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to interpret the decisions cited as meaning only that news is "like a trade secret” (198 U. S. 250, 25 Sup. Ct. 637, 49 L. Ed. 1031), lost whert divulged in the course of business. Doubtless the analogy of restraining in equity wrongful knowledge of private business methods was very useful in developing the doctrine that the "courts ought to protect in every reasonable way” the "valuable right of property” in information. Dodge Co. v. Construction, etc., Co., supra. But news is far more than a trade secret, for that must remain private to have its best value, while news is obtained for publicity alone. The true line of decision is indicated by the conclusion of the court in the Christie Case—that the "information will not become public property until the plaintiff has gained his reward.” 198 U. S. 251, 25 Sup. Ct. 637, 49 L. Ed. 1031. Of course, this means his reasonable reward, and, as in that instance of trade quotations, divulging the same to one patron's office full of customers did not reasonably terminate plaintiff's property, so here it is reasonable and just that each member of plaintiff and plaintiff itself should have a property right in its news until the reasonable reward of each member is received, and that means (with due allowance for the earth's rotation) until plaintiff's most Western member has enjoyed his reward, which is, not to have his local competitor supplied in time for competition with what he has paid for. Surely this is a modest limit of rights.

But the foregoing is thought to be avoided, if not controverted, by dwelling on the word “publication,” and insisting in substance that when (e. g.) a single New York paper (being a member of plaintiff) prints an item and sells a copy of that edition, all the world can copy as it pleases, to any extent and for any purpose, commercial or otherwise, because nothing but copyright protects that paper, and copyright does not cover statements of fact, but merely their literary dress or form.

[6] The argument assumes that what plaintiff is interested in, and is trying to preserve, is literary property, or anything capable of copyright protection. It may be granted that the newspaper first giving out the news in question is copyrighted, that fact statements are not thereby protected as such, and that publication at common law terminated an author's rights in his manuscript and the fruits of his brain;' yet it still remains true that plaintiff's property in news is not literary at all, that it is not capable of copyright, and that "publication," as that word is used in the long line of decisions regarding literary rights, has no determinative bearing on this case. No one before ever attributed to publication a sense that would limit a lawful business to a few degrees of longitude. The word is legally very old, and of no one certain meaning. Publication of evidence in equity or admiralty, of banns, of libel, etc., bears but remote relation to the act which is thought once to have terminated an author's property, and now is a requisite to statutory copy

1 This is the general view. Werckmeister v. American, etc., Co., 134 Fed. 321, 69 C. C. A. 553, 68 L. R. A. 591; Tribune Co. v. Associated Press (C. a) 116 Fed. at 127; Holmes v. Hurst, 174 U. S. 85, 19 Sup. Ct. 606, 43 L. Ed. 904. The opposite opinion is divertingly sustained by Mr. Augustine Birrell in "Authors in Court," found among "Res Judicatæ.”

right. The thought, however, running through all the uses of the word, is an advising of the public, a making known of something to them for a purpose. It follows that the crucial inquiry is as to that purpose: Is it lawful?

In all the "quotation" cases, it was held that the purpose of the publicity given was not to let other people sell the quotations, and that that purpose was lawful.? As we put it in the Tucker Case, 221 Fed. 307, 137 C. C. A. 255: *The posting of quotations on a blackboard

is not the sort of publication which will terminate complainant's property right in them.”

Thus it appears that not all publications are alike, and this is true, even under the Copyright Acts. In Werckmeister v. American, etc., Co., 134 Fed. 321, 69 C. C. A. 553, 68 L. R. A. 591, an opinion by Townsend, J., of which it has been said that it "left little to be added to the discussion” (American Tobacco Co. v. Werckmeister, 207 U. S. 299, 28 Sup. Ct. 72, 52 L. Ed. 208, 12 Ann. Cas. 595), that learned judge said that the use of "publication" without explanation or qualification was unfortunate. “The nature of the property in question in large measure determines the extent of public right." And it was held that unless there was an “abandonment of copyright or dedication to the public,” the owner of a thing capable of copyright could "expressly or by implication confine the enjoyment of such subject to some occasion or definite purpose.”

We have assumed the newspaper first printing to be copyrighted, and no doubt its publication of its early edition was a general publication ; but it could not copyright, abandon, nor destroy what it did not own, and it did not own plaintiff's property in the news, nor that of its own fellow members in California. It did own the right to print in New York, but we discover no magic in the word "publication which takes away or terminates the rights of others.

Plaintiff's purpose in furnishing the (e. g.) New York paper with news was to have a use made of it not inconsistent with its own reasonable reward for its labor from its property and that of all the other members of plaintiff. That measure of use and reward is lawful; defendant deprives plaintiff thereof, and can show no equities; therefore defendant should be enjoined.

[5] (f) Unfair competition, like all oft-uttered legal phrases, has acquired rather a narrow use. In McLean v. Fleming, 96 U. S. 251, 24 L. Ed. 828, a decision which is near the foundation of American case law on this subject, it was said that what equity enjoins the wrongdoer from depriving another of is "the advantage of celebrity.” This thought has led to the feeling that what a plaintiff must be robbed of is the good will and business ease resulting from his well-known name, or the attractive dressing, wrapping, or form of his product; that such robbery must be by imitation; and that the test of such imitation is the effect upon the public, or that part thereof likely to require wares such as those in controversy.

2 Board of Trade v. McDearmott (C. C.) 143 Fed. 188, is probably the most extreme instance of publicity, not amounting to abandonment, i. e., to the kind of "publication" here contended for.

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But this is not all the law, nor the only sort of unfairness in business methods, practiced by a competitor, and resulting in a continuing tort, for which the law affords no adequate remedy—that comes under the condemnation of equity. If defendant appropriated from an early edition of a New York paper what it wanted, and sold it, as extracted from said newspaper or as obtained per Associated Press, such action would still be obnoxious to what we have said concerning plaintiff's property rights in the news procured by itself; but, since no deception would be wrought upon the public, no action for unfair competition would lie along the lines just indicated. When and if such appropriated news is sold as the fruit of defendant's own efforts, and under its own name, it is a plain case of deception, assuming defendant's customers to be honorable men, anxious for good wares; an assumption necessarily made, in the absence of evidence to the contrary. Yet an action of such nature would lack the element of imitation, usually relied upon.

Equity, however, is not stayed because a name does not fit, or one is not at hand to accurately describe a wrong of a kind necessarily infrequent. If defendant takes what some one else owns, and sells it as of right, in rivalry with the owner, such competition is more than unfair; it is patently unlawful and the wider term comprises the narrower. But, laying aside the right of property as the ultimate foundation of suit, the business method of selling, in competition with plaintiff and its members, something falsely represented as gathered by defendant otherwise than from bulletins and early editions, is unfair, because it is parasitic and untrue. It is inmoral, and that is usually unfair to some one.3

The flexibility of equity in granting relief against unfair methods of business was well stated by Ingraham, J., in Burrow v. Marceau, 124 App. Div. 665, 109 N. Y. Supp. 105: "No hard and fast rule can be laid down,

where it is clearly established that an attempt is being made by one person to get the business of another by

fraud and deceit a court of equity will” intervene. And in Weinstock v. Marks, 109 Cal. 529, 42 Pac. 142, 30 L. R. A. 182, 50 Am. St. Rep. 57, it was said:

“Equity does not concern itse about the means by which wrong is done; it deals with the result of the fraud, which moves the arm of the law and strikes down all efforts, where fraud is practiced in securing the trade of a rival dealer."

To commercially distribute news not gathered by the sender is under the facts shown here an invasion of property rights; to send it out as one's own labor is marked by that dolus which is fraud, and that is the basis of the doctrine of unfair competition in its wide sense.

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3 Decisions granting relief from competition without the usual imitation elements, but with the fraud apparent, are Morgan v. Wendover, 43 Fed. 420, 10 L. R. A. 283; American, etc., Co. v. De Lee, 67 Fed. 329; Barnes v. Pierce (C. C.) 164 Fed. 213; Fonotipia Co. v. Bradley (C. C.) 171 Fed. 951; Presto Lite v. Davis (C. C.) 209 Fed. 917, affirmed 215 Fed. 349, 131 C. C. A. 491; Prest-o-Lite v. Heiden, 219 Fed. 845, 135 C. C. A. 515, L. R. A. 1915F, 945.

4 See this principle applied to enjoin a competitor from imitating the fash. ion of a model gown, bought from plaintiff by pretending to be an intending wearer. Montegut v. Hickson, 164 N. Y. Supp. 858.

Since (to summarize the matter) any bodily taking for sale of plaintiff's news, without other labor than the perception thereof, before the reasonable reward of industry is secured as above indicated, is an unlawful invasion of property rights, and any sale thereof in competition with plaintiff under pretense of individual gathering thereof is a tort of the nature of unfair competition, the plaintiff's motion for injunction should have been granted substantially as made.

The order appealed from is modified, as indicated, and the cause remanded, with directions to issue injunction against any bodily taking of the words or substance of plaintiff's news, until its commercial value as news has, in the opinion of the District Court, passed away. The exact form of words to be used, and the insertion or omission of a definite time limit on copying and sale, will be settled in the court below in any manner not inconsistent with this opinion. One bill of costs in this court to plaintiff.

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WARD, Circuit Judge (dissenting in part). A distributor of news -that is, of his information about things that have happened-neither invents, nor composes, nor manufactures anything; nor does he supply something which the public buys because it believes it originates with him and wants his article; nor does he own the news, but only his knowledge of the news.

Therefore analogies from property created or protected by the patent, copyright, or trade-mark statutes, or by the principles regulating unfair competition, are wholly inapplicable. The distributor's knowledge of news which he has gathered is his property, so long as he keeps it to himself or communicates it only to others on condition that they will do so. He will be protected against any one who surreptitiously obtains this information from one of his members, subscribers, or employés, or by any form of pilfering or unfair means. Such were the cases of Kiernan v. Manhattan Co., 50 How. Prac. (N. Y.) 194; Exchange Co. v. Gregory, 10. B.D. (1896) 147; Exchange Co. v. Central Co., 2 Chancery (1897) 48; Peabody v. Norfolk, 98 Mass. 452, 96 Am. Dec. 664; Dodge Co. v. Construction Co., 183 Mass. 62, 66 N. E. 204, 60 L. R. A. 810, 97 Am. St. Rep. 412; Board of Trade v. Hadden Co. (C. C.) 109 Fed. 705; National News Co. v. W. U. T. Co., 119 Fed. 294, 56 C. C. A. 198, 60 L. R. A. 805; Illinois Commission v. Cleveland Tel. Co., 119 Fed. 301, 56 C. C. A. 205; Board of Trade v. Christie, 198 U. S. 236, 25 Sup. Ct. 637, 49 L. Ed. 1031; Board of Trade v. Cella, 145 Fed. 28, 76 C. C. A. 28; Board of Trade v. Tucker, 221 Fed. 305, 137 C. C. A. 255; Hunt v. Cotton Exchange, 205 U. S. 333, 27 Sup. Ct. 529, 51 L. Ed. 821. In every one of these cases the court found that the defendant got the news or the quotations surreptitiously, and enjoined him for that reason. They abundantly support an injunction on the first grounds mentioned in the opinion of the court.

But if the distributor publishes, to use a word in this connection which I think has been unreasonably criticized, or abandons or dedicates or communicates his information to the world, his right of property in his information and his right to be protected against the

use of it is gone. The Supreme Court in the Christie Case, supra, 198 U. S. 250, 25 Sup. Ct. 637, 49 L. Ed. 1031, likened property in news to property in trade secrets. The two are strikingly similar. The owner of a trade secret will be given protection against any breach of confidence in respect to it by his employés and against any dishonest discovery of it by third parties. If, however, he communicates the secret to another without condition, or if any one by his own efforts, for instance, by analysis of a secret compound, learns how it is made, such person may use it without any accountability to the original discoverer. That the discoverer spent much time and money in discovering the secret would not be regarded as a reason why such persons, learning it honestly, should not make use of it.

In this case the complainant furnishes news to its members for the express purpose of their putting it on their bulletin boards and issuing it to the public in their newspapers. This is what they live

After this it seems to me pure fiction to say that any property in the distributor survives. Everything in the nature of a confidence about the communication has ceased. That the rotation of the earth is slower than the electric current is a physical fact the complainant must reckon with in doing its business. That news dedicated to the public with the complainant's consent by the morning newspapers in New York can be telegraphed in time to appear in the morning newspapers of San Francisco cannot qualify the legal effect of the dedication.

There being not the least evidence of anything fraudulent or underhanded in this method of obtaining news, I think the injunction should be denied.



(Circuit Court of Appeals. Fifth Circuit. October 4, 1917.)

No. 2904.


Under equity rule 22 (198 Fed. xxiv, 115 C. C. A. xxiv), providing that, if it shall appear that a suit commenced in equity should have been brought on the law side of the court, it shall be forthwith transferred to the law side, if the right asserted by plaintiffs was the legal title to land shown to be in defendant's possession, and what they sought was the pos. session and enjoyment of such land, this would not have justified the dismissal of a bill in equity, but the suit should have been ordered transfer

red to the law side of the court. 2. Courts em 262(3)-FEDERAL COURTS-EQUITY JURISDICTION--INADEQUACY


Where plaintiffs had legal title to uninclosed timber river bottom land and the right to its possession, and had such possession thereof as the character of the land made reasonably practicable, and defendants were not in possession thereof, but, under unfounded claims of ownership, had trespassed upon and got timber from it, and, unless enjoined, would continue to do so, the remedy at law was inadequate, so as to authorize the maintenance of a bill in equity to declare defendant's claims of title void and confirm plaintiffs' title. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

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