creative power thus nurtured and stimulated; and it might appear upon fuller investigation that the resultant material and intellectual effects of this ability to originate have a value in excess of either of those two fields of profitable labors. Certain it is that such American inventions as sowing and reaping machinery, telegraphs, telephones, kodaks, and sewing-machines are coextensive with civilization and even seem to form a part thereof; while the works of Emerson, Longfellow, Holmes and Irving are a complete answer to the remark-"Who reads an American book?" -attributed to the oracular Dr. Johnson.

In numerous fields the inventive genius of America has outstripped its competitors and impressed the effect of new world conditions and exigencies upon old world training and methods of thought. If an equal pinnacle has not been attained in things literary, such conditions may be attributed to the immaturity of youth; and in the words of Lord Chatham, this is "a defect which age will cure."

The copyright laws have for their purpose the stimulation of talent for creating work in literary and artistic lines and the advancement of literature and art, while the patent laws seek to promote the advancement of the liberal arts and sciences.

Distinction Noted.-The philosophy and reasoning back of the exclusive grant to authors is somewhat different from that which has produced the system of patent laws. Whether rightly or wrongly, the public looks upon the latter as essentially an inducement to the inventor to disclose some discovery what might otherwise remain indefinitely hidden beneath the protection of a secret process.

Rights of Author and Patentee Distinguished. In the nature of things, it is not the manufacture or individual use by the creator of copyrighted books, etc., which is the essential element of value; in this particular the copyright is different from the right of monopoly which the patentee obtains. On the other hand, it is the exclusive right to publish and circulate which is the particular privilege sought by the author and which constitutes the essential feature and source of profit of his monopoly.

Anti-trust Laws Govern Methods of Selling Copyrighted Articles. When the publication has begun and the goods are placed on sale the author or owner of copyright exceeds his powers thereunder if he enters a combination to fix prices at which the retailer shall sell and otherwise regulate the extent and manner in which the protected articles shall be marketed after

they have passed into the channels of general trade. Especially is this true where the resultant restraint is country-wide and no purchaser can obtain the books, etc., except upon terms imposed by this arbitrary and artificial system of price-fixing:

"As the combination extends throughout the United States by the very terms of the agreement, interstate commerce is necessarily restrained."18

Infractors Not Entitled to Relief.-Authors and owners of copyrights will be refused the aid of equity courts when it is sought to compel the contracting party to carry out the agreed terms of his stipulation, and it appears that they are parties to such combinations.

"The complainant confessedly is a party to the combination and the agreement, and cannot, if it be illegal, have a standing in a court of equity to enforce any part of it, directly or indirectly. When the complainant comes into court, asking equity, it must come with clean hands, as far as the transaction involved is concerned."19

Violation of Printed Notice is not Infringement.-In this case, which is the principal authority upon certain phases of copyright law, the court held it was not an infringement of the copyright law to sell books for less than one dollar per volume, where the title had passed to the retailer by absolute purchase and sale, notwithstanding a signed prohibition printed on the reverse of the title page, that "The price of this book at retail is one dollar net. No dealer is licensed to sell it at a less price, and a sale at a less price will be treated as an infringement of the copyright."

Before arriving at this conclusion, the court holds that an infringement consists solely in selling or importing without authority, one or more copies of an unauthorized edition of the work in

18 Bobbs-Merrill Co. v. Straus, 139 Fed. 155; affirmed, 147 Fed. 15, 77 C. C A.. 407, 15 L. R. A. N. S. 766, 210 U. S. 339, 28 Sup. Ct. 722, 52 L. Ed. 1086. See also, Bobbs-Merrill Co. v. Snellenberg, 131 Fed. 530, and Straus v. American Publishing Assoc'n, 177 N. Y. 473, 69 N. E. 1107, 64 L. R. A. 701; affirming 93 N. Y. App. Div. 86, N. Y. Supp. 1091, also, 231 U. S. 222, where the Supreme Court holds that the Sherman Law interdiction applies to copyrighted as well as to uncopyrighted books; Mines v. Scribner, 147 Fed. 927; Bobbs-Merrill Co. v. Straus, supra, distinguished in Henry v. Dick Co., 224 U. S. 1, 43, 32 Sup. Ct. 364, 56 L. Ed. Also, consult, generally, Thornton, "Sherman Anti-trust Act,"-Chapter XVII, "Copyrighted Books."

19 Bobbs-Merrill Co. v. Straus, 139 Fed. 155.

question; hence the use of such term in connection with authorized publications was misleading because unwarranted in law. Such act is at most a violation of contract; and under that phase no right to recovery can be shown.

"If the publisher of the book, being the proprietor of the copyright, parts with the title to such book, either a single copy or a number of copies, and receives his pay therefor, he has voluntarily parted with all control over that or those particular books. * * * the absolute ownership of an article of personal property carries with it the right to give away or sell for such consideration as the owner sees fit to impose, prescribe, or demand, so long as he violates no law."20

So in the leading case before noted relating to a patented article, the Supreme Court held to the same effect; and as matters stand it seems to be settled law that neither the patentee nor the holder of a copyright can fix the retail price, after the goods have passed into the absolute ownership and possession of an owner not under valid contract with the owner of the patent or the copyright. Furthermore, the same ruling has been applied to like practices in connection with wares which do not come within either of the protected classes.22

Retaining Title in Property, Owner Preserves Right to Fix Price. The converse of the legal proposition last stated makes price-fixing proper and valid where the retailer operates only under a license, and the ownership of the book remains in the holder of the copyright. Whether the business of book-selling can be conducted under a system of licensing so broad as to include the entire retail trade remains to be seen; but if such a course is practicable there is no apparent reason why the sales could not be dominated in that way.23

This ruling appears sound in the forum of logic and patent and copyright law; but the further question as to whether such a situation discloses a restraint of trade or a monopoly, will remain to be tried out according to the then existing provisions of the

20 Bobbs-Merrill Co. v. Straus, 139 Fed. 155. See authorities cited under footnote 18, supra.

21 Bauer & Cie v. O'Donnell, 229 U. S. 1.

22 Dr. Miles Medical Co. v. Park & Sons Co., 220 U. S. 373.

23 Such is the trend of the ruling in Henry Brill Publishing Co. v. Smythe, 27 Fed. 914; and this authority is quoted with approval in Harrison v. Maynard, etc., Co., 61 Fed. 689, 10 C. C. A. 17, 26 U. S. App. 99.

Anti-trust statutes when that as yet hypothetical case takes on actual substance and form.

Comparison of Privileges under Patent and Copyright Laws. -As has been said (pages 186-7, supra), the construction of the patentee's rights is accorded a latitude which does not extend to the holder of copyright privileges. This attitude is felt rather than seen upon the face of the reports; but there are two instances which should be noticed and discussed:

FIRST: PATENT Rights Rest upon a Broader Grant, and ACCORDINGLY COVER A MORE EXTENSIVE FIELD.

This interesting topic has been quite fully dwelt upon and analyzed in the leading patent case, (Bauer & Cie v. O'Donnell, 229 U. S. 1,) where the distinction is noted and reason therefor stated:

"This grant [to the inventor] as defined in Bloomer v. McQuewan, 14 How. 539, 549, consists altogether in the right to exclude every one from making, using or vending the thing patented. Thus, there are several substantive rights, and each is the subject of subdivision, so that one person may be permitted to make, but neither to sell or use the patented thing. To another may be conveyed the right to sell, but within a limited area, or for a particular use, while to another the patentee may grant only the right to make and use, or to use only for specific purposes." The court then passes to

"the differences in the terms of the copyright and the patent statutes, the patent act conferring not only the right to make and sell, but the exclusive right to use the subject matter of the patent." (The italics appear in the original opinion.)

Therefore, it is officially stated by the Supreme Court that the right to make and sell is the extent of the right conferred under the copyright law; whereas the patent laws contain the additional exclusive right to use-a grant materially broader in its practical effect.

SECOND: RULE THAT ANTI-TRUST DEFENCES CANNOT BE INTERPOSED TO SUITS FOR INFRINGEMEnt of PATENT RIGHTS, IS NOT APPLIED IN SIMILAR COPYRIGHT CASES.

In the leading case under copyright law (Bobbs-Merrill Co. v.

Straus, page 199, supra), the fact is noted that violations of Antitrust laws cannot be set up in actions for impairment of patentee's rights through infringement; but it is stated that such ruling does not apply in copyright cases of that description. Section 4964, of the Revised Statutes, as amended, defines infringement of copyright as printing, publishing, etc., the protected work or selling the same without the written consent of the holder of the copyright. Thus the field for infringement of a copyright is narrower and quite different from the infringement of the patentee's device, and a moment's reflection will be sufficient to show that whereas the defence of restraint of trade or monopoly might well be interposed in proceedings under the former, it could not be employed with equal force when the suit was based upon the right which a patent confers. In brief, the "exclusive right of making, using and vending" is a very broad grant, and affords a wider scope of franchise than that which the exclusive right to make and vend confers on the holder of a copy-right.

The statement in Strait v. National Harrow Co., 51 Fed. 819: "Such a monopoly may be an odious and wicked one, but the proposition that the plaintiff while infringing the rights vested in the defendant under letters patent of the United States is entitled to stop the defendant from bringing or prosecuting any suit therefor because the defendant is an obnoxious corporation is a novel one and entirely unwarranted," (page 190, supra), closes the door to further discussion of the claim that proof of monopoly can operate as a bar in disputes concerning the infringement or priority of inventions; and the opposite ruling as to Anti-trust defences in copyright cases seems equally established.

4. PROTECTION OF PUBLIC IS END SOUGHT, BY ANTITRUST LAWS.

Author and Inventor also Concerned.-When considering matters connected with the enactment and enforcing of the Antitrust laws it frequently transpires that the interests of the originator of the patented or copyrighted device, process or work are much more at stake than the interests of the community that uses the device, process or work or by its use renders profitable the property in question. In fact, it often occurs that whereas unfair and unrestricted competition would for the moment benefit the public through a rapid and radical reduction in price, such