Mary Dun v. Lumbermen Credit Association

Citation52 L.Ed. 663,209 U.S. 20,14 Ann. Cas. 501,28 S.Ct. 335
Decision Date24 February 1908
Docket NumberNo. 138,138
PartiesMARY B. DUN, Robert Dun Douglass, Francis L. Minton, and Walter D. Buchanan, Executors and Trustees under the Will of Robert G. Dun, Deceased, appts. v. LUMBERMEN'S CREDIT ASSOCIATION, William Clancy, and Burton W. Stadden
CourtUnited States Supreme Court

Messrs. John O'Connor, Charles K. Offield, Thomas M. Hoyne, and Henry S. Towle for appellants.

Messrs. Charles O. Loucks, Fred H. Atwood, and Frank B. Pease for appellees.

Mr. Justice Moody delivered the opinion of the court:

The appellants are the proprietors of a mercantile agency which publishes at intervals a copyrighted book of reference containing lists of merchants, manufacturers, and traders in the United States and the North American British possessions. The book contains information as to the business, capital, and credit rating of those who are enumerated in it. The information is obtained at large expense and is useful to those who are engaged in trade and commerce, who, in large number, subscribe to the privilege of consulting copies of it, which are furnished but not sold to them. The appellee is a corporation engaged in preparing and publishing a similar book, limited, however, to those engaged in the lumber and kindred trades. The book is called the Reference Book of the Lumbermen's Credit Association. The appellants brought in the circuit court of the United States a suit in equity, alleging an infringement of their copyright by the appellee, and praying for an injunction, for an account, and for general relief. After hearing evidence, the circuit court entered a decree dismissing the bill for want of equity, which, with an immaterial modification, was affirmed by the circuit court of appeals. An appeal to this court was then taken.

Both the courts below made findings of fact, which are in substantial agreement. Those findings best appear by quotations from the opinions which follow. The judge of the circuit court said:

'From the evidence it appears that defendant admits using complainants' book, but insists that it did so merely for the purpose of comparison and for information as to names, but that in every case it, at great cost, procured original and independent information as to the rating and other facts contained in defendants' book. There are in respondents' reference book more than 60,000 names. The evidence shows that there are on hand more than 1,000,000 reports, replies to inquiries, etc. It further appears that defendants receive large numbers of newspapers, magazines, trade journals, and bulletins; that they use traveling men, lumber dealers, agents, lawyers, justices of the peace, mercantile associations, railroad companies, and the clippings sent out by a number of clipping bureaus. At times defendants' mail reaches approximately 2,000 pieces of mail per day. A large force of employees and large offices are required in the management of the business.

'On the other hand, a number of instances are disclosed in the evidence which have strong tendency to establish the charge that defendants have used some of complainants' copyright material in making their book. The same mistakes occur in each. In one case complainants' witness swears to an entirely fictitious item placed in complainants' book as a test, which was duly appropriated by defendants. In regard to a number of items said to be duplicated, defendants show original investigation. Still, when all the explanations are considered, it seems to be fairly established that defendants did take some of the items complainted of. Generally such indicia is held to indicate a substantial theft of copyright property; but, taking all the evidence together, I am satisfied that the items selected as tests constitute the bulk of all the items taken, and that they are of small moment in comparison with the whole.

'Defendants' book gives information on 113 subjects, complainants on...

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33 cases
  • Williams & Wilkins Company v. United States
    • United States
    • U.S. Claims Court
    • November 27, 1973
    ...courts can refuse to enjoin copyright infringements if they deem an injunction would be unconscionable. Dun v. Lumbermen's Credit Ass'n., 209 U.S. 20, 28 S.Ct. 335, 52 L.Ed. 663 (1908). Under the 1909 Act, the Second Circuit held in National Comics Publications, Inc. v. Fawcett Publications......
  • New Era Publications Intern. v. Henry Holt and Co.
    • United States
    • U.S. District Court — Southern District of New York
    • August 16, 1988
    ...to a recovery of damages where most of the defendant's work consisted of noninfringing material. See Dun v. Lumbermen's Credit Ass'n, 209 U.S. 20, 28 S.Ct. 335, 52 L.Ed. 663 (1908). Four Justices of the Supreme Court have recently suggested granting other than injunctive relief in appropria......
  • TD Bank N.A. v. Hill
    • United States
    • U.S. Court of Appeals — Third Circuit
    • July 1, 2019
    ...result from a finding of infringement. Id. at 392–93, 126 S.Ct. 1837. It pointed, for example, to Dun v. Lumbermen’s Credit Association , 209 U.S. 20, 28 S.Ct. 335, 52 L.Ed. 663 (1908), where the Court had affirmed a denial of an injunction for infringement of a reference book, agreeing wit......
  • New Era Publications Intern., ApS v. Henry Holt and Co., Inc.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • April 19, 1989
    ...Act, 17 U.S.C. Sec. 502 (the court "may ... grant ... final injunctions"); past cases, e.g., Dun v. Lumbermen's Credit Ass'n, 209 U.S. 20, 23-24, 28 S.Ct. 335, 337, 52 L.Ed. 663 (1908) (discretion "wisely exercised" in copyright infringement case in refusing injunction against publisher of ......
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2 books & journal articles
  • DISCOVERING EBAY'S IMPACT ON COPYRIGHT INJUNCTIONS THROUGH EMPIRICAL EVIDENCE.
    • United States
    • William and Mary Law Review Vol. 64 No. 5, April 2023
    • April 1, 2023
    ...505 (2001) (citing Campbell v. Acuff-Rose Music. Inc., 510 U.S. 569. 578 n.10 (1994)); and then citing Dun v. Lumbermen's Credit Ass'n, 209 U.S. 20, 23-24 (1908)); see also Samuelson, supra note 9, at 783-86, 799-811 (discussing these (25.) eBay, 547 U.S. at 392 (first citing 35 U.S.C. [sec......
  • WITHHOLDING INJUNCTIONS IN COPYRIGHT CASES: IMPACTS OF EBAY.
    • United States
    • William and Mary Law Review Vol. 63 No. 3, February 2022
    • February 1, 2022
    ...v. Tasini, 533 U.S. 483, 505 (2001); Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578 n. 10 (1994); Dun v. Lumbermen's Credit Ass'n, 209 U.S. 20, 23-24 (1908)). These decisions are discussed infra Parts I.B, II.A, (6.) 510 U.S. at 578 n.10. (7.) Some early articles concluded that eBay ......

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