the word to mean the sole right of "printing, publishing, and selling his literary composition or book." Quoted by Grier, J., in Stowe v. Thomas, 23 F. Cas. 201 (No. 13,514) (C.C.E.D. Pa. 1853); Graves v. Ashford, 2 L.R. C.P. 410, 417; Drone, Copyr. 100, 338, 662, 700; Rev. Stat. § 4952.

Copyright and literary property would be of little value, for want of adequate protection, without this principle, and it must therefore attach to, and be one of, the peculiarities of this creation of the statute. Ordinary remedies protect one's exclusive right to sell his horses, or, what is the same. thing, are a sufficient protection to that character of property; but in printed books there is, aside from the material property in them, a peculiarly intangible and incorporeal right pertaining to the authorship-a property created by this statute-which requires a further protection that can be adequate only when it is understood that no one can read this book, buy it, or sell it, or otherwise use it, or any copy of it, either that which is piratically or that which has been lawfully printed, without the consent of the author or copyright holder; and the basis of it is that a moneyed or other valuable consideration must be paid to the author, and he has a right to receive value for any use of the product of his labor. Protection in the monopoly of sale for the lawfully-printed copies is just as essential to the value of the right of property created by the statute as protection against piratical printing, publication, and sale of the book. Or, if this be not so, congress has chosen, at least, to grant that right of monopoly, and it may grant what it pleases. It does the same thing for mechanical inventions, and why not for literary products? I think it has. Under our tariff laws an American manufacturer has often a monopoly of the American market, and he stands very much as the copyright holder does, only the latter has a much stronger, and a more extended and enlarged, monopoly. He relies upon the pains and penalties of the revenue statute for his enjoyment of the monopoly; but, if congress had the same power as in copyright legislation, it might go further and protect the manufacturer more directly and efficiently.

To return to the illustration of the property in horses. If, under the tariff laws, all importations should be forbidden, the American owner of horses would, indeed, have a monopoly of the market. But suppose the government could or should go further, and prohibit all persons, except one citizen, from raising or reproducing horses, and should suppress all reproduction than his own, there would then be growing out of the legislation a monopoly of sale analogous to that conferred in direct terms by this statute on the copyright holder of a book. If the statute should stop at prohibitory legislation, the beneficiary of the monopoly would be compelled to depend wholly on the ordinary remedies to protect it. But this statute does not stop there, and gives the copyright holder especial, if not extraordinary, remedies, at law and in equity, to protect his property, not only against infringement by piracy, but, as I think, against unauthorized sales of genuinely printed copies.

This statute has not abrogated the ordinary law of sales in its relation to copyrighted books, and, like all property, this is subject to that law; but it has provided for it likewise a law of its own, by necessary implication from the

statute. We are all familiar with the rule that one buying property of a thief gets no title, no matter how innocent he may be of all knowledge of the theft. Now, let us imagine a state wherein this rule of law has been abrogated by enacting that one who so buys, for a valuable consideration, without notice, shall have a good title, the state undertaking to satisfy our sense of justice by some kind of compensation to the unfortunate owner. If, now, in that state, some thief should sell copies of Mr. Blaine's book, stolen from him there, the purchaser would not get a good title to them notwithstanding the state law; and this because, under the act of congress, Blaine had granted to him by the statute the exclusive right of sale, which right the courts would protect by appropriate remedies. I do not stop to inquire whether he could bring replevin, trover, detinue, or the like, on the theory that the constitution and laws of the United States being paramount, and Blaine's right of sale exclusive, the federal law would exclude the thief's power of sale under the state statute, and there would therefore be necessarily a modification or limitation imposed by the federal statute on that of the state; but, surely, he could appeal to the remedies given by this copyright statute itself to protect him in its enjoyment. Again, if this be a correct view of the nature of this grant of an exclusive right to sell, it does not matter whether the party offering to sell without Mr. Blaine's authority be a thief, or one in possession only by a breach of trust, or some other less blamable means of acquisition. The absence of Mr. Blaine's authority to sell his literary property constitutes the defect of title, no matter how that want of authority arises. Owing to the peculiar character of this kind of property, the absence of the author's authority to sell is a defect of title, and not a mere want of power. In other words, this monopoly of sale is, of itself, property, and any interference with it should be restrained.

Now, as to what should estop Mr. Blaine, in a court of equity, as between himself and a given party in possession of his books claiming the right to sell them, from relying on any absence of authority from him to sell, or as to what circumstances would enable such a party to invoke the aid of that court to restrain Mr. Blaine from setting up such an absence of his authority, we need not inquire further than the facts of this case demand a decision. It may be that a court of equity would often presume the necessary authority to sell, whether it existed in fact or not; but this would depend rather on Mr. Blaine's own conduct in the premises than anything else. If he has put his copies of the book on the market in such a way as to mislead persons who wish to deal in them as to his authority to sell any particular copies found in the market; if he has sold them by wholesale and retail to merchants; placed them with brokers, factors, auctioneers, jobbers, or other agents, for general sale to all who apply; and the defendant buys from any of these without notice of any defect of title or authority to sell them-it might be that Mr. Blaine would be without remedy to assert his monopoly in the given case, because estopped by such conduct. The defendant, in such cases, might have a right of sale by estoppel, but the principle we are considering would remain.

And it must not be forgotten, in measuring the equities between parties in all such cases, that while it might be impossible, under some circumstances, to trace the title of each book and its accompanying authority from its author to sell it, this statute has provided ample notice of the author's right; for every book carries the imprint of that notice upon it, and this by the command of the statute. This fact is sufficient, and was intended to put every man who wishes to deal in the book-indeed, every man who wishes to own or read a copy-upon notice that Mr. Blaine owns the copyright, or has transferred it to his publishers, and imposes the duty of reasonable inquiry into the facts of the case to know whether he has been paid or satisfied as to the proposed sale or use, in the matter of his compensation therefor. I do not think, therefore, that the bare fact of the want of actual notice of the defect in the title on the part of the defendant is an answer, in any case, to the plaintiff's claim of infringement; but the scrutiny should go further, and determine whether the statutory notice of the plaintiff's title imprinted in the book has been fairly treated, by especial inquiry, if that inquiry be reasonably demanded by the circumstances of the particular case. I should not be prepared to say that in this peculiar class of cases the being put upon inquiry is equivalent to notice of plaintiff's rights as to particular copies of the book, but only that equity demands that there shall be, on both sides, reasonable conduct in respect to the dealings of the parties with each other, so that there shall be investigation into the facts relating to the author's authority to sell the book by every one who proposes to deal in it, whenever the circumstances fairly demand that course of business. In this case the circumstances did fairly demand such an examination, and it is useless to decide on the proof whether there was or was not, on the part of the defendant, want of actual notice of the facts involved. He knew that the plaintiff owned the copyright of Mr. Blaine's book; that it had never placed it on the market for general sale by the trade, but had studiously avoided doing that, and had sold it only by subscription to actual subscribers. It had a right to do this, and it was supposed to be a most effectual method of enjoying the monopoly in the profits of the sale which the statute gave. In this way, presumably, the plaintiff would reap the whole profits of the sales, excluding all other dealers and all middle-men, as it had a right to do, from any share of those profits; and, if persistently adhered to, the only copies of the book that could come into the general trade, with the essential authority of the plaintiff to use or sell it, would be those copies sold by subscribers at second-hand, such sales being authorized as an incident of each subscriber's property in his particular copy.

It is quite true that the general trade may not be able to identify those copies which are regularly on the market at second-hand from those which may otherwise surreptitiously come into market, but a little inquiry by mail or telegraph of the copyright holder, and of the dealers offering the book otherwise than by subscription, would generally develop the true facts, and disclose whether particular copies were offered with the essential authority of

the copyright holder. In all fairness this inquiry should be made, and, in the absence of it, any infringement of the copyright holder's monopoly of sale cannot be justified by want of actual notice. Here the defendant would have found, by actual inquiry, that these copies he offers to sell were surreptitiously purchased of a fraudulent agent for delivery only to subscribers, and therefore were not authorized for sale in the general market. Technically, the dishonest agent may not have been a thief, and the books were not stolen; but substantially they were stolen from the plaintiff. There is no proof in the case that any conduct of the plaintiff about placing their books on the market was calculated to mislead the defendant, either generally, or as to the particular territory wherein these copies were purchased, and he could not, I think, shut his eyes and ears, keep his tongue silent, and rely on any belief thus acquired that the person from whom he bought had authority to sell. It was a convenient assumption; but his knowledge of the trade, and of the methods adopted by the copyright holder as to this book, preclude him from relying on it without further inquiry than he shows he made. His experience that all subscription books may be procured for sale in the general market, or his belief of that fact, cannot avail him as a defense here, nor justify his attempt to verify that belief as to this book, by this transaction.

It is useless to inquire whether, under the ordinary law of sales of personal property, the circumstances were such that a purchaser without notice would obtain a good title. As ordinary property, unaffected by the copyright statute, we could have no concern with that feature of this controversy, for, the amount being less than $500, we would have no jurisdiction. But I have endeavored to show that, outside of and beyond the general law, whatever it may require, the author or his assignee has a special property in his literary work, about which this statute has gathered characteristics, incidents, rights, and remedies which are peculiar to itself, and not affected by the general law. The leading case Stephens v. Cady, 55 U. S. (14 How.) 528 (1852), sub nom. Stevens v. Gladding, 58 U. S. (17 How.) 447 (1854), well illustrates this. There, the purchaser at an execution sale of the copper-plates from which a copyrighted map could be printed, did not acquire the right to print copies of the map and sell them. See also, Ager v. Murray, 105 U.S. 126 (1881). No more, it seems to me, can the fraudulent agent for the delivery of copies already sold to particular persons transfer a right to sell them to other persons, which he had not himself possessed, when he deserts his trust, and embezzles the books by selling them to a merchant. If the merchant knows of facts that put him on inquiry-as the fact that this was an existing copyright, under which copies were or had theretofore been sold only by subscription, fairly did-certainly he should be chargeable as if he were fully informed.

I agree that where one of two persons must suffer by the fraud of an agent, the principal who created the agent should suffer rather than an innocent third party. But a dealer in books, who undertakes to circumvent the author in the execution of any plan that he may adopt-no matter what plan it be, so it be an honest one-for the enjoyment of his monopoly of sale, by showing his skill

in the procurement of copies for sale outside of that plan, is hardly an innocent party, when his skill to do that thing requires that he shall purchase through an unfaithful agent, and omit or neglect all inquiry as to the circumstances which enable him to exhibit it at all, as this defendant did. He announced his belief that the books could be procured without individual subscription. He promised to have them for sale, and, in a sense, his pride of opinion was involved in his boast that he could do what he had promised to do. He ordered these books from a comparatively out-of-the-way dealer, who had procured them by fraud upon the plaintiff's well-known and scrupulously followed scheme of marketing them, and now he insists that he did not know of the fraud, when he had made no inquiry as to the peculiar fact that these books could be so procured for sale at all. He did not inquire, because he knew that it was dangerous to inquire, and with him ignorance was bliss, so long as he could make good his boast to exhibit the book for sale in spite of plaintiff's determination that he should not so sell it, and of the selection of a rival dealer in the same city as its agent to sell by subscription within that territory. This smartness of trade might succeed as to common articles of merchandise, afloat on the seas of commerce, notwithstanding any restrictions of contract on the agents in possession; but even this is doubtful, where the circumstances invite or demand further inquiry; but with a book, protected by copyright, it will not do. The precise ruling I make is this: If the owner of a subsisting copyright seeks to enjoy his exclusive right of selling the published work by making sales directly and only to individual subscribers, the statute protects his plan of sale from interference by other dealers offering surreptitiously obtained copies of the genuine work without his consent, unless there be something in the circumstances of the particular case to estop him from relying on the privileges of his monopoly.

I derive support for this ruling from a mass of cases and authorities on the nature and incidents appertaining to property in copyright too numerous for citation. None of the learned counsel cited a case directly in point, and, after much laborious and patient search, I have been unable, with my somewhat limited facilities, to find one. The citations of counsel from our decisions on patents seem plausible and forcible, as analogies, but, in view of what the courts have said about false analogy in that direction, I have discarded those decisions for fear of being misled by them. Baker v. Selden, 101 U. S.99 (1879); Stowe v. Thomas, supra; Brewster, arguendo, Lawrence v. Dana, 4 Cliff. 178 (C.C.D. Mass. 1869); Shepherd v. Conquest, 17 C.B. 427, 444 (1856)—where the analogy is vigorously denied. But it is worthy of suggestion that perhaps the analogy is less at fault in this incident of a monopoly of sale than in other features of similarity. Protection for both is secured by the same clause of our constitution, in language that indicates association of thought, to say the least of it. Const. art 1, §8, cl. 8.

If it be said that this is "protection run mad," as was argued in the case of Stowe v. Thomas, supra, and as has been, in other language, earnestly urged in argument here, with greater force of application, it may be said, in reply, that