This confusion of ideas, unknown to our ancestors, and at variance with the distinctive terms they used, was first advanced by Mr. Justice Yates in the year 1769. He repeated it eight times in Millar v. Taylor; and, indeed, without it his whole argument falls to the ground. The fallacy has never been exposed with any real mental power, and has stultified senatorial and legal minds by the thousand. It was adopted and made popular by Macaulay in the House of Commons, February 14, 1841. He was on a subject that required logic; he substituted rhetoric, and said striking things. He said, "Copyright is monopoly, and produces all the effects the general voice of mankind attributes to monopoly." . . . But only consider the effect Here is a property the great public never reads about nor understands, and is therefore at the mercy of its public teachers. It hears the mouthpieces of law, and the mouthpieces of opinion, declare from their tribunals that the strange, unintelligible property called by the inhuman and intelligible name of "copyright" is a monopoly. The public has at last got a word with a meaning. It knows what monopoly is, knows it too well. This nation has groaned under monopolies, and still smarts under their memory. It abhors the very sound, and thinks that whoever baffles a monopoly sides with divine justice and serves the nation. Therefore to call an author's property a monopoly is to make the conscience of the pirate easy, and even just men apathetic when an author is swindled; it is to prejudice both judges and juries, and prepare the way to false verdicts and disloyal judgments. I pledge myself to prove it is one of the stupidest falsehoods that muddleheads ever uttered, and able but unguarded men ever repeated... The two great properties of authors are "copyright," or the sole right of printing and reprinting for sale the individual work a man has honestly created and "stageright," or the sole right of representing the same for money on a public stage. The men who violate these rights have for ages been called pirates. The terms "copyright" and "stageright" are our calamities. . . . I implore the reader of these letters to be very intelligent, to open his mind to evidence that under these unfortunate and technical words lie great human realities; that both rights mean property, and that to infringe either property has just the same effect on an author as to rob his house; but to infringe them habitually by defect of law or judicial prejudice is far more fatal. . . . Piracy unchecked, the ruin and starvations of authors, and the extinction of literature follow as inevitably as sunset follows noon. To give the reader a practical insight into this, I will select literary piracy, or infringement of copyright, and show its actual working. The composition is the true substance of a book; the paper, ink, and type are only the vehicles. The volumes combine the substance and the vehicles, and are the joint product of many artisans, and a single artist, the author. The artisans, to wit, the paper-makers, compositors, pressmen, and binders are all paid, whether the book succeeds or fails. . . . But the author and the publisher take their turn last, and can only be paid out of profits. Where there is a loss it must all fall on author or publisher, or both. Now, books not being so necessary to human life as food or clothing, publishing is a somewhat speculative trade. It is calculated that out of, say, ten respectable books, about half do not pay their expenses, and of the other five four yield but a moderate profit both to author and publisher, but that the tenth may be a hit and largely remunerative to publisher and author, supposing those two to share upon fair terms. But here comes in the pirate. That caitiff does not print from manuscripts nor run risks. He holds aloof from literary Then he and his fellows destroy the honest share enterprise till comes the rare book that makes a hit. rush upon it, tear the property limb from jacket, and holders' solitary chance of balancing their losses. The pirate who reprints from a proprietor's type, and reaps gratis the fruit of the publisher's early advertisements, and does not pay the author a shilling, can always undersell the honest author or the honest publisher, who pays the author, and buys publicity by advertising, and sets up type from manuscript, which process costs more than reprinting. This reduces the honest author's and publisher's business to two divisions: the unpopular books—often the most valuable to the public by which they lose money or gain too little to live and pay shop, staff, &c.; and the popular book, by which they would gain money, but cannot, because the pirates rush in and share, and undersell, and crush, and kill. . . Therefore, piracy drives out both capital and brains, and marks out for ruin the best literature, and would extinguish it if not severely checked. This is evident, but it does not rest on speculation. History proves it. . . . There are many sad and public proofs that piracy can break an honest trader's heart, or an honest workman's. I will select two out of hundreds. . . . The composer of our National Anthem surely deserved a crust to keep body and soul together. Well, piracy would not let him have one. His immortal melodies sold for thousands of pounds, but the pirate stole it all and never give the composer a farthing. At eighty years of age he hung himself in despair to escape starvation. . . . The malpractice, which could murder the composer of our National Anthem, has surely some little claim to national disgust, and the legal restraints upon that malpractice to a grain of sympathy.1 (2) What constitutes Publication 194. BARTLETT v. CRITTENDEN UNITED STATES CIRCUIT COURT, DISTRICT OF OHIO. 1849 IN EQUITY. Bill by R. M. Bartlett to restrain A. F. Crittenden and others from infringement of copyright. Injunction granted. Walker & Kebler, for complainant. Storer & Gwynne, for respondents. MCLEAN, J. This bill is brought to protect the copyright of the complainant, in a manuscript work on book-keeping, of which he claims to be the author; and the defendant is alleged to have published a work on the same subject, which the complainant charges was copied from his manuscript. For twelve years and upwards, the complainant has been engaged in teaching the art of keeping books, and has used 1 [ESSAYS: (A. L. Rev., XXXVII, 206.) Samuel Elder, "Our Archaic Copyright Laws." CHAPTERS ON THE JURAL NATURE AND ETHICAL BASIS OF THIS RIGHT; see the citations in the footnote to No. 172, ante. his work, which is still in manuscript, in his school, with the view of rendering it more perfect, and with the intention of publishing it. The work of the defendant contains two hundred and seven pages, ninetytwo of which are alleged to have been taken from the plaintiff's manuscript, with only colorable alterations. The answers deny the allegations in the bill. A reference was made to a master, with special instructions, who reports, "that the book of the respondents contains a portion of plaintiff's manuscript, with only slight alterations; and he says that it is impossible that the book and the manuscript could have been composed by two persons, neither having for his guide the entries of the other. The balance sheets are the same in both. As regards the plan and arrangement, they are the same. The book contains explanations, which are valuable to the learner, that are not in the manuscript. Both works consist of a series of brief sets of mercantile books by double entry." The master reports, that the plan of the work in the manuscript and in print, is substantially the same; that in the book there are explanations interspersed through the series of sets, which the manuscript does not contain; that these explanations are of great use to the learner, but that they may be verbally given with equal advantage. The system in the manuscript, the master states, is superior to any he has seen, except that of the book published by the defendant, which is the same in substance, “that, unlike all the systems he had seen, the manuscript is made up of a few brief sets of mercantile books, which show the entire process of ordinary double entry book-keeping, and in a compass of very little magnitude"; and he says, that "he discovers in other treatises nothing bearing a resemblance to the manuscript plan. He therefore concludes that the plan is original." "The manuscript, in its present state, (the master says,) contains substantially a system of book-keeping, suitable to be used by a teacher in his school." "As the system, when published, becomes its own teacher, it should be accompanied with such precise explanations as may be necessary to a proper understanding and use of it by the uninitiated. It should also be accompanied with forms of the auxiliary books." Jonathan Jones, of St. Louis, a witness, states, that in 1841 he opened a school in St. Louis, as the partner of the complainant, for instruction in book-keeping on Bartlett's plan, which consists "of eleven sets of books, with a balance sheet for each set, and an inventory attached, showing property on hand, and that Bartlett was the author of them; that his manuscript contains a perfect system of book-keeping, and differs from all others in arrangement, being composed of short exercises." The defendant, Crittenden, entered the school, ignorant of book-keeping; and after completing the course, he took charge of the writing department for a short time. In 1846, Crittenden called on the witness with a copy of his work, which, on examining, the witness found to be Bartlett's system. And Crittenden then told him, that when he was in Bartlett & Co.'s school, he took a precise copy of the manuscript, with the view of publishing it; and that he did publish it in 1845. And the witness says, if all of Bartlett's manuscript were struck from Crittenden's book, there would not be enough left for a title-page. A copy of Bartlett's manuscript was used at the St. Louis school, and witness never prohibited any of the learners from copying it. Crittenden knew that it was Bartlett's manuscript, and that he intended to publish it as soon as he could make the necessary arrangements. Witness has heard Bartlett frequently say so. Witness gave Crittenden a letter to Bartlett, referring to the published work, that Bartlett might see it. To Josiah Bliss, a witness, Crittenden said, that his system was the same as Bartlett's. Nine other witnesses, who are book-keepers, being sworn, state, that Bartlett's system of book-keeping is new; and that its plan and arrangement are preferable to any other. And they say that Crittenden's book is the same in substance. .. The complainant claims relief on two grounds: 1. At common law. 2. Under the Act of Congress 3d February, 1831 (4 Stat. 438). In the case of Wheaton v. Peters, 8 Pet. 655, the Supreme Court say: "That an author, at common law, has a property in his manuscript, and may obtain redress against any one who deprives him of it, or by improperly obtaining a copy, endeavors to realize a profit by its publication, cannot be doubted.” And again, page 661, "An author has, by the common law, a property in his manuscript; and there can be no doubt that the rights of an assignee of such manuscript would be protected by a court of chancery." In combating the argument in the same case, that an author had a common-law right to republish his own works, and to prohibit others from doing so, the Court showed that after the statute of Anne there was no such right in England, and that if such right were shown to exist there, it did not follow that it exists to the same extent in Pennsylvania. That the common law in this country exists in the different States, as modified by them by statutory enactments and judicial decisions. But the question under consideration is very different from the one decided in the above case. We have to say whether the writer has a right of property in his own manuscripts. That he has such a property in his own literary labor, until he shall relinquish it by contract or by some unequivocal act, would seem to be clear. This is laid down in Maugh. Lit. Prop. 74, 137; Webb v. Rose, 4 Burrows, 2330; Pope v. Curll, 2 Atk. 342; Manley v. Owen, 4 Burrows, 2329; Southey v. Sherwood, 2 Mer. 435; 2 Story, Eq. Jur. § 943. Lord Mansfield, and some others, distinguished for their great learning and ability, have considered the publication of a work not as such a dedication of it to the public by the author at common law, as to deprive him of an exclusive right to republish it. With the greatest respect for these opinions, we think there is a difference in principle between the right to republish a printed work, and the exclusive right of an author to publish his own manuscript. A man may write without any intention to publish. He may treat of principles and characters without restraint — with a view to his mental improvement, or from some other motive, without incuring any responsibility so long as the manuscript remains unpublished. It is, therefore, essential, in all proceedings for a libel, to prove publication. And there is no law which can compel an author to publish. No one can determine this essential matter of publication but the author. His manuscripts, however valuable, cannot, without his consent, be seized by his creditors as property. They are valueless to all the world except to the author and his representatives; or to such persons as he shall transfer them. But the author who publishes his work, dedicates it to the public. He voluntarily incurs all the responsibility of a publisher. His object is to instruct or amuse mankind, and the more his work is circulated, the greater is the compliment to his ability as a writer. There is no reason, then, against a republication of the work by any one, except that it may reduce the profits of the author. And, on this ground, he cannot complain, as he has failed to secure the right under the statute. If the common law protects the rights of an author, as contended for, the statute was useless. An action for damages and an injunction, would as effectually protect the rights of an author, as any provisions of the statutes. But there is another view, which is still more conclusive, against the exclusive right to republish a printed work. The statute limits the right to a term of years. The common-law right, if it exist, is without limitation. To hold, then, that there is a commonlaw right, independently of the statute, is to disregard the statute. Whilst the common law protects the right of the author to his manuscripts, it cannot be made to extend to the republication of a published work. As well might it be contended that the inventor of a machine, after it has gone into general use, by the acts of the inventor, may, by the common law, claim the exclusive right of making and selling it. But we think this case is within the Act of Congress referred to. The section 9 of that Act - 4 Pet. St. 438 [4 Stat. 438]- provides: "That any person or persons who shall print or publish any manuscript whatever, without the consent of the author or legal proprietor first obtained, shall be liable to suffer, and pay to the author or proprietor, all damages occasioned by such injury, to be recovered by a special action on the case founded on this Act." "And the several courts of the United States empowered to grant injunction to prevent the violation of the rights of authors and inventors, are hereby empowered to grant injunctions," &c. That the complainant is the author of the manuscript in question, is proved. And it also appears, from the statement of the experts, and by the reports of the master, that the manuscript contains a new and useful system of book-keeping. . . . Was there a publication of the manuscript of the complainant by the defendant? He has denied in his answer, somewhat equivocally, the charge of publication, as made |