He was eating a last bit of toast, searching with his fork for stray crumbs.

Uncle William nodded. “The’ ’s a good many things I’d o’t to ’a’ been if I ’d had time. That ’s the trouble with livin’. You don’t hev time. You jest practise a day or two on suthin’—get kind o’ ust to it—and then you up and hev to do suthin’ else. I like cookin’ fust rate while I ’m doin’ it.... I dunno as I should like it reg’lar, though. It ’d be kind o’ fiddlin’ work, gettin’ up and makin’ omelets every mornin’.”

“You ’re an artist,” said the young man.

“Mebbe. Don’t you think you ’ve licked that plate about clean?” Uncle William looked at it approvingly. “It ain’t much work to wash dishes for you.”

At intervals during the day the artist demanded his clothes, each time a little more vigorously. Uncle William put him off. “I don’t see that picter of my house anywheres ’round,” he said when pressed too close.

“No.”

“You sent it off?”

“Yes.” The young man was silent a minute. “Sergia took them—all of them—when I fell sick. They were not ready—not even framed. She was to send them to the committee. I have not heard.”

“I ’ll go see ’em in the mornin’,” said Uncle William.

“I don’t know that you can—”

“Can’t anybody go in—if it ’s an exhibit—by payin’ suthin’?”

“I mean, I don’t know that they ’re hung.”

“Well, I would n’t bother about that. I ’d like to see ’em jest as well if they ain’t hung. I ’m putty tall, but I can scooch down as well as anybody. It ’ll seem kind o’ good to see the old place. I was thinkin’ this mornin’ I wish’t there was two-three rocks round somewheres. I guess that ’s what picters are for. Some folks hev to live in New York—can’t get away. I sha’n’t mind if they ain’t hung up. I can see ’em all right, scoochin’ a little.”

The young man smiled. “I don’t know that they ’re accepted.”

“Why not—if she sent ’em?”

“Oh, she sent them all right. They may have been refused.”

“At an exhibit?”

“Yes.”

“Well, up our way we don’t do like that. We take everything that comes in—pies and pickles and bedquilts and pumpkins and everything; putty triflin’ stuff, some of it, but they take it.—This is different, I s’pose?”

“A little. Yes. They only take the best—or what they call the best.” The tone was bitter.

Uncle William looked at him mildly. “Then they took yourn—every one on ’em. They was as good picters as I ever see.”

The artist’s face lightened a little. “They were good.” His thought dwelt on them lovingly.

Uncle William slipped quietly away to his room. The artist heard him moving about, opening and shutting bureau drawers, humming gently and fussing and talking in broken bits. Time passed. It was growing dark in the room.

The artist turned a little impatiently. “Hallo there!”

Uncle William stuck out his head. “Want suthin’?”

“What are you doing?” said the artist. It was almost querulous.

Uncle William came out, smoothing his neckerchief. It was a new one, blue like the sky. “I was fixin’ up a little to go see her. Do I look to suit you?” He moved nearer in the dusk with a kind of high pride. The tufts of hair stood erect on his round head, the neckerchief had a breezy knot with fluttering ends, and the coat hung from his great shoulders like a sail afloat.

The artist looked him over admiringly. “You ’re great!” he said. “How did you come to know enough not to change?”

“I ’ve changed everything!” declared Uncle William. His air of pride drooped a little.

The artist laughed out. “I mean you kept your same kind of clothes. A good many people, when they come down here to New York, try to dress like other folks—get new things.”

Uncle William’s face cleared. He looked down his great bulk with a smile. “I like my own things,” he said. “I feel to home in ’em.”

title: Uncle William/Chapter 12


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Uncle William/Chapter 13

NCLE WILLIAM found the door of the studio, and bent to examine the card tacked on the panel. “Sergia Lvova, Teacher of Piano and Violin.”

He knocked gently.

“Come in.” The call came clear and straight.

Uncle William opened the door.

A girl sat at a table across the room, her eyes protected by a green shade from the lamp that burned near and threw its light on the page she was copying. She glanced up as the door opened and pushed up the green shade, looking out from under it inquiringly. She peered a moment and then sprang up, thrusting aside the shade with a quick turn. “I am so glad you ’ve come.” She crossed the room, holding out her hands. There was something clear and fresh in the motion—like a free creature, out of doors.

Uncle William stood smiling at her. “How do you know it ’s me?” he said.

The girl laughed quietly. “There could n’t be two.” Her voice had a running, musical quality, with deep notes in it and a little accent that caught at the words, tripping them lightly. She had taken his hands with a swift movement and was holding them, looking at him earnestly. “You are just as he said,” she nodded.

Uncle William returned the look. The upturned face flushed a little, but it did not fall. He put out his hand and touched it. “Some like a flower,” he said, “as near as I can make out—in the dark.” He looked about the huge, bare room, with its single flame shining on the page.

She moved away and lighted a gas-jet on the wall, and then another. She faced about, smiling. “Will that do?”

Uncle William nodded. “I like a considabul light,” he said.

“Yes.” She drew forward a chair. “Sit down.”

She folded her hands lightly, still scanning him. Uncle William settled his frame in the big chair. His glance traveled about the room. The two gas-jets flared at dark corners. A piano emerged mistily. Music-racks sketched themselves on the blackness. The girl’s face was the only bit of color. It glowed like a red flower, out of the gloom. Uncle William’s glance came back to it. “I got your letter all right,” he said.

“I knew you would come.”

“Yes.” He was searching absently in his pocket. He drew out the bluish slip of paper with rough edge. He handed it to her gravely. “I could n’t take that, my dear, you know.”

She put it aside on the table. “I thought you might not have money enough to come at once, and he needed you.”

“Yes, he needed me. He ’s better.”

Her face lightened. The rays of color awoke and played in it. “You have cured him.”

“Well,”—Uncle William was judicious,—“I give him a pill.”

She laughed out. “He needed you,” she said.

“Did he?” Uncle William leaned forward. “I never had anybody need me—not really need me.” His tone confided it to her.

She looked back at him. “I should think every one would.”

He looked a little puzzled. “I dunno. But I see, from the way you wrote, that he did, so I come right along.”

“He will get well now.”

“He was middlin’ discouraged,” said Uncle William.

“He could n’t see anything the way it is.” Her face had flushed a little, but the light in her eyes was clear.

Uncle William met it. “You showed a good deal of sense,” he said.

The face, as she pushed back the hair from it, looked tired. “I had to think for two.”

Uncle William nodded. “He wants to see you.”

She mused over it. “Do you think I ’d better?”

“No,” said Uncle William, promptly.

Her lips remained parted. “Not to-morrow?” she said. Her lips closed on the word gently.

“Not for a considabul spell.” Uncle William shook his head. “He ain’t acted right.”

“He was ill.”

“He was sick,” admitted Uncle William, “—some. But it was some cussedness, too. That ain’t the main thing though.” Uncle William leaned nearer. “He ’ll get well faster if he has suthin’ to kind o’ pester him.”

She looked at him with open eyes.

“It ’s the way men be,” said Uncle William. “The Lord knew how ’t was, I reckon, when he made ’em. He hadn’t more ’n got ’em done, ’fore he made wimmen.” He beamed on her genially. “He ’ll get well a good deal faster if the’ ’s suthin’ he thinks he wants and can’t have.”

“Yes.—How will you keep him away?” A little twinkle sounded in her voice.

“I ’ll take him home with me,” said Uncle William, “up to Arichat.”

“Now?”

“Well, in a day or two—soon ’s it ’s safe. It ’ll do him good to be up there. It ’d do anybody good.” His face grew wistful. “If you jest see it once, the way it is, you ’d know what I mean: kind o’ big sweeps,”—he waved his arm over acres of moor,—“an’ a good deal o’ sky—room enough for clouds, sizable ones, and wind. You ’d o’t to hear our wind.” He paused, helpless, before the wind. He could not convey it.

“I have heard it.”

He stared at her. “You been there?”

“I ’ve seen it, I mean—in Alan’s pictures.”

“Oh, them!” His tone reduced them to mere art. But a thought hung on it. “Where be they?” he asked.

“At the ‘Exhibition of American Artists.’” It was the tone of sheer pride.

“They took ’em, did they?” said William.

“They could n’t help it. They sent back one for lack of room, but he will have four hung.”

“That ’s good. You have n’t told him?”

“I only heard an hour ago, and I had copying to finish. I have a little recital, of my pupils, this evening. I was planning to write the letter and mail it on the way out.”

Uncle William started up. “I ’m hinderin’ ye.”

“No—please.” She had forced him back gently. “I shall not have to write the letter now. Tell me about him.” Her face was alight.

Uncle William considered. “The’ ain’t much to tell, I guess. He ’s gettin’ better. He ’s actin’ the way men gen’ally do.”

“Yes—?” Her voice sang a little. “And he wants to see me?”

“Wust way,” said Uncle William; “but he ain’t goin’ to. What was you copyin’ when I come in?”

“Some music—for one of the big houses. It helps out.”

Uncle William was looking at her thoughtfully. “He ’d better give up his place when we go,” he said. “He ’ll, like enough, stay with me all summer.”

“His rooms, you mean?” She mused a little. “Yes, perhaps—”

“They must cost a good deal,” said Uncle William.

“They do.” She paused a minute. “He is almost sure to take a prize,” she said. “It ’s the best work he has done.”

“That ’ll be good,” said Uncle William. “But we won’t count too much on it. He won’t need money in Arichat. A little goes a long ways up there. Good night.” He was holding out his hand.

She placed hers in it slowly. Uncle William lifted the slim fingers. He patted them benignly. “They don’t look good for much, but they ’re pretty,” he said.

She laughed out quietly. “They have to be,” she said. “They ’re my tools. I have to be careful of them. That is one of the things we quarreled about—Alan and I. He knew I ought not to use them and he would n’t let me do things for him, and he would n’t have a nurse, nor go to the hospital.” She sighed a little. “He was very obstinate.”

“Jest like a mule,” assented Uncle William. He was stroking the fingers gently. “But he ’s got a new driver this time.” He chuckled a little.

She looked up quickly. “Has he consented to go?”

“Well, we ’re goin’.—It comes to the same thing I reckon,” said Uncle William. He was looking at the dark face with the darker lines beneath the eyes. “You ’ll hev an easier time,” he said. “It ’s been putty hard on you.”

“Oh, I don’t mind,” quickly, “—only the misunderstandings—and the quarrels—”

“That was the fever,” said Uncle William.

“But I did n’t have the fever,” said the girl. “I might have been patient.”

“Well, I reckon the Angil Gabriel himself ’d quarrel with a man that had one of them intermittent fevers,” said the old man thoughtfully. “They ’re powerful trying’. You feel better—a little—and you perk up and think you ’re goin’ to get well, and then, fust thing you know, there you are—all to do over again. If I had my ch’ice of all the diseases in the calendar, that ’s the one I would n’t take. Some on ’em you hev the comfort of knowin’ you ’ll die of ’em—if ye live long enough.” He chuckled a little. “But this one, ye can’t die and ye can’t get well.”

“But he is going to get well?” The girl’s eyes held him.

“Yes, he ’ll be all right if he can set out in the wind a spell—and the sun. The fever ’s broke. What he wants now is plenty to eat and good company. You ’ll be comin’ up to see us byme-by, mebbe?” He looked at her hopefully.

“Do you think I could?”

“Well, I dunno why not. He ’ll be gettin’ restless in a month or so. You might as well be married up there as anywhere. We ’ve got a good minister—a fust-rate one.”

She smiled a little wistfully. “He won’t have me,” she said.

“Shucks!” said Uncle William. “You come up, and if he don’t marry you, I will.”

A bell sounded somewhere. She started. “I must go.” A thought crossed her face. “I wonder if you would like it—the recital?” She was looking at him, an amused question in her eyes.

“Is it speaking pieces?” said Uncle William, cautiously.

“Playing them, and singing—one or two. It’s a musicale, you know. You might like it—” She was still thinking, her forehead a little wrinkled. “They are nice girls and— Oh—!” the forehead suddenly lifted, “you would like it. There are sea-pieces—MacDowell’s. They’re just the thing.—” She held him hospitably.—“Do come. You would be sure to enjoy it.”

“Like enough,” said Uncle William. “It takes all kinds of singing to make a world. I might like ’em fust-rate. And it won’t take long?”

“No—only an hour or two. You can leave him, can’t you?” The pretty forehead had wrinkled again.

“Easy as not,” said Uncle William. “Best thing for him. He ’ll have a chanct to miss me a little.”

She smiled at him reproachfully. “We ’ll have to hurry, I ’m afraid. It ’s only a step. But we ought to go at once.”

Uncle William followed in her wake, admiring the quick, lithe movements of the tall figure. Now that the flower-like face was turned away, she seemed larger, more vigorous. “A regular clipper, and built for all kinds of weather,” said Uncle William as he followed fast. “I would n’t be afraid to trust her anywheres. She ’d reef down quick in a blow.” He chuckled to himself.

She looked around. “Here we are.”

title: Uncle William/Chapter 13


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Ladies, Gentlemen, Townspeople, and Visitors

The scene is Moraleda, a supposed provincial capital of Spain


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Page:Michael Anthony Jewelers v. Peacock Jewelry.pdf/16

 We next consider the possibility that Peacock was deprived of a property interest by MAJ’s alleged scheme to defraud. At first glance, this possibility seems plausible, in that Peacock contends that MAJ’s actions deprived it of the right to manufacture and sell charms designs purchased from the Old Mr. Craftsman. See ¶¶ 105–06. The difficulty with this position, however, is that Peacock has nowhere alleged that it held any property right, such as its own copyright or licensing arrangement, in the charms at issue. Instead, Peacock’s own pleading describes the scheme as one to procure fraudulent copyrights in charm designs “that were rightfully in the public domain, and should be free to all.” ¶ 159 (emphasis added).

In short, Peacock’s amended countercomplaint fails to demonstrate that the allegedly fraudulent scheme had as its object the deprivation of any property interest. The “right” to be free from fraudulent competition is not a cognizable property right for these purposes. Peacock’s mail fraud allegations are deficient and the asserted violations of the mail fraud statute cannot serve as predicate acts. Moreover, because Peacock has failed to plead properly a single predicate act, the RICO counterclaim is dismissed, without prejudice to repleading as will be discussed in greater detail in Part III infra.

 * 3. The Lanham Act Counterclaim.

In the amended countercomplaint, Peacock for the first time asserts a violation of the false advertising prong of the Lanham Act. That statute subjects to civil liability: "Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which—

(2) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities…."

15 U.S.C. § 1125(a)(2). Peacock claims that MAJ has misrepresented the “nature, characteristics [and] qualities” of its goods by falsely representing that it “is the sole and lawful proprietor of the copyrights in various public domain works” (¶ 186). Peacock further alleges that it has been damaged by these misrepresentations in that customers who “have received MAJ’s claims of originality and exclusivity” will not buy the same charms from MAJ’s competitors “because they will believe that the competitors are engaged in ‘knocking off’ MAJ’s copyrights” (¶ 161).

Although MAJ attacks the sufficiency of the Lanham Act claim on a number of fronts, its primary objection is that Peacock has failed to allege that Michael Anthony has made false statements about its products. Because Peacock concedes that MAJ holds copyright registrations for the charm designs at issue, MAJ contends that any “advertisement” regarding those registrations could not possibly be deemed false.

Despite the surface logic of MAJ’s contentions, there is authority for the proposition that a false designation of copyright may constitute a “false designation of origin” or “false description or representation” that is actionable under the Lanham Act. See Eden Toys, Inc. v. Florelee Undergarment Co., 697 F.2d 27, 37 (2d Cir.1982); Sunset Lamp Corp. v. Alsy Corp., 698 F.Supp. 1146, 1153 (S.D.N.Y.1988).


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2. MAIN 10. Assess Termination.

Assess termination 10 $$\equiv$$ ⟨Assess chloride penetration 64⟩; ⟨Assess simulation termination 72⟩; ⟨Check time dependencies 71⟩;

This code is used in section 2.

11. The following are useful macro definitions which save a lot of typing.

⟨Preprocessor definitions 11⟩$$\equiv$$
 * 1) define SQR(a) ((a) * (a))
 * 2) define CUB(a) ((a) * (a) * (a))
 * 3) define MAX(a,b) ((a > b) ? a : b)
 * 4) define MIN(a,b) ((a < b) ? a : b)

See also section 46.

This code is used in section 2.

12. Declare yyparse which is written in YACC and LEX. The function yyparse takes no arguments and simply parses the input, assigning values to global variables. The routine does not “return” until the entire input stream has been parsed.

⟨Global variables 4⟩ $$+\equiv$$ int input.filename = 1;    /* line number of input file (lex/yacc) */

13. ⟨Input parsing routine 13⟩ $$\equiv$$ int yyparse(void);
 * 1) include "yyparse. c"

This code is used in section 2.


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 While Peacock might be able to state a claim under the Lanham Act in theory, however, its present allegations are insufficient for the simple reason that they fail to state that MAJ has advertised its copyright in any commercially noticeable manner. The amended countercomplaint does not state where the copyright notice was placed on the charms, whether it was large enough to be seen by consumers, or whether it was actually seen by any consumers. Nor does it mention any formal advertising campaigns or marketing material that emphasized the charms’ copyrights or billed them as “original.” Under such circumstances, we find it difficult to discern a claim that MAJ has engaged in “false advertising” within the meaning of the Lanham Act.

Despite these apparent deficiencies, Peacock’s counsel has suggested in statements outside the pleadings that such an advertising campaign was conducted. During oral argument on November 21, 1991, for example, he made reference to a print advertisement involving one of the charms in dispute, in which MAJ represents that the charm design is copyrighted and original to MAJ. See November Transcript at 31. In light of the fact that Peacock may be able to assert a viable Lanham Act violation by including these unpleaded allegations, we dismiss the Lanham Act counterclaim at this time, but with leave to replead.

 * 4. The Unfair Competition Counterclaim.

Peacock’s final counterclaim is for unfair competition under New York law. This counterclaim is based on MAJ’s allegedly improper placement of copyright notices on goods in the public domain (¶ 190) and on its alleged provision of prostitutes and cocaine to customers and employees (¶ 191).

In arguing that this counterclaim should be dismissed, MAJ contends that even if Peacock’s allegations were proven, they would not constitute unfair competition. Specifically, MAJ argues that the tort of unfair competition requires the “passing off” of a defendant’s product as plaintiff’s own, or at least the misappropriation of a “property interest” held by the plaintiff.

We first address the sufficiency of Peacock’s claims regarding the alleged copyright misuse. With respect to those claims, MAJ reiterates an argument made in connection with the mail fraud allegations: that because Peacock claims an interest only in charm designs in the public domain, it has failed to allege any property right misappropriated by MAJ’s actions.

MAJ is certainly correct that “[a]n unfair competition claim involving misappropriation usually concerns the taking and use of the plaintiff’s property to compete against the plaintiff’s own use of the same property.” Roy Export Co. Establishment v. Columbia Broadcasting Sys., Inc., 672 F.2d 1095, 1105 (2d Cir.), ''cert. denied'', 459 U.S. 826, 103 S.Ct. 60, 74 L.Ed.2d 63 (1982); see also ''Metropolitan Opera Assoc. v. Wagner-Nichols Recorder Corp., 199 Misc. 786, 101 N.Y.S.2d 483, 489 (Sup.Ct. N.Y. County 1950), aff’d'', 279 A.D. 632, 107 N.Y.S.2d 795 (App.Div.1951). MAJ’s error, however, is in its overly restrictive definition of “property” as it has developed in connection with the tort of unfair competition. Unlike the stringent “money or property” requirement under the federal mail fraud statute, New York Courts and federal courts construing New York law apply a broad definition of property rights to unfair competition claims. As the New York Court of Appeals stated in Fisher v. Star Company: The rule that a court of equity concerns itself only in the protection of property rights treats any civil right of a pecuniary nature as a property right; and the right to acquire property by honest labor or the conduct of a lawful business is as much entitled to protection as the right


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 constant and successive descents had taken us quite thirty leagues into the interior of the earth, that is to say that there were above us thirty leagues, nearly a hundred miles, of rocks, and oceans, and continents, and towns, to say nothing of living inhabitants. We were in a southeasterly direction, about two hundred leagues from Iceland.

On that memorable day the tunnel had begun to assume an almost horizontal course. I was on this occasion walking on in front. My uncle had charge of one of the Ruhmkorf coils, I had possession of the other. By means of its light I was busy examining the different layers of granite. I was completely absorbed in my work. Suddenly halting and turning round, I found that I was alone!

"Well," thought I to myself, "I have certainly been walking too fast—or else Hans and my uncle have stopped to rest. The best thing I can do is to go back and find them. Luckily, there is very little ascent to tire me."

I accordingly retraced my steps, and while doing so, walked for at least a quarter of an hour. Rather uneasy, I paused and looked eagerly around. Not a living soul. I called aloud. No reply. My voice was lost amid the myriad cavernous echoes it aroused!

I began for the first time to feel seriously uneasy. A cold shiver shook my whole body, and perspiration, chill and terrible, burst upon my skin.

"I must be calm," I said, speaking aloud, as boys whistle to drive away fear. "There can be no doubt that I shall find my companions. There cannot be two roads. It is certain that I was considerably ahead; all I have to do is to go back."

Having come to this determination I ascended the tunnel for at least half an hour, unable to decide if I had ever seen certain landmarks before. Every now and then I paused to discover if any loud appeal was made to me, well knowing that in that dense and intensified atmosphere I should hear it a long way off. But no. The most extraordinary silence reigned in this immense gallery. Only the echoes of my own footsteps could be heard.

At last I stopped. I could scarcely realize the fact of my isolation. I was quite willing to think that I had made a mistake, but not that I was lost. If I had made a mis-


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 take, I might find my way: if lost—I shuddered to think of it.

"Come, come," said I to myself, "since there is only one road, and they must come by it, we shall at last meet. All I have to do is still to go upwards. Perhaps, however, not seeing me, and forgetting I was ahead, they may have gone back in search of me. Still even in this case, if I make haste, I shall get up to them. There can be no doubt about the matter."

But as I spoke these last words aloud, it would have been quite clear to any listener—had there been one—that I was by no means convinced of the fact. Moreover, in order to associate together these simple ideas and to reunite them under the form of reasoning, required some time. I could not all at once bring my brain to think.

Then another dread doubt fell upon my soul. After all, was I ahead. Of course I was. Hans was no doubt following behind, preceded by my uncle. I perfectly recollected his having stopped for a moment to strap his baggage on his shoulder. I now remembered this trifling detail. It was, I believed, just at that very moment that I had determined to continue my route.

"Again," thought I, reasoning as calmly as was possible, "there is another sure means of not losing my way, a thread to guide me through the labyrinthine subterraneous retreat—one which I had forgotten—my faithful river."

This course of reasoning roused my drooping spirits, and I resolved to resume my journey without further delay. No time was to be lost. It was at this moment that I had reason to bless the thoughtfulness of my uncle, when he refused to allow the eider hunter to close the orifices of the hot spring—that small fissure in the great mass of granite. This beneficent spring after having saved us from thirst during so many days would now enable me to regain the right road. Having come to this mental decision, I made up my mind, before I started upwards, that ablution would certainly do me a great deal of good.

I stopped to plunge my hands and forehead in the pleasant water of the Hansbach stream, blessing its presence as a certain consolation.


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 Conceive my horror and stupefaction!—I was treading a hard, dusty, shingly road of granite. The stream on which I reckoned had wholly disappeared!

words in any human language can depict my utter despair. I was literally buried alive; with no other expectation before me but to die in all the slow horrible torture of hunger and thirst. Mechanically I crawled about, feeling the dry and arid rock. Never to my fancy had I ever felt anything so dry.

But, I frantically asked myself, how had I lost the course of the flowing stream? There could be no doubt it had ceased to flow in the gallery in which I now was. Now I began to understand the cause of the strange silence which prevailed when last I tried if any appeal from my companions might perchance reach my ear.

It so happened that when I first took an imprudent step in the wrong direction, I did not perceive the absence of the all-important stream. It was now quite evident that when we halted, another tunnel must have received the waters of the little torrent, and that I had unconsciously entered a different gallery. To what unknown depths had my companions gone? Where was I?

How to get back! Clue or landmark there was absolutely none! My feet left no signs on the granite and shingle. My brain throbbed with agony as I tried to discover the solution of this terrible problem. My situation, after all sophistry and reflection, had finally to be summed up in three awful words—Lost! !! LOST!!!

Lost at a depth which, to my infinite understanding, appeared to be immeasurable. These thirty leagues of the crust of the earth weighed upon my shoulders like the globe on the shoulders of Atlas. I felt myself crushed by the awful weight. It was indeed a position to drive the sanest man to madness.

I tried to bring my thoughts back to the things of the world so long forgotten. It was with the greatest difficulty that I succeeded in doing so. Hamburg, the house on


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 the Königstrasse, my dear cousin Gretchen—all that world which had before vanished like a shadow floated before my now vivid imagination. There they were before me, but how unreal. Under the influence of a terrible hallucination I saw the whole incidents of our journey pass before me like the scenes of a panorama. The ship and its inmates, Iceland, M. Fridriksson, and the great summit of Mount Sneffels! I said to myself that if in my position, I retained the most faint and shadowy outline of a hope it would be a sure sign of approaching delirium. It were better to give way wholly to despair!

In fact, if I reasoned with calmness and philosophy, what human power was there in existence able to take me back to the surface of the earth, and ready too, to split asunder those huge and mighty vaults which stood above my head? Who could enable me to find my road—and regain my companions? Insensate folly and madness to entertain even a shadow of hope!

"Oh, uncle!" was my despairing cry. This was the only word of reproach which came to my lips; for I thoroughly understood how deeply and sorrowfully the worthy Professor would regret my loss, and how in his turn he would patiently seek for me.

When I at last began to resign myself to the fact that no further aid was to be expected from man, and knowing that I was utterly powerless to do anything for my own salvation, I kneeled with earnest fervor and asked assistance from Heaven. The remembrance of my innocent child- hood, the memory of my mother, known only in my infancy, came welling forth from my heart. I had recourse to prayer. And little as I had right to be remembered by Him whom I had forgotten in the hour of prosperity, and whom I so tardily invoked, I prayed earnestly and sincerely.

This renewal of my youthful faith brought about a much greater amount of calm, and I was enabled to concentrate all my strength and intelligence on the terrible realities of my unprecedented situation. I had about me that which I had at first wholly forgotten—three days' provisions. Moreover, my water bottle was quite full. Nevertheless, the one thing which it was impossible to do was to remain alone. Try to find my companions I must, at any price. But which course should I take? Should I go upwards, or


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 again descend? Doubtless it was right to retrace my steps in an upward direction.

By doing this with care and coolness, I must reach the point where I had turned away from the rippling stream. I must find the fatal bifurcation or fork. Once at this spot, once the river at my feet, I could, at all events, regain the awful crater of Mount Sneffels. Why had I not thought of this before? This, at last, was a reasonable hope of safety. The most important thing, then, to be done was to discover the bed of the Hansbach.

After a slight meal and a draught of water, I rose like a giant refreshed. Leaning heavily on my pole, I began the ascent of the gallery. The slope was very rapid and rather difficult. But I advanced hopefully and carefully, like a man who at last is making his way out of a forest, and knows there is only one road to follow.

During one whole hour nothing happened to check my progress. As I advanced I tried to recollect the shape of the tunnel—to recall to my memory certain projections of rocks—to persuade myself that I had followed certain winding routes before. But no one particular sign could I bring to mind, and I was soon forced to allow that this gallery would never take me back to the point at which I had separated myself from my companions. It was absolutely without issue—a mere blind alley in the earth.

The moment at length came when, facing the solid rock, I knew my fate, and fell inanimate on the arid floor!

To describe the horrible state of despair and fear into which I then fell would now be vain and impossible. My last hope, the courage which had sustained me, drooped before the sight of this pitiless granite rock! Lost in a vast labyrinth, the sinuosities of which spread in every direction, without guide, clue or compass, it was a vain and useless task to attempt flight. All that remained to me was to lie down and die. To lie down and die the most cruel and horrible of deaths!

In my state of mind, the idea came into my head that one day perhaps, when my fossil bones were found, their discovery so far below the level of the earth might give rise to solemn and interesting scientific discussions. I tried to cry aloud, but hoarse, hollow and inarticulate sounds


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 alone could make themselves heard through my parched lips. I literally panted for breath.

In the midst of all these horrible sources of anguish and despair, a new horror took possession of my soul. My lamp, by falling down, had got out of order. I had no means of repairing it. Its light was already becoming paler and paler, and soon would expire. With a strange sense of resignation and despair, I watched the luminous current in the coil getting less and less. A procession of shadows moved flashing along the granite wall. I scarcely dared to lower my eyelids, fearing to lose the last spark of this fugutive light. Every instant it seemed to me that it was about to vanish and to leave me forever—in utter darkness!

At last, one final trembling flame remained in the lamp; I followed it with all my power of vision; I gasped for breath; I concentrated upon it all the power of my soul, as upon the last scintillation of light I was ever destined to see; and then I was to be lost forever in Cimmerian and tenebrous shades.

A wild and plaintive cry escaped my lips. On earth during the most profound and comparatively complete darkness, light never allows a complete destruction and extinction of its power. Light is so diffuse, so subtle, that it permeates everywhere, and whatever little may remain, the retina of the eye will succeed in finding it. In this place nothing—not the faintest ray of light. It mazed me!

My head was now wholly lost. I raised my arms, trying the effects of the feeling in getting against the cold stone wall. It was painful in the extreme. Madness must have taken possession of me. I knew not what I did. I began to run, to fly, rushing at haphazard in this inextricable labyrinth, always going downwards, running wildly underneath the terrestrial crust, like an inhabitant of the subterranean furnaces, screaming, roaring, howling, until bruised by the pointed rocks, falling and picking myself up all covered with blood, seeking madly to drink the blood which dripped from my torn features, mad because this blood trickled over my face, and watching always for this horrid wall which ever presented to me the fearful obstacle against which I could not dash my head.


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 Where was I going? It was impossible to say. Several hours passed in this way. After a long time, having utterly exhausted my strength, I fell a heavy inert mass along the side of the tunnel, and lost all consciousness of existence!

at last I came back to a sense of life and being, my face was wet; but wet as I soon knew with tears. How long this state of insensibility lasted, it is quite impossible for me now to say. I had no means left to me of taking any account of time. Never since the creation of the world, had such a solitude as mine existed. I was completely abandoned.

After my fall I had lost much blood. I had felt myself flooded with the life-giving liquid. My first sensation was perhaps a natural one. Why was I not dead? Because I was alive, there was something left to do. I tried to make up my mind to think no longer. As far as I was able, I drove away all ideas, and utterly overcome by pain and grief, crouched against the granite wall.

I commenced to feel the fainting coming on again, with the sensation that this was the last struggle before complete annihilation,—when, on a sudden, a violent uproar reached my ears. It had some resemblance to the prolonged rumbling voice of thunder, and I clearly distinguished sonorous voices, lost one after the other, in the distant depths of the gulf.

Whence came this noise? Again I listened with deep attention. I was extremely anxious to hear if the strange and inexplicable sound was likely to be renewed! A whole quarter of an hour elapsed in painful expectation. Deep and solemn silence reigned in the tunnel. So still that I could hear the beatings of my own heart! I waited, waited, waited with a strange kind of hopefulness.

Suddenly my ear, which leant accidentally against the wall, appeared to catch as it were the faintest echo of a sound. I thought that I heard vague, incoherent and distant voices. I quivered all over with excitement and hope!


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 to guard property already acquired. It is this right that furnishes the basis of the jurisdiction in the ordinary case of unfair competition. 231 N.Y. 414, 132 N.E. 133, 137–38 (N.Y.1921) (quoting International News Serv. v. Associated Press, 248 U.S. 215, 234 & 236, 39 S.Ct. 68, 70–71 & 71, 63 L.Ed. 211 (1918)). In conformity with that broad approach, subsequent courts have determined that any misappropriation of the “skill,” “labors,” or “expenditures” of another may constitute unfair competition, provided the misappropriation is in bad faith. See, e.g., Saratoga Vichy Spring Co., Inc. v. Lehman, 625 F.2d 1037, 1044 (2d Cir.1980); Alusit Ltd. v. Aluglas of Pennsylvania, No. 89-3849, 1990 WL 209422, at *11, 1990 U.S. Dist LEXIS 16755, at *33 (S.D.N.Y. Dec. 4, 1990).

Peacock’s amended countercomplaint alleges that Peacock purchased charm molds from the Old Mr. Craftsman and thereafter expended money and effort manufacturing the charms and preparing catalogs for their sale. The countercomplaint further alleges that when Peacock attempted to sell those charms and reap the fruits of its labor, it was confronted with a lawsuit by MAJ, which had copied the charms and fraudulently obtained copyrights in the interim. Regardless of whether or not those charms were in the public domain, we find that this alleged misappropriation of Peacock’s labor and investment supports a claim of unfair competition under New York law.

Peacock’s allegations with respect to the provision of cocaine and prostitutes, however, pose an entirely different situation. Peacock asserts that this conduct may be labeled unfair competition because it is “unfair,” and insists that the tort is designed to protect against all forms of “commercial immorality.” See, e.g., Standard & Poor’s Corp. v. Commodity Exchange, Inc., 683 F.2d 704, 710 (2d Cir.1982). While the tort is undoubtedly a broad one, which one Court has described as “adaptable and capacious,” Roy Export, 672 F.2d at 1105, it is by no means all-encompassing and courts have not hesitated to recognize its limits. See, e.g., Saratoga Vichy Spring Co., Inc., 625 F.2d at 1044; Nifty Foods Corp. v. Great Atlantic & Pacific Tea Co., 614 F.2d 832, 842 (2d Cir.1980). Peacock has failed to cite any case in support of its claim that the provision of cocaine or prostitutes constitutes unfair competition under New York law. In light of that deficiency, as well as the fact that we cannot see how the provision of such inducements constitutes a misappropriation of Peacock’s “skill,” “labors” or other property rights, we conclude that these allegations may not serve as a basis for Peacock’s unfair competition claim.

As the above discussion reflects, Peacock’s motion to join Michael and Anthony Paolercio as counter-defendants is granted, subject to a post-discovery motion to dismiss as to the non-RICO claims. MAJ’s motion to dismiss the antitrust counterclaims and the claim of unfair competition is denied, although Peacock may not assert the alleged unlawful inducements as a basis for the latter claim. MAJ’s motion to dismiss the RICO and Lanham Act counterclaims is granted, although Peacock will be given leave to replead them, except with regard to the predicate acts of mail fraud.

With respect to the issue of repleading, this Court is aware that Peacock has already been given one opportunity to clarify the counterclaims and has nonetheless failed in many instances to conform even to the pleading requirements of Fed.R.Civ.P. 8. Despite that history, we will permit Peacock one further opportunity to redress the deficiencies in its countercomplaint, assuming, of course, that there is a factual basis for it to do so. Peacock is to file its amended countercomplaint, if any, by June 29, 1992. The parties are to confer and to submit to the Court by July 13, 1992 a proposed schedule for the completion of all discovery and submission of a pretrial order.

SO ORDERED.


text: Alumni Oxonienses: the Members of the University of Oxford, 1500-1714/Jones, Walter (6)


text: Alumni Oxonienses: the Members of the University of Oxford, 1500-1714/Jones, Walter (7)


text: Alumni Oxonienses: the Members of the University of Oxford, 1500-1714/Jones, Walter (8)


text: Michael Anthony Jewelers, Inc. v. Peacock Jewelry, Inc.


text: Alumni Oxonienses: the Members of the University of Oxford, 1500-1714/Jones, Walter (9)


text: Alumni Oxonienses: the Members of the University of Oxford, 1500-1714/Jones, Walter (10)


text: Alumni Oxonienses: the Members of the University of Oxford, 1500-1714/Jones, Walter (11)


text: Alumni Oxonienses: the Members of the University of Oxford, 1500-1714/Jones, Walter (12)


text: Alumni Oxonienses: the Members of the University of Oxford, 1500-1714/Jones, William (1)


text: Alumni Oxonienses: the Members of the University of Oxford, 1500-1714/Jones, William (2)