And on the 28th day of June, 1890, the plaintiff, in further pursuance of said copyright law, deposited in the office of the librarian of Congress two copies of said reference book. And the said plaintiff printed on the page following the title-page in the said book of July, 1890, the following notice: "Entered according to Act of Congress, in the year 1890, by the Jewelers' Mercantile Agency, Limited, in the office of the librarian of Congress at Washington." The plaintiff, however, insists the copyright failed because of its omission to make publication of the reference book, and stands upon its common-law right that there has never been such a publication as to entitle the general public to the use of the book. The acts which defendant urges amounted to a publication where the delivery of the book to such subscribers as cared for it, and were willing to become parties to the contract, supra, and the deposit of two of the books in the library of Congress. Wheeler H. Peckham, for appellants. Howard Mansfield, for respondents.

PARKER, C. J. (after stating the facts). Thus far in the progress of this suit the plaintiff has succeeded in its attempt to convince the Court that the original common-law right in the "reference books," so called, has not been devested, and, therefore, it is entitled to invoke the restraining power of the Court to prevent the defendant from using in any way any information obtained therefrom. To the claim of the defendant that the plaintiff devested itself of its common-law right by copyrighting the reference books pursuant to the provisions of the Revised Statutes of the United States, the plaintiff makes answer that it had not, in fact, perfected a copyright of the book, and, therefore, its common-law right remains. It is true that plaintiff recorded the title of the book before publication; caused a copyright notice to be printed on the title-page, and then delivered to the librarian of Congress two printed copies of the book, with the notice of copyright printed on the title-page, in pursuance of the statute which requires that such a number of copies shall be delivered to the librarian within ten days after publication. So far as the record discloses, therefore, it would necessarily appear to any one making an examination of it for the purpose of ascertaining whether the plaintiff had secured to itself the benefit of copyright as to the reference book, that it had succeeded. But the plaintiff insists that its attempt, or pretended attempt, to secure a copyright was ineffectual, because of the omission on its part to publish the reference book.

We are not concerned in inquiring whether the plaintiff's steps, apparently looking to a copyright of the book, were taken for the purpose of procuring a copyright in good faith, or merely for the purpose of securing such advantage as might accrue from the appearance of copyright. It, of course, cannot have at the same time the benefit of the copyright statute and also retain its common-law right. No proposition is better settled than that a statutory copyright operates to devest a

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party of the common-law right. If, then, what the plaintiff did amounted to such a publication of the reference book as was requisite in connection with the other steps taken to perfect a copyright, its commonlaw rights were devested, and its remedy against violators of the rights thus secured would have been by suit in the United States courts.

But publication also operates to destroy the common-law rights, whether a copyright be secured or not. An invention, a painting, or a book is the property of its creator. He may keep it for his own exclusive use or enjoyment if he sees fit. The public has no greater right to it, however useful it may be, than it would have to any other part of his personal property. But, if he once publishes it, his property right in it is gone, and every one may make use of it. A person who writes a book may keep the manuscript without printing it, and prevent any one from seeing it. He may take a still further step, and cause the book to be printed, and then determine that it shall not be seen by the public, and store all the printed copies away, and still he has not made a publication of it within the meaning of the law. It continues to be his property, as he has not yet offered it to the public. If, while the books are thus stored away, a copy should be obtained surreptitiously, and printed, or should the author loan one of the books to a friend to read and return, and in that manner a copy of the book should fall into the hands of some one who should attempt to print it, the author would be entitled to restrain publication, for the reason that he had not undertaken to put within the reach of the general public such thoughts or facts as he may have expressed or stated in the book. Cases have arisen in which there was a private circulation for a restricted purpose, and the holding has been that it did not constitute a publication, as in Prince Albert v. Strange, 2 De Gex & S. 652. In that case it appeared that her Majesty and the Prince Consort had given to a number of friends copies of prints and etchings made for their own amusement, and this was held a private circulation, and not a publication. Out of a few cases of the same general character seems to have grown the idea that it is possible for a man, by putting restrictions on the use of his books by subscribers, however numerous they may be, to retain in himself forever the common-law right of first publication. If that position be sustained by the judgment of the Courts, then will have been obtained judicial legislation of far broader scope and much greater value to authors and others than that offered by the copyright statute.

Our attention has been called to but one previous case in which the precise question presented here has received consideration. In the case of Ladd v. Oxnard, 75 Fed. 705, the plaintiffs published annually a book entitled "The United Mercantile Agency Credit Ratings," and had 179 subscribers. The stipulation between the complainants in that case and the subscribers was "that the book issued to each subscriber was a loan, and not sold; and that, if any copy was found in any

other hands than those entitled to use it by the permission of the complainants, the publishers might take possession of it." In this case the plaintiff distributed its books under like restrictions. The plaintiff in Ladd's case brought his action in the United States Circuit Court, and the defendant sought to prevent a recovery upon the ground that, by reason of the special restriction on the use of the book, the plaintiff had not published it; therefore, his copyright had not been perfected, and the rights of the plaintiff were at common law, and not under the statutes. It will be seen, therefore, that the question was the same as that under consideration. Judge Putnam held that the copyright was complete. From his opinion we quote the following:

"He [the defendant] claims that, by reason of the special restriction on the use of the book to which we have referred, there never has been a publication, and that, therefore, the rights of the complainants are at common law, and not under the statutes, so that this Court has no jurisdiction of this suit, both parties being citizens of Massachusetts. It should be said in this connection that, while the nature of the use of the complainants' book was sought to be limited in the manner which we have explained, there was no limit placed by the complainants on the extent or number of persons to whom the book might be distributed under the conditions which they had provided. Though adapted specially for persons engaged in the trades of which we have spoken, yet even these are indefinite in number, and there is no evidence that the circulation was intended to be limited to them. In any view, it might be difficult to sustain the proposition, because, as the statute now stands, an author is compelled to complete his title to his copyright before publication, so there is at least one point of time, although it may be a very minute one, when the author, who has entitled himself to a copyright, is also entitled to look to the statutes of the United States for protection, notwithstanding he has not published. . . . However, we do not rest the case on this point, because we are satisfied there has been a publication. . . . So far as concerns the interests of the public and the general policy of the copyright statutes, this case stands in all respects practically the same as though the complainants' publication had been sold by unrestricted titles; and there is. no substantial reason why, if the complainants had not obtained copyrights, they should now be protected against infringers."

We find ourselves in agreement with the learned judge, not only in the conclusion reached, but also in the argument which led to it, and, before referring to authorities upon that subject, it should be observed that it does not appear from this record but that every person in the United States was at liberty to become a subscriber of the plaintiff, and, as such, entitled to a reference book.

Plaintiff's position, therefore, in effect is that a distinction should be drawn between selling or giving a book away and leasing it; that to offer to sell a book to the public or give it to public libraries, where all the public may have access to it, is to publish it; but to lease it to such of the public as care for it is not to publish it. The latter is certainly an effective method of putting the contents of the book in the possession of such portions of the public as desire it. By this method

a party parts with the secret in such a way that the public may know it, provided the individuals composing such public are willing to become subscribers, and lease the book. And, if leasing books to the public generally does not constitute a publication of them, then an author or publisher would have but to extend the period of leasing from 1 year to 99 or 999 years, as is the case in certain leasings of railroads, in order to secure almost as many lessees as there would be purchasers if the books were offered for sale. The buyer of the average book would be quite content with a restrictive title, which, nevertheless, assures him the possession of a book for either of the periods mentioned. It has not hitherto been understood to be the law that the common-law right could be so utilized as to secure to an author or publisher a continuing revenue from the public for a much longer period of time than Congress has been willing to grant to him the exclusive right to publish.

We shall now briefly refer to what has been said on the subject which seems to have persuaded counsel that the judgment in this case can be supported. In the first place, it must be conceded it has not been said, except in Ladd's case, supra, that leasing a book under an agreement not to show it to any one constitutes a publication of it; and this is so, probably, because it was not until a comparatively recent period that an attempt seems to have been made to obtain for a book subscribers who should agree that they would neither show nor loan it to others. So, when Coppinger, Scrutton, Drone, and Shortts, in their works on the subject of Copyright, assert that, "to constitute a publication it is necessary that the work should be exposed for sale or offered gratuitously to the general public, so that any person may have an opportunity of enjoying that for which copyright is intended to be secured," they did not intend to imply that the leasing of a book for a year or a term of years to any and all persons who would accept it on such terms would not constitute a publication. They did not have such a situation in mind. The consideration and discussion of the principles established by such cases as they succeeded in finding in England and this country, bearing upon the question of publication, did not suggest to them the possibility of such a claim being made.

It will be observed that the general rule which we have quoted from Coppinger asserts, first, that to expose for sale is to constitute publication. It is not necessary that the book be actually sold; it is sufficient if it be offered to the public. The act of publication is the act of the author, and cannot be dependent upon the act of the purchaser. The actual sale of a copy is evidence that it has been offered to the public, but that fact may also be shown by other evidence. It then asserts that, if a book be offered gratuitously to the general public, it will constitute publication. This may be done by presenting it to public libraries, and this is so because the author or publisher, by that act, puts it in such a place that all the public may see it if they choose. The reason why exposing for sale or offering gratuitously to the general public

constitutes publication is stated in the last part of the rule as follows: "So that any person may have an opportunity of enjoying that for which copyright is intended to be secured." And this reason, which lies at the foundation of all decisions upon this subject, is applicable to this situation. All persons were given the opportunity of enjoying this book upon the plaintiff's terms. Several cases have arisen where the Courts have held that the private circulation of pictures, manuscripts, or printed books did not constitute a publication, such as Prince Albert v. Strange, supra; also Bartlette v. Crittenden, 4 McLean, 300, Fed. Cas. No. 1082, where the plaintiff, a teacher of bookkeeping, for the convenience of his pupils, wrote his system or instructions on separate cards, which they were permitted to keep for their convenience. So a gratuitous circulation of copies of a work among friends and acquaintances has been held not to amount to a publication. Dr. Paley's Case, cited in 2 Ves. & B. 23, was one where a bookseller was restrained from publishing manuscripts left by Dr. Paley for the use of his own parishioners only. Coppinger, in his work on Copyright, at page 117, after considering the last case cited and others, reached the following conclusion:

"The distinction is in the limit of the circulation. If limited to friends and acquaintances, it would not be a publication; but, if general, and not so limited, it would be."

In this case the circulation was not limited to friends and acquaintances, or even to a class. The limitation was upon the character of the use which a subscriber could make of it. It was the privilege of any and all persons who desired to become subscribers to obtain possession and use of the reference books. The fact that the publisher of the book undertook to place restrictions on the use which individual purchasers could make of it, the effect of which might be to increase, rather than diminish, the public demand for the book, does not constitute such a limitation as takes away from the act of the plaintiff its real character, which is that of publication.

In Callaghan v. Myers, 128 U. S. 617, 9 Sup. Ct. 177, Myers was a reporter of the Supreme Court of the State of Illinois, and, desiring to secure a copyright for such portions of the reports as he was entitled to have copyrighted, undertook to provide the three conditions prescribed by the copyright statute, namely, a deposit, before publication, of a printed copy of the title of the book, the giving of information of the copyright by the insertion of a notice thereof on the title-page or the next page, and by depositing a copy of the book within three months after the publication. It was insisted, as to one of the volumes, that Myers had not deposited a copy of the book within three months after the publication as the statute then required. It was shown that under the statutes of the State of Illinois a reporter of decisions was required to supply to the secretary of state a certain number of copies of the