Gray v. Russell

10 F. Cas. 1035 | U.S. Circuit Court for the District of Massachusetts | 1839

STORY, Circuit Justice.

The question now before the court is upon the confirmation of the master’s report. No exception has been taken to the facts and detailed statements in the master’s report; and, therefore, the point is narrowed down to the inquiry, whether the conclusion drawn from these facts by the master is correct. I am of opinion, that it is, and that the report ought to be confirmed; and, as consequent thereon, that a perpetual injunction ought to be granted, prohibiting the sale of the edition of Cleveland’s Adam’s Latin Grammar in the pleadings mentioned by the defendant

The argument proceeds mainly upon this ground, that there is nothing substantially new in Mr. Gould’s notes to his edition of Adam’s Latin Grammar; and that all his notes in substance, and many of them in form, may be found in other works ante-cedently printed. That is not the true question before the court The true question is, whether these notes are to be found collected and embodied in any former single work. It is admitted, that they are not so to be found. The most, that is contended for, is, that Mr. Gould has selected his notes from very various authors, who have written at different periods, and that any other person might, by a diligent examination of the same works, have made a similar selection. It is not pretended, that Mr. Cleveland undertook or accomplished such a task by such a selection from the original authors. Indeed, it is too plain for doubt, that he has borrowed the whole of his notes directly from Mr. Gould’s work; and so literal has been his transcription, that he has incorporated the very errors thereof.

Now, certainly, the preparation and collection of these notes from these various sources, must have been a work of no small labor, and intellectual exertion. The plan, the arrangement, and the combination of these notes in the form, in which they are collectively exhibited in Gould’s Grammar, belong exclusively to this gentleman. He is, then, justly to be deemed the author of them in their actual form and combination, and entitled to a copyright accordingly. If no work could be considered by our law as entitled to the privilege of copyright, which is composed of materials drawn from many different sources, but for the first time brought together in the same plan and arrangement and combination, simply because those materials might be found scattered up and down in a great variety of volumes, perhaps in hundreds, or even thousands of volumes, and might, therefore, have been brought together in the same way and by the same researches of another mind, equally skilful and equally diligent, — then, indeed, it would be difficult to say, that there could be any copyright in most of the scientific and professional treatises of the present day. What would become of the elaborate commentaries of modern scholars upon the classics, which, for the most part, consist of selections from the works and criticisms of various former authors, arranged- in a new form, and combined together by new illustrations, -intermixed with them? What would become of the modern treatises upon astronomy, mathematics, natural philosophy, and chemistry? What would become of the treatises in our own profession, the materials of which, if the works be of any real value, must essentially depend upon faithful abstracts from the Reports, and from .■juridical treatises, with illustrations of their bearing. Blackstone's Commentaries is but a compilation of the laws of England, drawn from authentic sources, open to the whole profession; and yet it was never dreamed, that it was not a work, which, in the highest sense, might be deemed an original work; since never before were the same materials so admirably combined, and exquisitely wrought out, with a judgment, skill, and taste absolutely unrivalled. Take the case of the work on insurance, written by one of the learned counsel in this cause, and to which the whole profession are so much indebted; it is but a compilation with occasional comments upon all the leading doctrines of that branch of the law, drawn from reported cases, or from former authors; but combined together in a new form, and in a new plan and arrangement; yet, I presume. none of us ever doubted, that he was fully entitled to a copyright in the work, as being truly, in a just sense, his own.

There is no foundation in law for the argument, that because the same sources of information are open to all persons, and by the exercise of their own industry and talents and skill, they could, from all these sources, have produced a similar work, one party may at second hand, without any exercise of industry, talents, or skill, borrow from another all the materials, which have been accumulated and combined together by him. Take the case of a map of a county, or of a state, or an empire; it is plain, that in proportion to the accuracy of every such map, must be its similarity to, or even its identity with, every other. Now, suppose a person has bestowed his time and skill and attention, and made a large series of topographical surveys in order to perfect such a map, and has thereby produced one far excelling every existing map of the same sort. It is clear, that notwithstanding this production, he cannot supersede the right of any other person to use the same means by similar surveys and labors to accomplish the same end. But it is just as clear, that he has no right, without any such surveys and labors, to sit down and copy the whole of the map already produced by the skill and labors of the first party, and thus to rob him of all the fruit of his industry, skill, and expenditures. See Wilkins v. Aikin, 17 Ves. 424, 425; Eden, Inj. pp. 282, 283, c. 13; 2 Story, Eq. Jur. §§ 939-942. It would be a downright piracy. Neither is it of any consequence in what form the works of another author are used; whether it be by a simple re-print or by incorporating the whole or a large portion thereof in some larger work. Thus, for example, if in one of the large encyclo-paedias of the present day, the whole or a’ large portion of a scientific treatise of another author, as, for example, one of Dr. Lardner’s, or Sir John Hersehell’s, or Mrs. Somerville’s treatises, should be incorporated, it would be just as much a piracy up-' on the copyright, as if it were published in a single volume.

In some cases, indeed, it may be á very nice question, what amounts to a piracy of a work, or not. Thus, if large extracts are made therefrom in a review, it might be a question, whether those extracts were designed bonS. fide for the mere purpose of criticism, or were designed to_auRersede the' original work under the pretence of a review, by giving its substance in a fugitive form. The same difficulty may arise in relation to an abridgment of an original work. The question, in such a case, must be compounded of various considerations; whether it be a bona fide abridgment, or only an evasion by” the omission of some unimportant parts; whether it will, in its present form, prejudice or., supersede the joriginal work; whether it will be adapted to the same class of readers; and many other considerations of the same sort, which may enter as elements, in ascertaining, whether there has been a piracy, or not. Although the doctrine is often laid down in the books, that an abridgment is not a piracy of the original copyright; yet this proposition must be received with many qualifications. See 2 Story, Eq. Jur. §§ 939-942; Sweet v. Shaw (before the vice chancellor, in 1839) Eng. Jur. 1839, p. 217. In many cases, the question may naturally turn upon the point, not so much of the quantity, as of the value of the selected materials. As was significantly said on another occasion, — “Non numerantur, ponderantur.” The quintessence of a work may be piratically extract-ed, so as to leave a mere caput mortuum, by a selection of all the important passages in a comparatively moderate space. In the recent case of Bramwell v. Halcomb. 3 Mylne & C. 737, it was held, that the question, whether one author has made a piratical use of another’s work, does not necessarily depend upon the quantity of that work, which he has quoted, or introduced into his own book. On that occasion, Lord Cottenham said: “When it comes to a question of quantity, it must be very vague. One writer might take all the vital part of another’s book, though it might be but a small proportion of the book in quantity. It is not only quantity, but value, which is looked to. It is useless to look to any particular cases about quantity.” See the lord chancellor’s opinion in Bell v. Whitehead, Eng. Jur. 1839, p. 68: Sweet v. Shaw (before the vice chancellor, 1839) Id. 217. The same subject was a good deal considered by the same learned judge in Saunders v. Smith, 3 Mylne & C. 711, 728, 729, with reference to copyright in Reports; and how far another person was at liberty to extract the substance of such reports, or to publish select cases therefrom, even with the notes appended. In the case of Wheaton v. Peters, 8 Pet. [33 U. S.] 591, the same subject was considered very much at large. It was not doubted by the court, that Mr. Peters’ Condensed Reports would have been an infringement of Mr. Wheaton’s copyright, (supposing that copyright properly secured under the act,) if the opinions of the court had been, or could be, the proper subject of the private copyright by Mr. Wheaton. But it was held, that the opinions of the court, being published under the authority of congress, were not the proper subject of private copyright. But it was as little doubted by the court, that Mr. Wheaton had a copyright in his own marginal notes, and in the arguments of counsel as prepared and arranged in his work. The cause went back to the circuit court for the purpose of further inquiries as to the fact, whether the requisites of the act of congress had been complied with or not by Mr. Wheaton. This would have been wholly useless and nugatory, unless Mr. Wheaton’s marginal notes and abstracts of arguments could have been the subject of a copyright (for that was all the work, which could be the subject of copyright); so that if Mr. Peters had violated that right, Mr. Wheaton' was entitled to redress.

But we are spared from any nice inquiries of this sort in the present case. The master’s report finds that the substance of all Mr. Gould’s notes are used in Mr. Cleveland’s book, and for the most part literally copied. It is, therefore, a clear infringement of Mr. Gould’s copyright, not, indeed, in Adam’s Latin Grammar, (for he has none in that,) but in his own notes, first collected together by him in their present form, and in the plan arid arrangements, (also his own,) in which they are actually embodied. Under these circumstances, I shall decree a perpetual injunction. In consideration, that the defendants have already struck out of their editions of Mr. Cleveland’s book now sold by them, all the notes of Mr. Gould, and that the defendants are insolvent, the plaintiffs have waived any decree for an account. I shall, therefore, pass that over, and only decree costs for the plaintiffs. Decree accordingly.