Ricker v. General Electric Co., 212

• Decision Date: 03 June 1947
• Docket Number: Docket 20492.,No. 212,212
• Citation: 162 F.2d 141
• Parties: RICKER v. GENERAL ELECTRIC CO.
• Court: U.S. Court of Appeals — Second Circuit

162 F.2d 141 (1947)

RICKER v. GENERAL ELECTRIC CO.

No. 212, Docket 20492.

Circuit Court of Appeals, Second Circuit.

June 3, 1947.

Gustave A. Gerber, of New York City, for plaintiff-appellant.

Charles H. Walker, of New York City, for defendant-appellee.

Before L. HAND, SWAN, and CLARK, Circuit Judges.

CLARK, Circuit Judge.

This action involves the alleged plagiarism of scientific materials simply prepared for the lay reader. Plaintiff charges that before March, 1942, she produced an original book entitled, "Radio Operator's Primer," which was then copyrighted; that prior to April, 1943, she wrote a revised edition of this book entitled, "Radio Primer," which was copyrighted October 8, 1943; that in April, 1943, she offered her already copyrighted first book and the manuscript of her second book to defendant, who returned them to her without acceptance of the offer; and that these are infringed by defendant's publication, "The ABC's of Radio" (shown by other matter of record to have been published on July 12, 1943). She sought the usual remedies of injunction, accounting, and damages. The record, in addition, contains the defendant's answer of denial and the various affidavits which will be referred to below. Since the District Court has granted summary judgment for defendant on the latter's motion, and since an issue of fact not triable on this motion is raised on the pleadings as to access, we must decide the present appeal upon the basis that plaintiff will be able to prove her allegations as to access.

Unlike the subject matter of a patent, copyrighted material need be not new, but only original. Hence the sole issue before us is as to infringement. And in considering that issue it must be remembered that the plaintiff has no monopoly of the scientific information with which her book deals; nor has she a monopoly of the idea of expounding such information in simple language comprehensible by lay readers. All her copyright gives her is the right to prevent plagiarism. Independent reproduction of a copyrighted work is not infringement; only plagiarism will serve. Arnstein v. Edward B. Marks Music Corp., 2 Cir., 82 F.2d 275; Sheldon v. Metro-Goldwyn Pictures Corp., 2 Cir., 81 F.2d 49, 54. Where access is proved, or assumed as in the case at bar, likenesses between the copyrighted work and the putative piracy may give rise to an inference of plagiarism; but such an inference is necessarily greatly weakened when the similarities relate to the expression of scientific principles which must necessarily be stated in more or less stereotyped language. See Oxford Book Co. v. College Entrance Book Co., 2 Cir., 98 F.2d 688, 691. Bearing these principles in mind we have examined the record and have found no similarities which could support the charge of plagiarism.

Plaintiff's affidavits show that she is a person of experience in the field of radio communication, beginning her study of wireless telegraphy in World War I. In World War II, she endeavored to stimulate the study of radio by women and adapted a course to meet army requirements for radio work, writing the first book here involved to cover the material for the course. This she gave in the Women's Defense School in Washington. She was also engaged to teach the theories of radio to the men of the Army Air Corps, Technical Training Command. The purposes of the book thus indicated are borne out in her preface, where she speaks of the need of radio operators, the call by the armed forces for amateurs to enroll and learn commercial work, and the hope that "old and new `Hams' amateur radio senders will understand and like my angle on this fascinating study." In line with this purpose her work starts with the teaching of the Morse Code and contains abbreviated signals for stereotyped questions and answers before she proceeds to expound her theoretical material such as "What Is Electricity?" "What Is A Battery?" and so on. Then at page 24 of the 32-page multigraphed pamphlet she comes back again to a detailed discussion of transmitters, followed by several pages of quotation of "F. C. C. Questions and answers" and a final page of "Federal Communications Commission's Rules." The pointed direction of this material to the needs of radio operators of communication sets is obvious.

In her 1943 work, "Radio Primer," this is less stressed, and perhaps the appeal may be considered widened; her preface here suggests, "Engineers may find it refreshing to review their ABC's, new or old hams to rechase the fascinating electron and remarvel at its mysterious power." This, however, is essentially a work stressing definitions which are short, terse, and direct. The subjects of the definitions appear in capitals as the first word or words of each short paragraph. The emphasis upon transmission is still found, however, in the chapters beginning at page 34 of this 48-page pamphlet, including the last chapter at page 43, entitled, "Answers to FCC Amateur B License Examination."

Defendant's work of 68 pages, double columns, according to its preface, "is the outgrowth of a training course in radio that was prepared for sales personnel and others employed in non-technical positions in the radio industry." Particular emphasis is then given to an understanding of "the servicing of receivers," so that "the point of view of the practical serviceman has been adopted rather than that of the advanced engineer." Thus we find stress on symbols and abbreviations for vacuum tubes and other radio parts, with detailed attention (beginning at page 47) to "Trouble Analyzing and Repairing," setting forth methods, devices, systems, and diagrams for discovering faults in tubes, in loudspeakers, in the power supply, in the power amplifier, etc., etc. There is an extensive discussion, with drawings, of the General Electric 6-tube superheterodyne Model L-630. Finally there follow seven pages of terms and definitions. There is no discussion of transmitters, or the Morse Code, or the Federal Communications Commission's requirements for operators' licenses; and there is no material at all dealing with the sending of signals. Hence here the pointed direction of the text to radio receivers and their care and servicing is obvious.

Defendant's affidavit made by one Royer asserts that he prepared the final draft of defendant's book, making use of material previously prepared by him for sales training within the company and published in mimeographed form under date of October 27, 1942. An inspection of this material attached as an exhibit demonstrates beyond doubt that it is the source of by far the greater part of defendant's publication. Almost all the Royer manuscript is lifted bodily into the final publication, with only minor revision and with some additions. Among these additions are the definitions referred to above, which Royer asserts were taken from defendant's "Radio Operators' Manual," Fourth Edition, published and copyrighted in 1939 — a fact which is also demonstrated by inspection. In addition, Royer asserts that his manuscript was a revision and an expansion of a mimeographed text of a lecture course on radio started in the Bridgeport Trade School in 1941 by one Lippert, another employee of defendant. Lippert's affidavit, also included, states that his lectures were given commencing March 10, 1941; and he supplies as an exhibit a photostat of the mimeographed lectures. Here, too, inspection shows the direct copying which the affidavits assert. In other words, substantial bodies of material can be traced directly from the Lippert manuscript to the Royer manuscript to defendant's publication. Both Lippert and Royer deny any use, or even knowledge, of any of plaintiff's material.

It will be seen, therefore, that plaintiff's case turns upon the claimed copying of small details of textual exposition of scientific data. This, then, is the substantial point of plaintiff's claim, which in her affidavits she backs up with detailed comparisons of quoted material, listing, indeed, in her main charge some 108 claimed instances of copying. True, she does suggest that her purpose of conveying scientific radio information in simple form to the layman and her methods of carrying out her purpose were copied. But as we have pointed out above, since her general approach to the subject is quite different from defendant's, and since there can be no monopoly in attempting to bring science to the layman, it is clear that these individual instances of asserted copying constitute the nub of the case.

As pointed out in the Oxford Book case, supra, 2 Cir., 98 F.2d 688, it would not be strange under the circumstances to find some instances of duplication of the same scientific data. We have, however, examined with care all the material plaintiff has supplied, and are bound to say that proof of copying is actually nonexistent. In fact we are impressed with...