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of a useful book or article evincing originality. But the printed tape under consideration is no such book or article, and affects no such dignity. It is, in its totality, nothing more or less than the transmission by electricity, over long distances, of what a spectator of the event, occupying a fortunate position to see or hear, would have communicated, by word of mouth, to his less fortunate neighbor. It is an exchange merely, over wider area, of ordinary sightseeing; and the exchange is in the language of the ordinary sightseer. Matter of this character is not, within the meaning of the copyright law, the fruit of intellectual labor, and would not, if actually copyrighted, be protected by the courts. Iron Works v. Clow, 27 C. C. A. 250, 82 Fed. 316. Indeed, the printed tape under consideration has no value at all as a book or article. It lasts literally for an hour, and is in the waste basket when the hour has passed. It is not desired by the patron for the intrinsic value of the happening recorded the happening, as a happening, may have no value. The value of the tape to the patron is almost wholly in the fact that the knowledge thus communicated is earlier, in point of time, than knowledge communicated through other means, or to persons other than those having a like service. In just this quality to coin a word, the precommunicatedness of the information is the essence of appellee's service; the quality that wins from the patron his patronage.

Now, in virtue of this quality, and of this quality alone, the printed tape has acquired a commercial value. It is, when thus looked at, a distinct commercial product, as much so as any other out-put relating to business, and brought about by the joint agency of capital and business ability. In no accurate view can appellee be said to be a publisher or author. Its place, in the classification of the law, is that of a carrier of news; the contents of the tape being an implement only, in the hands of such carrier, in its engagement for quick transmission. This is Service; not Authorship, nor the work of the Publisher.

2. This, then, brings us to the second inquiry: Is there any remedy that will protect appellee, in this feature of its business, against the piracy of outsiders? Has appellee, in the performance of this service, no appeal to the law? It wil' be noted, first, that the business is, as an entirety, a lawful one. It meets a distinctive commercial want, and in some of its branches, at least, adds to the facilities of the business world. Indeed, no argument against its lawfulness has been advanced.

The business involves, also, the use of property. This consideration brings it at once, in a general way, within the protecting care of Courts of Equity. At first glance the immediate act restrained in the order below the use of the information by a rival enterprise until after sixty minutes may not appear as a trespass upon, or injury to, property, other than to the extent that there may be property in the printed matter. But such a view falls short of looking far enough.

Property, even as distinguished from property in intellectual production, is not, in its modern sense, confined to that which may be touched by the hand, or seen by the eye. What is called tangible property has come to be, in most great enterprises, but the embodiment, physically, of an underlying life a life that, in its contribution to success, is immeasurably more effective than the mere physical embodiment. Such, for example, are properties built upon franchises, on grants of government, on good will, or on trade names, and the like. It is needless to say, that to every ingredient of property thus made up -the intangible as well as the tangible, that which is discernible to mind only, as well as that susceptible to physical touch - equity extends appropriate protection. Otherwise courts of equity would be unequal to their supposed great purposes; and every day, as business life grows more complicated, such inadequacy would be increasingly

felt.

Nowhere is this recognition by Courts of Equity of the intangible side of property better exemplified, than in the remedies recently developed against unfair competition in trade. An unregistered trade name or mark is, in essence, nothing more than a symbol, conveying to eye and ear information respecting origin and identity; as if the manufacturer, present in person, and pointing to the article, were to say, "These are mine"; and the injunctive remedy applied is simply a command that this form of speech this method of saying, These are mine shall not be intruded upon unfairly by a like speech of

another.

Standing apart, the symbol or speech is not property. Disconnected from the business in which it is utilized it cannot be monopolized. But used as a method of making an enterprise succeed, so that its appropriation by another would be a distinctive injury to the enterprise to which it is attached, the name, or mark, becomes at once the subject-matter of equitable protection. Here, as elsewhere, the eye of equity jurisdiction seeks out results, and though the immediate thing to be acted upon by the injunction is not itself, alone considered, property, it is enough that the act complained of will result, even though, somewhat remotely, in injury to property.

Considering that in such case, equity, without question, lays its restraining hands upon the injurious appropriation of words that belong to the common language of mankind— than which nothing could be freer to the uses of men- there ought, it would seem, to be no difficulty, in the case under consideration, to find the power so manifestly needful.

The case under consideration may be summed up as follows: The business of appellee is that of a carrier of information. The gist of its service to the patron is, that, by such carriage, the patron acquires knowledge of the matter communicated earlier than those not thus served. The ticker, with its printed tape, is an implement or means

only to this commercial end, which the patron, or the patron's patron, may utilize to the end intended, but may not appropriate to some end not intended, especially if such appropriation result in injury to, or total destruction of, the service. In short, the law being clearly inadequate to that purpose, equity should see to it, that the one who is served, and the one who serves, each gets what the engagement between them calls for; and that neither, to the injury of the other, shall appropriate more.

The immediate business of appellee brought to our attention, in the case under review, may not arouse any great solicitude. It relates to the gathering and distributing of news, not looked upon perhaps, in all quarters, as essential to the public welfare. But the questions raised are of much wider significance. They involve, among others, that modern enterprise- one of the distinctive achievements of our day which, combining the genius and the accumulations of men, with the forces of electricity, combs the earth's surface, each day, for what the day has brought forth, that whatever befalls the sons of men shall come, almost instantaneously, into the consciousness of mankind. Thus, a gun thunders in a harbor on the other side of the earth; before its reverberations have ceased, the moral ṣequence of the event has taken root in every civilized quarter of the earth. Famine arises in India to begin its grim march; it has gotten but little under way until a counter army the unfailing benevolence

of human kind has been mustered from America to Russia. On an isolated island, and without premonition, a mountain claps its black hands upon the population of a city; almost before a ship in the harbor, with tidings of the catastrophe, could have set sail, relief ships from the harbors of Christendom are under way. By such agencies as these the world is made to face itself unceasingly in the glass, and is put to those tests that bring increasing helpfulness and beauty into the heart of our race.

Is service like this to be outlawed? Is the enterprise of the great news agencies, or the independent enterprise of the great newspapers, or of the great telegraph and cable lines, to be denied appeal to the courts, against the inroads of the parasite, for no other reason than that the law, fashioned hitherto to fit the relations of authors and the public, cannot be made to fit the relations of the public and this dissimilar class of servants? Are we to fail in our plain duty for mere lack of precedent? We choose, rather, to make precedent one from which is eliminated, as immaterial, the law grown up around authorship and we see no better way to start this precedent upon a career, than by affirming the order appealed from. Affirmed.1

1 [NOTES:

"Copying of market quotations: Unfair competition." (M. L. R., I, 692.)]

209. F. W. DODGE COMPANY v. CONSTRUCTION INFORMATION COMPANY

SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1903

183 Mass. 62, 66 N. E. 204

REPORT from Superior Court, Suffolk County; Jabez Fox, Judge. Action by the F. W. Dodge Company against the Construction Information Company. Heard on demurrers to plaintiff's bill. Demurrers overruled.

Wm. Odlin and Dunbar & Rackemann, for plaintiff.

Chas. F. Choate, Jr., and Edw. C. Stone, for defendant.

KNOWLTON, C. J. This case comes before us on demurrers to the plaintiff's bill. The plaintiff corporation has been engaged for some years in the business of collecting information in regard to the erection of buildings, both public and private, the construction of sewers, waterworks, and other undertakings of public utility, as soon after they are contemplated as possible. This information is carefully compiled and distributed each day to the plaintiff's customers in accordance with their contracts, enabling them very early to take such steps as may seem to them best to obtain contracts to do the work or to furnish supplies. The plaintiff, at great expense, has many servants and agents employed in the collection, preparation, and distribution of this information, which it sells to its subscribers under a contract in writing, whereby the subscriber binds himself to use the reports in strict confidence, and for his business only. The formal contract with subscribers, annexed to the bill, which is in blank, with large spaces for writing in special arrangements, shows that the information may be printed, written, or oral, and implies that the information furnished to the subscribers is such as pertains to their different kinds of business, so that different subscribers receive information in detail on different subjects, according to their interests. It also contains an agreement to be signed by each subscriber to hold the information in strict confidence, and for his business only. The plaintiff avers that the defendant corporation is engaged in the same kind of business as the plaintiff, and that it has obtained unlawfully and dishonestly, from the plaintiff's subscribers, information furnished them by the plaintiff under these contracts, being aware of the terms of the contracts between the plaintiff and its subscribers, and that it is purchasing these reports from these subscribers for cash, and is furnishing them to its subscribers daily, and is informing the plaintiff's subscribers that by subscribing for the reports of the defendant they will obtain the advantages of the plaintiff's reports for a less price than the plaintiff charges for them. The plaintiff says that the defendant has thereby prevailed upon many of the plaintiff's subscribers to cease buying the plaintiff's reports, and has caused the

plaintiff great loss and damage. The prayer of the bill is for an injunction and an account.

The important question in this case may be divided into two parts: First. Has the plaintiff any property in the information after it has been obtained at great expense and compiled for the use of its subscribers? Second. Does it lose its property by publication, abandonment, or dedication to the public, when it furnishes the information to subscribers under these contracts?

The facts, before it has ascertained them, unless they are held for a special purpose confidentially, and as secrets, are not property; but when these facts have been discovered promptly by effort and at expense, and have been compiled and put in form, and are of commercial value by reason of the speedy use that can be made of them before they have obtained general publicity, they are property. They represent expensive effort and valuable service, and, in the form in which they are presented to subscribers, they may be used with a reasonable expectation of profit from the early possession of them. The information is not visible, tangible property, but there is a valuable right of property in it, which the Courts ought to protect in every reasonable way against those seeking to obtain it from the owner without right, to his damage. What the plaintiff has when the defendant seeks to obtain it from him is the possession of valuable information. This early possession is valuable in itself. The plaintiff has it and the defendant does not have it. If the defendant can obtain it legitimately, he becomes the owner of the same kind of property, and the two may become competitors in the market as vendors to those who are willing to pay for it. But if the defendant surreptitiously and against the plaintiff's will takes from the plaintiff and appropriates the form of expression which is the symbol of the plaintiff's possession, and thus, by direct attack, as it were, divides the plaintiff's possession, and shares it, this conduct is a violation of the plaintiff's right of property. That there is a right of property of this kind has been decided in England in regard to information of stock quotations and other different kinds of news obtained to be furnished to those who will pay for it. Exchange Telegraph Co. v. Gregory, [1896] 1 Q. B. 147; Exchange Telegraph Co. v. Central News Co., [1897] 2 Ch. 48. This has also been held by different Courts in this country. Kiernan v. Manhattan Quotation Telegraph Co., 50 How. Prac. 194; Chicago v. Christie Grain & Stock Co. (C. C.), 116 Fed. 944; National Telegraph News Co. v. Western Union Telegraph Co. (C. C. A., 7th Circuit, Oct. Term, 1902), 119 Fed. 297. We are of opinion that one's possession of information which he has obtained, compiled, and put in form for a specific use is a right which ought to be protected against those who would share it with him without his consent.

The next question is whether the giving of information by the plaintiff to its subscribers is a publication of it, such as dedicates it to the

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