dissenting.
There are published in the United States about 2,500 daily papers.1 More than 800 of them are supplied with domestic and foreign news of general interest by the Associated Press — a corporation without capital stock which does not sell news or earn or seek to earn profits, but serves merely as an instrumentality by means of which these papers supply themselves at joint expense with such news. Papers not members of the Associated Press depend for their news of general interest largely upon agencies organized for profit.2 Among these agen*249cies is the International News Service which supplies news to about 400 subscribing papers. It 'has, like the Associated Press, bureaus and correspondents in this and foreign countries; and its annual expenditure in gathering and distributing news is about $2,000,000. Ever since its organization in 1909, it has included among the-sources from which it gathers news, copies (purchased in the open market) of early editions of some papers published by members of the Associated Press and the bulletins publicly posted by them. These .items, which constitute but a small part of the news transmitted to its subscribers, are generally verified by the International News Service before transmission; but frequently items are transmitted without verification; and occasionally even without being re-written. In no case is the fact disclosed that such item was suggested by or taken from a paper or bulletin published by an Associated Press member.
No question of statutory copyright" is involved. The sole question for our consideration is this: Was the International News Service properly enjoined from using, or causing to be used gainfully, news of which it acquired knowledge^ by lawful means (namely, by reading publicly posted bulletins or papers purchased by it in the open market) merely because the news had been originally gathered by the Associated Press and continued to be of value to some of its members, or because it did not reveal the source from which it was acquired?
The “ticker” cases, the cases concerning literary and artistic compositions, and cases of unfair competition were relied upon in support of the injunction. But it is admitted that none of those cases affords a complete analogy with that before us. The question presented for decision is new; and it is important.
News is a report of recent occurrences. The business of the news agency is to gather systematically knowledge *250of such occurrences of interest and to distribute reports thereof. The Associated Press contended that knowledge so acquired is property, because it costs money and labor to produce and because it has value for which those who . have it not are ready to pay; that it remains property and is entitled to protection as long as it has commercial value as news; and that to protect it effectively the defendant must be enjoined from making, or causing to be made, any gainful use of it while it retains such value. An essential element of individual property is the legal right to exclude others from enjoying it. "If the property is private, the right of exclusion may be absolute; if the property is affected with a public interest, the right of exclusion is qualified. But the fact that a product of the mind, has cost its producer money and labor, and has a value for which others are willing to pay, is not sufficient to ensure to it this legal attribute of property. The general rule of law is, that the noblest of human productions — knowledge, truths ascertained, conceptions, and ideas — become, after voluntary communication to others, free as the air to common use. Upon these incorporeal productions the attribute of property is continued after such communication only in certain classes of cases where public policy has seemed to demand it. These exceptions are confined to productions which, in some degree, involve creation, invention, or discovery. But by no means all such .are endowed with this attribute of property. The creations which are recognized as property by the common law are literary, dramatic, musical, and other artistic creations;, and these* have also protection under tlje copyright statutes.. The inventions and discoveries upon which this attribute of property is conferred only by statute, are the few comprised within the ^patent law. There are also many, other cases in which courts interfere to prevent curtailment of plaintiff’s enjoyment of incorporeal productions; and in which the *251right to relief is often called a property right, but is such only in a special sense. In those cases, the plaintiff has no absolute right to the protection of his production; he has merely the qualified right to be protected as against the defendant’s acts, because of the special relation in which the latter stands or the wrongful method or means employed in acquiring the knowledge or the manner in which it is used. Protection of this character is afforded where the suit is based upon breach of contract or of trust or upon unfair competition.
The knowledge for which protection is sought in the case at bar is not of a kind upon which the law has heretofore conferred the attributes of property: nor is the manner of its acquisition or use nor the purpose to which it is applied, such as has heretofore been recognized as entitling a plaintiff to relief.
First: Plaintiff’s principal • reliance was upon the “ticker” cases; but they do not support its contention. The leading cases on this subject rest the grant of relief, not upon the existence of a general property right in news, but upon the breach of a contract or trust concerning the use of news communicated; and that element is lacking here. In Board of Trade v. Christie Grain & Stock Co., 198 U. S. 236, 250, the court said the Board “does not lose its rights by communicating the result [the quotations] to persons, even if many, in confidential relations to itself, under a contract not to make it public, and strangers to the trust will be restrained from getting at the knowledge by inducing a breach of trust and using knowledge obtained by such a breach.” And it is also stated there, (page 251): “Time is of the essence in matters like this, and it fairly may be said that, if the contracts with the plaintiff are kept, the information will not become public property until the plaintiff has gained, its reward.” The only other case in this court which relates to this subject-is Hunt v. N. Y. Cotton Exchange, 205 U. S. *252322. While the opinion there refers the protection to a general property right in the quotations, the facts are substantially the same as those in the Christie Case, which is the chief authority on which the decision is based. Of the cases in the lower federal courts and in the state courts it may be said, that most of them too can, on their facts, be reconciled with this principle, though much of the language of- the courts cannot be.1 In spite of anything that may appear in these Cases to the contrary it seems that the true principle is stated in the Christie Case, that the collection of quotations “stands like a trade secret.” And in Dr. Miles Medical Co. v. Park & Sons Co., 220 U. S. 373, 402, this court says of a . trade secret: “Any one may use it who fairly, by analysis and experiment, discovers it. But the complainant is -entitled to be protected against invasion of its right iri the process by fraud or by breach of trust or contract.” See John D. Park & Sons Co. v. Hartman, 153 Fed. Rep. 24, 29.
The leading English case, Exchange Telegraph Co. v. Gregory & Co., [1896] 1 Q. B. 147, is also rested clearly upon a breach of contract or trust, although there is some *253reference to a general, property right. The later English cases seem to have rightly understood the basis of the decision, and they have not- sought to extend it further than was intended. Indeed, we find the positive suggestion in some cases that the only ground for relief is the manner in which knowledge of the report of the news was acquired.1
If the news involved in the case at bar.had been posted in violation of any agreement between the Associated Press and its members, questions similar to those in the “ticker” cases might have arisen. But the plaintiff does not contend that the posting was wrongful or that any papers were wrongfully issued by its subscribers. On the contrary it is conceded that both the bulletins and the papers were 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, to procure and use gainfully, information therein contained, does not involve inducing anyone to commit a breach either of contract or of 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 right of the producer to prohibit copying is not lost by the private circulation of . a literary composition, the delivery of a lecture, the exhi*254bition of a painting, or the performance of a dramatic or musical composition.1 These cases rest upon the ground that the common law recognizes such productions as property which, despite restricted communication, continues until there is a dedication to the public under the copyright statutes or otherwise. But they are inapplicable for two reasons, (1) At common law, as under the copyright acts, intellectual productions are entitled to such protection only if there is underneath something evincing the mind of a creator or originator, however modest the requirement. The mere record of isolated happenings, whether in words or by photographs not involving artistic skill, are denied such protection.-2 (2) At common law, as under the copyright acts, the element in intellectual productions which secures such protection is not the knowledge, truths, ideas, or emotions which -the composition expresses, but the form or sequence in which they are expressed; that is, “some new collocation of visible or audible points, — of lines, colors, sounds, or *255words.” See White-Smith Music Co. v. Apollo Co., 209 U. S. 1, 19; Kalem Co. v. Harper Brothers, 222 U. S. 55, 63. An author’s theories, suggestions, and speculations, or the systems, plans, methods, and arrangements of an originator, derive no such protection from the statutory copyright of the book in which they are set forth;1 and they are likewise denied such protection at common law.2
That news is not property in the strict sense is illustrated by the case of Sports and General Press Agency, Ltd., v. “Our Dogs” Publishing Co., Ltd., [1916] 2 K. B. 880, where the plaintiff, the assignee of the right to photograph the exhibits at a dog show, was refused an injunction against defendant who. had also taken pictures of the show and was publishing them. The court said that, except in so far as the possession of the land occupied by the show enabled the proprietors to exclude people or permit them on condition that they agree not to take photographs (which condition was not imposed in that case), the proprietors had no exclusive right to' photograph the show and could therefore grant no such right. And, it was further stated that, at any rate, no matter what conditions might be imposed upon those entering the grounds, if the defendant had been on. top of a house or in some position where he could photograph the show without interfering with the physical property of the plaintiff, the plaintiff would have no right to stop him. If, when the plaintiff creates the event recorded, he is not entitled to the exclusive first publication of the *256news (in that case a photograph) of the event, no reason can be shown why he should be accorded such protection as to events which he simply records and transmits to other parts of the world, though with great expenditure of time and money.
Third: If news be treated as possessing the characteristics not of a trade secret, but of literary property, then the earliest issue of a paper of general circulation or the earliest public posting of a bulletin which embodies such news would, under the established rules governing literary property, operate as a publication, and all property in the news would then cease. Resisting this conclusion, plaintiff relied upon the cases which hold that uncopy-righted intellectual and artistic property survives private circulation or a restricted publication; and it contended that in each issue of each .paper, a restriction is to be implied that the news shall not be used^gainfully in competition with the Associated Press or any of its members. There is no basis for such an implication. But it is also well settled that where the publication is in fact a general one, even express words of restriction upon use are inoperative. In other words, a general publication is ' effective to dedicate literary property to the public, regardless of the actual intent of its owner.1 In the cases dealing with lectures, dramatic and.' musical performances, and art exhibitions,2 upon which plaintiff relied, there was no general publication in print comparable to the issue of daily newspapers or the unrestricted public posting of bulletins. The principles governing those cases differ mote or less in application, if not'in theory, from the principles governing the issue of printed copies; *257and in so far as they do differ, they have no application to the case at bar.
'Fourth: Plaintiff further contended that defendant’s practice constitutes unfair .competition,, because there is “appropriation without cost to itself of values created by” the plaintiff; and it is upon this ground .that the. decision of this court appears to be based. To appropriate and use for profit, knowledge and ideas produced by other men, without making compensation or oven acknowledgment, may be inconsistent with a finer sense of propriety; but, with the. exceptions indicated above, the law has heretofore sanctioned the practice. Thus it was held that one may ordinarily make and- sell anything in any form, may copy with exactness that which another has produced, or may otherwise use his ideas without his consent and without the payment of compensation, and yet not inflict a legal injury;1 and that ordinarily one is at perfect liberty to find out, if he can by lawful means, trade secrets of another, however valuable, and then use the knowledge so acquired gainfully, although it cost the original owner much in effort and in money to collect or produce.2
*258Such, taking and gainful use of a product of another which, for reasons of public policy, the law has refused to endow with the attributes of property, does not become unlawful because the product happens tó have been taken from a rival and is used in competition with him. The unfairness in competition which hitherto has been recognized by the law as a basis for relief, lay in the manner or means of conducting the business; and the manner or means held legally unfair, involves either fraud or force or the doing of acts otherwise prohibited by law. In the “passing off” cases (the typical and most common case of unfair competition), the wrong consists in fraudulently representing by word or act that defendant’s goods are those of plaintiff. See Hanover Milling Co. v. Metcalf, 240 U. S. 403, 412-413. In the other cases, the diversion of trade was effected through physical or moral coercion, or by inducing breaches of contract or of trust or by enticing away employees. In some others, called cases of simulated competition, relief was granted because defendant’s purpose was unlawful; namely, not competition but deliberate and wanton destruction of plaintiff’s business.1
*259. That competition is not unfair in a legal sense, merely because the profits gained are unearned, even if made at the expense of. a rival, is shown by many cases besides those referred to above. He who follows the pioneer into a new market, or who engages in the manufacture of an article newly introduced by another, seeks profits due largely to the labor and expense of the first adventurer; but the law sanctions, indeed encourages, the pursuit.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 Wall. 311; Elgin National Watch Co. v. Illinois Watch Co., 179 U. S. 665, 673. He who has made his name a guaranty of quality, protests in vain when another with the same name engages, perhaps for that reason, in the same lines of business; provided, precaution is taken to prevent the public from being deceived into the belief that what he is selling was made by his competitor. One bearing a name made famous by another is permitted to enjoy the unearned benefit which necessarily flows from such use, even though the use proves harmful to him who gave the name value. Brown Chemical Co. v. Meyer, 139 U. S. 540, 544; Howe Scale Co. v. Wyckoff, Seamans & Benedict, 198 U. S. 118; Donnell v. Herring-Hall-Marvin Safe Co., 208 U. S. 267; Waterman Co. v. Modern Pen Co., 235 U. S. 88. See Saxlehner v. Wagner, 216 U. S. 375.
The means by which the International News Service obtains news gathered by the Associated Press is also clearly unobjectionable. It is taken from papers bought in the open market or from bulletins publicly posted. *260No breach of contract such as the court considered to exist in Hitchman Coal & Coke Co. v Mitchell, 245 U. S. 229, 254; or of trust such as was present in Morison v. Moat, 9 Hare, 241; and neither fraud nor force, is involved. The manner of use is likewise unobjectionable. No reference is made by word or by act to the Associated Press, either in transmitting the news to subscribers or by them in publishing it in their papers. Neither the International News Service nor its subscribers is gaming or seeking to gain in its business a benefit from the reputation of the Associated Press. They are merely using its product without making compensation. See Bamforth v. Douglass Post Card & Machine Co., 158 Fed. Rep. 355; Tribune Co. of Chicago v. Associated Press, 116 Fed. Rep. 126. That, they have a legal right to do; because the product, is not property, and they do not stand in any relation to the Associated Press, either of contract or of trust, which otherwise precludes such use. The argument is not advanced by characterizing such taking and use a misappropriation.
It is also suggested, that the fact that defendant does not refer to the Associated Press as the source of the news may furnish a basis for the relief. But the defendant and its subscribers, unlike members of the Associated Press, were under no contractual obligation to disclose the source of the news; and there is no rule of law requiring acknowledgment to be made where uncopyrighted matter is reproduced. The International News Service is said to mislead its subscribers into, believing that the news transmitted was. originally gathered by it and that they in turn mislead their, readers. There is, in fact, no representation by either of any kind. Sources of information are sometimes given because required by contract; sometimes because naming the source gives authority to an otherwise incredible statement; and sometimes the source is named because the agency does not wish to. take the *261responsibility itself of giving currency to the news. But no representation can properly be implied from omission to mention the source of information except that the International News Service is transmitting news which it believes to be credible.
Nor is the use made by the International News Service of the information taken from papers or bulletins of Associated Press members legally objectionable by reason of the purpose for which it was employed. The acts here complained of were not done for the purpose of injuring the business of the Associated Press. Their purpose was not even to divert its trade, or to put it at a disadvantage by lessening defendant’s necessary expenses. The purpose was merely to supply subscribers of the International News Service promptly with all available news. The suit is, as this court declares, in substance one brought for the benefit of the members of the Associated Press, who would be proper, and except for their number perhaps necessary, parties; and the plaintiff conducts the suit as representing their interest. It thus appears that the protection given by the injunction is not actually to the business of the complainant news agency; for this agency does not sell news nor seek to earn profits, but is a mere instrumentality by which 800 or more newspapers collect and distribute news. It is these papers severally which are protected; and the protection afforded is not from competition of the defendant, but from possible competition of one or more of the 400 other papers which receive the defendant’s service. Furthermore, the protection to these Associated Press members consists merely in denying to other papers the right to use, as news, information which, by authority of all concerned, had theretofore been given to the public by some of those who joined in gathering it; and to which the law denies the attributes of property. There is in defendant’s purpose nothing on which to base a claim for relief.
*262It is further said that, while that for which the Associated Press spends its money is too fugitive to be recognized as property in the common-law courts, the defendant cannot be heard to say so in a court of equity, where the question is one of unfair competition. The case presents no elements of equitable title or of breach of trust. The only possible reason for resort to a court of equity in a case like this is that the remedy which the law gives is inadequate. If the plaintiff has no legal cause of action, the suit necessarily fails. Levy v. Walker, L. R. 10 Ch. D. 436, 449. There is nothing in the situation, of the parties which can estop the defendant from saying so.
Fifth: The great development of agencies now furnishing country-wide distribution of news, the vastness of our territory, and improvements in the means of transmitting intelligence, have made it possible for a news • agency or newspapers to obtain, without paying compensation, the fruit of another’s efforts and to use news so obtained gainfully in competition with the original collector. The injustice of such action is obvious. But to give relief against it would involve more than the application of existing rules of law to new facts. It would require the making of a new rule in analogy to existing. ones. The unwritten law possesses capacity for growth; and has often satisfied new demands for justice by invoking analogies or by expanding a rule or principle. This process has been in the main wisely applied and should not be discontinued. Where the problem is relatively simple, as it is apt to be when private interests only are involved, it generally proves adequate. But wjth the increasing complexity of society, the public interest tends to become omnipresent; and the problems presented by new demands for justice cease to be simple. Then the creation or recognition by courts of a new private right may work serious injury to the general public, unless the *263boundaries of the right are definitely established and wisely guarded. In order to reconcile the new private right with the public interest, it may be necessary to prescribe limitations and rules for its énjoyment; and also to provide administrative machinery for enforcing the rules. It is largely for this reason that, in the effort to meet the many new demands for justice incident to a rapidly changing civilization, resort to legislation has latterly been had with increasing frequency.
The rule for which the plaintiff contends would effect an important extension of property rights and a corresponding curtailment of the free use of knowledge and of ideas; and the facts of this case admonish us of the.danger involved in recognizing such a property right in news, without imposing upon news-gatherers corresponding obligations. A large majority of the newspapers and perhapsJoalf the newspaper readers of the United States are dependent for their news of general interest upon agencies other than the Associated Press. The channel through which about 400 of these papers received, as the plaintiff alleges, “a large amount of news relating to the European war of the greatest importance and of intense interest to the néwspaper reading public” was suddenly closed. The closing to the International News Service of these channels for foreign- news (if they were closed) was due not to unwillingness on its part to pay the cost of collecting the news, but to the prohibitions imposed by foreign governments upon its securing news from -their respective countries and from using cable or telegraph fines running therefrom. For aught that appears, this prohibition may have been wholly undeserved; and at all events the 400“ papers and their readers may be assumed to have been innocent. For aught that appears, the International News Service may have sought then to secure temporarily by arrangement with the Associated Press the latter’s foreign news service. For aught that *264appears, all of the 400 subscribers of the International News Service would gladly have then become members of the Associated Press, if they could have secured election thereto.1 It is possible, also, that a large part of the readers of these papers were so situated that they could not secure prompt access to papers served by the Associated Press. The prohibition of the foreign governments might as well have been extended to the channels through which news was supplied to the more than a thousand other daily papers in- the United States' not served by the Associated Press; and a large part of their readers may also be so located that they can not procure prompt access to papers served by the Associated Press.
A legislature, urged to enact a law by which’ one news agency or newspaper may prevent appropriation of the fruits of its labors by another, would consider such facts and possibilities and others which appropriate enquiry might disclose.' Legislators might conclude that it. was impossible to put an end to. the obvious injustice involved in such appropriation of news, without opening the door to other evils, greater than that sought to be remedied. Such appears to have been the opinion of our Senate which reported unfavorably a bill to give news a few *265hours’ protection;1 and which ratified, on February 15, 1911, the convention adopted at the Fourth International American Conference;2 and such' was evidently the view also of the signatories to the International Copyright Union of November 13, 1908;3 as both these conventions expressly exclude news from copyright protection.
*266Or legislators dealing with the subject might conclude,' that the right to news .values should be protected to the extent of permitting recovery of damages for any unauthorized use, but. that protection by injunction should be denied, just as courts of .equity ordinarily refuse (perhaps in the interest of free speech) to restrain .actionable libels,1 and for other reasons decline to protect by. injunction mere political rights;2 and as Congress has prohibited courts from enjoining the illegal assessment or collection of federal taxes.3 IF a legislature concluded to recognize property in published news to the' extent of permitting recovery at law, it might, with a view to making the remedy more , certain and adequate, provide a fixed measure of. damages, as in the case of copyright infringement.4
Ór again, a legislature might conclude that it was unwise to recognize even so limited a property right in published news as that above indicated; but that a news agency should, on, some conditions, be given full protec*267tion of its business; and to that end a remedy by injunction as well as one for damages should be granted, where news collected by it is gainfully used without permission. If a 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 interest, it might declare that, in such cases, news should be protected against appropriation, only if the gatherer assumed the obligation of supplying it, at reasonable rates and without discrimination, to all papers which applied therefor. If legislators reached that conclusion, they would probably go further, and prescribe the conditions under which and the extent to which the protection should be afforded; and they might also provide the administrative machinery necessary for ensuring to the public, the press, and the news agencies, full enjoyment of the rights so conferred.
Courts are ill-equipped to make the • investigations which should precede a determination, of the limitations which should be set upon any property right in news or of the circumstances under which news gathered by a private agency should be deemed affected with a public interést. Courts would be powerless to prescribe the detailed regulations essential to full enjoyment of the rights conferred or to introduce the machinery required for enforcement of such regulations. Considerations such as these should lead us to decline to establish a new rule of law in the ■ effort to redress a newly-disclosed wrong, although the. propriety of some remedy appears to be clear.
See American Newspaper Annual and Directory (1918), pp. 4, 10, 1193-1212. .
The Associated Press, by Frank B. Noyes, Sen. Doc. No. 27, 63d Cong., 1st sess. In a brief filed in this court by counsel for the Associated Press the number of its members is stated to be 1030. Some members of the Associated Press are also subscribers to the International News Service.
Strictly the member is not the publishing concern, but a,n individual who is-the sole or part owner of a newspaper, or an executive officer of a company which owns one. By-laws, Article II, § 1.
Board of Trade of City of Chicago v. Tucker, 221 Fed. Rep. 305; Board of Trade of City of Chicago v. Price, 213 Fed. Rep. 336; McDearmolt Commission Co. v. Board of Trade of City of Chicago, 146 Fed. Rep. 961; Board of Trade of City of Chicago v. Cella Commission Co., 145 Fed. Rep. 28; National Tel. News Co. v. Western Union Tel. Co., 119 Fed. Rep. 294; Illinois Commission Co. v. Cleveland Tel. Co., 119 Fed. Rep. 301; Board of Trade of Chicago v. Hadden-Krull Co., 109 Fed. Rep. 705; Cleveland Tel. Co. v. Stone, 105 Fed. Rep. 794; Board of Trade of City of Chicago v. Thomson Commission Co., 103 Fed. Rep. 902; Kiernan v. Manhattan Quotation. Telegraph Co., 50 How. Pr. 194. The bill in F. W. Dodge Co. v. Construction Information Co., 183 Mass. 62, was expressly based on breach of contract or of trust. It has been suggested that a board of trade has a right of property in its quotations because the facts reported originated in its exchange. The point has been mentioned several times in the cases, but no great importance seems to have been attached to it.
In Exchange Telegraph Co., Ltd., v. Howard, 22 Times Law Rep. 375, 377, it is intimated that it would be perfectly permissible for the' defendant to take the score from a newspaper supplied by the plaintiff and publish it. And it is suggested in Exchange Telegraph Co., Ltd., v. Central News, Ltd., [1897] 2 Ch. 48, 54, that there are sources from which the defendant might be able to get the information collected by the plaintiff and publish it without committing any wrong. Copinger, Law of Copyright, 5th ed., p. 35, explains the Gregory Case on the basis of the breach of confidence involved. Richardson, Law of Copyright, p. 39, also inclines to put the case “on the footing of implied confidence.”
Ferris v. Frohman, 223 U. S. 424; American Tobacco Go. v. Werckmeister, 207 U. S. 284, 299; Universal Film Mfg. Co. v. Copperman,. 218 Fed. Rep. 577; Werckmeister v. American-Lithographic Co., 134 Fed. Rep. 321; Drummond v. Altemus, 60 Fed. Rep. 338; Boucicault v. Hart, 13 Blatchf. 47; Fed. Cas. No. 1692; Crowe v. Aiken, 2 Biss. 208; Fed. Cas. No. 3441; Boucicauly v. Fox, 5 Blatchf. 87; Fed. Cas. No. 1691; Bartlett v. Crittenden, 5 McLean, 32; Fed. Cas. No. 1076; Bartlette v. Crittenden, 4 McLean, 300; Fed. Cas. No. 1082; Tompkins v. Halleck, 133 Mass. 32; Aronson v. Baker, 43 N. J. Eq. 365; Caird v. Sime, L. R. 12 App. Cas. 326; Nicols v. Pitman, L. R. 26 Ch. D. 374; Abernethy v, Hutchinson, 3 L. J. (O. S.) Ch. 209; Turner v. Robinson, 10 Ir. Eq. Rep. 121.
Compare Bleistein v. Donaldson Lithographing Co., 188 U. S. 239, 250; Higgins v. Keuffel, 140 U. S. 428, 432; Burrow-Giles Lithographic Co. v. Sarony, 111 U. S. 53, 58-60; Baker v. Selden, 101 U. S. 99, 105, 106; Clayton v. Stone, 2 Paine, 382; Fed. Cas. No. 2872; National Tel. News Co. v. Western Union Tel. Co., 119Fed. Rep. 294, 296-298; Banks Law Pub. Co. v. Lawyers’ Co-operative Pub. Co., 169 Fed. Rep. 386, 391.
Jewelers' Mercantile Agency v. Jewelers’ Publishing Co., 155 N. Y. 241; Wagner v. Conried, 125 Fed. Rep. 798, 801; Larrowe-Loisette v. O’Loughlin, 88 Fed. Rep. 896.
See cases in note 1, p. 254, supra; Richardson, Law of Copyright, p. 128.
Baker v. Selden, 101 U. S. 99; Perris v. Hexamer, 99 U. S. 674; Barnes v. Miner, 122 Fed. Rep. 480, 491; Burnell v. Chown, 69 Fed. Rep. 993; Tate v. FuUbrook, [1908] 1 K. B. 821; Chilton v. Progress Printing & Publishing Co., [1895] 2 Ch. 29, 34; Kendrick & Co. v. Lawrence & Co., L. R. 25 Q. B. D. 99; Pike v. Nicholas, L. R. 5 Ch. App. 251..
Bristol v. Equitable Life Assurance Socieigf 132 N. Y. 264; Haskins v. Ryan, 71N. J. Eq. 575.
Flagg Manufacturing Co. v. Holway, 178 Massachusetts, 83; Bristol v. Equitable Life Assurance Society, 132 N. Y. 264; Keystone Type Foundry v. Portland Publishing Co., 186 Fed. Rep. 690.
Chadwick v. Covell, 151 Massachusetts, 190; Tabor v. Hoffman, 118. N. Y. 30, 36; James v. James, L. R. 13 Eq. 421. Even when knowledge is compiled, as in a dictionary, and copyrighted, the suggestions and sources therein may be freely used by a later compiler. The copyright protection merely prevents his taking the ultimate data while avoiding the labor and expense involved in compiling them. Pike v. Nicholas, L. R. 5 Ch. App. 251; Morris v. Wright, L. R. 5 Ch. App. 279; Edward Thompson Co. v. American Law Book Co., 122 Fed. Rep. 922; West Pub. Co. v. Edward Thompson Co., 176 Fed. Rep. 833. It is assumed that in the absence of copyright, the data compiled could be freely used. See Morris v. Ashbee, L. R. 7 Eq. 34, 40. Compare also Chilton v. Progress Printing & Publishing Co., [1895] 2 Ch. 29.
“Trust Laws & Unfair Competition” (U. S. Bureau of Corporations, March 15, 1915), pp. 301-331, 332-461; Nims, Unfair Competition & Trade-Marks, c. XIX; Sperry & Hutchinson Co. v. Pommer, 199 Fed. Rep. 309, 314; Racine Paper Good,s Co. y. Dittgen, 171 Fed. Rep. 631; Schonwald v. Ragains, 32 Oklahoma, 223; Attorney General v. National Cash Register Co., 182 Michigan, 99; Witkop & Holmes Co. v. Great Atlantic & Pacific Tea Co., 124 N. Y. Supp. 956, 958; Dunshee v. Standard Oil Co., 152 Iowa, 618; Tuttle v. Buck, 107 Minnesota, 145.
The cases of Fonotipia, Limited, v. Bradley, 171 Fed. Rép. 951, arid Prest-O-Lite Co. v. Davis, 209 Fed. Rep. 917, which weré strongly relied upon by the plaintiff, contain expressions indicating rights possibly broad enough to sustain the injunction in the case at bar; but both cases involve elements of “passing off.” See also Prest-O-Lite Co. v. Davis, 215 Fed. Rep. 349; Searchlight Gas Co. v. Prest-O-Lite Co., 215 Fed. Rep. 692; Prest-O-Lite Co. v. H. W. Bogen, Inc., 209 *259Fed. Rep. 915; Prest-0-Lüe Co. v. Avery Lighting Co., 161 Fed. Rep. '648. In Presb-O-Lite Co. v. Auto Acetylene Light Co., 191 Fed. Rep. 90, the bill was dismissed on the ground that no deception was shown.
Magee Furnace Co. v. Le Barron, 127 Massachusetts, 115; Bicker Railway, 90 Maine; 395, 403.-
According to the by-laws of the Associated Pressyio one can be elected a member without the affirmative vote of at least four-fifths of all the members of the corporation or the vote of the directors. Furthermore, the powey of the directors to admit anyone to. membership may be limited by a right of protest to be conferred upon individual'members. See By-laws,'Article III, § G. “The members of this Corporation may, by an affirmative vote of seven-eighths of all the members, confer upon a member (with such limitations as may be at the time prescribed) a right of protest against the admission of new members by the Board of Directors. The right of protest, 'within the limits specified at the time it is conferred, shall empower the member holding it to demand a vote of the members of the Corporation on all applications for the admission of new members within the district for which it is conferred except as provided in Section 2 of this Article.”
Senate Bill No. 1728,48th Cong., 1st sess. The bill provides:
“That any daily or weekly newspaper, or any association of daily or weekly newspapers, .published in the United States or any of the Territories thereof, shall have the sole right to print, issue, and sell, for thevterm of eight hours, dating from the hour of going to press, the contents of said daily or weekly newspaper, or the collected news of said newspaper association, exceeding one hundred words.
“Sec. 2. That for any infringement of the copyright granted by the first section of this act the party injured may sue in any court o" competent jurisdiction and recover in any proper action the damages sustained-by him from the person making such infringement, together with the costs of suit,”
It was reported on April 18, 1884, by the Committee on the Library, without amendment, and that it ought not to pass. Journal of the Senate, 48th Cong., 1st sess., p. 548. No further action was apparently taken on the bill.
When the copyright legislation of 1909, finally enacted as Act of March 4, 1909, c. 320, 35 Stat. 1075, was under consideration, there was apparently no attempt to include news among the subjects of copyright. Argumenté before the Committees on Patents of the Senate and House of Representatives on Senate Bill No. 6330 and H. R; Bill No. 19853, 59th Cong., 1st sess., June 6, 7, 8, and 9', and December 7, 8, 10, and 11,1906; Hearings on Pending Bills-to Amend and Consolidate Acts Respecting Copyright, March 26, 27 and 28, 1908. '
38 Stat. 1785,1789, Article 11.
Bowker, Copyright: Its History and its Law,.pp. 330, 612, 613. See the similar provisions in the Berne Convention (1886) and the Paris Convention (1896). Id., pp. 612, 613.
In 1898 Lord Herschell introduced in Parliament a bill, § 11 of which provides: “Copyright in respect of a newspaper shall apply only to such parts of the newspaper as are compositions of an original literary character, to original ilfostpations therein, and to such news and infoimation .as have beene specially and independently obtained.” *266(Italics ours.) House of Lords, Sessional Papers, 1898, vol. 3, Bill No. 21. Birrell, Copyright in Books, p. 210. But the bill was not enacted, and in the English law as it now stands there is no provision giving even a limited copyright in news as such. Act of December 16, 1911, 1 and 2 Geo. Y, e. 46.
Boston Diatite Co. v. Florence Mfg. Co., 114 Massachusetts, 69; Prudential Assurance Co. v. Knott, L. R. 10 .Ch. App. 142.
Giles v: Harris, 189 U. S. 475. Compare Swafford v. Templeton, 185 U. S. 487; Green v. Mitts, 69 Fed. Rep, 852, 859.
Revised Statutes, § 3224; Snyder v. Marks, 109 U. S. 189; Dodge v. Osborn, 240 U. S. 118.
Act of March 4, 1909, § 25, c. 320, 35 'Stat. 1075, 1081, provides as to the liability for the infringement of a copyright, that, “in the case of a newspaper reproduction of a. copyrighted photograph such damages shall not exceed the sum of two hundred dollars nor be less than the sum of fifty dollars”; and that in the case of infringement of a copyrighted newspaper the damages recoverable shall be one dollar for every infringing copy, but shall not be less than 8250 nor more than 85,000.