Mead v. West Pub. Co.
| Decision Date | 14 July 1896 |
| Citation | 80 F. 380 |
| Parties | MEAD et al. v. WEST PUB. CO. |
| Court | U.S. District Court — District of Minnesota |
Shipman on Pleading (first edition) was published August, 1894. Andrews on Pleading was published in November, 1894. Shipman on Pleading (second edition) was published in September 1895. Shipman on Pleading constitutes one of the 'Hornbook Series' now being published by the defendant. Twelve volumes have been already published, and 16 more are in course of preparation. These books are elementary in their character, and primarily intended for the use of law students. Andrews' Pleading, plaintiff's book, is a verbatim reprint of the text and notes of Stephen, except that the titles of the cases cited in Stephen's notes have, in certain instances, been interpolated. In addition thereto, Andrews has annotated the text of Stephen, and added some 60 pages of introductory matter. Shipman's Pleading defendant's book, is not a verbatim reprint of Stephen but is based upon that treatise, and adopts the language and arrangement of Stephen throughout. This book is also annotated by the compiler, and some original matter is introduced into the text. The bill states that the first edition of Shipman's Pleading 'was unfavorably received and severely criticised, and was and is a very defective and inferior book,' and alleges, in substance that the preparation of the second edition of Shipman involved the use of the editorial labor expended in the compilation of Andrews' Pleading. The affidavit of Mr West, president of the defendant corporation, states that it is the policy of the defendant, 'as has been repeatedly announced by it to the faculties of the several law schools throughout this country,' to publish new editions of the several books comprised in the Hornbook Series ' He further states that the second edition of Shipman's Pleading 'was prepared in accordance with, and because of, the criticisms and suggestions of certain law-school professors, and other literary advisers' of the defendant, and not in consequence of the publication of Andrews' Pleading, and that said second edition would have been published, for the reasons stated, even if Andrews' Pleading had not been in existence. He further states that Mr. Andrews, compiler of Andrews' Pleading, after said work was published, 'visited a large number of the law schools, and personally solicited the use of his book in said schools, and at that time severely criticised said first edition of Shipman's Common-Law Pleading, and that that criticism, as affiant is informed and believes, is the severe criticism of said first edition to which said Andrews refers in his affidavit.'
The bill admits that the text and notes of Stephen are common property, not subject to copyright, but charges: (1) That the cases cited in part 1, pp. 1-60, of Andrews' Pleading, were copied by the person who prepared the second edition of Shipman. (2) That part 2, Secs. 43-47, pp. 69-77, of Andrews' Pleading, were copied in the second edition of Shipman on pages 6, 11, 120, 121, 126, 127. (3) That over 200 cases were copied from the notes in Andrews' Pleading. (4) That large portions of the notes in Andrews were reproduced in Shipman in the identical language, or with colorable alterations. (5) That the citations in the original notes to Stephen, as corrected and amended by Andrews, were copied in the second edition to Shipman. (6) That a note in Andrews (pages 474-477) is found in substance in the second edition of Shipman. (7) That the index in Andrews 'has to a large extent been utilized, referred to, and copied from, and embodied in the second edition' of Shipman. (8) That over 300 cases in the table of cases in Andrews 'were taken and copied directly' from said table in the preparation of the table of cases in Shipman, second edition. (9) That the defendant made a wrongful and piratical use of Andrews in the preparation of Shipman, and availed itself 'of the labor, pains, care, skill, and experience expended and embodies in said Andrews' Stephen's Pleading.'
Mr. Hale, who made the index to the second edition of Shipman's Pleading, makes affidavit that he made same 'from the proof sheets of said work, and from them alone,' and that 'he made no use of or reference to the index of Andrews' Stephen on Pleading.'
Mr. Jehle, the foreman of defendant's composition rooms and mechanical department, states, in an affidavit, that the table of cases to the second edition of Shipman's Pleading, prepared under his supervision, was, 'in accordance with the usual method employed in preparing such tables,' made 'from the page proofs of said book, and that no reference whatever was made to the table of cited cases published in the work known as 'Andrews Stephen's Pleading."
It is shown by the affidavit of Mr. Clark that the number of cases cited, respectively, in Shipman (first edition), Shipman (second edition), and Andrews, including the cases in Stephen's original notes, were checked under his supervision, and produced the following results, viz.:
[1.]Some cases are cited more than once.
(1) Number of cases cited in the respective volumes:
FN1. Some cases are cited more than once.
Cases cited from Stephen .......................................... 233
Cases cited differently ............................................ 94
Cases quoted differently ........................................... 15
Cases cited to a different point ................................... 89 Mr. Clark states in his affidavit that he cannot now remember the details of his work, nor the circumstances under which each case was cited, but that he does remember the general manner in which his work was done, and the sources from which he obtained his data. The sources consulted in the preparation of the specific chapters are stated by Mr. Clark to be as follows: (1) Chapters 1 and 2, pp. 1-129: (a) Shipman (first edition); (b) Stephen on Pleading; (c) Chitty on Pleading; (d) Clark on Contracts; (e) Cobbey on Replevin; (f) Ewell on Ejectment; (g) other text-books, not now recalled. (2) Chapter 3, pp. 130-141: (a) Shipman (first edition), c. 3; (b) Clark on Contracts, for new matter on page 132, notes 7, 8. (3) Chapter 4, pp. 142-198: (a) Shipman (first edition), c. 2; (b) Stephen on Pleading; (c) Chitty on Pleading; (d) cases cited in the second edition. (4) Chapter 5, pp. 199-256; (a) Shipman (first edition), c. 1: (b) Chitty on Pleading; (c) Stephen on Pleading; (d) cases cited in second edition. (5) Chapters 6-12, pp. 257-499; (a) Stephen on Pleading; (b) Shipman (first edition); (c) Chitty on Pleading; (d) cases taken from Chitty. The sources consulted in the preparation of the whole book, in addition to those already referred to, are stated by Mr. Clark to be as follows: (1) Kinney's Illinois Digest; (2) a Michigan digest; (3) a Massachusetts digest; (4) a Pennsylvania digest; (5) a New York common-law digest; (6) the United States Digest; (7) the American Digest; (8) Ames' Selected Cases on Pleading; (9) the Illinois Reports; (10) the Michigan Reports; (11) The Massachusetts Reports; (12) the Vermont Reports; (13) the New York Common-Law Reports; (14) the New York Court of Appeals Reports; (15) the Indian Reports: (19) the reports of other states, not now remembered; (20) the English Common-Law Reports; (21) reports also examined at the state law library in St. Paul.
Mr. Clark admits that he made use of Andrews to the following extent, viz.: (1) That 'in several instances' he cut the original text of Stephen from Andrews in order to save copying. (2) That he checked his work with Andrews, in common with other works on Pleading, for omitted topics, and that it was thereby suggested to him to treat briefly the following subjects, viz.: (a) Writ of Entry; (b) Forcible Entry and Detainer; and (c) Trespass to Try Title. In treating these topics he did not copy, either directly or indirectly, the language or the ideas contained in Andrews' Pleading. The sources consulted by him were, among others, Blackstone's Commentaries and Ewell on Ejectment. (3) That he did not check Andrews for omitted cases, although it is possible that he may have found a case here and there by reason of its being cited in Andrews; that he did not cite any case from Andrews without first examining the original report. (4) That he had intended to read the work of Andrews, but read only a small part of same,-- not as much as half.
Aldrich, Reed, Brown & Allen, for complainants.
W. E. Dodge and Homer Eller, for defendant.
W. E. Dodge and Homer Eller, for defendant, filed the following brief:
The Issue in the Case.
The issue in this case is in large measure an issue of fact. The...
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