the art, from the prior work of his own which has been introduced in evidence, and from the appearance that he made upon the stand, that he is stating the absolute truth when he says that his production was an independent effort, from the same general instructions as those which were given to Mr. McCarthy. I think that in no manner did he copy Mr. McCarthy, nor do I think that he intended to copy Mr. McCarthy. And therefore if it be conceded, solely for the purpose of argument, that Mr. McCarthy's composition was copyrightable, I find no infringement.

But, further than that, I am impressed by the suggestion of counsel for the defendant that the case may go off on another point. The suit is in equity, and I should regard it as a very dangerous doctrine to hold, in the circumstances, that a defendant might be gravely penalized where, as a business man, desirous of producing a useful cover for a commercial purpose, he lays the same general proposition before two artists, and then, when he accepts what seems to him to be the better execution of his idea, he should be subjected to the serious penalties which Congress has imposed in the very laudable desire to protect authors, musicians, artists, and other men of the professions whose work is copyrightable. It is conceded in the case that, had Mr. McCarthy received the sum of $150, which he said was the agreed price, which on this record is not controverted, the work or composition would have belonged to the defendant company. In equity, and from the ordinary everyday standpoint of what is fair and right, that would be the compensation to which he is entitled, and in view of the fact that the same composition was not used, but one which in my opinion is so substantially different as not to infringe, it would be flying, in my judgment, in the face of equity, to Page 633, allow a recovery under the copyright law under the circumstances.

For the reasons I have briefly outlined, I dismiss the bill-first, because there is no infringement; and, second, for want of equity.

[227 Federal Reporter, pp. 630–633.]

MACMILLAN CO. v. KING.

(District Court, District of Massachusetts. June 24,
1914.)

Macmillan 1. COPYRIGHTS INFRINGEMENT - OTHER

Co. v. King,
June 24, 1914.

Page 863.

RIGHTED BOOK.

"VERSION" OF COPY

Sheets of memoranda, prepared for and used in the tutoring of students in the subject matter of a copyrighted textbook, which are given or lent to each student, and contain, besides occasional quotations of words and sentences from the book, a reproduction, so far as is possible in an abridged and paraphrased form, of the author's treatment of the subject, are an infringement, under copyright act March 4, 1909, ch. 320, sec. 1, 35 Stat. 1075 (Comp. St. 1913, sec. 9517), which gives the owner the exclusive right to "make any other version" of the copyright work.

2. COPYRIGHTS-INFRINGEMENT

PRINTING.

Typewriting or mimeographing constitutes a "printing" within the meaning of the copyright statute.

3. COPYRIGHTS-INFRINGEMENT—“ PUBLICATION."

It is not necessary, in order to constitute a "publication' of a work in infringement of a copyright, that copies should be offered in the market to all who choose to buy; but there may be such publication, which will entitled the owner of the copyright to an injunction, although the number of persons to whom copies are delivered is limited, and their rights to the copies also limited by agreement with them.

4. COPYRIGHTS-SUIT FOR INFRINGEMENT INJUNCTION.

Proof of actual damages is not necessary to warrant the granting of an injunction to restrain infringement of a copyright, if infringement appears and damages may probably follow from its continuance.

In equity. Suit by the Macmillan Company against
Melaim Lenoir King. On final hearing. Decree for com-
plainant.

Henry L. Burnham, of Boston, Mass., for plaintiff.
John E. Eaton and Mitchell, Chadwick & Kent, all of
Boston, Mass., for defendant.

DODGE, District Judge. The defendant is charged
with infringing the plaintiff's copyright in "Principles
of Economics," a work in two volumes by F. W. Taussig,
professor of economics in Harvard University, published
in 1911 by the plaintiff, and copyrighted under the act of
1909. The bill alleges that the defendant has " printed,

1

1

published, and leased or sold unauthorized, unfair, and unlawful abridged copies or other versions of said book." An injunction and accounting is prayed for. (35 Stat. 1075.)

"

The copyright act of 1909 secures to the owner of a copyright in a literary work an exclusive right to "print, reprint, publish, copy, and vend the copyrighted work (sec. 1a), and to "make any other version thereof" (sec. 1b). It provides that the copyright shall "protect all the copyrightable component parts of the work copyrighted, and all matter therein in which copyright is already subsisting." (Sec. 3; Comp. St. 1913, sec. 9519.)

The answer denies the allegations above quoted from the bill. The defendant alleges that he is a teacher by profession; that numerous persons come to him for private instruction in various subjects, one of them being economics; that in teaching economics he makes use of and teaches the contents of the copyrighted book; that the book is sold for use as a textbook, and is studied by his pupils as such, and that they resort to him for aid in such study; that each of his pupils is recommended and expected to possess a copy of the book, and in general does so; that all of them possess copies, so far as he knows; and that if any do not is a matter beyond his control, copies being accessible in the libraries or in the hands of friends to them all; that in advance of each conference relating to the subject with his pupils, he prepares for them brief memoranda or outlines covering the ground to be dealt with; that each of these consists of a single sheet of typewritten matter, relating only to the subject matter to be dealt with at the conference; that, if any sheet is taken away after the conference, an account is kept, and it is returned the next week; that all are subsequently destroyed; that none are sold or leased; that they are not bound or paged; that no use is made of them, apart from the use above described; that they go into his pupils' hands only on the understanding that they are to be used by the individual pupil and returned as above; that, except as stated, they are not published or distributed; and that his regular fees for instruction are fixed without regard to the use of the memoranda, and are the same whether the memoranda are used or not.

He alleges, further, that what he does as above is within the license and consent given by implication in distributing and selling the books, is within the custom of

Page 864.

teachers, and is not an infringement of the complain-
ant's copyright.

The defendant's allegations as to the actual use he has
made of his "memoranda" are in general supported by
the evidence, except that certain memorandum sheets,
nine in number (marked "Exhibit H"), appear by his
own testimony to have been prepared by him for use,
not at a particular conference dealing with a particular
part of the book, but for tutoring in preparation for a
final examination in one of the Harvard courses in eco-
nomics; and that these were intended to outline all the
subject matter covered in that course during a certain
term. These he said he loaned to the pupils tutored in
that course, to be kept for "a few days," to be returned,
not the next week, but immediately after the examination.
It did not appear how long before the examination they
were loaned. They were put in evidence by the plaintiff,
in whose possession they were at the time, and appear,
therefore, not to have been in fact returned to the de-
fendant by the pupils to whom he loaned them.

[1] 1. Are the memoranda referred to such in character as to constitute "copies" or "other versions" of the copyrighted work, within the meaning of the act, if printed, reprinted, or published, within the meaning of the act?

I first consider 30 sheets of the memoranda, furnished for use as evidence by the defendant himself, and agreed to be specimens of all by a preliminary stipulation made by both parties May 9, 1913, before any other evidence had been taken in the case. That "materials for said memoranda or outlines were drawn from" the copyrighted book is also expressly agreed in the same stipulation.

The 30 conferences with his pupils, for which the defendant prepared these memoranda sheets, were to be on successive dates, never at a less interval than one week, beginning with October 6, 1911, and ending with May 24, 1912. The conferences appointed for four dates in October and for November 3 and 10 would seem never to have been actually held, although sheets for those dates were prepared. On the remaining dates conferences were held, and a sheet of memoranda prepared for each was used.

The memoranda sheets used on December 8, 15, and 22, besides dealing with parts of the copyrighted book, dealt also with parts of a different book upon the same subject by another author, and in no way involved in this case. The sheets prepared for or used on the other dates deal each with a part of the copyrighted book. Certain chapters of the book, occupying in all not quite 60 of its more than 1,100 pages, are not dealt with in any of the sheets. The remaining chapters of the book may be said to be covered by the remaining sheets taken together; but the order of the book was not followed throughout in the successive conferences, earlier portions of it being sometimes passed over until after later portions had been dealt with.

Occasional portions of some of the sheets do no more than refer to the book for its treatment of a particular topic, the reference conveying little or no notion to the student of what is found in the book about the topic. Examples are:

(Feb. 16, under heading, Taussig on Interest.)

9. Rate differs

in different countries. Why? 10. Justification of interest-for and against.

(Feb. 23.) Industrial crises: (a) Periodicity-1818, 1825, 1837, 1847, 1857, break, 1873, 1884, 1893; also a double pulsation (severe, mild); some world-wide, some limited; (b) Jevons's theory of sun spots and its value.

If the defendant's sheets had been constructed upon this plan throughout (and without infringement of the copyrighted index), it might be said that he had done no more than provide students with visible means to aid their Page 865. study of the book, which would relieve their memories of the task of retaining in proper order the principal matters treated of, and had done nothing which amounted to substantial reproduction of any of the author's treatment. The defendant offered in evidence several so-called printed outlines or abstracts prepared by other teachers for use in connection with other books. These appeared, generally speaking, to be constructed according to the plan just described. As to two of them, wherein a further use of the author's ideas is made, one appears to have been copyrighted by the author, the other by its maker, with permission from the owner of a copyright covering the English translation of the book.

The defendant's sheets certainly make a much more extensive use of the author's ideas than is made in such