National Telegraph News Co. v. Western Union Telegraph Co.

• Decision Date: 28 October 1902
• Docket Number: 789.
• Citation: 119 F. 294
• Parties: NATIONAL TEL. NEWS CO. et al. v. WESTERN UNION TEL. CO.
• Court: U.S. Court of Appeals — Seventh Circuit

119 F. 294

NATIONAL TEL. NEWS CO. et al. v. WESTERN UNION TEL. CO.

No. 789.

United States Court of Appeals, Seventh Circuit.

October 28, 1902

Thomas S. Chadbourne and Charles S. Holt, for appellants.

H. D Estabrook, for appellee.

The bill in the Circuit Court was by appellee, a corporation of New York, against the appellants, The National Telegraph News Company, a corporation of Illinois, and F. E. Crawford and A K. Brown, citizens of Illinois; and the appeal is from an interlocutory order restraining the appellants, and each of them, their servants, agents and employes, from copying from the appellee's electrical instruments and printing machines, known as tickers, for the purpose of publishing selling or transmitting through their own tickers, or otherwise disposing of, or using, any of the news or information-- such as base-ball, foot-ball, racing athletics, stock, grain and produce quotations, financial and other reports-- which may thereafter be collected, formulated and transmitted by the appellee through its tickers; and from publishing, selling or using the matter so copied until the lapse of fully sixty minutes from the time such news items are printed by appellee's tickers.

The further facts appear in the opinion of the court.

Before JENKINS and GROSSCUP, Circuit Judges, and BUNN, District Judge.

GROSSCUP Circuit Judge, delivered the opinion of the Court:

The appellee, the Western Union Telegraph Company, does a general telegraphing business, having offices in every state, village, hamlet and railroad station in the country, and wires connecting the same with central offices through the country.

About 1881 there was invented an instrument which, by means of a type wheel, actuated by electrical impulse, automatically prints in plain, ordinary type, upon a strip of paper, messages transmitted electrically from a distance. The instrument is now generally known as the 'ticker,' and is commonly found in the offices of brokers, bankers and other persons interested in the current price of securities, and in hotels, saloons and other places where people, who are interested in the happenings of the race tracks, athletic clubs, baseball associations, and in pending events generally, are in the habit of gathering. Upon the perfecting of this instrument appellee entered, in addition to its general telegraph business, upon a business heretofore new to it. It collected at various points, where it had offices, news relating to events there transpiring, and, after accumulating in its central offices such product by means of its wires, redistributed to its tickers, in the offices and places of its patrons, by means of local wires, what was deemed of sufficient interest. The news thus gathered and printed upon strips of paper is open to the inspection of all persons who may come within these places.

The appellants, The National Telegraph News Company, and F. E. Crawford and A. K. Brown, its officers, own and control within the city of Chicago, a system of wires, connecting their operating office with tickers of their own, in the offices and places of patrons of their own. The evidence in the record before us shows that they have been appropriating vi et armis the news appearing upon the appellee's tape; and thereupon, with the loss of a few moments only, redistributing such news over their own wires and tickers to their own patrons. Such appropriation is not denied; but is defended as appellants' lawful right, upon the ground, chiefly, that upon the appearance of the printed tape upon the appellee's tickers, in the places of appellee's patrons, there is such a publication as, within the meaning of the law, dedicates the contents of the tape to the public, and deprives appellee of any further monopoly therein.

The contention is grounded, chiefly, upon the assumption that the matter thus printed is, unless the subject-matter of copyright, unprotected against appropriation by the public; and, if the subject-matter of copyright, comes under section 4956 of the of the Revised Statutes (U.S. Comp. St. 1901, p. 3407), which provides that no person shall be entitled to a copyright unless he shall, before publication, deliver at the office of the librarian of Congress, or deposit in the mail addressed to the librarian of Congress at Washington, a printed copy of the title of the book, or other article, or a description of the painting, drawing, chromo, statue, statuary, or a model or design for a work of the fine arts, for which he desires copyright.

It is obvious, at a single glance, that the appellee is at great expense in gathering and transmitting the news, and in maintaining the instrumentalities, the offices, and the wires, through which its work, in this respect, is accomplished. At every initial point there must be one who is on the look-out-- eyes trained to see, and a judgment trained to discriminate-- and in every central office there must be minds fitted by native wit and acquired knowledge to winnow the wheat from the chaff. Added to this is the increased cost of dispatchers, instruments, wires and plant made necessary by this special department of appellee's business.

It is obvious, also, that if appellants may lawfully appropriate the product thus expensively put upon the appellee's tape, and distribute the same instantaneously to their own patrons, as their own product, thus escaping any expense of collection, but one result could follow-- the gathering and distributing of news, as a business enterprise, would cease altogether. Appellee could not, in the nature of things, procure copyright under the Act of Congress upon its printed tape; and it could not, against such unfair conditions, without some measure of protection, compete with appellants upon prices to be charged their respective patrons. And in the withdrawal of appellee from this business, there would come death to the business of appellants as well; for without the use of appellee's tape, appellants would have nothing to distribute. The parasite that killed, would itself be killed, and the public would be left without any service at any price.

The general question raised by appellants' contention, then, is this: Is the printed tape, coming out of appellee's tickers, a book or article within the meaning of the copyright laws of the United States, and especially of section 4956 (U.S. Comp. St. 1901, p. 3407), and if not a book or article within the meaning of the copyright law, is there any remedy that will protect this feature of appellee's business against the kind of piracy shown?

We are of the opinion that the printed tape would not be copyrightable, even if the practical difficulties were out of the way. When the federal constitution was adopted the right of property in literary production had been already securely established in English law. Its source, whether in natural right, or in the statute of Anne, was still in doubt; but that an author had ownership of some species over the production of his brain-- an ownership as distinctive as that of the creator of corporeal property-- was conceded by all. Indeed, it could not be otherwise in a civil polity that recognizes the individual, and his right to enjoy what he creates, as the unit of organized society.

But when the federal constitution was adopted, the application of this right to productions other than those strictly literary had not yet been mooted. The great case of Donaldson v. Beckett, 2 Brown, Parl. Cas. 129, had been decided only thirteen years previously. The business world, that in this day permits nothing to escape as a means for its exploitation had not yet pressed into her service art and books. Business catalogues, circulars containing market quotations, sheets, such as Dun's and Bradstreet's, directories-- the whole staff of aides-de-camp to commerce, now familiar to all-- were then practically unknown. In the public mind, the publication of a book meant that literature, as Literature, had received an accession.

Unquestionably the framers of the constitution,...