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 perhaps half 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 newspaper 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 lines 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 appears, 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.15 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

18 According to the by-laws of the Associated Press no 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 power of the directors to admit anyone to membership may be limited by a right of protest to be conferred upon individual members. See bylaws, Article III, section 6. "The members of this corporation may, by an affirmative vote of seven-eights 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."

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 hours' protection; 16 and which ratified, on February 15, 1911, the convention adopted at the Fourth International American Conference; 17 and such was evidently the view also of the signatories to the International Copyright Union of November 13, 1908,18 as both these conventions expressly exclude news from copyright protection.

"That

16 Senate bill No. 1728, 48th Cong., 1st sess. The bill provides: 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 the term 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.

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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 of 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. Arguments before the Committee 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.

17 38 Stat. 1785, 1789, art. 11.

18 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.

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In 1898 Lord Herschell introduced in Parliament a bill, section 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

Or 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,1o and for other reasons decline to protect by injunction mere political rights; 20 and as Congress has prohibited courts from enjoining the illegal assessment or collection of Federal taxes.21 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."

22

Or again, a legislature might conclude that it was unwise to recognize even so limited a property right in publisher news as that above indicated but that a news agency should, on some conditions, be given full protection 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

character, to original illustrations therein, and to such news and information as have been specially and independently obtained." (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. V, c. 46.

19 Boston Diatite Co. v. Florence Mfg. Co., 114 Massachusetts, 69; Prudential Assurance Co. v. Knott. L. R. 10 Ch. App. 142.

20 Giles v. Harris, 189 U. S. 475. Compare Swafford v. Templeton, 185 U. S. 487; Green v. Mills, 69 Fed. Rep. 852, 859.

21 Revised Statutes, sec. 3224; Snyder v. Marks, 109 U. S. 189; Dodge v. Osborn, 240 U. S. 118.

22 Act of March 4, 1909 (sec. 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 $250 nor more than $5,000.

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 interest. 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.

INVESTMENT SERVICE CO. v. FITCH PUB. CO.

(Circuit Court of Appeals, Seventh Circuit. June 29,

1923)

291 Fed. Rep. 1010

1. COPYRIGHTS REPRODUCTION OF ERRORS WARRANTS INFERENCE OF

COPYING.

Where errors in typography and matter appearing in a copyrighted publication appeared also in defendant's publication in sufficient numbers to repel any theory of accidental coincidence, and to warrant a finding of intentional trespass on the copyright, the inference was justified that the defendant's copying was not confined to copying complainant's mistakes.

2. COPYRIGHTS-PUBLICATION OF WHOLE BOOK CAN BE ENJOINED, WHERE INNOCENT MATTER CAN NOT BE SEPARATED.

An injunction against the publication of defendant's entire book was not error, where from the record it was impossible to determine what innocent matter, if any, was embodied in the book.

Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois.

Suit in equity for infringement of copyright by the Fitch Publishing Company against the Investment Service Company. Decree for complainant, and defendant appeals. Affirmed.

Allan M. Reed and Frank F. Reed, both of Chicago, Ill., for appellant.

Geo. L. Wilkinson, of Chicago, Ill., for appellee.
Before Baker and Evans, circuit judges.

BAKER, Circuit Judge. Appellee's suit resulted in a decree which adjudged that appellant's "Investment News' Directory of Investment Bankers and Brokers of America, 1922," was an infringement of appellee's 1921 copyright of "Fitch Listings of Investment Banks and Brokers in United States and Canada."

By stipulation of counsel the cause was submitted for final hearing upon the affidavits and exhibits which had been used in supporting and in opposing appellee's motion for a preliminary injunction.

[1] Errors in typography and in matter appearing in appellant's book first occurred in appellee's. There were enough errors to repel any theory of accidental coincidence and to warrant a finding of intentional trespass upon appellee's property. Such a situation justified a further finding that appellant's copying was not confined to copying appellee's mistakes. (Weil on Copyright Law, pp. 460, 461; Frank Shepard Co. v. Zachary P. Taylor Pub. Co. (C. C.) 185 Fed. 941; Id., 193 Fed. 991, 113 C. C. A. 609.)

[2] Since it is impossible for us to determine from this unsatisfactory record what innocent matter, if any, was embodied in appellant's book, we can not predicate error on the court's action enjoining the entire book. (Callaghan v. Myers, 128 U. S. 617, 9 Sup. Ct. 177, 32 L. Ed. 547; West Pub. Co. v. Lawyers' Co-op. Pub. Co., 79 Fed. 756, 25 C. C. A. 648, 35 L. R. A. 400; Chicago RecordHerald v. Tribune Ass'n (C. C. A.), 275 Fed. 797.)

Respecting appellant's contention that appellee came into equity with unclean hands, in that it copied largely from a third party's directory, we find that the record does not require us to deny the trial judge's right to accept appellee's affidavits as establishing that appellee's book was based wholly upon independent and original matter.

The decree is affirmed.