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tins and early editions of New York papers, and the news so obtained it sent out by wire to customers further west as its own. Held, that such acts were a fraudulent invasion of complainant's property rights, in the nature of unfair competition, against which complainant was entitled to
an injunction. 6. WOBDS AND PHBASES—"PUBLICATION.”
The thought running through all the uses of the word “publication” is an advising of the public; a making known of something to them for a purpose.
(Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Publication.]
Ward, Circuit Judge, dissenting in part.
Appeal from the District Court of the United States for the Southern District of New York.
Suit in equity by the Associated Press against the International News Service. From an order granting a preliminary injunction, both parties appeal. Modified.
For opinion below, see 240 Fed. 983.
Cross-appeals from order entered in District Court for Southern District of New York granting in part only the preliminary injunction moved for by plaintiff.
The writ in question (reduced to its lowest terms) restrains defendant from (1) procuring any agent or employé of plaintiff, or any of its members, to give or permit defendant to take, for a consideration or otherwise, any "news" received from or gathered for plaintiff, and from using or selling “any news so obtained." The injunction as granted also (2) enjoins defendant from procuring any newspaper represented by a member of plaintiff to violate any agreement established by the charter or by-laws of plaintiff. Defendant alleges as error the issuance of the writ above outlined.
Plaintiff's motion for relief asked for what the court below granted, and further that defendant be enjoined from "copying, transmitting, selling, using, or causing to be copied, etc., any of the news furnished by plaintiff, from bulletins or newspapers published by a member” of plaintiff, and also from "competing with plaintiff” or its members by the unfair methods set forth in 'the bill. Injunction in substantially this form having been refused, plaintiff's appeal assigns such refusal for error.
Plaintiff is chartered by New York, under a general statute known as the Membership Corporation Law (Consol. Laws, c. 35); an act used for the organization of clubs and the like. It has no capital stock, its membership 18 selective, its business is the gathering of news all over the world, and the very great expense of such acquisition and transmission of information is borne by ratable levy or assessment upon its "members.” Such members are practically about 950 newspaper owners distributed over the United States; but, since such owners are frequently corporations, each corporate contributor must furnish a natural person to act as the legal meinber of this New York corporation. Such natural person is commonly called the “representative" of whatever newspaper he serves.
Defendant is a business corporation of New Jersey, has capital stock, is engaged as a rival in the same business as plaintiff, and seeks a profit by selling the news or information it acquires to customers, usually newspaper publishers.
Some publications are members of the Associated Press, and also customers of the International; but such double service is unusual. The parties hereto are undoubtedly in keen competition, as are usually the journals served by one or the other in any given city.
News received at a principal office of plaintiff is disseminated by telegraph or telephone to members at a distance, and in the largest cities at all events) the offices of journals taking the fullest or largest Associated Press
service contain a machine (furnished by plaintiff) of the printing telegraph type whereon the incoming news is shown automatically.
Every newspaper has, of course, a staff for the investigation of local bappenings; if such paper is a member of plaintiff, it may be required to furnish to other members and through plaintiff the news of its locality. This is an important part of the Associated Press scheme of news acquisition, viz, the co-operative feature.
Plaintiff's by-laws explicitly forbid any member from imparting to any one Associated Press news “in advance of publication," or to "conduct his business in such a manner" that such news so furnished to him "may be communicated to any person, firm, corporation, or association not entitled to receive the same”-i. e., any one not in good standing with and in the Associated Press. The by-laws fix times of the day before which publication of mem. bers' newspapers shall not occur, but the exhibition of bulletins at its offices within each paper's own territory is not a violation of these rules.
The business of gathering, stating, transmitting, and selling statements of fact as "news" did not originate with either party hereto, and the general methods of journalists in regard to this department of activity are not in die pute, although (as appears hereafter) argument is hung on one old prevalent and undisputed habit of newsgatherers.
The principal facts upon which the court below based the first head of injunction are that in Cleveland, Ohio, is published a newspaper which has Associated Press membership, and had for a considerable time in its employ a “telegraph editor," who would naturally receive incoming Associated Press items. This man (in accordance with by-laws) was charged with the transmission to plaintiff of Cleveland news possessed of more than local interest, and (properly) received pay from plaintiff for so doing. Defendant corrupted this editor to apprise its agents of what he thus learned, and disseminated such news as the result of its own legitimate labor.
The second head of injunction is based on the fact that there is in Net York City a newspaper which has the service of both plaintiff and defendant. In its publication office is one of the printing telegraph machines aforesaid, and the managers of said newspaper were induced to permit agents of de fendant to enter their office, read what was “coming in” on the machine, and use the information thus acquired as the basis for telegraphic and other items, represented as the gatherings of its own employés from original sources, or at least they were not otherwise marked or described.
The material facts on which plaintiff moved for such injunctive relief as was refused below are undisputed and as follows:
The natural place for receiving news from Europe (and indeed beyond) is the Atlantic sea board, and especially New York. Bulletins and early editions, put out by members of plaintiff in the seaboard cities, are read by agents of defendant, and the substance thereof transmitted by wire westward, sold to defendant's customers, and by them printed, perhaps without any knowledge on their part that the origin of and sole basis for defendant's dispatch is (e. g.) a bulletin posted in New York by a member of plaintiff, as the result of plaintiff's efforts, and certainly without any such information given them by defendant. That this practice obtains the answer admits, and justifies the same as matter of law, while alleging in substance) that it is no more than a part or legitimate outgrowth of the newspaper habit of utilizing “tips."
This word signifies a ba re intimation that something has happened. When such “tip” has been verified by independent investigation on the part of the person receiving it, the facts may be and are disseminated as discovered by the journal or news agency getting the “tip." This practice may, we believe, be regarded as universal in newsgathering circles. The District Judge did not consider the utilization of "tips" as having any necessary bearing on the bodily appropriation and sale of news from early editions and bulletins, and felt satisfied that as matter of law plaintiff should have all the relief demanded, but, regarding this last question as to the effect of “publication” by an Associated Press paper as one of first impression, refused the third demand of plaintiff, and remitted the matter to this court.
Peter S. Grosscup, of Chicago, Ill. (Fred. B. Jennings and Winfred. T. Denison, both of New York City, on the brief), for plaintiff.
Samuel Untermyer and William A. De Ford, both of New York City (Henry A. Wise, of New York City, on the brief), for defendant.
Before WARD, ROGERS and HOUGH, Circuit Judges.
HOUGH, Circuit Judge (after stating the facts as above). Defendant does not admit the facts above stated, as to procuring news from a telegraph machine in the office of a publisher; we think them fairly and fully proven. The evidence adduced for the defense on all the other points above mentioned amounts to an assertion that what defendant is accused of wrongfully doing plaintiff itself does and has done, and it is, indeed, a part of the newsgathering trade. Upon these propositions of fact are rested the conclusions that (1) if the acts are wrong, plaintiff cannot ask relief in equity when its own hands are unclean; and (2) if they are not wrong, i. e., illegal, no ground for relief exists. In our opinion the facts concerning the Cleveland episode are proved as stated; the plaintiff does not and has not copied and sold news from bulletins, etc., of papers using defendant's service; and the "tip” habit, though discouraged by plaintiff, is incurably journalistic.
(1) If the facts are as we have now found them, no party asserts that the acts restrained by the injunction as issued can be justified, either in law or morals. The right to proceed in equity to restrain inducing to breach of contract we have recognized in American, etc., Co. v. Keitel, 209 Fed. 351, 126 C. C. A. 277; and the inequity of seeking profit by procuring the breach of any confidential relation by an employé is fully considered in Peabody v. Norfolk, 98 Mass. 452, 96 Am. Dec. 664, and Dodge Co. v. Construction, etc., Co., 183 Mass. 62, 66 N. E. 204, 60 L. R. A. 810, 97 Am. St. Rep. 412. The relations (inter sese) of the members of the Associated Press are quite as confidential as those of master and trusted servant; the same reasoning applies. The order, so far as attacked by defendant's appeal, we consider granted in the fair exercise of discretion, and therefore proper.
Plaintiff's appeal, being from a refusal to grant injunction pendente lite, is of an infrequent kind; but still more rare is the presentation by such appeal of a clear-cut question of law, upon undisputed facts, largely admitted in the pleadings. These facts enable us to render opinion without danger of even seeming to trench upon discretionary matters. We are practically requested to act by the District Court itself.
There is no difficulty in discriminating between the utilization of "tips" and the bodily appropriation of another's labor in accumulating and stating information. As a matter of fact, one who, on hearing a rumor or assertion, investigates and verifies it, whether with much or little effort, acquires knowledge by processes of his own; the result is his. In all the relations of life, most of what most of us say we know is but the result of verifying "tips," given, consciously or unconsciously, by those in our environment. As a matter of law or rule, it is impossible to say in advance what measure of investigation or verification must satisfy the censor, and the law does not seek to compel the vain or impossible. Doubtless there have been, and will be again, instances where
the asserted or pretended investigation is but an excuse for appropriation, where no reasonable man would believe that any effort had been made, except to conceal the absence of original work, but no such case is before us.
What is before us, and on the pleadings, is whether it is lawful, and, if unlawful, whether equity affords a remedy, for the admitted practice or habit of appropriating from bulletins and early editions the result of plaintiff's labors, and selling or otherwise gainfully using the same, either in the plaintiff's form or after passing it under the hand of a "rewrite" man. This adjective is the trade description of one who changes the language or sequence of some composition of words; his labors do not change the substance, and are immaterial to the present controversy.
Defendant justifies bodily appropriation without independent investigation, because (1) all plaintiff ever has in possession or for communication are facts; (2) all defendant takes are facts, and (3) there can be no property in facts; but (4) if there be any such property it is lost at the moment any member of plaintiff, in accordance with its own rules, publishes said facts by showing a bulletin or distributing an edition.
Plaintiff replies that it is (a) untrue that facts alone constitute its stock in trade; it deals in news; and (b) in news there is a property right recognized by reason and authority. Further (c) such property right inures to and persists in the plaintiff entity and each one of its members, and (d) is not exhausted by the act of a single member, which act is (e) improperly called by defendant "publication," a word inappropriate to “news," which is not literary property. Finally (f) plaintiff complains of defendant's admitted practices as unfair competition.
 (1, 2, a) With the existence of a truth, with physical facts per se, neither plaintiff nor defendant is concerned; for them facts in that absolute sense are but as ore in a mountain or fish in the sea-valueless unless and until by labor mined or caught for use. Nor are facts, even after ascertainment, news, unless they have that indefinable quality of interest, which attracts public attention. Neither is news always synonymous with facts, in the sense of verity; indeed, much news ultimately proves fictitious, yet it is excellent news notwithstanding. The word means no more (laying aside hoaxing and intentional falsehood) than apparently authentic reports of current events of interest.
When one copies a statement from a bulletin, he cannot assert himself to be possessed of any certain fact other than that of his own appropriation. The only fact he knows is that the bulletin maker made an asscrtion; but he has taken the news, because that is what the bulletin proclaimed, if its maker was skillful in his business.
 (3, b) Whether there is or can be any property in facts per se, any more than there is in ideas or mental concepts, is a metaphysical query that can be laid aside; for there is no doubt, either on reason or authority, that there is a property right in news capable of and entitled to legal protection. Property, nomen generalissimum, covers everything that has an exchangeable value (The Slaughter House Cases, 16 Wall. 127, 19 L. Ed. 915); that news possesses the quality stated,
seems obvious enough, when it is observed that defendant takes it, in order to exchange it against dollars.
Special or trade news of divers kinds constitute property, as has often been decided (Hunt v. Cotton Exchange, 205 U. S. at 322, 27 Sup. Ct. 529, 51 L. Ed. 821 ; Dr. Miles Co. v. Park, 220 U. S. at 402, 31 Sup. Ct. 376, 55 L. Ed. 502; Board of Trade v. Christie Co., 198 U. S. 236, 25 Sup. Ct. 637, 49 L. Ed. 1031, affirming Board of Trade v. Kinsey, 130 Fed. 507, 64 C. C. A. 669, 69 L. R. A. 59, and citing with approval National Telegraph, etc., Co. v. Western Union Co., 119 Fed. 294, 56 C. C. A. 198, 60 L. R. A. 805; Dodge Co. v. Construction, etc., Co., 183 Mass. 62, 66 N. E. 204, 60 L. R. A. 810, 97 Am. St. Rep. 412; Exchange, etc., Co. v. Central, etc., Co., 2 Chan.  48; Kiernan v. Manhattan, etc., Co., 50 How. Prac. (N. Y.) 194; Board of Trade v. Cella, etc., Co., 145 Fed. 28, 76 C. C. A. 28); and the point was assumed as settled by us in Board of Trade v. Tucker, 221 Fed. 305, 137 C. C. A. 255.
There is no distinction entailing a legal difference, between news of the prices of corporate securities or commodities, of sporting events, or opportunities of profitable contracting, and news of current political, social, or national events. Both require labor and expense in acquisition, transmission, and dissemination, both have exchangeable values, and all alike lose by exposure the quality of news, which, when it becomes history, may remain important, but its commercial value has largely gone.
In the National Telegraph Case, 119 Fed. 300, 56 C. C. A. 198, 60 L. R. A. 805, the property rights of the "great news agencies” were referred to as existing for the same reasons as obtained in respect of market quotations, and, as we have indicated, that decision was approvingly cited by the Supreme Court in the decision which we think settled the general proposition that all news as commercially sold is property. 198 U. S. 236, 25 Sup. Ct. 637, 49 L. Ed. 1031.
Assuming, now, the existence at some time of some property right in plaintiff and to its news, the qualities producing exchangeable value may be noted. Regularity and reliability, the fruits of organization and expenditure, are of course necessary; but all that is vain unless the news is fresh, early, and, if not always first in point of time, as prompt as any. Time is of the essence, and the basic question on this branch of the discussion is: How long does the property quality endure in news?
 (4, c, d, e) Plaintiff is a membership corporation, its members co-operate in newsgathering, and each has in his own locality a several right to and ownership in the results of plaintiff's labors, viz. the news. The rights of members, whether printing in Duluth or Galveston, New York or San Francisco, are equal, and the aggregate of their rights is the plaintiff's right. If it be admitted that plaintiff's right of property in its news once existed, such existence was for the benefit of its members, who, however (owing to the earth's method of rotation), cannot simultaneously exercise their several rights. Yet all exercise them at the same hour of their several days.
It is sought, if not to limit the doctrine of property in news to the time during which it remains locked up in the breast of its gatherer,