International News Service v. Associated Press

INTERNAT'L NEWS SERV. ASSO. PRESS. 205. Syllabus.

We are unable to assent. We regard the act of Congress as clear and that the theatre of its'injunction is the har- bors of the United States. It is misleading to dwell upon the jurisdiction of other places, which is but another name for control. The jurisdiction, control, is in and by the United States and the command is that advances shall not be deducted from wages of seamen on vessels, American or foreign, while in the waters of the United States. Where they were made or under what circum- stances made are not factors in judgment. They, are the mere accidents of the situation and if they reach the importance and have the depicted by embarrassment counsel, the appeal must be to Cpngress, which no doubt' will promptly' correct the if improvidence, it be such, of its legislation. We have already expressed our view of the control of the language of law and that it is a barrier against alarms and fault-finding.

It hence follows that we are of opinion the judgment of the Circuit Court of Appeals in each case should be re- versed and the District Court affirmed. INTERNATIONAL NEWS SERVICE v. THE ASSO

CIATED PRESS . CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE

SECOND CIRCUIT. Argued No. 221. May 2, 3, 1918. Decided December An incorporated association of proprietors and representatives many newspapers, engaged in gathering news and distributing it to. its. members for publication, proper party represent them in protect a suit to their interests in news so against collected illegal acts of a rival organization. Equity Rule, 38. P. 233. object non-joinder parties be,.treated as- TERM, S.U.

Syllabus. Rules, Equity below. the courts specifically made if not waived P.233. 43,44. , of Act the under copyrighted may be newspaper ain article news A P. copyrightable; such, is not as news, but 4, 1909, March uncopy- of producer the of interest any special public, the against As I'd. publication. first upon the lost is matter righted news . (cid:127)of (cid:127) purpose the for expense, and pains news, at gathers who one But the in property quasi a to have said may be publication, lucrative business, and same in the a rival against as enterprise, his of results damage to the and expense the at results those appropriation the against (cid:127) competition unfair the other profit for the one of the and 236. P. relief. afford equity will which news, gathered publishers newspaper association incorporated An telegraphed copyright for applying without and expense, and pains at exclusive their for country, the throughout members daily to its cor- therefor; rival a assessments they paying publication, in use returns, made pecuniary for newspapers serving other poration, news- in early publications through news obtaining this practice members, and company’s first of the on bulletins and papers form, in rewritten so taken as either telegraph, by sending it news- the compete with enabling them customers, thus own its news publication prompt the in company the first papers and agency exclusive by their latter of the benefit the for obtained members, and company, first Held, that expense. their at quasi equitable an had company, second against as. made use that the publications; early after news, even i'mAhe independent for basis mere as a not company, second' byitof. gain own for its appropriation, by substantial but investigation amounted enterprise, of their damage expense at irrespective enjoined, should which competition unfair distributing the and in rewriting articles involved pretense false accentuating this, while source; for mentioning the without news seq.; et 242. Pp. essence. of its not was wrong, complainant held, that case, proofs pleadings Upon hands of unclean ground upon the relief debarred not was also defendant engaged in practice that,[following fact news defendant’s used it had generally, agencies the results investigations, “tips” published, when items, P; 242. sold.' affirmed.^ Rep/244, Fed*. opinion. stated case INTERN AT L NEWS SERV. ASSO. PRESS. Argument for Petitioner. Mr. Samuel Untermyer and Mr. Hiram W. Johnson, with whom Mr. Louis Marshall, Mr. William A. DeFord and Mr. Henry A. Wise were on the briefs, for petitioner:

Facts are public and not private property. Davies v. Bowes, 209 Fed. Rep.- 53, 56; Tribune Co. v. Illinois Publishing Co., 76 Publishers’ Weekly, 643, -947; Thomp- Co.,v. son American Law Book .122 Co., Fed. Rep. 922; West Pub. Co. v. Thompson Co., 176 Fed. Rep. 839; Clayton v. Stone, 2 Paine, 382; Baker v. Selden, 101 U. S.

As respondent does not copyright its news, and as the decree is grounded on any statutory right, respondent must stand or fall on a common-law right. Its position cannot be said to be more favorable than that of the creator of a work of or literary" artistic merit. Yet, by the common law, the publication of such works amounts to a dedication to the public and confers a universal right of reproduction and use whether for purposes of gain or otherwise. Wheaton v. Peters, 8 Pet. 591, 657; Jeffreys v. Boosey, 4 H. L. Cas. 815, 962, 965, 967; Holmes v. Hurst, 174 U. S. 85; Jewelers' Mercantile Agency v. Jewelers' Publishing Co., 155 N. Y. 241.

As long ago as 1774, the House of Lords in Donaldson v. Beckett, 4 Burr, 2408, note; 2 Brown’s P. C. 129, laid down principles which indicate that there can be no ownership in news at common law after publication. To the same effect are: Tribune Co. Chicago v. Asso- ciated Press, 116 Fed. Rep. 126; New York Times Co. v. Sun Publishing Co., 204 Fed. Rep. 586; Tribune Co. v. Illinois Publishing Co., 76 Publishers’ Weekly, 643, 947; Walter v. Sleinkopff [1892], L. R. 3 Ch. Div. 489. See also Drone, Copyright, pp. 109, 170; Bowker, Copyright, pp. 88, 89.

A bill protect news for 24 hours failed of passage in Congress; decree below recognizes a right in the re- spondent which Congress deemed it wise to withhold. TERM, 1918.

218 S. 248 IT. Petitioner. Argument early issuance and of bulletins posting That by regarded were members its newspapers editions bill, shown clearly is publication aas respondent by-laws. itsof VIII Arts. VII peti- which consent, the respondent’s If, with printed been had copied have is claimed tioner undoubtedly book, petitioner uncopyrighted of an form vio-- without copies circulated multiplied have could different is no situation The rights. lating respondent’s newspaper daily ainis publication where interest. passing one subject-matter equally literary property applies principle plan, business secret, or trade idea, applicable v. Peabody See originate. or conceive one Equitable v. 452; Bristol Massachusetts, Life 98 Norfolk, Morris, 91 v. 264; Stein Y.N. 132 Society, Assurance Fed. 216 Tubbs, v.Co. Mfg. Hamilton 177; Rep. E.S. West- J. Eq. N. Ryan, Cf. Haskins 401; Rep. Y.N. Co., Chuck National Oneida v.Co. Chuck celt Div. App. Hickson, Montegut - the .common news becomes publication, Upon accessible; private isit to whom of all possession trade of a in the case publication, its dies with therein con- authorized, .expressly being Publication, secret. respondent’s confidence trust breach no stitutes required by-laws its nor charter Neither members. its until confidential remain by gathered, news But all members. accomplished been publication No public. the bind not would a provision such even imposed is otherwise, or contract use, by the limitation reader ©f or the newspaper the purchaser the Upon confidential aas news receive not does He bulletin. trust. with a impressed or secret as a or communication,' re- fiduciary or no contractual .occupied The petitioner in- it receive did nor respondent; toward lation secrecy. seal under or confidentially formation PRESS., ASSO. SERV. INTERNAT’L NEWS 219 Argument for Petitioner. Whatever information it obtained it secured in common with the public.

The holding of the Court of Appeals respondent right members haVe a property the news until its is,a the reasonable of each received, reward is member mere reason. It conclusion, unsupported by confounds the corporation and its members. We are not here con- cerned with rights latter, whose individual interests cannot be in an action by the corpora- enforced tion. To admit respondent’s only of all ownership despatches of its members and published papers credited credited, or not otherwise respondent also of the local news collected and published by members, its would result to that assuring organization absolute dominion the news of the country. over Its service is not available to desire any newspaper may to avail itself of it or to not a who anyone member wish to embark in the newspaper By business. its carefully guarded by-laws, restricts respondent service In against holding such use. that there can no “.pub- of respondent’s lication” until each members has been news, the court below disregards enabled publish of that term as laid down the definition lexicograph- authorities, thing act which a ers made —the given Tribune Co. or v. publicity. Chicago public Press, 126; Fed. LeBoy 116 Rep. Jameson, Associated 373, Williams, Cas. United States v.- 3 376; Fed. Fed. 484, 486; United- States v. 25 Fed. Comerford, Rep. Rep. City D’Ole v. Kansas Star 94 Fed. 902, 903; Co., Rep. Grey, Nevada, 278; Sproul Pillsbury, Hale v. 840, If does not' Maine, publication convert difficult to into it is- understand public property, right continues until its. full respondent’s property how utilized, news value has been how its exist- commercial or right measured-by should term arbitrary ence as hours.” A is not de- four “three TERM, 220 S.U. 248 for Petitioner. Argument contention The value. commercial upon pendent destroy can general, however no publication, he information news in collector property applica- doctrines conflict direct inis gathered has who, publica- artists, upon inventors authors, ble lose whatever statutory protection, seeking without tion And with respect have. they rights news gatherer involved, expenditures capital or inventor. author is the than position different is in no to be competition unfair elements None ownership had no The respondent case. in this found under way sail not in did petitioner The facts. in the which it distributed or pretend colors false fact, complaint In respondent. was Nor theory. of that converse very proceeds methods to any resort petitioner did McLean competition. unfair to constitute held been have Co. Tennessee v. Mfg. Lawrence 245; S. 96 U. Fleming, v. Co., Thread Merrick v. Coats 537; S. 138 Co., U. Mfg. Watch Co. v. Illinois Watch National Elgin 562; U. S. 149 & Seamans Wyckoff, v.Co. Scale Howe S.U. Co., 179 Lewis, Iowa, 144 118, 140; Diamant U. S. 198 Benedict, competi- of unfair the doctrine case In no 509, 517. element there is no where to a case extended been tion rule The or confusion. misrepresentation deception, Co., U. S. Mfg. v. June Mfg. Go. Singer applied ais copyright patent expired an 185, to fortiori or copyright. patent no been there has where applicable Massachusetts, Fellows, v.Co. Stamping Dover also See Co,, 158 Machine Post Card Douglass 191; Bamford Rep. Fed. predecessor respondent’s against charged acts Press, 116 Fed. Co, Rep. v. Associated Chicago

Tribune it. What committed when lawful to be held 126, were against charged acts, when the same converts it that Nor is competition? or unfair dolus into petitioner, INTERNAT’L NEWS SERV. 0..ASSO. PRESS. 213. Argument Respondent. for it clear how the respondent’s reading and using as a “tip” of petitioner's news, sent out to respondent’s members in the form of news, differs from the act charged against the petitioner. When the verified “tip” is sent out, it in reality disseminates .for the benefit respondent and its members the petitioner’s news* Unfair competition cannot be predicated upon a universal custom in wMch the respondent and all other news agencies and news- papers If the participate. petitioner is chargeable with unfair competition, who, he for profit and in competition with an author inventor who fails take out a. copy- right or patent, makes use of the book, machine, process, etc., is equally guilty unfair competition. If it was for wrong the petitioner to utilize pub- with,

lished the consent of the respondent, it was equally wrong for the respondent to utilize the news of the peti- tioner published by its subscribers. He who comes into equity must come with clean hands. Thompson Go. v. American Law Booh Co., Fed. 922; Rep. Warden v. Fig Syrup Co., 187 U. S. 516; Manhattan California Medi- cine Co. v. Wood, 218; 108 U. S. Mfg. Prince Co. v. Prince's Metallic Paint Co., 135 N. Y. 24; Uri v. Hirsch, 123 Fed. Rep. cases. other Mr. Frederick W. Lehmann, with whom Mr. Frederic B. n Mr..

Jennings, T. Denison and Mr. Peter S. Winfred ' Grosscup on the were . briefs, for respondent:

News a business commodity is property ¿.because it costs money and labor to produce and because it has for value which those who have it not are ready pay. Its sole elements of value are its novelty, its accuracy, and its presence in the place where there are people in- enough terested for pay knowing it, and at the time they when are so interested. TÍie respondent at large cost established and operates organization an of labor covering world, the whole capital and the product TERM, ' (cid:127) S.U.

Argument Respondent. it made because property, effort and expense discovers the happen- if it first that, say This is not to it. discovery into transforms an event ing to all right an exclusive value, it has thing commercial organiza- other Any happening. announcement it- message may to whatever right has the same tion no appropriate have it can create, but self his and created secured another has message which Donaldson, Bleistein See effort and expense. exclusive 188 U..S. news, as business right in a property

That there is York v. Hunt by in this court New commodity, settled v. Board Trade 322, 333, and U. S. Exchange, 205 Cotton of The latter Co., 236, 198 U. S. 250. & Stock Christie Grain Rep. Fed. Co., v. 130 Kinsey Trade Board affirmed case of there is a held directly property 507, 513, which which is the form price quotations right in news See' also against appropriation. entitled to protection National 305; 221 Tucker, Rep. v. Fed. Trade Board of Fed. Rep. 119 Co., Tel Western Union Tel v. News.Co. Fed. Co., Rep. Trade v. McDearmott 143 294; Board of Fed. Co., Rep. 109 Trade Hadden-Krull 188; Board Fed. Co., 145 v. Celia Commission Trade 705; Board of 183 Co., Construction,Information v.Co. Dodge 28; Rep. Tel. Quotation 66; Kiernan Manhattan Massachusetts, also This has 198. 194, 196, principle Pr. How. 50 Co., v.Co. Exchange Telegraph recognized England. been 375; Exchange Telegraph Times Rep. 22 Law Howard, B. Exchange 147; [1896], & Co. Q. Teler Gregory v.Co. Cox v. 2 Ch. 48; Ltd. [1897], News, v. Central Co. graph L. 324. Co., R. Eq. Journal & Water Land right, this property respondent hold To one publication to but one exclusive entitled yet to destroy property members, would of its set an up is commercially available, its value instant which the business law under doctrine artificial- INTERNAT’L NEWS SERV. v. ASSO. PRESS. Argument for Respondent. news collection and distribution cannot live. By the very inherent nature of this property right it continues to exist, as a matter of law, and to be entitled to protec- tion until the full commercial value the news has been realized. The cases cited supra base the recognition of the right in news as a upon its value as a commercial product, resulting from the use of capital and labor, and possessing value capable being realized only by sale and purchase. The courts have recognized this right by adjusting the time of the protection in such a way toas make it effective for the particular circum- stances. See Board Trade v. Christie Grain & Stock Co., 198 U. S. 251; National Tel. News Co. v. Western Union Tel. Co., Fed. Rep. 294. The present case is like the trade-mark cases, and analogous to Fonotipia v. Bradley, 171 Fed. Rep. 960; Prest-O-Lite Co. v. Davis, 209 Fed. Rep. 917; Film Co. v. Universal Copperman, 218 Fed. Rep. and Ferris v. Frohman, 223 TJ. S. 424.

Nothing short of an intentional transfer and surrender of respondent’s property right by its own act will destroy it. such No voluntáry surrender for purposes of sale competing can be agency predicated upon publication its news one of its members in the n first edition of a newspaper, Such publication is not an abandonment for all It purposes. was not intended, nor it be can implied, that the could public take the news and it in sell competition with the respondent. rule by

The which literary is supposed to an cease upon unrestricted publication, without copyright, inapplicable is to the conditions which make and support of the status as See property. National Tel. News Co. Western Union Tel. v. Co., '-119-Fed. Rep. 294; and Co. v. Dodge Construction Co., 183 Massachu- Information setts, Assuming that news is “literary property,” and circumscribed by all the limitations imposed by law upon property, such the petitioner’s claim a right of TERM,

224 8.U. 248 Respondent. Argument for the invalid, because would piracy unrestrained of at also because and unrestricted is not here publication right exclu- a permanent had author an law common the on Story 9;p. Copyright, on Slater publication. sive 116; Miller p. Copyright, on 1152; Drone Constitution, § 2 Bro. Beckett, v. Donaldson 2303; Burrows, Taylor, v. 479; 471, Pr. How. Maguire, French 129; v. P. C. question only the and U. S. Hurst, Holmes copy- the by. superseded right this whether been has involved as are such publications toAs statutes. right copyrighted, cannot which bar, at case statute, by superseded being not rights, common-law copy- that held has court Indeed, persist. still fluctuating of so work to “a apply not does statute right Baker newspaper.” of a as fugitive form and 99, 105. U. S. Selden, 101 , literary to prop- kind resemblance no

News of a the life limiting exist which the reasons erty, News news. wholly inapplicable copyright event is the but producer, brain locked of the access. equal have persons all ap- event prevent anof report certain of a owner of' public deprives sense in no others propriation jof their Others the event. knowledge the benefit use and even report a similar develop efforts own knowledge first acquires who person of the report of the respondent the interests conserves This guide. as a imposes public policy, all interest making no unearned except no burden petitioner complete This is the respondent. expense at the profit result will injunction the contention answer in the respondent. monopoly of a in the creation well statute, as copyright arising under the In cases other cases not affected news ticker as in som^ construction their based have the courts statute, will destroy á publication such constitutes what INTERNAT’L NEWS SERV. ASSO. PRESS. Argument for Kespondent. property right conception of voluntary dedication to the public; where a restriction is made either ex- pressly or by implication rights owner’s continue, however broad and unlimited the publication may other- wise be. doctrine, so This far as applied to cases outside the statute, has been seized upon by courts apparently as a means of adjusting the law of literary property and copyright to the business necessities of news service. See National Tel. News Co. v. Western Union Tel. Co., supra; Board v. Trade Hadden-Krull Co., Fed. Rep. 705; Board v. Tucker, Trade 221 Fed. Rep. 307; Board Trade v. McDearmott Commission Co., 143 Fed. Rep. In fact from the decision in Kiernan v. Manhattan Quotation Tel. Co., 50 How. Pr. 194, in 1876, down to date, no case can be found where an injunction has been denied for lack of express or implied restriction in the publication of news or matters analogous to news. Tribune Co. v. Chicago Associated Press, 116 Fed. Rep.

126, which was decided prior the National Telegraph and Hadden-Krull Cases, was decided upon special grounds of copyright, which are inapplicable here. None of the ticker cases really cases restriction in the number and identity persons who are to be allowed read the report, excepting as they are restricted by fundamental of fair principles dealing and the restraints against misappropriation. ifAnd it be material to find a restriction is that which is against implied the use to which the readers may put the ticker news; nobody is to be given intended any right to take the news ticker for tape commercial sale as news. publication Associated Press news by mem-

bers is no more a dedication of that news to the readers all than purposes are the performances of plays which, public, however have been held not to include dedica- tion for purposes reproduction from memory, Tompkins Halleck, 133 Massachusetts, 32; Aronson Baker, TERM, 1918.

226 S. 248 U. Respondent. Argument.for Bouci- 87; Fox, 5 Blatchf. v. Boudcault 365; Eq. J.N. 43 215; 2 Biss. Aiken, v. Crowe 47; Blatchf. 13 Hart, v. caúli 577; Rep. Fed. 218 Copperman, v. Co. Film Universal delivery public 424; or the U. S. 223 Frohman, v. Ferris for copies printed of provision even lectures, 338; Rep. Fed. Altemus, 60 v. Drummond students, Bartlette 209; Ch. (O. S.) L. J. Hutchinson, 3 v. Abernethy 5 Crittenden, v. 300; Bartlett McLean, Crittenden, v. 374; D. Ch. Pitman, L. R. v. 32; Nicols McLean, exhibition the Cas. App. 12R.L. Sime, v. Caird Werckmeister engravings, publication and pictures ,U. S. 321; 207 Rep. Fed. Co., 134 Lithographic American Rep. Eq. Ir. Robinson, 10 299; Turner early from news taking respondent’s practice The distributing selling and and bulletins and editions ex- without and investigation original airy without re- the It makes competition. business unfair pense and servant direct agencies collecting spondent’s and be distributed goods business for supply source publica- country-wide Complete petitioner. by sold only respondent by collected news tion .of for its. reward” its “gain it can which way possible which.’ foundation very it is expenditure, ex- labor collecting rests. business the whole reim- distribution severed be cannot pense interest an public Furthermore, bursement. of supporting its means as industry, efficiency in the en- promoted never can interest public life; practices, or dishonorable unfair, inequitable couraging the. destruction in the result inevitably must agency news one where moreover, work; producing get does public from another news its takes asso- independent two collected the benefit ciations. gets petitioner in what manner It is immaterial makes use as news, long so respondent’s NEWS SERV. ASSO. PRESS.

INTERNAT’L Argument Respondent. news is to It compete is no unfairly. defense that peti- tioner sold it if own, gathered as as its own inde- pendent efforts. The and use is appropriation as just unfair if it were frankly accredited to the respondent. As might well argue manufacturer that he was entitled to use trade-mark for competitive rival’s commercial his purposes, merely he lawfully purchase because package marked with it. Acts which might innocent if done under injurious lawful other circumstances are if unfairly unlawful they operate competition. Athens 194, 200; v. 195 U. S.. United States v. Wisconsin, Co., Rep. 62, Eastman Kodak Fed. 230 Fed. 74; Rep. 226 Co., United States v. American Can 230 Fed. 522, 524; 887, 888; Buck, Minnesota, 145; Tuttle v. Rep. 859, 107 Dunshee v. 152 “Trust Co., Iowa, 626; 618, Standard-Oil Laws, and U. S. of Corpora- Unfair Bureau Competition,” 1915, 496, 497, 117, March tions, 15, pp. 463-486, Review, 420; 118; 20 Law Eastern States Re- Harvard Lumber, tail Dealers’ Assn. United 234 States, v. U. S. The on the 600, “fighting ship” 614. cases based American Hamburg same United States v. principle. United States 971, 973, S. S. Fed. 974: v. Line, Rep. 216 etc., 806; 200 Fed. United Gesellschaft, Rep. Hamburg, Co., American-Asiatic S. S. Fed. 235. Rep. States v. 220 to the it should condition that subject Even free speech v. Bucks unfairly competition. Gompers not be used 418, 437, U. S. While Range Co., & 438. Stove 221 below by selling further his business can competitor for the of re- purpose or below cost other men’s prices these stock, he do either-of loss of excess ducing cannot as will manner, and for such a purpose, in such a acts States, United Nash v. out business. competitor drive a U, 221 States, Co. v. United Oil 373, 376; 229 Standard S. Dakota, 226 Lumber Co. v. South 43; Central 1, U. S. Co., Towing States v. Great Lakes 157, 16Ó; United U. S. Coi, United States v. 733, 743-745; Rep. Fed. 208 Pacific TERM, 1918. 228 248 U. S. Respondent. Argument for Fed.' Co., 230 Can American v. U. S. United 87; 228 States To- v. American Co. e-Kramer 887, 888; War 859, Rep. 160, 167. Fed. Co., Rep. bacco 180 mean does not doctrine hands” "unclean a, guilty been inequitable complainant whenever means relief; him to grant will refuse the courts conduct complainant to aid refuse will merely equity by inequitable acquired protecting retained Case, in the Christie made This distinction conduct. Co., Products Corn Co. v. Mfg. in Wilder supra; and 236 v. Prince’s Metallic Co. Mfg. In Prince 165, U. S. Abb. 24; Wells, 144; Y. v. Pr. Feiridge N. Paint Co., S. Wood, 218, v. 108 U. Medicine Co. and Manhattan trade name on the the plaintiff’s to protect court refused would directly further an ground injunction The principle upon practices inequitable plaintiff. this doctrine will is illus- apply of equity which courts Primg.au 851; v. 180 Fed.. Chute Granfield, Rep. trated by 115; Bentley Fed. v. Co., Rep. Chemical Wisconsin Independent Rep. 223 Fed. T.albot Tibbals, Rep. 220 Fed. Owls, Order of been made were practices has showing

No by responsible those for the or approved authorized Betinning Press. Vulcan Co. the Associated policies N. J. Co., 72 387. Eq. Can American has respondent contention The. petitioner’s by same methods as those by news used obtained in not sustained fact. off” has "Tipping was defendant among agencies all news recognized practice been a consent, as found and, common by by has existed one authorized or only is the Court, adopted District it is "tip” received,- When respondent. by and the news obtained in investigated, independently effort respondent’s much product is as this way if as its it had protection and entitled This is not any “tip.” practice without been obtained INTERNAT’L NEWS SERV. ASSO. PRESS. Opinion oí the Court. in any sense or unjust unlawful, and does not constitute unfair competition. The of another news agency use the report as for "tip” investigation on its own account is vital to the need of public correct information. The legality similar practices in other businesses been recognized. Thompson Co. v. American Book Law Co., Fed. Rep. 922; West Co. v. Publishing Thompson Co., 176 Fed. 833, 838; Pike Rep. v. Nicholas, L. R. 5 Ch. App. 263; Morris v. Wright, L. R. 5 Ch. App. v. Gill, 86 Law Times Rep. 465. Moffatt Pitney Mr. Justice delivered the opinion court. competitors in parties the gathering and dis- tribution of news and publication its for profit in news- papers throughout the United States. The Associated Press, which was complainant the District Court, is a cooperative organization, incorporated under the Mem- bership Corporations Law of the State of New its York, being members individuals who are either or proprietors representatives of about 950 daily newspapers published in all of the United parts States. That a corporation be organized under that act for the purpose gather- ing for the use and of its-members benefit publication newspapers owned them, represented«by is recognized an amendment enacted 1901 (Laws N. Y. 436). c. gathers'in Complainant parts all means world, by various instrumentalities of its own, exchange apd members, other appropriate means, intelligence news and of current and recent events of interest to newspaper readers and dis- to its daily tributes members for publication in their cost newspapers. amounting service, ap- The. proximately $3,500,000 per annum, assessed and the becomes part members a of their costs of opera- be tion, to recouped, presumably through with profit, TERM, S. 248 U.

Opinion of the Court. com- Under newspapers. several of their the publication assuming agrees upon member each by-laws plainant’s complainant’s through received news that membership in a particu- for publication exclusively is received service in the certif- specified and place language, newspaper, lar it shall use of no other that membership, icate or permit furnish shall member no and permitted, to newspaper with his or connected in employ his anyone of publica- in advance news of complainant’s furnish any each member And member. not a to person tion and district his news local gather to is required no one else. and Press it to the Associated supply under the laws organized is a corporation Defendant is the gathering whose business Jersey, of New State consisting clients, and customers of news selling and States, un- the United throughout published of newspapers at amounts stated certain pay they der contracts It wide-spread news- service. for defendant’s times amounts, the cost its operations agéncies; gathering annum; and than $2,000,000 per to more said, it is in the various cities located 400 newspapers about serves few of which are abroad, repre- United States Press. membership in Associated also, sented, in the are keenest between competition parties throughout of news distribution themselves rule, as so, newspapers States; United their districts. several serve, they bill, in its in its defendant answer, have Complainant identical obvious terms rather almost forth set conditions under which their and' business circumstances of the of.the service, The value news is conducted. of transmission, promptness furnished, upon depends accuracy impartiality as as well essential transmitted being news; early or earlier than or subscribers members similar be furnished competing newspapers can information INTERNAT’L NEWS SERV. v. ASSO. PRESS. 215. Opinion of the Court.

by other news services, and that the news furnished by each agency shall not be furnished to newspapers do not contribute to the of it. expense gathering And further, to quote from the answer: knowledge “Prompt and publication of world-wide news is essential to the conduct of a modern of newspaper, by and reason enormous incident expense gathering and distri- bution of news, only such practical way in which a proprietor of a can newspaper is, obtain the same either through with cooperation a considerable number of other newspaper in the work of proprietors collecting and distributing news, such and division equitable with them of thereof, of expenses purchase such engaged news from existing agency some that busi- ness.”

The bill was filed to restrain' the pirating complain- in three ways: First, by bribing ant’s news defendant by complainant’s employees newspapers published news to members to furnish Press defendant Associated. by telegraph before and publication, transmission them; clients for publication by defendant’s telephone to Press to violate inducing Associated members Second, by before defendant to obtain news permit by-laws from bulletin news Third, by copying publication; from, news- complainant’s editions early boards- and rewriting either or after this, bodily selling papers customers. -it, defendant’s consideration of the bill and Court, upon

The District sides, granted affidavits on both voluminous with answer, heads; the first under and second injunction & preliminary the systematic restrain stage prac- but refused at that taking defendant, admittedly tice pursued early from the bulletin boards and bodily editions own. The it as its selling newspapers and complainant’s practice itself as satisfied expressed court trade, legal question but as the was to unfair amounted TERM, S. 248 U. Court.

Opinion allowance considered impression first one appeal. an outcome await should injunction of an having appealed, Both parties Rep. Fed. injunction sustained Appeals Court of Circuit appeal complainant’s went, far as so order directions cause remanded it and modified taking bodily against also injunction an issue com- its news until complainant’s of substance or words Fed. Rep. away. passed had news as mercial value allowed. then was of writ certiorari The present 244, 253. 644. U. S. before us. argued has been that matter only The from restrained be lawfully defendant whether com- by issued bulletins from taken news appropriating newspapers or from members, its of any or plainant defend- selling of the them, purpose for published defendant’s that asserts Complainant clients. ant’s violates both regard in this of conduct course admitted constitutes in the news and property complainant’s notwithstanding And iii business. competition unfair stage preliminary of to the only proceeded has case the the to consider it proper deemed we have injunction, of very the merits togo they since questions, underlying not in facts upon are presented action are: questions these argument, As presented dispute. Whether, news; is any property there 1. Whether for the purpose collected in news property if there of its instant publication it survives being published, communicated it is newspaper first in the admitted defendant’s 3. Whether news-gatherer; use for commercial in appropriating conduct course of Associated editions early or bulletins taken matter in trade. competition unfair constitutes publications Press because diver- was invoked jurisdiction federal suit ground upon the citizenship, sity the United laws of or other copyright under arose INTERNAT’L NEWS SERV. v. ASSO. PRESS. Opinion of the Court. States. Complainant’s matter is not copyrighted. It is said could not, practice, copyrighted, because of the large number of dispatches that are sent daily; and, according to complainant’s contention, news is not within the operation De- copyright act. fendant, while apparently conceding this, nevertheless invokes, analogies of the law of literary property copyright, insisting contention principal that, assuming complainant a right in its property news, it can be (unless maintained act be copyright com- plied with) only by being kept secret and confidential, and that upon publication complainant’s consent of uncopyrighted news by any complainant’s members in a newspaper board, a bulletin right of lost, and the use subsequent news by the public or defendant whatever be- purpose comes lawful.

A preliminary in which objection form the suit is brought may be of at the outset. It is disposed said that the Circuit Court of granted relief Appeals upon considerations applicable to particular members of the Press, Associated that and this erroneous was because the brought suit was by complainant as a corporate not entity, by members; argument and its the being that their interests cannot in this protected be procéeding rights more the of a than individual stockholder can be brought enforced in an action the From corporation. the of it that bill, averments the is the however, plain brought suit in substance for the benefit of com- was members, that would plainant’s they proper and be numbers, for their parties, and, except necessary perhaps is to Complainant proper a conduct the parties. party interest; and since their no specific suit as representing the based want of parties, appears to objection, below, made we will the objection treat as been have 38, 43, 44. Equity Rules See waived. TERM,

234 S. 248 U. Court. of the Opinion in news of question general the considering In character, dual recognize necessary to matter, it is information the of substance the between distinguishing in which of words or collocation form the particular and it. communicated the writer quality, literary a possess often articles news doubt No common the at literary property of subject the are and literary as a article, an that such we question nor do law; the'terms copyright subject the is production, circuit the at case In an early stands. it now the act as newspaper that a held effect Thompson Justice Mr. acts copyright of the the protection within not was Cas. Fed. 2 5 Paine, v. Stone, (Clayton 1802 it provides broader; act is the present But 2872). No. shall secured may copyright works specifically author,” writings an “all include Act including newspapers.” “periodicals, mentions 1075, Stat. 5, 4 and 320, c. 1909, §§ March a to contribution admits Evidently copyright news; convey notwithstanding also newspaper, office, practice copyright such Copyright bear witness. See the day newspapers (1917), 7, 14,16-17. pp. No. Bulletin Office respecting information element —the But not production the literary contained events current —is (cid:127) f of matters but is writer, report creation the day. history juris; vubVici Ordinarily Constitu- framers ipposed s It is promote “to Congress empowered they when tion, for limited securing arts, by useful of science' progress exclusive and inventors authors times I, Art (Const., and discoveries” writings respective their might who one to confer upon intended 8), par. 8,§ the ex- event historic to report first happen of it. knowledge to spread for,any period clusive general however, upon time, no spend need We NEWS SERY. ASSO. PRESS. INTERNAT’L Opinion of the Court. question of in property news matterCat common or law, of the copyright act, since it application seems to us the case must turn the question of unfair competition in business. in And, our opinión, this does not depend upon any general right of property analogous to the com- mon-law right of the proprietor an unpublished work to prevent without publication his consent; nor it foreclosed- by showing that benefits the copyright act have been waived. We are dealing here not with restrictions upon publication but with the very facilities and processes of publication. The peculiar value of news is in the of it spreading it while is fresh; and it is evident that a valuable interest in the news, as news, cannot be maintained by. keeping secret. Besides, for matters exéept improperly or disclosed, published in breach trust or or in confidence, violation of law, none of which is in involved this branch of the case, of current events regarded as common property What we are concerned with is the business of making known in which world, both parties to the suit present are engaged. That business consists in main- taining sure, prompt, steady, reliable service de- signed place the daily events the world at the break- fast table millions at a price that, while of trifling to each reader, moment is sufficient in the aggregate to for afford compensation the cost gathering and dis- tributing it, with the added so profit as necessary an in- centive effective action the commercial world. performed The service thus readers is not newspaper innocent but only extremely useful itself, and indu- a legitimate constitutes business. bitably The parties field; competitors and, on prin- fundamental here ciples, applicable elsewhere, as when rights or one are liable to conflict privileges with those of each is under a other, party duty so to conduct its unnecessarily unfairly own to injure business TERM, 1918. 236 U. 8. 248 the Court. of Opinion Mitchell, Co. v. Coke &Coal Hitchman of other. 229, 254. S.U. competition is unfair what of the question Obviously, reference with particular be determined must in business the business. and to the character circumstances party of either rights not so much here question them- between rights as their but public against as And 241, 258. Hare, 9Moat, See Morison selves. party that neither do assume although we the public as against interest’ remaining property any moment after the matter in uncopyrighted no there is follows no byit means first publication, themselves. it as between interest remaining property little however matter, alike, news them to both For, in the absolute dominion ownership or susceptible at the cost of gathered be to trade, is stock sense, to money, labor, skill, organization, enterprise, money will pay to who those and sold distributed news, Regarding merchandise. other for any as it, both parties of which out material but the as therefore, and in same time at the profits seeking make that for recognize fail can hardly we field, same regarded it must them, between and as purpose, against of either as rights irrespective quasi property, the public. over of equity jurisdiction to sustain

In.order and absolute general any need affirm we controversy, that a court The rule as such. the news property property in the protection only itself concerns equity nature as a aof pecuniary right civil treats rights re 200, 210; In 124 U. S. Sawyer, (In re right property the'right prop- acquire 593); 564, U. S. Debs, business lawful of a conduct or the labor honest erty guard as the to protection entitled as much (cid:127)is S. 239 U. Raich, Truax already acquired. 729, J. L. Hatters, 73 N. v. United Brennan 37-38; NEWS SERV. ASSO. PRESS. INTEENAT’L Opinion of the Court. Barr v. Essex Trades Council, 53 N. J. Eq. 101. It this right that furnishes the basis the jurisdiction in the case of ordinary unfair competition.

The question, whether one who has gathered general information or at pains news and expense the purpose of subsequent publication through the press has such an in its publication as may interest be protected from interference, has been raised many times, although never, in the perhaps, precise form in which it is now presented. Board Trade Christie Grain & Stock Co., 198 U. S. of 236, 250, related to the distribution of quotations of prices on dealings a of upon board trade, were collected by plaintiff and communicated on confidential terms to persons numerous under a contract not to make them public. This court held that, apart from certain special objections that Were overruled, plaintiff’s collection of quotations was entitled the protection of the law; that, like trade secret, á plaintiff might keep to itself the work done at expense, its and did not lose its right by commu- nicating result to if persons, even many, confidential to itself, relations a contract under not to make it public; and that strangers should be restrained from getting at the knowledge by inducing a of breach trust. n In Tel. National Co. v. News Western Tel. Co., Union Rep. 294, 119 Fed. of Circuit Court Appeals for the Circuit Seventh dealt news gathered matter and transmitted a telegraph company, and consisting of a notation current events merely having but a tran- value due to transmission quick sient and distribution; while and, declaring that this was copyrightable not although printed on a tape by tickers offices of and that it was a recipients, not commercial a literary nevertheless held product, the business gathering communicating and news—the service purveying legitimate it—was a business, meeting a distinctive com- adding and mercial want to the of the facilities business TERM, S.U. of the Court.

Opinion in a sense of nature world, and partaking of equity court a protection to the entitled it against piracy. nec- deem that we none cited, but cases are

Other to mention.. essary

(cid:127) of news transmission and acquisition do the only Not expenditure large organization elaborate reqúire exchange value an only effort; shill, and money, novelty and its chiefly dependent gatherer, reliabil- reputed service, its regularity freshness, the public adaptability thoroughness^ ity exchange has ah evident, the as is also, but needs; it. misappropriate can who to one value the fact arise case features peculiar an important form so freshness novelty and while that, business, very processes in the success element good occupy necessarily publication of distribution well as defend- service, as Complainant’s time. deal of the most newspapers; to daily service daily is a ant’s, seaboard, the Atlantic at country reaches news foreign this, and because York, of New City at principally rotation, earth’s due to the differentials time country throughout matter of news distribution tele- speed since in and, west; east to from principally the rotation outstrip easily telephone graph to take com- matter defendant simple ais earth, of com- editions early or bulletins plainant’s the mere cities and at eastern members plainant’s published cause transmission telegraphic cost served as those early at least as issued papers in western of time irrespective this, and Besides complainant. on transmission telegraphic irregularities differentials, of time consumption normal and the lines, different in per- result newspaper, distributing printing of defend- in the hands placed news to.be mitting pirated with the service simultaneously sometimes ant’s .readers INTERNAT’L NEWS SERV. ASSO. PRESS. Opinion of the Court. of competing Associated Press papers,, occasionally even earlier. Defendant insists with, that when, the sanction and

approval of complainant, and as the result of the.use of its news for the very purpose for which it is distributed, a portion of complainant’s members communicate it to the general public by posting it upon bulletin boards so that all may réád, by issuing it to newspapers and distribut- ing it indiscriminately, complainant no longer has the right to control the use to be made of it; that when it thus reaches the light of day it becomes the common possession of all to whom it is accessible; and that purchaser of a newspaper has the right to communicate the intelligence! which it contains to anybody and for any purpose, even for the purpose of selling it for profit to newspapers pub- lished for profit in competition with complainant’s mem- bers.

The fault in the reasoning lies in applying as a test the right of the complainant as against the public, instead of considering the rights of complainant and defendant, competitors in business, as themselves. The right between of the purchaser of a single newspaper to spread'knowledge of its contents gratuitously, for any legitimate purpose unreasonably interfering with complainant’s right to make of it, may merchandise be admitted; but to transmit news for commercial use, in competition with com plainant is what —which defendant has7done and seeks to justify different very matter. In —is doing this defend^ ant, by its very act, admits that it is taking material that has been acquired by complainant as the result of organiza tion the and expenditure of labor, skill, and money, and which is salable by complainant for money, and that de fendant in appropriating it and selling as its own is endeavoring to reap where it has not sown, and by dis itof to posing newspapers that are competitors of com plainant’s members is' to appropriating itself the harvest ‘ TERM, S. 248 U. Court. of the

Opinion the disguises, all of Stripped sown. have those who of the with interference unauthorized to-an amounts process business legitimate complainant’s of' operation normal in reaped, tois the profit the where point at precisely those profit of the portion material a to order divert it,to special with not; have, have who those earned who of the because competition in the defendant advantage to expense the of part burdened it is not that fact itself, for speaks The transaction news. the gathering of in char long hesitate to ought equity of a court business. in competition unfair acterizing it .as as that same the is much principle underlying The of considera- theory equitable of base lies at which fairly paid has he who trusts —that of law in tion the property. of use beneficial have should price com- that say to no answer It Jur., .is Eq. § Pom. fugitive too which is that for money spends plainant might, That of property; subject to be evanescent assuming that arewe of the discussion purposes for controversy. á common-law answer an would, furnish 'it is one question where equity, a court But haá acquired complainant if that competition, unfair substantial at fairly be sold cost substantial fairly at it for the misappropriating is who competitor a profit,, to the profit own it to his disposing purpose say cannot complainant heard disadvantage property. regarded to be or evanescent fugitive too it is for deter- necessary of property attributes all It competitor aby misappropriation mining conscience. good contrary because competition unfair is abandoned the news contention The news- first published when purposes all public intent, question is a Abandonment untenable. paper nega- Press the Associated organization entire would be service cost purpose. tives such single No limited. be so were if the reward prohibitive INTERNAT’L NEWS SERV. v. ASSO. PRESS. 215. Opinion of the Court.

newspaper, no small group of newspapers, could sustain the expenditure. Indeed, it is one of the most obvious results of defendant’s theory that, by permitting indis- criminate publication by anybody and everybody for purposes of profit in competition with the news-gatherer, it would render publication profitless, or so little profitable as in effect to cut off the service by rendering the cost prohibitive in comparison with the return. The practical needs and requirements of the business are reflected in complainant’s by-laws which have been referred to. Their effect is that publication each member must be deemed not by any means an abandonment of news to the. world for any all purposes,'but a publication for limited purposes; for the benefit of the readers of the bulletin or the newspaper such; not for the purpose making merchandise of it as news, with the result of de- priving complainant’s other members their reasonable opportunity to obtain just returns for their expenditures. It is to be observed that the view we does adopt result in giving to complainant the right to monopolize. either the gathering the distribution of the news, or, without complying with the copyright act, to prevent the reproduction of its news articles; but only postpones participation by complainant’s competitor in the processes of distribution and reproduction of news that it has not gathered, and to only the extent to necessary prevent that competitor from reaping the fruits of complainant’s efforts and expenditure, partial exclusion com- fhe plainant, and in violation the principle that underlies sic maxim utere tuo, etc.

It is said that the elemen+s of unfair competition are lacking because there is no attempt by defendant palm off its goods as those of the complainant, characteristic of the most familiar, if not the most typical, cases of unfair - competition. Howe Scale Co. v. Wyckotf, & Seamans Benedict, 198 U. S. we But cannot concede that TERM, S. 248 U. Court. Opinion

. class is confined relief equitable right complainant’s upon fraud the case present In the cases. matter news Regarding and direct obvious. more is rights competing two these which from material the mere as it, treating money, make endeavoring to are parties their of purposes the. for quasi therefore, as such, defend- it as selling both are they because business of unfair case ordinary from differs conduct ant’s of that, instead this in principally trade in competition it substitutes complainant, of as those goods its own selling misrepresentation, of place in misappropriation own. its as goods complainant’s sells 'of elements are there misappropriation, Besides The practices. defendant’s in pretense, of false imitation, frequently articles, news complainant’s rewriting of device failure habitual The comment.. own its carries to, resorted is taken is which that complainant to credit givé to appropriating of system the entire Indeed, significant. commercial aas transmitting news complainant’s ato amounts patrons clients and defendant’s to product newspaper their them representation false of de- result is transmitted news that readers ele- But these field. investigation own fendant’s not are wrong, accentuating although ments, advantage than more something is it. It tlfé essence being deprived. is complainant which celebrity a bar invoked hands of unclean doctrine against practices defendant’s insisted being relief; it. different injunction an seeks complainant utilizing complainant, attributed practice from At subscribers. by published news defendant’s distinction to consider necessary it becomes point was it, understand we ancl, as complainant, by drawn of proofs submission also defendant recognized, of use kinds two Court, between District taken news agency news one made INTERNATL NEWS SERV. ASSO. PRESS. Opiniau of the Court. bulletins and newspapers the other. The first is the bodily appropriation of á statement of fact or a news article, with or without rewriting, but without independ- ent investigation or other expense. This fomCof pirating was found by both courts to have been pursued de- fendant systematically with respect to complainant’s news, and against it the Circuit Court of Appeals granted an injunction. This practice complainant denies having pursued, and the denial was sustained by the finding the District Court. It is not contended by defendant that the finding can be set aside, the proofs as they now stand. The other use is to take the a rival agency as a “tip” to be investigated, and if verified by independent investigation the news gathered thus is sold. This practice complainant admits that if has pursued and still is willing that defendant shall employ.

Both courts held that complainant could not be de- barred on ground of unclean hands upon the of score pirating defendant’s news, because not to bé shown guilty of sanctioning this practice.

As to securing “tips” from a competing news agency, the District (240 Court Fed. Rep. 991, 995), while not sanctioning the practice,. found .that both parties had it in adopted accordance with common business usage, in the belief that their conduct was technically, lawful, and hence did not find nfit any sufficient ground for „ áttribut- ing unclean hands complainant. Court The Circuit (245 Appeals Fed. Rep. 247) found that the tip habit, though discouraged" by complainant, was incurably journalistic,” and that there was “no difficulty dis criminating between the utilization of ‘tips’ and the bodily appropriation of another’s labor in accumulating and stating information.” ,

.We inclined to think a distinction may be drawn between the utilization of tips and the bodily appropria- tion of news matter, either in its original, form or after TERM, 1918. S.U. Court.

Opinion and investigation independent without rewriting and hearing, final at appear whatever verification; distinction; a such recognize stand now they as proofs taking practice recognize avowedly parties both toor be .unlawful toit alleges party neither tips, and. line a In business. competition.in unfair amount been practice analogous a somewhat cases English . copyright infringement to an to amount held inform compiled containing book other directory of a 702, 701, Eq. 1R.L. Morris, Kelly In ation. Lord (afterwards Wood Page William Sir Chancellor Vice defendant said case, such dealing Hatherly), informatión word of one to také entitled “not was out working independently without published previously result the same arrive toas at himself, so for the matter and information,, sources common the same -from a previous make legitimately, can he only use results and calculations own his verify tois publication Chancellor Vice followed was This obtained.” when he 34, where 7 Eq. L. R. Ashbee, Morris Giffard take ahas one no case such “In said: another incurred expense and the labour results him save thereby publication, rival of a the purposes arriving out working labour expense self similar A road.” independent some results these at Hatherly Chancellor by Lord adopted was view v. Pike J.,L. Giffard, then Chancellor, Vice former after shortly 251, Cas. App. 5 Ch. R. Nicholas, L. Ch. 5R.L. Wright, Morris judge latter wards commenting upon said, he where 287, Cas. App. course legitimate perfectly “It was v. Nicholas: Pike if, book, plaintiff’s to the refer defendant original went he guide, his book taking made them, he book his compiled authorities so book; and plaintiff’s use improper or no unfair plaintiff’s used Wright Mr. be that fact if here, INTERNAT’L NEWS SERV. ASSO. PRESS. Opinion of the Court. book in order to guide himself to the persons on whom it would be worth his while to call, and for no other purpose, he made a perfectly legitimate use of the plaintiff’s, book.”

A like distinction was recognized by the Circuit Court of Appeals for the Second Circuit in Edward Thompson Co. v. American Law Book Co., 122 Fed. Rep. 922, and in West Publishing Co. v. Edward Thompson Co., 176 Fed. Rep. 833, 838.

In the case before us, in the present state of the plead- ings and proofs, we need go no further than to hold, as we do, that the admitted pursuit by complainant of the practice taking of. news items published by defendant’s subscribers as tips to be investigated, if and, verified, the result of the investigation to be sold—the practice having been followed by defendant also, and by news agencies .generally not shown to be such —is as to constitute an unconscientious or inequitable attitude towards its ad- versary so as to fix upon complainant the taint of unclean n hands, and debar it on this ground from the relief to it otherwise is. entitled.

There is some criticism of the injunction that was directed District Court' upon the down of going the mandate from the Circuit Court of Appeals. In brief, it restrains any or taking gainfully using of the complainant’s news, either bodily or in substance, from bulletins issued by the its members, complainant or from editions of their newspapers, “until its commercial value as news to the complainant and all its members has passed away.” The part complained of is the clause we have italicized; if but this be indefinite, is no so more than the criticism. Perhaps would be better that the of the injunction terms be made specific, and so framed as to confine the restraint to an extent consistent with reasonable..protection complainant’s newspapers, each in its own area and for a specified time after its TERM, S.U. Holmes, J. per

Opinion of pirated use competitive the against publication, practi- presents case the But defendant’s customers.. in either materials, not have we difficulties; cal inor amendment, suggestion definite aof way injunction; specific a frame to upon proofs, way adopted form approval expressing while hence, this at modify to decline we Court, District court that leave will case, stage preliminary application appropriate upon matter thu deal t<|. made purpose. it for bewill Appeals of. Court Circuit decree Affirmed. consideration in the part ño took Clabke Mr. Justice case. decision Holmes: Justice Mr. pub- is of words combination uncopyrighted an When people other to forbid general is no there lished in no property is there words other them —in repeating or facts thoughts or in combination does not law, creation a Property, express. words matter exchangeable although value, —a from arise inten- destroyed bemay values exchangeable Many fact. depends Property compensation. without tionally is not a interference, person from lawby exclusion merely of words combination using, from excluded even, labor it took if before, used someone because pro- given person a it. make If genius neighbors his of words use making hibited One found. must ground other some make

. free to are unfair the phrase expressed vaguely ground such aby repeated words means This trade. ¿s. convey way such business competitor who person injures the that materially misrepresentation kind some' credit them, appropriating used first NEWS SERV. ASSO. PRESS. INTERNAT’L Opinion per Holmes, J. which the first user has earned. The ordinary case is a representation by device, appearance, or other indirection that the goods defendant’s come from the plaintiff. But the only reason itwhy actionable make such a repre- sentation is that give tends to the defendant an ad- vantage in his competition with the plaintiff and that it' is thought undesirable that an advantage should be gained in that way.' Apart from that the defendant may use such unpatented devices and uncopyrighted com- binations of words as he likes. The ordinary I case, say, is palming off the defendant’s product as the plaintiff’s, but the same evil may follow from the opposite false- hood—from saying, whether in words or by implication^ that the plaintiff’s product is the defendant’s, and that, it seems to me, is what happened here. h^s Fresh news is got only by enterprise expense. To produce such news as it is produced by defendant represents by implication that it has been acquired by the defendant’s enterprise and at its expense. When it comes from one of the great agencies news-collecting like the Associated Press, the source generally is indicated, plainly importing that credit; and that such a representa-^ tion is implied confidence, be inferred with some from the unwillingness of the defendant to give the credit , and tell the truth. If the plaintiff produces the news at the same time that the defendant does, the defendant’s presentation impliedly denies to the plaintiff the credit of collecting the facts and assumes that credit to the defendant. the plaintiff If. is lateA in western cities it will naturally be supposed to have obtained its informa- tion from the defendant. The falsehood is a little more subtle, the injury a little more indirect, than in ordinary cases unfáir trade, but I think that the principle that the one ^condemns condemns the other. It is a question of how strong an infusión of fraud is necessary to turn a flavor into a poison., The dose seems to me strong TERM, S. 248 U. dissenting.

BhandR£8, J.; as, But the law. from remedy &need enough here rec- be can complaint of" ground only view, my misstatement, implied legislation without ognized a suitable truth; and stating the corrected it can the plaintiff is all source acknowledgment recognized limits within I think require. can should defendant Court the decision Asso- from obtained publishing enjoined publication after hours Press ciated the Associated credit gives express unless plaintiff acknowledg- form of hours number Press; the Court. District by be settled ment opinion. in this concurs McKenna Justice Mr. dissenting. Brandéis Justice Mr. 2,500 about States United published are There with supplied them 800 of than More daily papers.1 by interest of general news foreign

domestic stock capital without corporation Press —a Associated profits, to earn seek or or earn news sell does not which means instrumentality by an merely serves but expense joint at themselves supply papers these which Associated of the members not Papers news. such largely interest of general news their for Press depend agen- these Among profit.2 for organized agencies 4, 10, (1918), pp. Directory Annual Newspaper American See . 1193-1212. No. 63d Doc. Noyes, Sen. B. by Press, Frank Associated the Asso- court counsel filed in this brief In a sess. 1st Cong., Some be 1030. is stated its members Press number ciated to the Inter- subscribers are also Press Associated members Service. News national a,n individ- concern, but publishing Strictly member officer an newspaper, or executive aof part owner or sole is-the ual who II, Article By-laws, § company owns one. aof INTERNAT’L NEWS SERV. v. ASSO. PRESS. 215., J., dissenting. Brandéis, 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; annual expenditure in gather- ing 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 some papers pub- lished by members of the Associated Press and the bulle- tins publicly posted by them. These .items, which con- stitute but a small part of the news transmitted to its subscribers, are generally verified by the International News Service before but transmission; 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 paper bulletin published an Associated Press member.

No question of statutory copyright" is involved. The sole question for our consideration is this: Was the Inter- national News Service properly enjoined from using, or to be causing used gainfully, which it acquired knowledge^ lawful means (namely, by reading publicly posted bulletins or papers purchased it by in the open market) merely because the news had been originally gathered by 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 with analogy 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 TERM, OCTOBER. S.U. dissenting.

Bbandeis, J., reports to distribute and of interest occurrences of such knowledge that Press contended Associated The thereof. labor and money costs it because is property, acquired so who those for which value it has because and to produce and property remains it that to pay; ready . not are it have commercial it has as long as to protection entitled is de- effectively to protect news; as value to be causing or making, from enjoined must fendant value. such it retains while of it use any gainful made, legal is property individual element essential An the property "If it. enjoying others to exclude right if the absolute; exclusion right is private, interest, public awith affected is property a product fact But is qualified. exclusion mind, has labor, and money its producer cost sufficient is willing pay, are others which value The of property. legal attribute this to ensure pro- human noblest is, lawof rule general conceptions, ascertained, truths knowledge, ductions — communication voluntary after become, and ideas— in- these Upon use. to common the air free others, con- of property attribute productions corporeal classes in certain only such communication after tinued it. These to demand has seemed policy public where cases de- in some which, to productions confined are exceptions no But discovery. invention, creation, involve gree, of prop- attribute this endowed .are such all means as property recognized are which creations The erty. musical, and dramatic, literary, are law common protection also have these* creations;, artistic other dis- inventions copyright tlje under statutes.. con- attribute coveries within comprised few are statute, only ferred in which cases other also many, There law. ^patent of plaintiff’s curtailment prevent interfere courts in which and productions; incorporeal enjoyment . INTERNAT’L NEWS SERV. ASSO. PRESS. Bkandeis, J., dissenting. right relief is often called a property right, but is such in only a In special sense. those cases, the plaintiff has no absolute protection his production; he has merely the right to qualified be protected as against acts, defendant’s because of the special relation in which the latter stands the wrongful or method or means employed acquiring or the knowledge 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 unfair upon competition.

The knowledge for which protection is sought in the case at bar is not a kind upon which the law has here- tofore conferred the attributes of nor property: is the manner of its acquisition use nor purpose to which it is such as applied, has heretofore been recognized as a to relief. entitling plaintiff (cid:127)

First: Plaintiff’s principal reliance was upon the “ticker” but cases; do not they support its contention. The cases on leading this subject rest the grant of relief, not the existence of upon a general property right news, but the breach of a contract or trust concern- ing the use of news communicated; that element here. lacking In Board Trade v. Christie Grain & Co., Stock 198 U. S. 250, the court said the Board lose rights “does its by communicating the result even if quotations] persons, many, [the confidential to itself, relations under contract not to make it public, strangers to will trust be restrained from getting at the knowledge by inducing a breach trust using knowledge obtained by such breach.” And is also there, stated 251): (page “Time is the essence in mat- this, ters like if fairly may be said that, con- tracts plaintiff kept, the information will not public become gained, until the plaintiff only reward.” other case in this court which relates subject-is Hunt v. Y. N. Cotton Exchange, 205 U. S. TERM, 1918. 252 S.Ú. 248 dissenting. J., BRandbis, ato the protection refers there opinion the While 322. facts the the quotations, in right property general Case, Christie the in as those same the substantially is decision the which on authority chief the is in courts federal lower in the cases theOf based. can, too themof most that said, may courts state though this principle, reconciled facts, be their on spite In be.1 cannot courts of- language of much con- Cases these in appear may that anything of stated is principle true it seems trary “stands quotations of collection Case, Christie v.Co. Medical Miles Dr. And secret.” a trade like of a says court 402, 373, S. 220 U. Co., Sons&Park analysis fairly, who use one “Any secret: . trade complainant But it. discovers experiment, iri right its of invasion against be protected -entitled or contract.” trust of breach byor fraud process Rep. Fed. Hartman, 153 v.Co. Sons Park & D. John See 24, Gregory The 29. a leading breach & Co., of contract English ^[1896] 1 case, Exchange B.Q. or trust, 147, is although also Telegraph rested there clearly Co. some v. 305; Rep. Fed. 221 Tucker, Chicago v. 1 City Trade of Board of of 336; McDearmolt Rep. 213 Fed. Price, Chicago v. City Trade of Board of of Fed. 146 Chicago, City Trade Board of v. Co. of of mmission Co Co., Commission Cella Chicago v. City 961; Board Trade of of Rep. of Tel. Union Western v.Co. News Tel. 28; National Rep. Fed. 145 Co., Tel. v. Cleveland Co. Commission 294; Illinois Rep. Fed. Co., 119 Co., Chicago Hadden-Krull v. Rep. Trade 301; Board of of Fed. 119 Rep. Fed. Stone, 105 v. Co. Tel. 705; Cleveland Rep. Fed. 109 Co., Fed. Commission Thomson Chicago v. City Trade Board Pr. How. Co., 50 Telegraph Quotation. Manhattan 902; Kiernan Rep. Co., Construction Dodge Co. Information in W. F. bill It trust. of contract on breach based expressly was Mass. in its property has trade board suggested been has exchange. The originated in reported facts because quotations great no cases, but times several mentioned been point it. attached been have seems importance INTERN ATL NEWS SERV. v. ASSO. PRESS. . Beandeis, J. dissenting. reference to a general, right. The later English cases seem to have rightly understood the basis decision, and they sought have not- to extend it further than was Indeed, intended. we find the positive sug- gestion in some cases that the only ground for relief is the manner in which knowledge report the news was acquired.1

If the news in involved the case at bar.had been posted in violation of any agreement between the Associated Press and its members, questions similar to in those the “ticker” might cases have arisen. the But plaintiff does not contend that the posting was wrongful or that any papers were issued wrongfully by its subscribers. On the it is conceded contrary that both the bulletins and were papers issued in accordance with the regulations of the plaintiff. Under such circumstances, for a reader of the papers purchased in the open market, or a leader of the bulletins publicly posted, procure and gain- use fully, information therein contained, does not involve inducing anyone commit a breach either of contract or trust, or committing or in any way abetting a breach of confidence.

Second: Plaintiff also relied upon the cases which hold that the common-law the producer to pro- hibit is not lost copying by the private circulation .of a literary composition, the delivery a lecture, the exhi- 1 Exchange Telegraph Co., Ltd., In Howard, Times Rep. Law 375, 377, it is intimated perfectly permissible that would for the' defendant take the score from a newspaper supplied by plaintiff publish suggested it. And it is Exchange Telegraph Co., Ltd., v. which Central the defendant News, Ltd., ^[1897] might be able to Ch. 48, 54, get the information collected there are sources from plaintiff publish committing any it without wrong. Cop inger, Copyright, ed., p. 35, explains Law Gregory 5th Case on of the breach of basis confidence Richardson, involved. Law of p. 39, Copyright, put also footing inclines to the case “on the of implied confidence.” TERM, 1918,

254- S.U. dissenting. J., Brandéis, or dramatic a performance or the of a painting, bition ground rest cases These composition.1 musical productions such recognizes law common communication, con- restricted which, despite under to the public a dedication there until tinues inappli- are they But or otherwise. statutes copyright under law, as reasons, At common (1) for two cable entitled productions acts, intellectual copyright something is underneath if there only protection such however originator, or creator mind of a evincing isolated record mere requirement. modest by photographs or in words whether happenings, (2) protection.-2 such denied skill, are artistic involving element acts, the copyright under law, as common At such protection secures which productions intellectual or which ideas, emotions truths, knowledge, not the sequence or the form but expresses, composition -the collocation new is, “some expressed; they are or sounds, colors, lines, points, audible of visible —of meister, 218 Hart, Fed. Fed. v. Bartlett 1691; L. 12R. nethy v, 133 Ir. Co. 250; Banks News Rep. 106; 1 Crittenden, 2 Eq. Ferris Compare v. Fed. Mass. Rep. Higgins Cas. Clayton 386, 391. 13 Blatchf. Co. Sarony, 111 U. Rep. 121. Law 207 Hutchinson, App. Cas. Rep. v. 321; Drummond No. v. Aronson 32; U. 223 U. Frohman, v. 4 Pub. v. v. Bleistein Western 3441; McLean, 300; Fed. Cas. 577; Werckmeister 2 Stone, S. Crittenden, 5 Keuffel, 140 U. 47; Fed. Cas. 284, Co. v. v. 326; Nicols Boucicauly 3 S. v. Union L. J. Universal 299; Paine, v. 53, Donaldson v. Lawyers’ Baker, Baker 58-60; McLean, Altemus, 60 (O. S. Tel. No. 382; S. v. 424; S.) Pitman, L. 428, v. 5 Blatchf. Fox, 43 119Fed. Co., 1692; Fed. Lithographing Co-operative Pub. Ch. American-Lithographic American 32; Fed. N. J. Film 432; No. v. 209; Cas. Turner Fed. Crowe v. 1082; Burrow-Giles Selden, 101 Mfg. Co. v. Eq. R. No. Rep. Cas. Tobacco Go. v. 26 Tompkins Halleck, 365; Rep. 2 Biss. Aiken, Co., 2872; 87; No. Ch. D. 338; Caird Fed. 188 Co., 294, Bartlette 1076; U. National Boucicault Robinson, Lithographic Copperman,. S. 374; v. U. S. Werck v. Cas. No. 169 296-298; Co., 134 v. 99, 105, Sime, Aber Fed. 208; 239, Tel. ^[10] v.

INTERNAT’L NEWS SERV. ASSO. PRESS. o. 255 J., dissenting. Brandéis, words.” See White-Smith Music Co. v. Apollo Co., 209 U. S. 1, 19; Kalem Co. v. Harper Brothers, 222 U. S. 63. An author’s theories, suggestions, speculations, or the systems, plans, methods, and arrangements of an originator, derive no such protection from the statutory copyright of the in which book they are set forth;1 and they are likewise denied such protection at common law.2

That news is not property strict sense is illus- trated by the case Sports and General Press Agency, Ltd., v. “Our Dogs” Publishing Co., Ltd., ^[1916] 2 K. B. 880, where the plaintiff, assignee of the right photograph the exhibits dog at a show, was refused an injunction against defendant had also taken pictures who. of the show and was publishing them. The court said that, except so far as the possession of the land occu- pied show enabled proprietors to exclude people or permit them on condition that they agree not to take photographs (which condition was not imposed case), had proprietors no exclusive right to' the show photograph and could therefore grant no such right. And, it was further stated that, at any rate, no matter what might conditions be imposed upon those entering the grounds, if the defendant had top on. been of a or in house some position he where could photograph the show without interfering with the physical property of the plaintiff, the plaintiff would have no right to stop If, him. when plaintiff creates event recorded, he is not entitled to the exclusive first publication of the App. 251.. Lawrence Rep. Printing Barnes v. 1 Baker 993; & & v. Miner, v. Tate Publishing Co., Co., Selden, L. FuUbrook, R. 101 U. S. Fed. 25 B. D. Q. Rep. ^{[1895] [1908]} 99; Burnell 69 Fed. Chown, 480, 491; Perris v. Hexamer, 99 U. 99; Ch. K. B. L. R. 5 Ch. Nicholas, Pike 29, 34; Kendrick & Co. Chilton Progress S. 674; Bristol v. 2 Equitable 132N. Y. Assurance Socieigf Haskins Life Eq. 71N. J. Ryan, TERM, S. dissenting. 248 U.

Brandéis, J., event, no reason photograph) case a (in that news protection such be accorded should why he be shown can and transmits records simply he which toas events expenditure great with world, parts though other money. of time and character- possessing as treated news be If

Third: then literary property, secret, but trade not of a istics or the circulation general of a paper issue the earliest embodies such which of bulletin a posting public earliest literary governing established rules would, under property and all a publication, operate property, conclusion, Resisting cease. then the news would that uncopy- hold which the cases upon relied plaintiff private survives artistic intellectual righted and it contended publication; a restricted or circulation restriction is to .paper, each issue of in each com- used^gainfully in shall not the news implied of its or members. Press the Associated with petition is But an for such implication. basis no There is in fact a publication where settled also well use words restriction express one, even general ' publication words, general In other inoperative. re- to the public, literary property dedicate effective In the cases its owner.1 intent actual gardless perform- and.' musical lectures, dramatic dealing relied, exhibitions,2 upon art ances, plaintiff comparable in print general publication there was no public unrestricted daily newspapers the issue governing those The principles of bulletins. posting theory, if not'in or less in application, mote cases differ of printed copies; the issue governing principles Co., Publishing 155 N. Y. Agency Jewelers’ Mercantile Jewelers' 798, 801; Larrowe-Loisette v. Conried, Rep. 125 Fed. 241; Wagner v. Rep. 896. Fed. O’Loughlin, 88 Richardson, Copyright, supra; Law of 1, p. 254, note cases in See p. 128. INTERNAT’L NEWS SERV. ASSO. PRESS. 257 215. BRANDEIS,J., dissenting.

and in so far as do they differ, have no they application to the at bar. case

'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 ground .that the. of this court decision to be based. appears To appropri- ate and use profit, knowledge and ideas produced by other men, without making compensation or ac- oven be may inconsistent with knowledgment, a finer sense of with but, the. propriety; exceptions indicated above, the law has heretofore sanctioned the practice. Thus was held one may ordinarily make and- sell anything in any form, may copy with exactness which another produced, may otherwise use his ideas without his consent without the payment of compensation, and yet not inflict legal injury;1 and that one is ordinarily at perfect find if liberty out, he can by lawful means, trade of another, secrets however valuable, and then use knowledge so acquired gainfully, although it cost the original owner much in effort and in to collect money or produce.2 1Flagg Manufacturing Holway, Co. v. 178 Massachusetts, 83; Equitable v. Society, Assurance 264; Keystone

Bristol 132 N. Y. Life Foundry Type Co., v. Publishing Portland Rep. 186 Fed. 690. 2 Covell, v. 190; 151 Massachusetts, Chadwick Tabor Hoffman, v. 30, 36; Y. James James, Eq. N. v. L. R. 118. 13 421. when Even knowledge compiled, a dictionary, copyrighted, sug freely and sources therein gestions compiler. used a later copyright protection merely prevents taking his the ultimate avoiding the expense compiling while labor data involved them. Nicholas, App. 251; L. R. 5 Wright, Ch. v. Morris v. L. Pike R. 5 Ch. Thompson 279; Co. Co., Edward Law Book 122 App. American Fed. Co. Thompson Co., Pub. v. Edward Rep. Rep. West 176 Fed. 833. of copyright, compiled absence the data It is assumed could also Chilton freely used. Progress Printing See Morris v. Ashbee, & Publishing Co., L. R. Eq. 34, ^[1895] Ch. 29. Compare TERM, J., 248 U. S. dissenting.

BbaNdeis, of another a product Such, use gainful taking and refused the law has public policy, which, for reasons become does of property, with attributes endow been tó have happens the product because unlawful him. in competition is used from a rival taken been hitherto has which competition The unfairness relief, lay basis the law recognized by business; conducting manner means either unfair, involves legally held or means manner prohibited doing of acts otherwise or the or force fraud most (the typical off” cases In “passing by law. consists wrong competition), of unfair case common defend- or act that word fraudulently representing Milling See of plaintiff. are those Hanover goods ant’s In the other 403, S. 412-413. Metcalf, U. Co. 240 v. through physical effected of trade was the diversion cases, of contract inducing breaches coercion, or by or moral others, In some employees. enticing away or by trust or of granted relief was competition, cases simulated called unlawful; namely, was purpose defendant’s because wanton destruction deliberate and but competition business.1 plaintiff’s

1 (U. Competition” Corpora & Unfair S. Bureau “Trust Laws 332-461; pp. 301-331, Nims, Competi 15, 1915), Unfair tions, March Sperry XIX; v. Trade-Marks, Pommer, c. & Hutchinson Co. & tion Good,s y. 314; Paper Dittgen, Rep. 309, Co. Racine 171 Fed. Fed. 199 Oklahoma, 223; Attorney Ragains, v. 631; 32 Rep. Schonwald General Michigan, 99; Witkop Co., Register 182 & Cash Holmes v. National Co. Supp. 956, 958; 124 Co., Tea N. Y. & Great Atlantic v. Dunshee Pacific Buck, Iowa, 618; Minnesota, v. Co., Oil 152 Tuttle 107 v. Standard Limited, Rép. Bradley, v. 171 Fed. Fonotipia, arid The cases Rep. 917, Davis, strongly 209 Fed. weré Co. v. Prest-O-Lite expressions plaintiff, indicating rights contain relied injunction enough bar; in the sustain case broad at possibly “passing elements See involve off.” also cases Prest-O but both Rep. 349; Searchlight Fed. Co. Davis, Gas 215 -Lite Prest-O-Lite Co. Rep. Bogen, Inc., Prest-O-Lite Co. v. H. W. Co., Fed. INTERNAT’L v, NEWS SERV. ASSO. PRESS. BRANDEIS,J., dissenting. That

. competition is not unfair in a legal sense, merely because the gained profits are unearned, if even made at the expense aof. rival, is shown by many cases besides those referred to above. He who follows pioneer into a new market, or who engages in the manufacture of an article newly introduced by another, seeks profits due largely labor and expense of the first adventurer; but the law sanctions, indeed encourages, the pursuit.1 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, 13 311; Elgin Wall. National Watch Co. v. Illinois Watch Co., 179 U. S. 665, 673. He who has made his name a guaranty quality, protests in vain when another same name engages, perhaps for that reason, in the same lines of business; provided, precaution is taken to prevent the public being deceived into the belief that what he is selling was made his competitor. One bearing a name made famous by another is permitted to the enjoy unearned benefit 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. 540, S. 544; Howe Scale Co. v. Wyckoff, Seamans & Benedict, 198 118; U. S. Donnell Herring-Hall- v. Marvin Co., 208 U. S. 267; Waterman Co. v. Safe Modern Pen Co., 235 U. S. 88. See Saxlehner v. Wagner, 216 U. S. 375.

The means by which the International News Service obtains gathered news by the Associated Press is also clearly unobjectionable. It is taken from bought papers in the open market or from bulletins publicly posted. 915; Fed. Rep. Prest-0-Lüe Co. v. Avery Lighting Co., 161 Rep. Fed. In '648. Presb-O-Lite Co. Auto Acetylene Light Co., 191 Rep. Fed. 90, the bill was on ground dismissed the no deception that was shown. 1 Magee Furnace Co. v. Le Barron, 127 Massachusetts, 115; Bicker Railway, Maine; 90 395, 403.- EEBM, 1918.

26Ó S.U. dissenting. J., BRANDEIS, to considered court the as such contract breach No S.U. Mitchell, v & Coke Co. Coal in Hitchman exist v. Morison in present was trust such 254; or in is force, nor fraud neither 241; and Hare, Moat, 9 unobjectionable. likewise is of use manner The volved. the Associated act byor word by made is reference No or to subscribers news transmitting the Press, either the Neither papers. in their in publishing them is gaming subscribers nor its Service News International the repu benefit a its business seeking gain or using merely They Press. Associated tation See compensation. making Bamforth without product its Rep. Fed. Co., & Machine Card Post Douglass Rep. Press, 116 Fed. Associated Chicago Co. Tribune do; because legal That, they have stand not do they property, not product, of contract Press, either Associated relation to argument The use. such precludes otherwise trust, which use taking such characterizing is not advanced misappropriation. does defendant that fact suggested, It is also news the source Press as Associated refer to defendant But relief. a basis furnish Press, Associated members unlike subscribers, its disclose obligation contractual no under were requiring of law rule is no there news; and source matter uncopyrighted made where to be acknowledgment is said Service News International reproduced. into, believing subscribers to mislead they it and gathered originally transmitted was. no fact, repre- their, is, in There readers. turn mislead of information Sources kind. either by sentation some- contract; required because given are sometimes to an authority gives source naming because times the source sometimes statement; and incredible otherwise to. take wish not does agency because is named INTERNAT’L NEWS SERV. ASSO. PRESS. n BRANDEIS,J., dissenting. itself of

responsibility giving currency to the news. But no representation can properly implied from omission to mention the source of information except International News Service is transmitting news which it believes to be credible.

Nor is the use made by the International News Service of the information taken from or papers bulletins of As- sociated Press members legally objectionable by reason of the purpose for which it was employed. The acts here complained of were done for the purpose injuring the business of the Associated Press. Their was purpose not even to divert its trade, to put it at a disadvantage by lessening defendant’s necessary expenses. The pur- pose was merely to supply subscribers of the Interna- tional News Service promptly with all available news. The suit is, as this court declares, substance one brought for the benefit of the members Associated Press, who would be proper, and for their except number per- haps necessary, parties; plaintiff conducts the suit as representing their interest. It thus appears protection given injunction is not actually the business of the complainant news agency; for this does not agency sell news nor seek to earn profits, but is a mere instrumentality by 800 or more newspapers collect and distribute news. It is papers these severally which are protected; and the protection afforded is not from competition of the defendant, but from possible of one competition or more of the 400 other papers which receive defendant’s service. Furthermore, the pro- tection these Associated Press members consists merely in denying to other papers to use, as news, which, information all authority concerned, had theretofore been given to the public by some of those who joined in gathering it; and to which the law denies attributes property. There in defendant’s pur- pose nothing on which to base a claim for relief. TERM, 1918. 248 U. S. dissenting. J.,

BRANDEIS, Associ- the for which while that, It is further said recog- to be fugitive too is money Press ated spends courts, defend- the in common-law the nized as of equity, court where in a say so be heard ant cannot The case competition. of unfair one the is question of or of breach title equitable no elements presents court to a for resort reason The only possible trust. the remedy which the like is that a case equity legal no has If plaintiff gives inadequate. law is Walker, Levy v. necessarily fails. suit action, the cause of in the nothing situa- There 436, 449. L. Ch. D. R. 10 tion, defendant estop can the parties saying so. now agencies furnish- development great The Fifth: news, vastness distribution of

ing country-wide means in the trans- improvements territory, our for a news possible made intelligence, have mitting (cid:127) paying without compen- obtain, or newspapers agency to use news so efforts of another’s fruit sation, the original in competition gainfully obtained is obvious. But action of such injustice The collector. more than the involve it would against relief give facts. It to new would existing law rules application analogy to existing. rule making of a new require for capacity growth; law possesses unwritten ones. by invok- justice new demands often satisfied has or rule This principle. by expanding or analogies ing and should wisely applied main been process problem relatively Where discontinued. only interests to be when private it is apt simple, But adequate. wjth generally proves involved, interest tends of society, public complexity increasing presented by and the problems omnipresent; to become Then simple. cease to for justice demands new right of a private courts new recognition by creation to the injury general public, unless work serious INTERNAT’L NEWS SERV. ASSO. PRESS. 263 J., dissenting. Brandéis, boundaries of are definitely established and wisely guarded. In order to reconcile the new private right with the interest, public may to necessary prescribe limitations and rules for its énjoyment; and also to provide administrative machinery enforcing rules. It is for this largely reason that, to effort meet the many new demands for incident justice to a rapidly changing civilization, resort to has lat- legislation terly been had increasing with frequency.

The rule for which the plaintiff contends would effect an important extension of property rights and a corre- sponding of curtailment the free use knowledge and of ideas; and the facts of this case admonish us the.danger involved in recognizing a such in news, without imposing upon news-gatherers corresponding obligations. A large of the majority and newspapers United perhapsJoalf newspaper readers States are dependent for their of general news interest upon agencies other than the Associated Press. channel through which about these papers received, as the plaintiff alleges, “a large amount of to news relating war of the European greatest importance intense interest to the reading néwspaper suddenly was public” closing closed. The to the International News Service for foreign- (if these channels news were they closed) not unwillingness was due to on to part pay the cost of collecting the news, but the prohibitions to imposed foreign governments by securing upon its news from -their respective countries and using or telegraph cable running fines therefrom. aught For appears, that undeserved; prohibition may have been wholly at papers all 400“ their may events be as- readers have been innocent. aught to For that appears, sumed News may sought the International Service have then temporarily by arrangement to Associated secure foreign latter’s service. For news aught Press TERM, 248 U. S. dissenting.

Bkandeis, J. International subscribers all of the 400 appears, members then become have gladly News Service would elec- have secured if could Press, they of the Associated large also, part that a It thereto.1 is possible, tion they so situated were these papers the readers of served papers to access not prompt could secure foreign govern- of the The prohibition Associated Press. channels been well have extended might ments than more supplied news was through which States' in- the United daily other papers thousand of their Press; large part the Associated served not procure can they also so located readers Press. the Associated served papers access prompt which’ one a law by enact urged A legislature, may prevent appropriation newspaper agency facts consider such another, would by labors fruits of its enquiry which appropriate and others and possibilities conclude it. Legislators might was might disclose.' involved injustice obvious to. the to an end impossible put door news, opening without of such appropriation remedied. to be sought evils, greater to than other our Senate of the opinion been to have Such appears fewa give to bill a unfavorably which reported be one can by-laws Pressyio of the Associated According to the of four-fifths vote at least without member affirmative elected of the vote directors. corporation or the the members of all of anyone to. to admit member- of directors Furthermore, the powey in- protest to conferred a right of may be limited ship of III, G. “The members By-laws,'Article § See dividual'members. seven-eighths of vote of all affirmative may, an Corporation (with such upon a member limitations members, confer of protest against right of admission prescribed) at the time right protest, of 'within of Directors. by the Board new members empower conferred, shall mem- at the time specified the limits Corporation on of the of the a vote members holding it to demand ber members within district new the admission for applications all provided in Section 2 this Article.” except as it is conferred for which INTERNAT’L NEWS SERV. ASSO. PRESS. Brandéis, - J., dissenting. hours’ protection;1 and which ratified, 15, on February 1911, the convention at adopted the Fourth International Conference;2 American and such' was the view evidently also of the signatories the International Copyright Union of 13, November both 1908;3 as these conven- tions expressly exclude news copyright protection. 1728,48th Cong., Senate Bill provides: No. 1st sess. The bill any daily weekly any daily

“That or newspaper, or association of weekly .published or newspapers, any in the United States or of the thereof, Territories shall print, issue, sell, have the sole and eight for hours, dating going press, thevterm from the hour of daily weekly contents said or newspaper, the collected news newspaper association, exceeding said one hundred words. any “Sec. infringement copyright granted by 2. That of the injured may any the first party section this act the o" sue in court jurisdiction competent damages proper and recover in action the sustained-by person making him infringement, together from the such suit,” the costs reported April

It 18, 1884, was on the Committee on the Library, amendment, ought pass. without Journal Senate, Cong., sess., p. apparently 48th 1st action 548. No further was on taken the bill. legislation finally copyright 1909, as Act of

When enacted 1909, 320, 1075, consideration, 4, March c. 35 Stat. was under there attempt among subjects of apparently no to include news was Argumenté the Committees on Patents of the copyright. before Representatives and House of on Senate Bill No. 6330 and Senate R; 19853, Cong., sess., 6, 7, 8, 9', Bill No. 59th 1st June H. Hearings Pending 7, 8, 10, 11,1906; on Bills-to Amend December Respecting 28, Copyright, Acts March 27 and and Consolidate ' 1908. 3Bowker, Copyright: ^[2] 38 Stat. 1785,1789, Article 11. Its History and its Law,.pp. 330, 612, 613. (1886) provisions in the Berne the similar Convention See (1896). Id., pp. 612, Convention 613. Paris of bill, Lord Herschell introduced in a 11 In 1898 Parliament § “Copyright respect newspaper apply in shall provides: of a parts compositions original only newspaper as are of an such to ilfostpations character, original therein, to and to such news literary independently have beene obtained.” specially .as infoimation TERM, 1918. 266 S, 248 U. dissenting. BeaNDbis, J., conclude,' might subject dealing legislators Or to be protected should .values to news that unau for damages recovery of permitting extent should injunction protection use, thorized but. (perhaps refuse ordinarily of .equity courts denied, just as .actionable to restrain free speech) the interest in by. decline protect reasons other for libels,1 and Congress as rights;2 political mere junction assessment illegal enjoining courts prohibited concluded IF legislature a taxes.3 of federal collection extent to the' news published recognize property view with a might, law, at recovery permitting provide , adequate, certain and more remedy making copyright in the case of as damages, of. fixed measure a infringement.4 it was might conclude legislature again,

Ór right in so limited even recognize unwise news but that a indicated; above published on, given protec- full conditions, should, some agency 3, Papers, 1898, vol. Bill Lords, Sessional ours.) House (Italics the bill was not Books, p. 210. But Copyright Birrell, 21. No. provision no English there law as it now stands in the enacted, and 16, Act of December copyright in news as such. a limited giving even Y, 46. e. 2 Geo. 1911, 1 and 1 Mfg. Massachusetts, Co., 69; 114 Co. v. Diatite Florence Boston Knott, App. 10 142. v. L. R. Co. Assurance .Ch. Prudential 2 Compare Templeton, v. Harris, U. S. 475. v: Giles 189 Swafford Rep, Mitts, 852, 69 Fed. 487; v. Green S. 185 U. 3 Snyder Marks, 189; Dodge 109 Statutes, U. S. § Revised S. Osborn, U. 320, 4, 1909, 1075, 1081, provides 35 'Stat. c. § Act March infringement copyright, liability that, of a “in the for the as to copyrighted photograph reproduction of newspaper a. such case of a dollars nor be the sum two hundred less not exceed damages shall infringement dollars”; and that in the case of a fifty than the sum damages shall recoverable be one dollar newspaper copyrighted not be less than nor more infringing copy, but shall every 85,000. than ASSQ.

INTEllNAT’L NEWS SEEV. v. PRESS. ,267 Bbandeis, J., dissenting. tion its business; and to that end a remedy by injunc tion as well one damages be should granted, where news collected itby is gainfully used without permission. If legislature concluded, (as at least one court has held, New York Chicago & Grain Stock & Exchange v. Board of Trade, 127 Illinois, 153) that under certain circumstances news-gathering is a business affected with a public inter est, it might that, declare in such cases, news should be protected against appropriation, if only gatherer assumed the obligation of it, supplying at reasonable rates and without discrimination, to all papers which If therefor. applied legislators reached that conclusion, they would go probably further, and prescribe the con ditions under and the extent to which the protec tion should be afforded; and they might also provide the administrative necessary for machinery ensuring to the public, and the press, news agencies, full enjoyment so rights conferred. (cid:127) Courts to make ill-equipped the investigations determination, which should precede a of the limitations which should be set upon any property right in news or of the circumstances under which gathered by private agency should be deemed affected with a public interést. Courts would powerless to prescribe the detailed regulations essential to full enjoyment of the rights conferred or to introduce machinery required for enforcement of such regulations. Considerations such as these should lead us to decline to establish a new n in the rule law effort to redress a newly-disclosed wrong, although propriety some remedy appears the. clear.

Case Details

Case Name: International News Service v. Associated Press

Court Name: Supreme Court of the United States

Date Published: Jan 7, 1919

Citation: 248 U.S. 215

Docket Number: 221

Court Abbreviation: SCOTUS