Sidor som bilder



which does not sell news or earn or seek to earn profits, but serves merely as an instrumentality by means of which these papers supply themselves at joint expense with such news. Papers not members of the Associated Press depend for their news of general interest largely upon agencies organized for profit.2 Among these agen*cies is the International News Service which supplies news to about 400 subscribing papers. It has, like the Associated Press, bureaus and correspondents in this and foreign countries; and its annual expenditures in gathering and distributing news is about $2,000,000. Ever since its organization in 1909, it has included among the sources from which it gathers news, copies (purchased in the open market) of early editions of some papers published by members of the Associated Press and the bulletins publicly posted by them. These items, which constitute but a small part of the news transmitted to its subscribers, are generally verified by the International News Service before transmission; but frequently items are transmitted without verification; and occasionally even without being re-written. In no case is the fact disclosed that such item was suggested by or taken from a paper or bulletin published by an Associated Press member.

No question of statutory copyright is involved. The sole question for our consideration is this: Was the International News Service properly enjoined from using, or causing to be used gainfully, news of which it acquired knowledge by lawful means (namely, by reading publicly posted bulletins or papers purchased by it in the open market) merely because the news had been originally gathered by the Associated Press and continued to be of value to some of its members, or because it did not reveal the source from which it was acquired?

The "ticker" cases, the cases concerning literary and artistic compositions, and cases of unfair competition were relied upon in support of the injunction. But it is admitted that none of those cases affords a complete analogy with that before us. The question presented for decision is new, and it is important.

News is a report of recent occurrences. The business of the news agency is to gather systematically knowledge *of such occurrences of interest and to distribute reports thereof.

The Associated Press contended that knowledge so acquired is property, because it costs

The Associated Press, by Frank B. Noyes, Sen. Doc. No. 27, 63d Congress, First Session. In a brief filed in this court by counsel for the Associated

Press the number of its members is stated to be 1030. Some members of the Associated Press are also subscribers to the International News Service. Strictly the member is not the publishing concern, but an individual who is the sole or part

owner of a newspaper, or an executive officer of a company which owns one. By-laws, article II, section 1.

money and labor to produce and because it has value for which those who have it not are ready to pay; that it remains property and is entitled to protection as long as it has commercial value as news; and that to protect it effectively, the defendant must be enjoined from making, or causing to be made, any gainful use of it while it retains such value. An essential element of individual property is the legal right to exclude others from enjoying it. If the property is private, the right of exclusion may be absolute; if the property is affected with a public interest, the right of exclusion is qualified. But the fact that a product of the mind has cost its producer money and labor, and has a value for which others are willing to pay, is not sufficient to ensure to it this legal attribute of property. The general rule of law is, that the noblest of human productionsknowledge, truths ascertained, conceptions, and ideas become, after voluntary communication to others, free as the air to common use. Upon these incorporeal productions the attribute of property is continued after such communication only in certain classes of cases where public policy has seemed to demand it. These exceptions are confined to productions which, in some degree, involve creation, invention, or discovery. But by no means all such are endowed with this attribute of property. The creations which are recognized as property by the common law are literary, dramatic, musical, and other artistic creations; and these have also protection under the copyright statutes. The inventions and discoveries upon which this attribute of property is conferred only by statute, are the few comprised within the patent law. There are also many other cases in which courts interfere to prevent curtailment of plaintiff's enjoyment of incorporeal productions; and in which the *right to relief is often called a property right, but is such only in a special sense. In those cases, the plaintiff has no absolute right to the protection of his production; he has merely the qualified right to be protected as against the defendant's acts, because of the special relation in which the latter stands or the wrongful method or means employed in acquiring the knowledge or the manner in which it is used. Protection of this character is afforded where the suit is based upon breach of contract or of trust or upon unfair compe


The knowledge for which protection is Sought in the case at bar is not of a kind upon which the law has heretofore conferred the attributes of property; nor is the manner of its acquisition or use nor the purpose to which it is applied, such as has heretofore been recognized as entitling a plaintif to relief.

First. Plaintiff's principal reliance was upon the "ticker" cases; but they do not sup

port its contention. The leading cases on this subject rest the grant of relief, not upon the existence of a general property right in news, but upon the breach of a contract or trust concerning the use of news communicated; and that element is lacking here. In

Board of Trade v. Christie Grain & Stock

Co., 198 U. S. 236, 250, 25 Sup. Ct. 637, 639 (49 L. Ed. 1031) the court said the Board"does not lose its rights by communicating the result [the quotations] to persons, even if many, in confidential relations to itself, under a contract not to make it public, and strangers to the trust will be restrained from getting at the knowledge by inducing a breach of trust and using knowledge obtained by such a breach."

And it is also stated there (198 U. S. 251, 25 Sup. Ct. 640, 49 L. Ed. 1031):

"Time is of the essence in matters like this, and it fairly may be said that, if the contracts with the plaintiff are kept, the information will not become public property until the plaintiff has gained its reward."

plainant is entitled to be protected against invasion of its right in the process by fraud or by breach of trust or contract."

See John D. Park & Sons Co. v. Hartman,

153 Fed. 24, 29, 82 C. C. A. 158, 12 L. R. A. (N. S.) 135.

The leading English case, Exchange Telegraph Co. v. Gregory & Co., [1896] 1 Q. B 147, is also rested clearly upon a breach of contract or trust, although there is some *reference to a general property right. The later English cases seem to have rightly understood the basis of the decision, and they have not sought to extend it further than was intended. Indeed, we find the positive suggestion in some cases that the only ground for relief is the manner in which knowledge of the report of the news was acquired.4

If the news involved in the case at bar had been posted in violation of any agreement between the Associated Press and its members, questions similar to those in the "ticker" cases might have arisen. But the plaintiff The only other case in this court which re- does not contend that the posting was wronglates to this subject is Hunt v. N. Y. Cotton ful or that any papers were wrongfully isExchange, 205 U. S. *322, 27 Sup. Ct. 529, 51 sued by its subscribers. On the contrary it L. Ed. 821. While the opinion there refers is conceded that both the bulletins and the the protection to a general property right in papers were issued in accordance with the the quotations, the facts are substantially regulations of the plaintiff. Under such cirthe same as those in the Christie Case, which cumstances, for a reader of the papers puris the chief authority on which the decision chased in the open market, or a reader of is based. Of the cases in the lower Federal the bulletins publicly posted, to procure and courts and in the state courts it may be said, use gainfully, information therein contained, that most of them too can, on their facts, be does not involve inducing any one to commit reconciled with this principle, though much a breach either of contract or of trust, or of the language of the courts cannot be. In committing or in any way abetting a breach spite of anything that may appear in these of confidence. cases to the contrary it seems that the true principle is stated in the Christie Case, that the collection of quotations "stands like a trade secret." And in Dr. Miles Medical Co. v. Park & Sons Co., 220 U. S. 373, 402, 31 Sup. Ct. 376, 382 (55 L. Ed. 502), this court says of a trade secret:

"Any one may use it who fairly, by analysis and experiment, discovers it. But the com

Board of Trade of City of Chicago v. Tucker, 221 Fed. 305, 137 C. C. A. 255; Board of Trade of City of Chicago v. Price, 213 Fed. 336, 130 C. C. A.

McDearmott Commission Co. v. Board of
Trade of City of Chicago, 146 Fed. 961, 77 C. C. A
479, 7 L. R. A. (N. S.) 889, 8 Ann. Cas. 759; Board
of Trade v. Cella Commission Co., 145 Fed. 28, 76
C. C. A. 28: National Tel. News Co. v. Western
Union Tel. Co., 119 Fed. 294, 56 C. C. A. 198, 60 L.
R. A. 805; Illinois Commission Co. v. Cleveland
Tel. Co., 119 Fed. 301, 56 C. C. A. 205; Board of
Trade v. Hadden-Krull Co. (C. C.) 109 Fed. 705;
Cleveland Tel. Co. v. Stone (C. C.) 105 Fed. 794;
Board of Trade v. C. B. Thomson Commission Co.
(C. C.) 103 Fed. 902; Kiernan v. Manhattan Quo-
tation Telegraph Co., 50 How. Prac. (N. Y.) 194.
The bill in F. W. Dodge Co. v. Construction In-
formation Co., 183 Mass. 62, 66 N. E. 204, 60 L. R.
A. 810, 97 Am. St. Rep. 412, was expressly based on
breach of contract or of trust. It has been sug-
gested that a Board of Trade has a right of prop-
erty in its quotations because the facts reported
originated in its exchange. The point has been
mentioned several times in the cases, but no great
importance seems to have been attached to it.

Second. Plaintiff also relied upon the cases which hold that the common law right of the producer to prohibit copying is not lost by the private circulation of a literary composition, the delivery of a lecture, the exhi*bition of a painting, or the performance of a dramatic or musical composition." These

In Exchange Telegraph Co., Ltd., v. Howard, 22 Times Law Rep. 375, 377, it is intimated that it would be perfectly permissible for the defendant to take the score from a newspaper supplied by the plaintiff and publish it. And it is suggested in Exchange Telegraph Co., Ltd., v. Central News, Ltd., [1897] 2 Ch. 48, 54, that there are sources from which the defendant might be able to get the information collected by the plaintiff and publish it without committing any wrong. Copinger, Law of Copyright (5th Ed.) p. 35, explains the Gregory Case on the basis of the breach of confidence involved. Richardson, Law of Copyright, p. 39, also inclines to put the case "on the footing of implied confidence."

Ferris v. Frohman, 223 U. S. 424, 32 Sup. Ct. 263, 56 L. Ed. 492; American Tobacco Co. v. Werckmeister, 207 U. S. 284, 299, 28 Sup. Ct. 72, 52 L. Ed. 208, 12 Ann. Cas. 595; Universal Film Mfg. Co. v. Copperman, 218 Fed. 577, 134 C. C. A. 305; Werckmeister v. American Lithographic Co., 134 Fed. 321, 69 C. C. A. 553, 68 L. R. A. 591; Drummond v. Altemus (C. C.) 60 Fed. 338: Boucicault v. Hart, 13 Blatchf. 47, Fed. Cas. No. 1692; Crowe v. Aiken, 2 Biss. 208, Fed. Cas. No. 3441; Boucicault v. Fox, 5 Blatchf. 87, Fed. Cas. No. 1691; Bartlett v. Crittenden, 5 McLean, 32, Fed. Cas. No. 1,076; Bartlett


cases rest upon the ground that the common | had also taken pictures of the show and was law recognizes such productions as property publishing them. The court said that, exwhich, despite restricted communication, con- cept in so far as the possession of the land tinues until there is a dedication to the pub- occupied by the show enabled the proprietors lic under the copyright statutes or otherwise. to exclude people or permit them on condiBut they are inapplicable for two reasons: tion that they agree not to take photographs (1) At common law, as under the copyright | (which condition was not imposed in that acts, intellectual productions are entitled to case), the proprietors had no exclusive right such protection only if there is underneath something evincing the mind of a creator or originator, however modest the requirement. The mere record of isolated happenings, whether in words or by photographs not involving artistic skill, are denied such protection. (2) At common law, as under the copyright acts, the element in intellectual productions which secures such protection, is not the knowledge, truths, ideas, or emotions which the composition expresses, but the form or sequence in which they are expressed; that is, "some new collocation of visible, or audible points-of lines, colors, sounds, or *words." See White-Smith Music Co. v. Apollo Co., 209 U. S. 1, 19, 28 Sup. Ct. 319, 52 L. Ed. 655, 14 Ann. Cas. 628; Kalem Co. v. Harper Bros., 222 U. S. 55, 63, 32 Sup. Ct. 20, 56 L. Ed. 92, Ann. Cas. 1913A, 1285. An author's theories, suggestions, and speculations, or the systems, plans, methods, and arrangements of an originator, derive no such protection from the statutory copyright of the book in which they are set forth;7 and they are likewise denied such protection

at common law. 8

That news is not property in the strict sense is illustrated by the case of Sports and General Press Agency, Ltd., v. "Our Dogs" Publishing Co., Ltd., [1916] 2 K. B. 880, where the plaintiff, the assignee of the right to photograph the exhibits at a dog show, was refused an injunction against defendant who

to photograph the show and could therefore grant no such right. And it was further stated that, at any rate, no matter what conditions might be imposed upon those entering the grounds, if the defendant had been on top of a house or in some position where he could photograph the show without interfering with the physical property of the plaintiff, the plaintiff would have no right to stop him. If, when the plaintiff creates the event recorded, he is not entitled to the exclusive first publication of the *news (in that case a photograph) of the event, no reason can be shown why he should be accorded such protection as to events which he simply records and transmits to other parts of the world, though with great expenditure of time and money.

Third. If news be treated as possessing the characteristics not of a trade secret, but of literary property, then the earliest issue of a paper of general circulation or the earliest public posting of a bulletin which embodies such news would, under the established rules governing literary property, operate as a publication, and all property in the news would then cease. Resisting this conclusion, plaintiff relied upon the cases which hold that uncopyrighted intellectual and artistic property survives private circulation or a restricted publication; and it contended that in each issue of each paper, a restriction is to be implied, that the news shall not be used gainfully in competition with the Associated Press or any of its members. There is no basis for such an implication. But it is, also, well settled that where the publication is in fact a general one-even express words of restriction upon use are inoperative. In other words, a general publication is effective to dedicate literary property to the public, regardless of the actual intent of its owner." In the cases dealing with lectures, dramatic and musical performances, and art exhibitions, 10 upon which plaintiff relied, there was no general publication in print comparable to the issue of daily newspapers or the unrestricted public posting of bulletins. The principles governing those cases differ more or less in application, if not in Baker v. Selden, 101 U. S. 99, 25 L. Ed. 841; theory, from the principles governing the is

v. Crittenden, 4 McLean, 300, Fed. Cas. No. 1082; Tompkins v. Halleck, 133 Mass. 32, 43 Am. Rep. 480; Aronson v. Baker, 43 N. J. Eq. 365, 12 Atl. 177; Caird v. Sime, L. R. 12 App. Cas. 326; Nicols v. Pitman, L. R. 26 Ch. D. 374; Abernethy v. Hutchinson, 3 L. J. (0. S.) Ch. 209; Turner v. Robinson,

10 Ir. Eq. Rep. 121.

Compare Bleistein v. Donaldson Lithographing Co., 188 U. S. 239, 250, 23 Sup. Ct. 298, 47 L. Ed. 460; Higgins v. Keuffel, 140 U. S. 428, 432, 11 Sup. Ct. 731, 35 L. Ed. 470; Burrow-Giles Lithographic Co. v. Sarony, 111 U. S. 53, 58-60, 4 Sup. Ct. 279, 28 L. Ed. 349; Baker v. Selden, 101 U. S. 99, 105, 106, 25 L. Ed. 841; Clayton v. Stone, 2 Paine, 382, Fed. Cas. No. 2,872; National Tel. News Co. v. Western Union Tel. Co., 119 Fed. 294, 296-298, 56 C. C. A. 198, 60 L. R. A. 805; Banks Law Pub. Co. v. Lawyers' Co-operative Pub. Co., 169 Fed. 386, 391, 94 C. C. A.

642, 17 Ann. Cas. 957.

Perris v. Hexamer, 99 U. S. 674, 25 L. Ed. 308; Barnes v. Miner (C. C.) 122 Fed. 480, 491; Burnell v. Chown (C. C.) 69 Fed. 993; Tate v. Fullbrook, [1908] 1 K. B. 821; Chilton v. Progress Printing & Publishing Co., [1895] 2 Ch. 29, 34; Kenrick & Co. v. Lawrence & Co., L. R. 25 Q. B. D. 99; Pike v. Nicholas, L. R. 5 Ch. App. 251.

Bristol v. Equitable Life Assurance Society, 132 N. Y. 264, 30 N. E. 506, 28 Am. St. Rep. 568; Haskins v. Ryan, 71 N. J. Eq. 575, 64 Atl. 436.

sue of printed copies; *and in so far as they

Jewelers' Mercantile Agency v. Jewelers' Publishing Co., 155 N. Y. 241, 49 N. E. 872, 41 L. R. A. 846, 63 Am. St. Rep. 666; Wagner v. Conried (C. C.) 125 Fed. 798, 801; Larrowe-Loisette v. O'Loughlin (C. C.) 88 Fed. 896.

10 See cases in note 5, supra; Richardson, Law of Copyright, p. 128.




do differ, they have no application to the case diversion of trade was effected through phyat bar.

Fourth. Plaintiff further contended that defendant's practice constitutes unfair competition, because there is "appropriation without cost to itself of values created by" the plaintiff; and it is upon this ground that the decision of this court appears to be based. To appropriate and use for profit, knowledge and ideas produced by other men, without making compensation or even acknowledgment, may be inconsistent with a finer sense of propriety; but, with the exceptions indicated above, the law has heretofore sanctioned the practice. Thus it was held that one may ordinarily make and sell anything in any form, may copy with exact ness that which another has produced, or may otherwise use his ideas without his consent and without the payment of compensation, and yet not inflict a legal injury;11 and that ordinarily one is at perfect liberty to find out, if he can by lawful means, trade secrets of another, however valuable, and then use the knowledge so acquired gainfully, although it cost the original owner much in effort and in money to collect or produce.12 *Such taking and gainful use of a product of another which, for reasons of public policy, the law has refused to endow with the attributes of property, does not become unlawful because the product happens to have been taken from a rival and is used in competition with him. The unfairness in competition which hitherto has been recognized by the law as a basis for relief, lay in the manner or means of conducting the business; and the manner or means held legally unfair, involves either fraud or force or the doing of acts otherwise prohibited by law. In the "passing off" cases (the typical and most common case of unfair competition), the wrong consists in fraudulently representing by word or act that defendant's goods are those of plaintiff. See Hanover Milling Co. v. Metcalf, 240 U. S. 403, 412, 413, 36 Sup. Ct. 357, 60 L. Ed. 713. In the other cases, the

"Flagg Manufacturing Co. v. Holway, 178 Mass. 83, 59 N. E. 667; Bristol v. Equitable Life Assurance Society, 132 N. Y. 264, 30 N. E. 506, 28 Am. St. Rep. 568; Keystone Type Foundry v. Portland Publishing Co., 186 Fed. 690, 108 C. C. A. 508.

"Chadwick v. Covell, 151 Mass. 190, 23 N. E. 1068, 6 L. R. A. 839, 21 Am. St. Rep. 442; Tabor v. Hoffman, 118 N. Y. 30, 36, 23 N. E. 12, 16 Am. St. Rep. 740; James v. James, L. R. 13 Eq. 421. Even when knowledge is compiled, as in a dictionary, and copyrighted, the suggestions and sources therein may be freely used by a later compiler. The copyright protection merely prevents his taking the ultimate data while avoiding the labor and expense involved in compiling them. Pike v. Nicholas, L. R. 5 Ch. App. 251; Morris v. Wright, L. R. 5 Ch. App. 279; Edward Thompson Co. v. American Law Book Co., 122 Fed. 922, 59 C. C. A. 148, 62 L. R. A. 607: West Pub. Co. v. Edward Thompson Co., 176 Fed. 833, 100 C. C. A. 303. It is assumed that in the absence of copyright, the data compiled could be freely used. See Morris v. Ashbee, L. R. 7 Eq. 34, 40. Compare also Chilton v. Progress Printing & Publishing Co., [1895] 2 Ch. 29.

sical or moral coercion, or by inducing breaches of contract or of trust or by enticing away employés. In some others, called cases of simulated competition, relief was granted because defendant's purpose was unlawful; namely, not competition but deliberate and wanton destruction of plaintiff's business.13

*That competition is not unfair in a iegal sense, merely because the profits gained are unearned, even if made at the expense of a rival, is shown by many cases besides those referred to above. He who follows the pioneer into a new market, or who engages in the manufacture of an article newly introduced by another, seeks profits due largely to the labor and expense of the first adventurer; but the law sanctions, indeed encourages, the pursuit.14 He who makes a city known through his product, must submit to sharing the resultant trade with others who, perhaps for that reason, locate there later. Canal Co. v. Clark, 13 Wall. 311, 20 L. Ed. 581; Elgin National Watch Co. v. Illinois Watch Co., 179 U. S. 665, 673, 21 Sup. Ct. 270, 45 L. Ed. 365. He who has made his name a guaranty of quality, protests in vain when another with the same name engages, perhaps for that reason, in the same lines of business; provided, precaution is taken to prevent the public from being deceived into the belief that what he is selling, was made by his competitor. One bearing a name made famous by another is permitted to enjoy the unearned benefit which necessarily flows from such use, even though the use proves harmful to him who gave the name value. Brown Chemical Co. v. Meyer, 139 U. S. 540, 544, 11 Sup. Ct. 625, 35 L. Ed. 247; Howe

13 "Trust Laws & Unfair Competition" (U. S. Bureau of Corporations, March 15, 1915) pp. 301331, 332-461; Nims, Unfair Competition and TradeMarks, c. XIX; Sperry & Hutchinson Co. v. PomCo. v. Dittgen, 171 Fed. 631, 96 C. C. A. 433; Schonmer (D. C. 199 Fed. 309, 314; Racine Paper Goods wald v. Ragains, 32 Okl. 223, 122 Pac. 203, 39 L. R. A. (N. S.) 854; Attorney General v. National Cash Register Co., 182 Mich. 99, 148 N. W. 420, Ann. Cas. 1916D, 638; Witkop & Holmes Co. v. Great Atlantic & Pacific Tea Co., 69 Misc. Rep. 90, 124 N. Y. Supp. 956, 958; Dunshee V. Standard Oil Co., 152 Iowa, 618, 132 N. W. 371, 36 L. R. A. (N. S.) 2C3; Tuttle v. Buck, 107 Minn. 145, 119 N. W. 946, 22 L R. A. (N. S.) 599, 131 Am. St. Rep. 446, 16 Ann. Cas. 807.

The cases of Fonotipia Limited v. Bradley (C. C.) 171 Fed. 951, and Prest-O-Lite Co. v. Davis (D. C.) 209 Fed. 917, which were strongly relied upon by the plaintiff, contain expressions indicating rights possibly broad enough to sustain the injunction in the case at bar: but both cases involve elements of "passing off." See also Prest-O-Lite Co, v. Davis, 215 Fed. 349, 131 C. C. A. 491; Searchlight Gas Co. v. Prest-O-Lite Co., 215 Fed. 692, 131 C. C. A. 626; Prest-O-Lite Co. v. H. W. Bogen (C. C.) 209 Fed. 915; Prest-O-Lite Co. v. Avery Lighting Co. (C. C.) Light Co. (C. C.) 191 Fed. 90, the bill was dismissed on the ground that no deception was shown.

161 Fed. 648. In Prest-O-Lite Co. v. Auto Acetylene

14 Magee Furnace Co. v. Le Barron, 127 Mass. 115; Ricker v. Railway, 90 Me. 395, 403, 38 Atl. 338.

Scale Co. v. Wyckoff, Seamans & Benedict, | mitting news which it believes to be credi198 U. S. 118, 25 Sup. Ct. 609, 49 L. Ed. 972; ble. Donnell v. Herring-Hall-Marvin Safe Co., 208 U. S. 267, 28 Sup. Ct. 288, 52 L. Ed. 481; Waterman Co. v. Modern Pen Co., 235 U. S. 88, 35 Sup. Ct. 91, 59 L. Ed. 142. See Saxlehner v. Wagner, 216 U. S. 375, 30 Sup. Ct. 298, 54 L. Ed. 525.

Nor is the use made by the International News Service of the information taken from papers or bulletins of Associated Press members legally objectionable by reason of the purpose for which it was employed. The acts here complained of were not done for The means by which the International the purpose of injuring the business of the News Service obtains news gathered by the Associated Press. Their purpose was not Associated Press is also clearly unobjection- even to divert its trade, or to put it at a disable. It is taken from papers bought in the advantage by lessening defendant's necesopen market or from bulletins publicly post- sary expenses. The purpose was merely to ed. No breach of contract such as the court supply subscribers of the International News considered to exist in Hitchman Coal & Coke Service promptly with all available news. Co. v. Mitchell, 245 U. S. 229, 254, 38 Sup. The suit is, as this court declares, in subCt. 65, 62 L. Ed. 260, L. R. A. 1918C, 497, stance one brought for the benefit of the Ann. Cas. 1918B, 461; or of trust such as members of the Associated Press, who would was present in Morison v. Moat, 9 Hare, 241; be proper, and except for their number perand neither fraud nor force is involved. haps necessary, parties; and the plaintiff The manner of use is likewise unobjection-conducts the suit as representing their interable. No reference is made by word or by act to the Associated Press, either in transmitting the news to subscribers or by them in publishing it in their papers. Neither the International News Service nor its subscribers is gaining or seeking to gain in its business a benefit from the reputation of the Associated Press. They are merely using its product without making compensation. See Bamforth v. Douglass Post Card & Machine Co. (C. C.) 158 Fed. 355; Tribune Co. of Chicago v. Associated Press (C. C.) 116 Fed. 126. That they have a legal right to do, because the product is not property, and they do not stand in any relation to the Associated Press, either of contract or of trust, which otherwise precludes such use. The argument is not advanced by characterizing such taking and use a misappropriation.

ests. It thus appears that the protection given by the injunction is not actually to the business of the complainant news agency; for this agency does not sell news nor seek to earn profits, but is a mere instrumentality by which 800 or more newspapers collect It is these papers sevand distribute news. erally which are protected; and the protection afforded is not from competition of the defendant, but from possible competition of one or more of the 400 other papers which receive the defendant's service. Furthermore, the protection to these Associated Press members consists merely in denying formation which by authority of all conto other papers the right to use as news, incerned, had theretofore been given to the public by some of those who joined in gathering it; and to which the law denies the attributes of property. There is in defendIt is also suggested that the fact that de-ant's purpose nothing on which to base a

claim for relief.

competition. The case presents no elements of equitable title or of breach of trust. The only possible reason for resort to a court of equity in a case like this is that the remedy which the law gives is inadequate. If the plaintiff has no legal cause of action, the suit necessarily fails. Levy v. Walker, L. R. 10 Ch. D. 436, 449. There is nothing in the situation of the parties which can estop the defendant from saying so.

fendant does not refer to the Associated Press as the source of the news may furnish *It is further said that, while that for a basis for the relief. But the defendant and which the Associated Press spends its money its subscribers, unlike members of the As- is too fugitive to be recognized as property sociated Press, were under no contractual in the common-law courts, the defendant obligation to disclose the source of the news; cannot be heard to say so in a court of eqand there is no rule of law requiring acuity, where the question is one of unfair knowledgment to be made where uncopyrighted matter is reproduced. The International News Service is said to mislead its subscribers into believing that the news transmitted was originally gathered by it and that they in turn mislead their readers. There is, in fact, no representation by either of any kind. Sources of information are sometimes given because required by contract; sometimes because naming the source gives authority to an otherwise incredible statement; and sometimes the source is named because the agency does not wish to take the *responsibility itself of giving currency to the news. But no representation can properly be implied from omission to mention the source of information except that the International News Service is trans

Fifth. The great development of agencies now furnishing country-wide distribution of news, the vastness of our territory, and improvements in the means of transmitting intelligence, have made it possible for a news agency or newspapers to obtain, without paying compensation, the fruit of another's efforts and to use news so obtained


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