27 F. 914 (S.D.Ohio 1886), Henry Bill Pub. Co. v. Smythe

Citation:27 F. 914
Case Date:July 03, 1886
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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27 F. 914 (S.D.Ohio 1886)




United States Circuit Court, S.D. Ohio.

July 3, 1886

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D. Stalter and Pugh & Pugh, for plaintiff.

J. M. Tibbitts, for defendant.


It is proper that I should frankly say, by way of apology for a too long delay in the decision of this case, that when it was argued I felt, because of my unfamiliarity with the law of copyright, quite unwilling to assume the responsibility of its decision without an investigation, which has been until now, in the multitude of my other engagements, impossible. To me it was a startling proposition that, in the immense trade that goes on in copyrighted books, the dealer must deraign his title to each copy from the copyright holder with all the particularity of real estate, if not more inexorably, and that no right to use or sell a copy could be acquired without his consent; and I did not see how the argument of the plaintiff could stop short of that claim; and yet I am unable now to see how that monopoly of sale granted by the statute can be secured without a principle almost as broadly stated as that, qualified, of course, by such limitations as may properly and justly should be imposed to estop him, by his own conduct in any given case, from relying on the principle just stated.

How can his right of sale be exclusive without that principle in its widest scope? If I own a horse, or 10,000 horses, I have, to be sure, growing out of the very right of property itself, an exclusive right to sell them within the United States, and, indeed, elsewhere. But, surely, this is not the measure of that exclusive right to sell his works

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which is granted to an author by the copyright statute. He would have that right, as an incident to his property in the printed copies of the book, without the statutory grant, the other grants of the statute remaining as they are, to create or secure the other elements of his peculiar property in them. Indeed, it is my opinion that from the essential nature of copyright itself would spring this principle of exclusive sale, as I have formulated it, without the especially expressed grant of the statute in that respect.

I cannot find that the English act in terms confers a monopoly of sale, as ours does; and yet, I think, it exists by implication from the statutes as fully as it does under our act. I may be mistaken as to the phraseology of the English acts, but 5 & 6 Vict. c. 45, wherever I find it, seems to omit the words used in our act in reference to the sole liberty of 'vending' the book copyrighted, as it does many other words there used to define the franchise granted by congress. But while the act of Victoria defines 'copyright' to mean 'the sole and exclusive liberty of printing or otherwise multiplying, copies of any subject to which the said word is herein applied,' our act of congress uses the language, much amplified, however, of Millar v. Taylor, 4 Burr. 2303, and defines the word to mean the sole right of 'printing, publishing, and selling his literary composition or book. ' Quoted by Grier, J., in Stowe v. Thomas, 2 Amer.Law Reg. (O.S.) 213, 230; S.C. 2 Wall.Jr. 547; Graves v. Ashford, L.R. 2 C.P. 410, 417; Drone, Copyr. 100, 338, 662, 700; Rev. St. Sec. 4952.

Copyright and literary property would be of little value, for want of adequate protection, without this principle, and it must therefore attach to, and be one of, the peculiarities of this creation of the statute. Ordinary remedies protect one's exclusive right to sell his horses, or, what is the same thing, are a sufficient protection to that character of property; but in printed books there is, aside from the material property in them, a peculiarly intangible and incorporeal right pertaining to the authorship,-- a property created by this statute,-- which requires a further protection that can be adequate only when it is understood that no one can read this book, buy it, or sell it, or otherwise use it, or any copy of it, either that which is piratically or that which has been lawfully printed, without the consent of the author or copyright holder; and the basis of it is that a moneyed or other valuable consideration must be paid to the author, and he has a right to receive value for any use of the product of his labor. Protection in the monopoly of sale for the lawfully-printed copies is just as essential to the value of the right property created by the statute as protection against piratical printing, publication, and sale of the book. Or, if this be not so, congress has chosen, at least, to grant that right of monopoly, and it may grant what it pleases. It does the same thing for mechanical inventions, and why not for literary products? I think it has. Under our tariff laws an American manufacturer has often a monopoly of the American market, and he

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stands very much as the copyright holder does, only the latter has a much stronger, and a more extended and enlarged, monopoly. He relies upon the pains and penalties of the revenue statute for his enjoyment of the monopoly; but, if congress had the same power as in copyright legislation, it might go further and protect the manufacturer more directly and efficiently.

To return to the illustration of the property in horses. If, under the tariff laws, all importations should be forbidden, the American owner of horses would, indeed, have a monopoly of the market. But suppose the government could or should go further, and prohibit all persons, except one citizen, from raising or reproducing horses, and should suppress all reproduction than his own, there would then be growing out of the legislation a monopoly of sale analogous to that conferred in direct terms by this statute on the copyright holder of a book. If the statute should stop at prohibitory legislation, the beneficiary of the monopoly would be compelled to depend wholly on the ordinary remedies to protect it. But this statute does not stop there, and gives the copyright holder especial, if not extraordinary, remedies, at law and in equity, to protect his property, not only against infringement by piracy, but, as I think, against unauthorized sales of genuinely printed copies.

This statute has not abrogated the ordinary law of sales in its relation to copyrighted books, and, like all property, this is subject to that law; but it has provided for it likewise a law of its own, by necessary implication from the statute. We are all familiar with the rule that one buying property of a thief gets no title, no matter how innocent he may be of all knowledge of the theft. Now, let us imagine a state wherein this rule of law has been abrogated by enacting that one who so buys, for a valuable consideration, without notice, shall have a good title, the state undertaking to satisfy our sense of justice by some kind of compensation to the unfortunate owner. If, now, in that state, some thief should sell copies of Mr. Blaine's book, stolen from him there, the purchaser would not get a good title to them notwithstanding the state law; and this because, under the act of congress, Mr. Blaine had granted to him by the statute the exclusive right of sale, which right the courts would protect by appropriate remedies. I do not stop to inquire whether he could bring replevin, trover, detinue, or the like, on the theory that the constitution and laws of the United States being paramount, and Blaine's right of sale exclusive, the federal law would exclude the thief's power of sale under the state statute, and there would therefore be necessarily a modification or limitation imposed by the federal statute on that of the state; but, surely, he could appeal to the remedies given by this copyright statute itself to protect him in its enjoyment. Again, if this be a correct view of the nature of this grant of an exclusive right to sell, it does not matter whether the party offering to sell without Mr. Blaine's authority be a thief, or one in possession only by a breach of trust,

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or some other less blamable means of acquisition. The absence of Mr. Blaine's authority to sell his literary property constitutes the defect of title, no matter how that want of authority arises. Owing to the peculiar character of this kind of property, the absence of the author's authority to sell is a defect of title, and not a mere want of power. In other words, this monopoly of sale is, of itself, property, and any interference with it should be restrained.

Now, as to what should estop Mr. Blaine, in a court of equity, as between himself and a given party in possession of his books claiming the right to sell them, from relying on any absence of authority party to invoke the aid of that court to restrain Mr. Blaine from setting up such an absence of his authority, we need not inquire further than the facts of this case demand a decision. It may be that a court of equity would often presume the necessary authority to sell, whether it existed in fact or not; but this would depend rather on Mr. Blaine's own conduct in the premises than...

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