Burnell v. Chown

• Decision Date: 22 October 1895
• Docket Number: 1,266.
• Citation: 69 F. 993
• Parties: BURNELL v. CHOWN et al.
• Court: U.S. District Court — Northern District of Ohio

69 F. 993

BURNELL v. CHOWN et al.

No. 1,266.

United States Circuit Court, N.D. Ohio, Western Division.

October 22, 1895

The bill avers that the plaintiff is a citizen and resident of the state of Iowa, that he conceived the plan of gathering and imparting the information referred to in the opinion, and used the same by circulating bound copies of said information to subscribers in various localities. He charges that the defendant, after having fully acquainted himself with the plaintiff's conception and plan of adapting the same to the uses of business men, went to the city of Lima, in the county of Allen, in the Northern district of Ohio, and there without license or authority from the plaintiff, and with the purpose and intent of infringing upon his rights, began the work of collecting information and imparting the same to business men in that county.

The key which plaintiff used in his work is as follows:

N-- Prompt pay, and financially good. P-- Prompt pay, regardless of means. W--Slow pay, but financially good. G-- Slow pay and limited means. H-- Require cash on delivery.

The defendants' key, it is averred, is composed as follows:

A-- Prompt pay, and good for large amounts. B-- Prompt pay, and good for moderate amounts. C-- Prompt pay, and good for small amounts. L-- Slow pay, but good for large amounts. M-- Slow pay, but good for moderate amounts. X--Require cash on delivery.

James M. Brown, Walter F. Brown, and D. C. Henderson, for plaintiff.

M. A Hoagland, for defendants.

RICKS District Judge.

This is a bill, filed by the plaintiff, asking for an injunction to prevent the defendants from appropriating, or in any manner using, 'the conception, idea, book, and record of obtaining, collecting, classifying, putting into convenient form, and making record thereof, for the uses of business men, the experiences of business men with men in dealing with them on credit, and of leasing, selling or delivering such experiences and records to any person whatever,' which ideas, conceptions, etc., are fully set out in the bill. The bill avers, in substance, that the plaintiff conceived the idea of gathering, from personal investigation and labor, the standing of citizens, with respect to their credit, in certain localities, sometimes embracing cities, sometimes counties, and sometimes a wider territory. The standing and credit of these citizens were expressed by letters and numbers, in a manner which served as a key, and from which business men within the same territory, dealing with such citizens, might at a glance ascertain their credit, their financial standing, their promptness in the payment of their debts, and such other information of that character, useful to merchants, manufacturers, and dealers. This information, so arranged, was put in the form of bound volumes, either typewritten or printed, and sold to subscribers only. The matter was intended for the special and private information of the persons who purchased this compilation. The averment of the bill is that one of the defendants served for a number of years in the office of the plaintiff, there learned of this conception, idea, plan, and arrangement for collecting and imparting this information, and afterwards associated with him the other defendants, who made a similar publication for use in Ohio and elsewhere. The bill avers, in one part, that a printed title of this book was furnished the librarian of congress, under the copyright law, and subsequently avers that 'thereafter, within the time and in the manner prescribed by law, your orator did all the things required by law to be done in order to secure to himself the full enjoyment of all rights and privileges granted by the laws of the land governing copyrights. ' A demurrer is that the bill does not aver what was done by the plaintiff in order to entitle him to the benefit and protection of the copyright laws of the United States, and reference is more particularly made to the paragraph just quoted as being a conclusion of law, and wholly insufficient to show that the plaintiff has complied with the statutory requirements in order to entitle him to protection under the copyright laws. In view of the closing part of the brief for the plaintiff, I do not know that it is necessary to pass upon this question; but, being left still uncertain as to whether the plaintiff relies upon his common-law rights or statutory rights for protection, I proceed to consider this ground of demurrer. The copyright act provides explicitly just what authors and publishers shall do in order to entitle them to protection under that act. One of these requirements is that, within 10 days after publication, two copies of the book shall be deposited in the office of the librarian of congress. I think this is a fact which must be averred in order to show affirmatively that the plaintiff has complied with the statute.

Plaintiff's solicitor, in the closing paragraph of his brief, says:

'But all the foregoing authorities are in cases for infringement of copyright under the statute. Our case is one where the scheme, plan, and conception of the author, which is being appropriated by the defendants, has never been published, and although he has taken steps to protect himself if he should publish the same, yet, never having published the same, all his common-law rights are preserved in full force.'

It may therefore be proper to consider this controversy with reference to plaintiff's rights at common law.

The American Trotting Register Association, in 1894, filed a bill in this court to restrain W. H. Gocher and A. W. Parrish from publishing a list of trotters and pacers having made a record of 2:30 or better. The bill proceeded upon the charge that the complainant had compiled such a list of horses, published in what is known as 'Wallace's Year books,' which compilation was the result of original information and facts gathered from original sources by complainant's industry and at its expense. In the answer, the defendants claimed that all the facts stated in complainant's books were obtainable from other independent...