in violation of the so-called antitrust law of New York, (chap. 690, Laws of 1899,) making contracts, agreements, etc., creating monopoly or restraining or preventing competition in the supply or price of articles or commodities void as against public policy. Subsequently the agreement was modified so as to apply to copyrighted books only and findings of fact were specifically made upon which the case again went to the Court of Appeals of New York upon the certified question:

Are the plaintiffs, under the findings of fact contained in the decision in this case, entitled, in so far as copyrighted books are concerned, to the relief demanded in the complaint, or to any relief as against the defendants in this case?

Upon the record the court of appeals by a majority adhered to its former decision, notwithstanding the decision of Bobbs-Merrill Co. v. Straus, (210 U. S., 339,) which had in the meantime been decided by this Court, and held that, as the object of the copyright and patent statutes was to give monopolies, contracts made by the owners of copyrights to secure the fullest protection in the enjoyment of their monopolies would not be condemned by the courts as being in unlawful restraint of trade, at least not until the Supreme Court of the United States had pronounced differently. (193 N. Y., 496.) Three of the justices dissented upon the ground that the agreement was clearly one in restraint of trade, as they had theretofore held, and that the decision of this Court in Bobbs-Merrill Co. v. Straus, supra, had so construed the Copyright Act as to limit the right of a copyright-holder to the sale of copyrighted works and did not have the effect to protect such monopolistic agreements as were shown in the present case. As to uncopyrighted books the views theretofore expressed were maintained by the court and upon remittitur judgment was entered granting injunction and damages as to such books.

An inspection of the record shows that before the case went to the court of appeals for decision the second time upon the facts found in the lower court the following conclusions of law were specifically requested covering the effect of the Sherman Antitrust Act as to copyrighted books dealt with in interstate commerce, as was found to be established by the facts in the present case:

VII. That such resolutions and agreements purporting to restrict the effect of the combination, arrangement or contracts to copyrighted books likewise affect an article of interstate commerce and was unlawful and contrary to the aforementioned statute [the Sherman Antitrust Act] of the United States as being in restraint to interstate commerce and tending to create a monopoly.

IX. That the owners of several separate copyrights are not empowered to enter into any contract or agreement or combination between themselves concerning the supply and price of books published under their separate copyrights which would be unlawful and contrary to the statutes of the United

States against combinations in restraint of trade or for the purpose of creating a monopoly, if entered into with reference to the supply or price of uncopyrighted books.

It is thus apparent that, when the defendants below set up the copyright statute of the United States as an authority for the agreement of the character here in question, the plaintiffs contended that such agreement was not only beyond the authority conferred in the Copyright Act but was in violation of the terms of the Sherman antitrust law, making illegal combinations in restraint of trade and tending to monopoly. This contention was in terms denied by the lower court and the decision upon the facts found went to the court of appeals with the result which we have stated. The contention thus made as to the effect of the Sherman Antitrust Act when read in connection with the Copyright Act of the United States presented a question of a Federal character to the State courts, which claim of Federal right was necessarily denied in the decision of the court of appeals, affirming the judgment of the court below. One who sets up a Federal statute as giving immunity from a judgment against him, which claim is denied by the decision of a State court, may bring the case here for review under section 709 of the Revised Statutes, now section 237 of the Judicial Code. (Nutt v. Knut, 200 U. S., 12; St. Louis & Iron Mountain Ry. v. Taylor, 210 U. S., 281; St. Louis & Iron Mountain Ry. v. McWhirter, 229 U. S., 265.) The motion to dismiss for want of jurisdiction must therefore be overruled.

This Court, in the case of Bobbs-Merrill Co. v. Straus, supra, held that the Copyright Act did not grant the right to fix a limitation upon prices of books at subsequent sales to purchasers from retailers by notice of price limitation inscribed upon the book, and construing the Copyright Act, held that in conferring the right to vend a book it did not intend to confer upon the holder of the copyright any further right after he had exercised the right to vend secured to him by the act.

In the case of Standard Sanitary Mfg. Co. v. United States (C. D., 1912, 652; 184 O. G., 1074; 226 U. S., 20) this Court had under consideration the effect of the patent statute upon agreements found to be unlawful under the Sherman law, and the agreements condemned were held not to be protected as within the patent monopoly conferred by the statute. Replying to the contention as to the protection which the patent law gave to enter into such agreements, this Court said:

Rights conferred by patents are indeed very definite and extensive, but they do not give any more than other rights an universal license against positive prohibitions. The Sherman law is a limitation of rights, rights which may be pushed to evil consequences and therefore restrained.

So, in the present case, it cannot be successfully contended that the monopoly of a copyright is in this respect any more extensive than that secured under the patent law. No more than the patent statute was the Copyright Act intended to authorize agreements in unlawful restraint of trade and tending to monopoly, in violation of the specific terms of the Sherman law, which is broadly designed to reach all combinations in unlawful restraint of trade and tending because of the agreements or combinations entered into to build up and perpetuate monopolies.

From the finding of facts upon which the court certified the question decided to the court of appeals, after the attempted re-formation in view of the first decision of that court, it appears that the Publishers' Association was composed of probably seventy-five per cent of the publishers of copyrighted and uncopyrighted books in the United States and that the Booksellers' Association included a majority of the booksellers throughout the United States; that the associations adopted resolutions and made agreements obligating their members to sell copyrighted books only to those who would maintain the retail price of such net copyrighted books, and, to that end, that the associations combined and coöperated with the effect that competition in such books at retail was almost completely destroyed. The findings further show that the associations employed various methods of ascertaining whether prices of net copyrighted books were cut and whether there was competition in the sale thereof at retail, and issued cut-off lists, so-called, directing the discontinuance of the sale of such books to offenders, and that the plaintiffs in error, who had failed to maintain net prices upon copyrighted books, had been put upon the cut-off lists and were unable to secure a supply of such books in the ordinary course of business. It further appears that in some instances dealers who had supplied the plaintiffs in error were wholly ruined and driven out of business; that the Booksellers' Association widely circulated the names of such dealers and warned others to avoid their fate, and that various circulars were issued to the trade at large by both associations warning all persons against dealing with the plaintiffs in error or other so-called pricecutters; that after the re-formation of the resolutions and agreements in 1904 the associations and their members continued the same methods as to ascertaining the supply of copyrighted books of the plaintiff's in error, as to cut-off lists and circulars to the trade, and that, although in 1907 the resolution of the Publishers' Association was modified so that the "agreement" became a "recommendation," the cut-off lists were still issued, with plaintiff's name thereon and that the dealers still refused to supply plaintiffs in error with books of any kind. And it also appears from the finding of facts that the members of the associations resided in and carried on the business of

selling books in many different States and purchased books from persons in many States other than the one in which they resided and did business; and that the rules, regulations, and agreements of the associations were enforced against all publishers and dealers in books throughout the United States, whether they were members of either association or not and whether they purchased books in one State for transportation and delivery in another or for delivery in the State where purchased.

We agree with the court of appeals in its characterization of the agreement involved in this case, about which there seems to have been no difference of opinion, except as to the supposed protection of the Copyright Act. It manifestly went beyond any fair and legal agreement to protect prices and trade as among the parties thereto. and prevented, as the court of appeals said, when dealing with uncopyrighted books, the sale of books of any kind, at any price, to those who were condemned by the terms of the agreement and with whom dealings were practically prohibited. We conclude, therefore, that the court of appeals erred in holding that the agreement was justified by the Copyright Act, and was not within the denunciation of the Sherman Act, and in denying, for that reason alone, the right of the plaintiffs in error to recover under the State act as to copyrighted books.

This view of the case renders it unnecessary to decide whether an original action can be maintained in the State courts seeking an injunction and to recover damages under the Sherman law.

As the Federal question, made in the manner which we have stated, was in our view wrongly decided and such decision was the basis of the judgment in the State court, the judgment of that court must be reversed. (Murdock v. City of Memphis, 20 Wall., 590.)

Judgment reversed and case remanded to the State court whence it came for further proceedings not inconsistent with this opinion.

[Supreme Court of the United States.]

STREET AND SMITH V. THE ATLAS MANUFACTURING Co. et al.

Decided December 1, 1913.

198 O. G., 704; 231 U. S., 348.

1. TRADE-MARKS-DECREE OF THE CIRCUIT COURTS OF APPEALS ARISING UNDER ACT OF FEBRUARY 20, 1905-REVIEWABLE BY SUPREME COURT ONLY ON CERTIORARI.

Judgments and decrees of the circuit courts of appeals arising under the Trade-Mark Act of February 20, 1905, are reviewable by the Supreme Court only on certiorari and not on appeal or writ of error. Appeals in such cases are not allowed under section 128 of the Judicial Code.

72367°-15-23

2. SAME-SAME-SAME.

The intent of Congress, as indicated in the provisions of the Judicial Code relating to the jurisdiction of the Supreme Court, was to extend rather than contract the finality of decisions of the circuit courts of appeals. By the act of February 20, 1905, Congress placed trade-mark cases arising under that statute upon the same footing as cases arising under the patent laws as respects the remedy by certiorari under the Circuit Court of Appeals Act.

8. SAME-ACT OF FEBRUARY 20, 1905-SECTION 18 NOT REPEALED BY JUDICIAL CODE.

Section 297 of the Judicial Code did not repeal section 18 of the TradeMark Act of February 20, 1905.

APPEAL from the United States Circuit Court of Appeals for the Eighth Circuit.

Mr. Hugh K. Wagner and Mr. Leonard J. Langbein for the appellants.

Mr. James Love Hopkins and Mr. Neison Thomas for the appellees.

Mr. Justice VAN DEVANTER delivered the opinion of the Court:

This is an appeal from a decree of a circuit court of appeals directing the dismissal of a suit to enjoin infringement of a registered trade-mark and unfair trade. (204 Fed. Rep., 398.) The decree was rendered and the appeal allowed after the Judicial Code, adopted March 3, 1911, (36 Stat., 1087, c. 231,) became effective. Our jurisdiction is challenged by a motion to dismiss, and if we have jurisdiction it is solely because the case was in part one arising under the act of February 20, 1905, infra, under which the trade-mark was registered. Whether in a case so arising the judgment or decree of a circuit court of appeals may be reviewed by this Court upon an appeal or writ of error, or only upon a writ of certiorari, is the question for decision.

Section 128 of the Judicial Code declares that, except as provided in sections 239 and 240,

the judgments and decrees of the circuit courts of appeals shall be final * in all cases arising under the patent laws, under the copyright laws, under the revenue laws, and under the criminal laws, and in admiralty cases.

Section 239 permits the certification to this Court of questions of law by a circuit court of appeals concerning which it desires instruction for the proper decision of a case within its appellate jurisdiction, and is not important here. Section 240 reserves to this Court the discretionary power to require, by certiorari, upon the petition of a party, that any case in which the decision of a circuit court of appeals is made final by the code be certified here for review and deter