to such protection against damage as is not inconsistent with public policy.

The case of Tribune Co. of Chicago v. Associated Press (C. C.), 116 Fed. 126, is confidently relied upon by the defendant. That was a decision by Judge Seaman to the effect that news of the South African War, published in the London Times and sent by cable to the Chicago Tribune, could not be copyrighted, and that a suit by the Tribune against the Associated Press to restrain infringement of copyright would not lie. The case was based solely upon doctrines of copyright law, the matter now under discussion was not referred to, and the decision was rendered by a single judge prior to that of the Circuit Court of Appeals of the Seventh Circuit, in the case of National Telegraph News Co. v. Western Union, 119 Fed. 294, 56 C. C. A. 198, 60 L. R. A. 805.

A most useful discussion of the legal questions here involved is found in the opinion of Judge Grosscup, writing for the Court of Appeals of the Seventh Circuit, in the case of National Telegraph News Co. v. Western Union, supra. That court held that stock quotations received on a ticker in a broker's office, while not subject to copyright and in general available to any one who cared to examine them, would be protected from sale for one hour after receipt. Judge Grosscup said:

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. * 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 60 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 immeasurable 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 discernable to mind only as well as that susceptible to physical touch-equity extends appropriate protection. Otherwise courts of equity would 76228°-17-34

Page 994.

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.

Professor Langdell, in discussing trade-marks and good will in his book entitled "A Brief Survey of Equity Jurisdiction," has expressed much the same theory that Judge Grosscup elaborated in the opinion above quoted, and has pointed out that the wrong in such a case is not a tort to any particular thing, but

to the estate of the person injured in the aggregate, to the universitas of his estate (as the Romans call it), consisting, as it

does, in making him so much poorer.

Of this description are

many species of fraud; for example, the so-called infringement of a trade-mark or of good will, which consists in wrongfully and fraudulently depriving another person of customers whose patronage he would otherwise have received.

I think sufficient analogies exist, particularly in the stock and grain quotation cases which I have cited, for holding that the damage to the complainant, which arises by taking from early editions of newspapers published by its members information which it has gathered at great cost, constitutes a tortious invasion of its rights unless, as a matter of public policy, adequate cause can be shown for holding that the partial disclosure to the public arising from the publication in some of the newspapers that are members of the Associated Press should deprive it of further right to restrict the use of its news.

[7] The question remains whether there is any sufficient ground in public policy for depriving a news service of the fruits of its labors merely because a limited number of its customers have already been allowed to publish the news. Undoubtedly the public is legitimately interested in and benefited by the dissemination of news, and Page 995. the dissemination, when once begun, should not be too long delayed; but no adequate reason occurs to me for allowing a competitor to sell and disseminate the news obtained through the efforts of the gatherer until the ordinary customers of the gatherer, within the field in which it operates, have had sufficient time to receive and publish the news. The newspapers which have a contract with the news service which acquired the information will secure it at once, and the papers that have not such a contract can receive it from the rival agency within three or four hours, which ought to be sufficient time to protect the business interests of the news service that first acquired it. I can see no harm to the public in such an adjustment of the correlative rights of the parties, and this conclusion is most reasonable. Concededly the complainant can withhold news from the public, and no one is entitled to it prior to publication. The object of its business, however, is to disseminate information. To serve its customers efficiently, it must communicate the news at the earliest possible time. Its effort is to give out its news at once for immediate publication. The publication intended, and generally effected, is one substantially simultaneous throughout the country; that is,

Page 996.

so far simultaneous as geographical differences in time may permit. It can not therefore be said that the complainant has in any fair sense caused its news to be published, and thus abandoned it to the public, until all the members whom it serves have been put in a position where publication of the news has been possible.

Viewed in this reasonable light, the argument that the complainant has no further right to protection after the first publication of its news loses much of its force. The news is in effect unpublished and unavailable for use by competing news agencies until the time for general publication has elapsed, since only then can the complainant be truly said to have abandoned its news to the public by an unrestricted publication. Nor can it in my opinion be said that the complainant is barred from asserting its rights in this case after publication, because it has acted inequitably in making use of "tips" received from the defendant. Both parties have in this respect acted in substantial accordance with common business practice, and under the belief that their conduct was technically lawful. Under such circumstances neither should be barred from asserting its legal right and obtaining the protection of a court of equity, but a court of equity should only enforce this right if the other party to the suit is awarded similar protection.

[8] The defendant urges that it should not be subjected to an injunction restraining it from abstracting complainant's news, because any acts of this nature which have been done were contrary to defendant's rules and the directions of its officers. I should be inclined to take this view, were it not for the fact that the conduct of the representatives of defendant in responsible positions has shown such a serious and systematic infraction of complainant's rights, in numerous cases specified in careful detail, that I can not think anything less than an injunction sufficient to meet the situation. Furthermore, defendant, if I understand its argument, still insists upon its right to obtain the Cleveland local news in the manner hertofore practiced, although this is clearly in violation of complainant's rights. Upon the proofs offered, a preliminary injunction should be granted to the complainant, restraining the defendant from abstracting its news before publication.

[9] While I am personally satisfied, after giving the matter most deliberate and careful consideration, that the right exists to prevent the sale by a competing news agency of news which is taken from early publications of complainant's members before sufficient time has elapsed to afford opportunity for general publication, and that the existing practice amounts to unfair trade, yet the matter is one of first impression, and my decision can not be regarded as sufficiently free from doubt to justify the granting of a preliminary injunction upon this branch of the case.

Settle order on notice.

[240 Federal Reporter, pp. 983-996.]

THE ASSOCIATED PRESS, COMPLAINANT-APPELLANT, v. INTERNATIONAL NEWS SERVICE, DEFENDANT

APPELLANT.

(Circuit Court of Appeals, Second Circuit. July 2,

1917.)

Associated Press v. Inter

Cross appeals from order entered in District Court for Southern District of New York granting in part only the national News preliminary injunction moved for by plaintiff.

The writ in question (reduced to its lowest terms) restrains defendant from (1) procuring any agent or employee of plaintiff, or any of its members, to give, or permit defendant to take for a consideration or otherwise, any "news" received from or gathered for plaintiff, and from using or selling "any news so obtained." The injunction as granted also (2) enjoins defendant from procuring any newspaper represented by a member of plaintiff from violating any agreement established by the charter or by-laws of plaintiff. Defendant alleges as error the issuance of the writ above outlined.

Plaintiff's motion for relief asked for what the court. below granted, and further that defendant be enjoined from "copying, transmitting, selling, using, or causing to be copied, etc., any of the news furnished by plaintiff, from bulletins or newspapers published by a member" of plaintiff; and also from "competing with plaintiff" or its members by the unfair methods set forth in the bill. Injunction in substantially this form having been refused, plaintiff's appeal assigns such refusal for error.

Service.
2, 1917.

July