Macmillan Co. v. King
| Decision Date | 24 June 1914 |
| Docket Number | 360. |
| Citation | 223 F. 862 |
| Parties | MACMILLAN CO. v. KING. |
| Court | U.S. District Court — District of Massachusetts |
Henry L. Burnham, of Boston, Mass., for plaintiff.
John E Eaton and Mitchell, Chadwick & Kent, all of Boston, Mass for defendant.
The defendant is charged with infringing the plaintiff's copyright in 'Principles of Economics,' a work in two volumes by F. W. Taussig, Professor of Economics in Harvard University, published in 1911 by the plaintiff, and copyrighted under the act of 1909. The bill alleges that the defendant has--
'printed published, and leased or sold unauthorized, unfair, and unlawful abridged copies or other versions of said book.'
An injunction and accounting is prayed for. 35 Stat. 1075.
The Copyright Act of 1909 secures to the owner of a copyright in a literary work an exclusive right to 'print, reprint, publish, copy and vend the copyrighted work' (section 1a), and to 'make any other version thereof' (section 1b). It provides that the copyright shall 'protect all the copyrightable component parts of the work copyrighted, and all matter therein in which copyright is already subsisting. ' Section 3 (Comp. St. 1913, Sec. 9519).
The answer denies the allegations above quoted from the bill. The defendant alleges that he is a teacher by profession; that numerous persons come to him for private instruction in various subjects, one of them being economics; that in teaching economics he makes use of and teaches the contents of the copyrighted book; that the book is sold for use as a text-book, and is studied by his pupils as such, and that they resort to him for aid in such study; that each of his pupils is recommended and expected to possess a copy of the book, and in general does so; that all of them possess copies, so far as he knows; and that if any do not is a matter beyond his control, copies being accessible in the libraries or in the hands of friends to them all; that in advance of each conference relating to the subject with his pupils, he prepares for them brief memoranda or outlines covering the ground to be dealt with; that each of these consists of a single sheet of typewritten matter, relating only to the subject-matter to be dealt with at the conference; that, if any sheet is taken away after the conference, an account is kept, and it is returned the next week; that all are subsequently destroyed; that none are sold or leased; that they are not bound or paged; that no use is made of them, apart from the use above described; that they go into his pupils' hands only on the understanding that they are to be used by the individual pupil and returned as above; that, except as stated, they are not published or distributed; and that his regular fees for instruction are fixed without regard to the use of the memoranda, and are the same whether the memoranda are used or not.
He alleges, further, that what he does as above is within the license and consent given by implication in distributing and selling the books, is within the custom of teachers, and is not an infringement of the complainant's copyright.
The defendant's allegations as to the actual use he has made of his 'memoranda' are in general supported by the evidence, except that certain memorandum sheets, nine in number (marked Exhibit H), appear by his own testimony to have been prepared by him for use, not at a particular conference dealing with a particular part of the book, but for tutoring in preparation for a final examination in one of the Harvard courses in economics; and that these were intended to outline all the subject-matter covered in that course during a certain term. These he said he loaned to the pupils tutored in that course, to be kept for 'a few days,' to be returned, not the next week, but immediately after the examination. It did not appear how long before the examination they were loaned. They were put in evidence by the plaintiff, in whose possession they were at the time, and appear, therefore, not to have been in fact returned to the defendant by the pupils to whom he loaned them.
1. Are the memoranda referred to such in character as to constitute 'copies' or 'other versions' of the copyrighted work, within the meaning of the act, if printed, reprinted, or published, within the meaning of the act?
I first consider 30 sheets of the memoranda, furnished for use as evidence by the defendant himself, and agreed to be specimens of all by a preliminary stipulation made by both parties May 9, 1913, before any other evidence had been taken in the case. That 'materials for said memoranda or outlines were drawn from' the copyrighted book is also expressly agreed in the same stipulation.
The 30 conferences with his pupils, for which the defendant prepared these memoranda sheets, were to be on successive dates, never at a less interval than one week, beginning with October 6, 1911, and ending with May 24, 1912. The conferences appointed for four dates in October and for November 3 and 10 would seem never to have been actually held, although sheets for those dates were prepared. On the remaining dates conferences were held, and a sheet of memoranda prepared for each was used.
The memoranda sheets used on December 8, 15, and 22, besides dealing with parts of the copyrighted book, dealt also with parts of a different book upon the same subject, by another author, and in no way involved in this case. The sheets prepared for or used on the other dates deal each with a part of the copyrighted book. Certain chapters of the book, occupying in all not quite 60 of its more than 1,100 pages, are not dealt with in any of the sheets. The remaining chapters of the book may be said to be covered by the remaining sheets taken together; but the order of the book was not followed throughout in the successive conferences, earlier portions of it being sometimes passed over until after later portions had been dealt with.
Occasional portions of some of the sheets do no more than refer to the book for its treatment of a particular topic, the reference conveying little or no notion to the student of what is found in the book about the topic. Examples are:
(Feb. 16, under heading Taussig on Interest)
9. Rate differs in different countries. Why?
10. Justification of interest-- for and against.
(Feb. 23.) Industrial Crises: (a) Periodicity-- 1818, 1825, 1837, 1847, 1857, break, 1873, 1884, 1893; also a double pulsation (severe, mild); some worldwide, some limited; (b) Jevon's theory of sun-spots and its value.
If the defendant's sheets had been constructed upon this plan throughout (and without infringement of the copyrighted index), it might be said that he had done no more than provide students with visible means to aid their study of the book, which would relieve their memories of the task of retaining in proper order the principal matters treated of, and had done nothing which amounted to substantial reproduction of any of the author's treatment. The defendant offered in evidence several so-called printed outlines or abstracts prepared by other teachers for use in connection with other books. These appeared, generally speaking, to be constructed according to the plan just described. As to two of them, wherein a further use of the author's ideas is made, one appears to have been copyrighted by the author, the other by its maker, with permission from the owner of a copyright covering the English translation of the book.
The defendant's sheets certainly make a much more extensive use of the author's ideas than is made in such occasional passages as the two above quoted. For the most part they consist of paragraphs more nearly like the following:
(March 8) Taussig on Taxes on Land and Buildings:
'(a) The peculiarity of the tax on land is that it cannot be shifted, but falls on the owner. If a sale takes place, the buyer deducts the tax and is tax free--
(April 25) Taxes on Land and Buildings: (a) A tax on land ...
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