himself of the labor of Judge Story, by copying the extracts as compiled by him. This is a well-established principle. Nor could he copy the plan or arrangement of the subjects in the Commentaries. It is said there can be no copyright in a plan, distinct from the work itself, any more than there can be a copyright in an idea. This is admitted: but the words in which an idea is expressed, is a subject of property; and so is the classification of the subject discussed.

It would seem from the considerations stated, that the first third part of Mr. Holcombe's book, including one hundred pages, cannot be justly and legally called an abridgement, as it does not possess the essential ingredients of such a work; and that, viewing it as a compilation, it is an infringement of the plaintiffs' right, on the ground that the plan of the Commentaries is copied; and also for the reason that the extracts extend beyond the proper limit for such a work. The remaining two-thirds of the book may be comprehended under a liberal construction of an abridgment. The matter is greatly condensed by Mr. Holcombe in his own language, and in a manner highly creditable to him.

The prayer of the bill as to the first hundred pages is granted. I have been brought to this result reluctantly, being sensible that the motives of Mr. Holcombe were honorable, and that there was no intention on his part, unjustifiably, to appropriate the labors of Judge Story to his own advantage. In this view, I cannot refrain from saying, that an adjustment of the controversy by the parties themselves would be extremely gratifying to me; and, from my intimate knowledge of the eminent qualities of my lamented brother, and I will add, of his unbounded respect for talent and high character, that I cannot be mistaken in saying, if he were living, an amicable adjustment would be most gratifying to him.

204. EATON S. DRONE. Treatise on the Law of Property in Intellectual Productions. (1879. p. 440.) The only American case, then, which directly supports the doctrine that a bona fide abridgment of a copyright book is not piratical is Story's Executors v. Holcombe. The authority of this will readily be set aside, when it is remembered that the decision was rendered under protest, so to speak, was contrary to the opinion of the judge who pronounced it, and was based on no other ground than that of supposed precedents, which have been shown to have had no force.

BLODGETT, J.

.

1888

It is also contended by the defendants that each of the volumes as published by them was a new and independent work,

not copied from that of the plaintiff, but prepared by the original labor of the editors employed by the defendants. While it is admitted that volumes 32 to 38, as published by the defendants, were, with the exception of the foot-notes, prepared entirely from the plaintiff's volumes, it is contended that volumes 39 and 41 to 46 were, with the exception of the opinions of the judges, prepared from the records and files of the Supreme Court of Illinois.

The evidence on the subject of infringement is very full and minute. It is impossible for us to discuss it at length, and we must content ourselves with stating, as a general result, that we concur in the views stated by Judge Drummond, in his decision in the Circuit Court, in regard to volumes 32 to 38. He says (10 Biss. 139, 147, 5 Fed. Rep. 726):

"In considering the question of infringement of the copyright by the defendants, it must be borne in mind what is the character of the work. They are reports of the decisions of the Supreme Court of this State, to which no one can have a copyright; but he may have to the headnotes and statements of each case, and of the arguments of counsel. These head-notes and statements which have been made are in themselves an abridgment; the one of the opinions of the Court, consisting of the principles of law decided, and the other an abstract of the facts and of the arguments. It should also be stated that the volumes of the defendants, as edited by those employed by them, are very much condensed, as compared with Mr. Freeman's reports, and yet the paging of the volumes is substantially the same throughout, so that the cases in the corresponding volumes appear on the same page. The list of cases which precedes each report is the same.

"The defendants Ewell and Denslow, who were employed by the other defendants to annotate these decisions or reports, both state, upon examination, that their work was independent of that of Mr. Freeman; but it appears from the evidence that all the volumes of Mr. Freeman were used in thus editing or annotating; and although it may have been their intention to make an independent work, it is apparent, from a comparison of the Freeman volumes and those of the defendants, that the former were used throughout by the editors employed by the defendants. It is true that in each volume, perhaps in the majority of cases, there is the appearance of independent labor performed by them, without regard to the volumes of Mr. Freeman; but yet, in every volume, it is also apparent that Mr. Freeman's volumes were used, — in some instances words and sentences copied without change, in others, changed only in form, and the conclusion is irresistible that for a large portion of the work performed in behalf of the defendants the editors did not resort to original sources of information, but obtained that information from the volumes of Mr. Freeman. Undoubtedly it was competent for an editor to take the opinions of the Supreme Court, and, possibly, from the volumes of Mr. Freeman, and make an independent work; but it is always attended with great risk for a person to

sit down, and, with the copyrighted volume of law reports before him, undertake to make an independent report of a case. It is not difficult to do this, going to the original sources of information, to the decisions of the Court, the briefs of counsel, the records on file in the clerk's office, without regard to the regular volumes of reports. Any one who has tried it can easily understand the difference between the head-notes of two persons, equally good lawyers, and equally critical in the examination of an opinion where they are made up independent of each other, and, bearing in mind this fact, it seems to be beyond controversy that, although in many, and perhaps most, instances there is a very considerable difference between the headnotes of the defendants' volumes and those of the plaintiff, the latter have been freely used in the preparation of the former. I conclude, therefore, that the defendants have, in the preparation of those volumes, from 32 to 38 inclusive, of the Illinois Reports, used the volumes of the plaintiff so as to interfere with his copyright."

So, also, we concur with the conclusions of Judge Drummond in regard to volumes 39 to 46. He says (20 Fed. Rep. 441): “The present inquiry is limited to what is alleged to be an infringement by the defendants of volumes 39 to 46, inclusive, of Mr. Freeman's Illinois Reports. Volume 40 seems never to have been regularly published like the other volumes, although the evidence of the infringement of the plaintiff's copyright in that volume is perhaps stronger than that applicable to any of the other volumes named. Upon comparing parts of each of the volumes, those of the complainant and of the defendants, one with the other, I think there can be no doubt that in some respects, in each case, the Freeman volume has been used by the defendants in the headnotes, the statements of facts, and the arguments of counsel; that is, there are certain unmistakable indicia that in every volume prepared by the defendants they have not confined themselves solely to the original sources of information, namely, the opinions of the judges, the records, and the arguments of counsel." He also says (page 442) : "The fact appears to be, and, indeed, it is not a subject of controversy, that in arranging the order of cases, and in the paging of the different volumes, the Freeman edition has been followed by the defendants; but, while this is so, I should not feel inclined, merely on that account, and independent of other matters, to give a decree to the plaintiff, although it is claimed that the arrangement of the cases and the paging of the volumes are protected by a copyright. Undoubtedly, in some cases, where are involved labor, talent, judgment, the classification and disposition of subjects in a book entitle it to a copyright. But the arrangement of law cases and the paging of the book may depend simply on the will of the printer, of the reporter, or publisher, or the order in which the cases have been decided, or upon other accidental circumstances. Here the object on the part of the defendants seems to have been that there should not be confusion in the references and examina

tion of cases; but the arrangement of cases and the paging of the volumes is a labor inconsiderable in itself, and I regard it, not as an independent matter, but in connection with other similarities existing between the two editions, when I say, taking the whole together, the Freeman volumes have been used in editing and publishing the defendant's volumes." It may be added that one of the most significant evidences of infringement exists frequently in the defendants' volumes, namely, the copying of errors made by Mr. Freeman.1 . . .

(3) Relation of Statutory Copyright to Common-Law Copyright JEWELERS' MERCANTILE AGENCY, LIMITED, v. JEWELERS' WEEKLY PUBLISHING COMPANY

206.

COURT OF APPEALS OF NEW YORK. 1898

155 N. Y. 241, 49 N. E. 872

APPEAL from Supreme Court, general term, First department. Action by the Jewelers' Mercantile Agency, Limited, against the Jewelers' Weekly Publishing Company, now the Trades' Weekly Company, and others. From a judgment of the general term (32 N. Y. Supp. 41) affirming a judgment of the special term, defendants appeal. Reversed.

The judgment appealed from enjoined the defendant from making any use of the plaintiff's reference books or confidential sheets, and from copying, appropriating, printing, publishing, or using, in any way, information taken therefrom, or furnishing such information to others. The plaintiff, a domestic corporation, has, ever since its incorporation, in 1883, been engaged in the business of a mercantile agency, which consisted in obtaining information regarding the business, street addresses, kinds and extent of business, commercial standing and mercantile credit of individuals, firms, and corporations engaged in the jewelry

1 [NOTES:

"Reasonable use, not an infringement." (C. L. R., VIII, 54.)

"Use of plaintiff's book as basis of new work as infringement." (H. L. R., XVII, 133.)

The following are some of the more notable copyright cases concerning law books: Wheaton v. Peters, 1834, 8 Pet. 591 (reports of the Federal Supreme Court's opinions); Lawrence v. Dana, 1869, 4 Cliff. 1 (Lawrence's notes to Wheaton's International Law); Banks v. McDivitt, 1875, 13 Blatchf. 163 (annotations to statutes); Little v. Gould, 1851, 2 Blatchf. 165 (reports of decisions); Little v. Hall, 1855, 18 How. 165 (reports of decisions); Saunders v. Smith, 1838, 3 My. & Cr. 711 (Smith's Leading Cases); West Publishing Co. v. Lawyers' Coöp. Pub. Co., 1897, 64 Fed. 360, 79 Fed. 756 (digests); Edward Thompson Co. v. American Law Book Co., C. C. A., 121 Fed. 907, 122 Fed. 922 (legal cyclopedia); Banks Law Pub. Co. v. Lawyers' Coöp. Pub. Co., 1909, C. C. A., 169 Fed. 386 (report of cases); West Publishing Co. v. Edward Thompson Co., 1909, C. C. A., 169 Fed. 833 (legal cyclopedia).]

trade in the United States and Canada. This information is printed twice a year in the form of a reference book. A duplicate of smaller form is also printed. The plaintiff also issues weekly a confidential sheet of changes and corrections. These books and confidential sheets are furnished and lent to subscribers subscribing therefor, upon a contract which reads as follows:

"The undersigned employs the Jewelers' Mercantile Agency, Limited, from 189-, to, 189-, to aid in answering inquiries by verbal or written reports, reference books, and correction sheets, as to the responsibility, character, and standing of persons and firms in the jewelry and kindred trades, within the United States and Canada; said inquiries not to exceed one hundred and to be made within the period of this contract. For such aid and service, including the loan of, 189-, and, 189-, volumes of reference book, the undersigned will pay to said company seventy-five dollars at the commencement of this subscription, and for each inquiry exceeding the one hundred, thirty cents on demand. All information which may have been or may be obtained by agents of said company, who are appointed our sub-agents, and communicated to us, shall be strictly confidential between the parties hereto, and the sub-agent's name or names are not to be disclosed by said company to the subscriber or other person, and the communicated information is not to be disclosed to the person or persons reported on. No information is guaranteed as to correctness, and the said company is not responsible for act or negligence of the sub-agent or agents. Title to the reference books to remain in said company, and books are to be returned upon expiration of subscription. On return of amount of unexpired term of subscription, said company reserves the right to terminate this contract, and the reference books are then to be returned to it. Dated, 189-. Signature: -" "(The conditions of this subscription are absolute, and no verbal or other understanding will be considered or allowed by the company.)" The plaintiff's reference book in the larger form bears upon the cover thereof, distinctly printed, the statement: "This is the property of the Jewelers' Mercantile Agency, Limited. Confidential Reference Book." And within, conspicuously printed, appears the following: "This book is the property of the Jewelers' Mercantile Agency, Limited, and is held by, under agreement of eighteen with them." It does not appear that the reference book was confined exclusively to the jewelry trade, nor does it appear but that any one could obtain a copy of the same by subscribing for it according to the terms of such contract. The defendant is also a domestic corporation, organized in January, 1891. It took the business which had before been carried on by the defendant Rothschild, and earlier by both Rothschild and Ulmann. The defendant took and appropriated from the plaintiff's reference book certain material information therein contained, and made use of it in a publication of its own, which came into competition with the plaintiff's publication. It also appeared that on the 28th day of June, 1890, the plaintiff, in pursuance of the copyright laws of the United States, deposited in the copyright office, with the librarian of Congress, the title of the plaintiff's book of July, 1890.