Sampson & Murdock Co. v. Seaver-Radford Co.

• Decision Date: 23 November 1905
• Docket Number: 583.
• Citation: 140 F. 539
• Parties: SAMPSON & MURDOCK CO. v. SEAVER-RADFORD CO.
• Court: U.S. Court of Appeals — First Circuit

140 F. 539

SAMPSON & MURDOCK CO. v. SEAVER-RADFORD CO.

No. 583.

United States Court of Appeals, First Circuit.

November 23, 1905

Alexander P. Browne and Samuel J. Edler, for appellant.

Before COLT, PUTNAM, and LOWELL, Circuit Judges.

PUTNAM Circuit Judge.

This controversy relates to an alleged infringement of a copyrighted city directory. The complainant below is also the appellant, so that we can, without further discrimination describe it as the complainant, and also the appellee was the respondent. The facts are quite voluminous, but the points raised before us are only two, and require only a brief preliminary statement. The complainant published a general directory of the city of -boston in July, 1903, which was duly copyrighted. The entire title of the book as filed in the Copyright Office is not given us; but we understand that it was described, and properly described, as a general directory of the city of Boston of 1903. The respondent published in February, 1904, what is described as 'the 1904 City Directory of Boston. ' It was also a general city directory intended for the same general purposes as the complainant's directory. It should be noted, however that the complainant's directory purported to give the facts as they existed in the spring or early summer of 1903, and the other the facts as they existed in the late winter and spring of 1903 and 1904. Therefore, literally speaking, the two directories were not intended to serve exactly the same purpose, or to state exactly the same facts. This should be noted, because the opinion of the learned judge who decided the case in the Circuit Court seems to turn on it. The respondent had evidently constructed portions of its directory by simply reproducing corresponding portions of the complainant's directory. So far as those are concerned, the Circuit Court restrained the sale of the respondent's directory so long as it contained the matters enumerated in the decree.

The complainant maintains that the decree should direct a general injunction, permitting the respondent to apply again in reference thereto when it should have expunged all matter copied from the complainant's work. This form of decree would not be an unusual one; but, for this case, we can see no sufficient distinction in substance between it and that which the court entered to require our attention, while, on the other hand, the decree entered is clearly more convenient, because it finally disposes of the case and relieves the court from a reconsideration of it. In this we have reference to the particular case before us, where the infringing portions of the respondent's publication have been clearly pointed out. Of course, instances might easily be conceived where the infringing book was piratical in its general nature, or contained piratical matter so mingled with original work that the entire publication should be suppressed; but no proposition of that kind is brought before us.

The second ground of appeal arose as follows: The case proceeded on the assumption by both parties that the complainant's directory was made from an original canvass carried on by it, the cost of which can be estimated from the fact that the respondent alleged that its canvass involved much labor, at an expense of some $40,000. The respondent, after making its canvass, ascertained from the complainant's directory that it had overlooked some names and had not obtained correct information in reference to others. Thereupon it took the pages of the complainant's directory, one by one, and marked those names. These names and the information about them were then copied verbatim, each upon a separate slip of paper. These slips were given by the respondent to its canvassers and sent out for verification at the various addresses stated in complainant's directory, and, on the return of that verification, were printed in the respondent's directory so far as found to be correct. There were altogether about 20,000 names thus made use of, stated as 12 per cent. of all in the alphabetical part of the directory. The complainant maintains that, so far as these names and the information about them were reprinted in the respondent's directory as printed in the complainant's directory, the printing constituted an infringement. The learned judge of the Circuit Court though otherwise, observing, among other things, that what was done amounted to something more than mere verification. He added:

'For example, let us suppose that in July a publisher is obtaining information upon which he proposes to publish a directory. He takes an old directory, which had been compiled the preceding January. In that directory it appears that John Smith was, in January, a lawyer at No. 1 Tremont street. With the information contained in the January directory, the compiler of the July directory goes to No. 1 Tremont street on July 1st, and finds that John Smith is a lawyer, and that he has at that date an office at No. 1 Tremont street. The directory maker has a right to publish that information in his July directory. He cannot be precluded from so publishing it by the fact that the maker of the January directory has stated that the same facts existed in the preceding January. The maker of the January directory may or may not have stated the truth as to John Smith at that time; but the compiler of the July directory may, in his directory, state the facts as they exist on July 1st relating to John Smith, whether those facts existed or not the previous January, and whether they were stated or not in the January directory. The compiler of the July directory is not merely verifying and quoting. He is obtaining facts from original sources, using the old directory only to guide him to those sources. Facts so obtained he may publish in his compilation. He cannot be prevented from such publication by the fact that the same things were true in January, and were stated by a former compiler.'

The appeal before us affects a large number of names; and, if not relief can be granted under the present circumstances, the conditions would be such that it would be difficult to give the owners of copyrighted directories any effectual protection except in extreme instances. It is evident that, while the complainant's copyright was in full force, the respondent copied and identically republished very considerable portions of its directory. On the other hand, it cannot be questioned that the second publisher, although he gives out exactly the same words as the first publisher, is, nevertheless, within his legal right, provided he resorts independently to the same originals that the first publisher went to. He may, indeed, even make us of the same phraseology, either because the topic necessarily requires it or through mere incidental coincidences of expression. So, also, it is clear that, under some circumstances and for certain purposes, a subsequent publisher may draw from the earlier publication its identical words, and make use of them. This is peculiarly so with reference to works in regard to the arts and sciences, using those words in the broadest sense, because, with reference to the, any publication is given out as a development in the way of progress, and, to a certain extent, by common consent, including the implied consent of the first publisher, others interested in advancing the same art or science may commence where the prior author stopped. This includes medical and legal publications, in which the entire community has an interest, and which the authors are supposed to give forth, not only for their own pecuniary profit, but for the advancement of science. Therefore, as to copyrighted works of that character, by the common consent to which we have referred, subsequent authors are sometimes entitled, and, indeed, required, to make use of what precedes them in the precise form in which last exhibited, so that with regard to them the rules under the copyright statutes are very far from fitting a case like that we are not considering.

Therefore we do not find it necessary to discuss judicial decisions having relation only to those classes of publications.

Also instances may be easily cited where portions of a...