Doan v. American Book Co.
105 F. 772
7th Cir.
1901
Check Treatment

Lead Opinion

JENKINS, Circuit Judge,

after the foregoing statement of the case, delivered the opinion of the court.

We are of opinion that the motion to dismiss this appeal must be overruled. The motion proceeds upon the ground of noncompliance with rule 11 and rule 24 of this court (31 C. C. A. cxlvi., clxiv., 90 Fed. cxlvi., clxiv). Rule 11 has respect to the assignment of errors, and provides that the appellant should file with his petition for an appeal an assignment of errors “which shall specify separately and particularly each error asserted and intended to be urged.” Rule 24 has respect to the briefs of plaintiff in error or appellant, and provides that they shall contain: “2. * * * (2) A specification of the errors relied upon, which, in cases brought up by writ of error, shall set out separately and particularly each error asserted and intended to be urged, and in cases brought up by appeal the specification shall state as particularly as may be in what the decree is alleged to be erroneous.” The purpose of those rules is to obtain an orderly presentation of the errors relied upon, that the court may at a glance, and without laborious search, ascertain the precise grounds asserted against the integrity of the judgment or decree. They are rules of order and of convenience, but are not designed to prevent the correction of obvious errors. The first assignment of error is altogether too general, and points out no particular error. The second assignment of error is “that the court erred in finding that the material allegations of said bill of complaint are true.” This is also in a sense general, and not specific, but is not more general or less specific than the language of the order or decree which finds “that all the material allegations of said bill of complaint are true.” The decree finds no specific *776facts, and does not state which allegations of the bill are true and which are untrue or unproved. The order is objectionable in the use of the word “material,” as applied to the word “allegations,” leaving the matter at large with respect to which allegation the court deemed material and which immaterial. The practitioner can hardly be blamed for couching his exception in the very language employed by the court. Me could not tell from the language of the order what fact was deemed material and what immaterial. The third assignment of error asserts the error of the court in granting the injunction. The fourth assignment asserts the error of the court in ordering the injunction with respect to the specific things mentioned in the injunction and in the assignment of error. We have frequently spoken of the necessity of particularity in the assignment of errors, and do not design to recede in any particular from the rule established by the court. We think, however, that with respect to an order granting a preliminary injunction it is a . sufficient assignment of error to assert that the court erred in granting the order. The assignment does not require the particularity demanded of a pleading, but only that the error complained of should be pointed out. The case is not like that of exceptions to the charge of the court, a specific part of which is claimed to be erroneous; nor is the case like to that of exceptions to a decree of the court finding specific facts to be true. In such cases the assignment should specify the particular part of the charge or of the decree claimed to be erroneous. This is a mere order granting a preliminary injunction, the óffice of which is simply to preserve the status quo pending litigation and until set aside. It determines no right, and rests largely in judicial discretion. There was here no need to find specific facts, and there were no specific findings of fact; nor, indeed, are the facts, in any substantial sense, in dispute. The sole question is whether, upon these facts, an injunction should issue to preserve the rights of the parties until a hearing upon the merits. We think that question fairly presented by •'the assignment that the court erred in granting the injunction, especially when it is coupled with an exception specifying the particular acts enjoined and claimed to have been improperly enjoined.

Coming now to the merits of the order, we are satisfied that there is here no infringement of the right accruing to the appellee under the copyright laws of the United States. The books which are •the subject of controversy are copyrighted books, which were printed, published, and sold by the American Book Company. The sale of them by the appellee carried with it the ordinary incidents of -ownership in personal property, including the right of alienation. Harrison v. Maynard, 10 C. C. A. 17, 61 Fed. 689; and the appellants, purchasing them, had the right to resell them. The monopoly .of the statute with regard to copies sold by the appellee was gone . upon their sale. It is urged, however, that the sale passed the right to the particular thing sold, and did not carry with it the right of repair or renewal. We cannot yield assent to the proposition’in the broad terms in which it is couched. The question is 'áhálogous to that of the repair of a patented machine which has *777been sold by tlie patentee, touching which the supreme court in Chaffee v. Belting Co., 22 How. 217, 16 L. Ed. 240, says:

“Heneo it is obvious that if a person legally acquires the title to that -which is the subject of letters patent, he may continue to use it until it is worn out,- or he may repair it. or improve upon it as he pleases, in the same manner as if it were property of any other kind.”

It is unnecessary, as we think, to consider the limitations of that right. We think the right of repair with respect to a copyrighted book sold, to the extent to which that right is here claimed, may not properly be denied. These books had been in use by school children. Some were written upon and defaced; sqme were soiled- and torn; the covers of some were wholly or partially destroyed, and the binding had become imperfect. To render these books serviceable for use or sale, it became necessary to clean them, to trim the edges of the leaves, and to rebind them. We think that, so far as respects the copyright laws of the United States, no legal right of the appellee was invaded by so doing. What was done, was merely the restoration of the books to their original condition when sold by the appellee, or so nearly so as could be done. If it may be assumed that the copyright of the book comprehends the cover and the title of the book, as well as its text and illustrations, — a proposition to which we are not to be held as assenting, — , it would be intolerable and odious to- hold that a purchaser from the owner of the copyright of a set of books could not restore the: binding of one of them in exact imitation of the original and of the other, volumes of the set, and that in rebinding the one volume lie must differentiate its binding from the binding of the others. A right of ownership in the book carries with it and includes the right to maintain the book as nearly as possible in its original condition, so far, at least, as the cover and binding of the book is concerned. See Harrison v. Maynard, supra.

Under the claim of unfair competition in trade a different question is presented. The American Book Company has attained to a high reputation with respect to its school books. That reputation goes not only to the text of the book, but to the quality of the book itself, the character of the print, the quality of the paper, the binding, and the cover. The latter is of a unique design, catching the eye, and identifying the book as the product of the American Book Company. These books are purchased at retail, as appears from¡ this record, by children of from 5 to 15 years of age. They come to know the books rather by the pictures presented upon the cover, than by the text, for they are uninformed as to the text, and purchase them to study the text. The sale of these books is large,: amounting to hundreds of thousands annually. It is the duty of a court of equity to protect these children from imposition. It is likewise the duty of a court of equity to protect the American Book Company from any unlawful interference with its trade. As' we have said, the appellants have a right to rebind the books which-they have purchased, and to re-cover them, and, as we think, in exact imitation of the original covers, and with the name of the American Book Company upon the cover as upon the title-page, as *778originally placed there by the appellee, and to sell such books; but the rebinding and the re-covering are not the work of the American Book Company, and they should not be held out to the world as responsible for such rebinding or re-covering of the books;' nor, as we think; should children of tender age, who constitute a large class of purchasers of such books,' be subjected to the possibility of imposition by a sale of them by the retail dealer as a new book, rendered possible by the newness of the cover. While, therefore, we hold that the appellants have the right to rebind and re-cover these books in exact similitude of the originals, amounting to a mere repair of them, and have a right to sell the book so rebound, we are of opinion that the book so rebound and re-covered and offered for sale should have prominently displayed and stamped upon its cover in clear and unmistakable language notice that the book was a secondhand book, rebound or re-covered, as the fact may be, by the appellants; so that the appellee, not issuing secondhand books, shall not be chargeable in public estimation with the character of the binding or of the cover, or with palming off upon purchasers secondhand books as and for new books. In this way, and in this way only, as we conceive, can the vested rights of prqperty of both parties be respected, and the right of the public be subserved. The injunction complained of was, therefore, too broad. It prohibited the rebinding or re-covering of the books in any covers or cover designs having thereon the name of the American Book Company, or having thereon the cut described and known as the “Galley Gut,” or- having thereon any reproductions, simulation, or imitation of the whole or any substantial part of the original covers. The injunction should be restricted in its terms to accord with the views herein expressed.





Concurrence Opinion

WOODS, Circuit Judge

(concurring). Excepting the portions touching unfair competition, I concur fully with the foregoing opinion. The supposed duty to protect children from imposition seems to me more imaginary than real. There is no proof or strong probability that imposition has been practiced, or to any considerable extent could be. The books are sold as secondhand, and for a reduced price. Once opened, it is in most instances evident that they are not new, and any attempt to sell them as new could rarely succeed; not so often, I think, as to justify interference by injunction. The proposition that the American Book Company should not be held out to the-world as responsible for the rebinding or re-covering of the books has. more force, and, though danger in that direction seems to me exaggerated, and probably avoidable without the aid. of the courts, I consent to a decree that there shall be stamped on the cover of each book a statement showing that it had been “rebound,” and by whom. If anything were needed outside of the book itself to sho.w it to be secondhand, the word “rebound” I think enough.

The order appealed from is reversed, and the cause is remanded to the court below for further proceedings not inconsistent with' this opinion.