Edward Thompson Co. v. American Law Book Co.

• Decision Date: 01 July 1903
• Citation: 122 F. 922
• Parties: EDWARD THOMPSON CO. v. AMERICAN LAW BOOK CO.
• Court: U.S. Court of Appeals — Second Circuit

122 F. 922

EDWARD THOMPSON CO. v. AMERICAN LAW BOOK CO.

United States Court of Appeals, Second Circuit.

July 1, 1903

Edmund Wetmore and Augustus T. Gurlitz, for appellant.

Walter Large and Frank P. Prichard, for appellee.

Before WALLACE, TOWNSEND, and COXE, Circuit Judges.

COXE Circuit Judge.

The complainant is the publisher of two encyclopaedias; one of American and English Law, the other of Pleading and Practice. The defendant is compiling a work called the 'Cyclopedia of Law and Procedure,' two volumes of which were published when this action was commenced in December, 1901. The complainant alleges that these volumes infringe its copyrights.

The method adopted by the complainant in preparing the articles for its books was, briefly stated, as follows: When a topic was assigned to a writer, paragraphs cut from the United States Digest, the American Digest and Jacob's Fisher's Digest bearing upon the subject in question were placed in his hands. In this way the writer, without any labor on his part, mental or physical, had before him, not only the authorities collected by others, but also the paragraphs written by others, which were used by him in preparing his article. It is alleged by the defendant that all of the digests thus used were copyrighted and that the copyrights were infringed by the complainant's verbatim appropriation of a large number of these paragraphs, and that, in any event, having adopted the same method which it now denounces as piratical, the complainant is not entitled to equitable relief. The defendant's method was similar to that of the complainant except that it obtained from the owners of the copyrighted digests the right to use these works.

The only act of the defendant which is complained of is this Lists of all the cases bearing upon a given subject including the cases found in complainant's books, were put in the hands of the editor chosen to develop that subject. The list of complainant's cases contained authorities not found in the digests. The original reports of these cases were examined by the editor, and, if the cases were found applicable, they were cited by him in support of his article; if not, they were rejected. There is no pretense that a word of the complainant's text has been copied; in fact the defendant's editors were not permitted to open the complainant's books. The list of cases furnished the editor was not copied in the defendant's work and the only use made of the list was as a guide to the volumes where the cases were reported.

Briefly stated, then, the question is this: Is a copyrighted law book infringed by a subsequent work on the same subject where the only accusation against the second author is that he collected all available citations, including those found in the copyrighted work, and, after examining them in text-books and reports, used those which he considered applicable to support his own original text? We are of the opinion that this question must be answered in the negative. The doctrine contended for by the complainant extends the law of copyright beyond its present bounds and if pushed to its logical conclusion will inflict a far greater injury upon literature than it can ever expect to prevent. If it be held that an author cannot consult the authorities collected by his predecessors, the law of copyright, enacted to promote the progress of science and useful arts, will retard that progress. It will be found upon examining the reported cases that there has been a finding of noninfringement unless it appears that the whole or a part of the copyrighted work has been copied, either in haec verba or by colorable variation.

In Pike v. Nicholas, L.R. 5, Ch.App. 263, it was held that the defendant was not permitted to copy a passage from another author directly from the plaintiff's work, 'but having been put on the track, and having looked at that particular part of the book which the plaintiff led him to, he was entitled to make use of every passage from that author which the plaintiff had made use of.'

In Morris v. Wright, L.R. 5 Ch.App. 287, it was decided that if the defendant 'used the plaintiff's 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.'

In the case of Moffatt v. Gill, 86 Law Times Rep. 465, which the complainant quotes with approval, infringement was found because it was abundantly shown that 'not only have the quotations in substance been taken, but the letterpress connecting them has also in substance been taken in great many instances and particularly in the character sketches. ' The court, however, expressly recognizes the right of a subsequent author to do what the defendant in the case at bar has done. In speaking of the cases relating to directories the court says:

'You cannot, where another man has compiled a directly, simply take his sheets and reprint them in your own. You are entitled, taking the sheets with you, to go and see whether the existing facts concur with the description in the sheets, and if you do that you may publish the result as your own.'

To the same effect is List Pub. Co. v. Keller (C.C.) 30 F. 772; Jarrold v. Houlston, 3 Kay & J. 708; Simms v. Stanton (C.C.) 75 F. 6; Macgillivray on Copyright, 103; Mead v. West Pub. Co. (C.C.) 80 F. 380.

Counsel for complainant in order to illustrate their position put the following question:

'Suppose the author of a dictionary of quotations inserts after each quotation, as is customary, the book and page of the original author, will it be contended that the compiler of a subsequent book of quotations could have his clerk copy a list of all the references contained in the first author's book without copying the quotations and could then go to the original authors and copy the quotations found at the pages indicated by the references? Yet he would have an undoubted right to do this if the contention in the appellant's brief is sound.'

Assuming that the question is answered in the negative we do not think the...