THE MORNING OREGONIAN. TUESDAY, DECEMBER 24, 1918.
PIRATING OF IK
DECLARED ILLEGAL
Associated Press Is Victor in
U. S. Supreme Court.
PLAINTIFFS RIGHT UPHELD
Injunctions Barring Internationa)
News Service From Pirate
Methods Allowed to Stand.
(Continued From First Pa?e.)
strong enough here to need a remedy
from the law."
Justice Clark Stays Oat.
With Chief Justice White, Associate
Justices Day, Vandeventer and McRey
ztolds joined in the majority opinion
delivered by 'Associate Justice Pitney.
It was announced that Associate Jus
tice Clark, a newcpai r- owner since
long before he went on the bench, had
taken no part in the case.
The court not only sustained the con
tentions of the complainant, but found
nothing in the proceedings to prove the
International News Service charge that
the Associated Press entered the case
with "unclean hands" through having
been guilty of the sar.e practices ad
mitted bar the dJfendant. Reviewing
the great task of gathering and dis
tributing news liiB cost to the Asso
ciated Press amounting to approximately
$3,500,000 annually, assessed against
Its members ani becoming a' part of
their cost of operation the opinion
llscusses the argument of the defendant
for a right to sell to its clients or cus
tomers news taken from bulletin boards
or early-edition newspapers, and says:
"'The right of the purchaser of a sin
pie newspaper to spread knowledge of
its contents gratuitously, for any legit
imate purpose- not unreasonably inter
fering with complainant's right to make
merchandise of it, may be admitted,
but to transmit that news for commer
cial use in competition with complain
ant which is what defendant has done
and seeks to justify is a very different
matter.
Theft Declared Unfair.
"Stripped of all disguises, the process
amounts to an unauthorized interfer
ence to the normal operation of com
plainant's legitimate business, precise
ly at 'the point where the profit is to
be reaped, in order to divert a material
portion of the profit from those who
have earned it to those who have not;
with special advantage to defendant in
the competition because of the fact that
it is not burdened with any part of the
expense of gathering the news. The
transaction speaks for itself and a
court of equity ought not to hesitate
long in characterizing it as unfair com
petition in business."
"In regard to objections that the Dis
trict Court failed to be specific in de
fining when the commercial value of
news to the complainant and all its
members has passed away," the court
said while not expressing approval of
the form adopted by the District Court,
it declined to modify it at this stage,
leaving the lower court to deal with
the matter.
The Associated Press brought pro
ceedings in this case last January,
charging that after being expelled from
England, Canada and France, the In
ternational News Service had been pil
fering and selling to its customers the
news gathered by the Associated Press,
at great expense, for its members. The
Federal District Court of New York
granted injunctions against the bribery
of employes and the inducing of Asso
ciated Press papers to furnish news,
but refused to restrain the admitted
practice of the defendant in system
atically pirating news from bulletin
boards and early editions on the ground
that while the court was satisfied this
practice amounted to unfair trade, the
legal question was one of first im
pression and injunotion should await
the outcome of an appeal.
Both parties appealed and the Or
cuit Court, of Appeals not only sus
tained the Injunction order issued, but
remanded the case with directions to
"issue an injunction also against any
bodily taking of words or substance
of complainant's news until its com
mercial value as news has passed
awajr."
One More Avenue left.
The injunctions as granted technical
ly are temporary, but they remain In
effect unless and until dissolved. . If
the International News Service desires
to proceed further it may go into the
District Court with a motion to dis
solve and ask that the case be heard
on Its merits. As virtually all essen
tial facts were admitted in the pre
liminary proceedings there should be
little for the court to hear if further
proceedings were undertaken.
Printed codIcs of the majority opin
Ion and that of Justices Holmes and
McKenna were made public soon after
they were delivered. Justice Brandeis
delivered a verbal abstract of his
opinion from the bench, but through
a misunderstanding with the printer.
lie was unable to give out the text.
The majority opinion reads in part
as follows:
"We need spend no time, however,
upon the general question of pronprty
In news matter at common law, or the
application of the copyright act, since
It seems to us the case must turn upon
the question of unfair competition in
business. And, in our opinion, this does
not depend upon any general right of
property analogous to the common law
right of the proprietor of an unpub
lished work to prevent Its publication
without his consent: nor Is it fore
closed by showing that the benefits of
the copyright act have been waived.
Freshness Give Nevrs Valne.
"We are dealing here not with re
strictions upon publication, but with
the very fa-cilities and processes of pub
lication. The particular value of news
is in the spreading of it while it is
fresh; and it is evident that a valuable
property interest in the news, as news,
cannot be maintained by keeping it
secret. Besides, except for matters im
properly disclosed, or published in
breach of trust or confidence, or in vio
lation of law, none of which is involved
In this branch of the case, the news
of current events may be regarded as
common property. What we are con
cerned with is the business of making
it known to the world, in which both
parties to the present suit are en
gaged. "That business consists In maintain
ing a prompt, sure, steady and reliable
service designed to place the daily
events of the world at the breakfast
table of the millions at a price that,
while of trifling moment to each reader,
is sufficient in the aggregate to afford
compensation for the cost of gathering
and distributing it. with the added
profit so necessary as an incentive to
effective action in the commercial
world. The service thus performed for
newspaper readers is not only inno
cent, but extremely useful in itself, and
indubitably constitutes a legitimate
business. The parties are competitors
in this field: and, on fundamental prin
ciples Applicable here as elsewhere,
when therights or privileges of the
one are liable to conflict with those of
the other, each party is under a duty
so to conduct its own business as not
unnecessarily or unfairly to injure that
of the other. Hitchman Coal & Coke
1 Company vs. Mitchell. 245 U. 6. 229 and
254.
"Obviously, the Question of what is
unfair competition in business must be
determined with particular reference to
the character and circumstances of the
business. The question here is not so
much the rights of either party as
against the public, but their rights as
between themselves. See Morrison vs.
Moat, 9 Hare, 241 and 258. And al
though we may and do assume that
neither party has any remaining- prop
erty Interest as against the public in
uncopyrighted news matter after the
moment of it's first publication. It by
no means follows that there is no re
maining property Interest in it as be
tween themselves. For, ro both of thefn
alike, news matter, however little sus
ceptible to ownership or dominion in
the absolute sense, is stock in trade,
to be gathered at the cost of enter
prise, organization, skill, labor and
money, and to be distributed and sold
to those who will pay money for It, as
for any other merchandise.
"Regarding the news, therefore, as
but t;ie material out of which both par
ties are seeking to make profits at the
same time and in the same f tela, we
hardly can fail to recognize that for
this purpose and as between them, it
must be regarded as quasi property. Ir
respective of the rights of either as
against the public.
- "In order to sustain tne jurisdiction
of equity over the controversy, we need
not affirm any general, and absolute
property in the news as such. The
rule that a court of equity concerns it
eolr only in the protection of property
rights, treats any civel right of a pecu
niary nature as a property right, and
the right to acquire property by honest
labor or the conduct of a lawful busi
ness is as much entitled to protection
as the right to guard property already
acquired. It is this right that furnishes
the basis of the jurisdiction in the or
dinary case of unfair competition.
"The question whether one has gath
ered general information or- news at
pains and expense for the purpose of
subsequent publication through the
press has such an interest in its pub
lication as may be protected from in
terference, has been raised many times,
although, never, perhaps, in the precise
form in which it is now presented.
Piracy Termed Ilfesral.
"In National Tel, News Company, vs.
Western Union Telegraph Company. 119
Fed. Rep. 294, the Circuit Court of Ap
peals for the Seventh Circuit dealt with
news matter gathered and transmitted
by a telegraph company and consisting
merely of a notation of current events
having but a transient value due to
quick transmission and distribution.
and while declaring that this was not
copyrightable, although printed on a
tape by tickers in the offices of the re
cipients and that it was a commercial.
not a literary product, nevertheless
held that the business of gathering and
communicating the news the service
of purveying it was a legitimate busi
ness, meeting a distinctive commercial
want and adding to the facilities of the
business world, and partaking of the
nature of a property in a sense that en
titled it to the protection of a court of
equity against piracy."
Piracy Held Unobjectionable. j
Associate Justice Brandeis in his dis
senting opinion said, in part:
The means by which the Interna
tional News Service obtains news
gathered by the Associated Press is
clearly unobjectionable. It is taken
from papers bought in the open mar
ket or from bulletins publicly posted;
no breach of contract or of trust.
neither fraud nor force, is involved.
The manner of use is likewise unob-
ectionable. No reference is made by
word or -by act to the Associated
Press, either in transmitting the news
to subscribers or by them in pub
lishing it in their papers.
Neither the International News
Service nor its subscribers is gain
ing or seeking to gain In Its busi
ness a benefit from the reputation
from the Associated Press. They are
merely using its product without mak-
ng compensation. They have a legal
right to do so, because the product
is now property and they do- not
stand in any relation to the Asso
ciated Press either by contract or of
trust which otherwise precludes such
use. The argument is not advanced by
characterizing such taking and use as
a misappropriation. Nor is the use
ade by the International News Serv
ice of the information taken from
papers of bulletins of Associated
Press members legally objectionable
by reason of the purpose for which
it was employed.
'The great- development of agencies
now furnishing country-wide distribu
tion of news, the vastness of our terri
tory, and improvements in' the means of
transmitting intelligence have made it
possible for a news agency or news
papers to obtain, without paying com
pensation, the fruit of another's efforts
and to use news so obtained gainfully
In competition with the original col
lector. The injustice of such action is
obvious. But to give, relief against it
would involve more than the applica
tion of existing rules of law to new
facts. It would require the making of
a new rule in an analogy to existing
ones. -
"The.rule for which the plaintiff con
tends would effect an important ex
tension of property rights and a corre
sponding curtailment of the free use of
knowledge and ideas; and the facts of
this case admonish us of the danger
involved in recognizing such a property
right in news without imposing upon
news gatherers corresponding obliga
tions. "Courts are ill equipped to make the
investigations which should precede a
determination of the limitations which
should be set upon any property right
in news, or of the circumstances under
wnicn news gatnerea by a private
agency should be deemed effected with
a public interest. Courts would be
powerless to prescribe the detailed
regulations essential to full enjoyment
of the rights conferred or to introduce
the machinery required for enforce
ment of such regulations. Considera
tions such as these should lead us to de
cline to establish a new rule of law in
the effort to redress a newly-disclosed
wrong, although the propriety of some
remedy appears to be clear.'
Justice Brandeis declared "a general
GEN. PERSHIWG SLEEPS MISM
IIT CASTLE ON RHINE
American Commander Guest
of Major-General Hines.
BRIDGEHEAD POINTS NOTED
Newspaper Men Are Entertained on
Hoard Private Train of General,
AVho Tlien Crosses River.
WITH THE ARMT OF OCCUPATION,
Dec 22. (By the Associated P.-ess.)
General John J. Pershing, Commander-in-Chief
of the American forces, slept
in a castle on the east bank of the
Rhine Saturday night as the guest of
Major-General Hlnes, corps commander,
with headquarters at Neuwied.
General Pershing crossed the Rhine
In an automobile at 10:35 o'clock Sat
urday night over a pontoon bridge at
Coblenz. after having entertained the
newspaper correspondents at dinner in
his private train. This morning he was
joined at Neuwied by Major-General
Dickman, and, with Major-Generals
Dickman and Hines, visited the three
division headquarters within the
bridgehead and other points of interest
on the eastern side of the Rhine.
Returning to Coblenz, he left by spe
cial train Sunday night for Chaumont,
going by way of Treves, Luxemburg
and Verdun.
On his way to Coblenz Saturday, Gen
eral Pershfng was a luncheon guest of
Major-General Mulr. commander of the
Fourth Corps, in a castle on the
Moselle overlooking the town of
Coohem. The castle, which is owned by
a Major, who is still in the German
army, was commandeered by the Fourth
Corps as headquarters. It stands on
the summit of a great bluff rising
above the Moselle and Cochem and com
mands a view for miles around.
General Pershing traveled by motor,
visiting Wittllch, the headquarters of
Major-General Haan, of the Seventh
Corps, at Mayen, and other points of
the occupied area. A special train
made up of nine cars preceded General
Pershing from Treves.
Within five minutes after the train
arrived at Coblenz the wires of the
telephone and telegraph instruments on
board were connected with the Signal
Corps wires. During the afternoon
aides and other officers of the com
mander's personnel talked with Cliau
mont and Paris over the Signal Corps
wires regarding Army affairs.
From Treves to Coblenz and on the
return trip the train consisted of
French-built cars, drawn by a Ger
man locomotive. The train was in
charge of a German crew.
present world war.
st be apparent to
telligence, and that is
as come to realize
his power as never before, and conse-
i quently will assert his right as never
oerore. In order to raise the money
to pay the expenses we have incurred
and are bound to incur the Govern-J
meni must reach out and put a neavy
hand through its power of taxation
upon every citizen In the land, and if
it be presently discovered that the
Hand of the Government bears heavily
and unjustly upon the masses 'and
touches only lightly the rich in pro
portion to their ability to pay it will
produce conditions of discontent and
resentment not pleasant to contem
plate." Declaring that the country's expen
ditures would be $10,009,000,000 to
$12.000.000, 000 for the next five years.
Senator La Follettte said, with the
present bill In operation, this would
necessitate 125.000,000.000 cr $30,000,
000,000 additional in bonds. This, he
said, would be "truly an appalling situ
COLOGNE PAPER GRIEVES
EVERYTHING LOST, EVEN HOS
OR, SAYS JOURNAL.
GERMAN AIRS UNPOPULAR
English Are Singing "The Watch on
the Rhine" Now.
, LONDON, Dec. 10. (Correspondence
of the Associated Press.) According to
a returned British prisoner who was
&t liberty in Berlin during the revolu
tion there, "Deutschland uber AUes,"
"The Watch on the, Rhine", and similar
patriotic songs are' just now highly un
popular in the German capital.
Three EngiTsh civilians who had cele
brated the signing of the armistice were
coming along the Untcr den Linden
singing "The Watch on the Rhine"
when they were stopped - by German
soldiers, who said they ought to be
ash. med of themselves for singing such
rubbish.
"I've come from the Rhine. one of
them remarked. "You go down there
and try to keep watch and then you
won t sing so much about It.
"But we are English, one of the
civilians replied.
"What, exclaimed the astonished
soldier. "Then why sing The Watch
on the Khiner
"Well," grinned the Englishman, "we
are Keeping it now.
Surrender of Submarine to Britain
by Paid German Crew Is
Held Last Straw.
LONDON. Dec 23. (British Wireless
Service.) Commenting on the handing
over to the British of the German sub
marine U-9 by the German crew, who
seized this opportunity to earn 600
marks per man paid by Germany as
compensation for taking the boats to
England, the Cologne Volka Zeitung
says;
"Even when the astounding history of
the Russian rubles given to the German
people's deputies was related, we had
patience. We had, indeed still one con
solation. Through this night of uni
versal misfortune the splendor of our
armies' fame glistened with friendly
radiance, never to disappear so long as
men walked on earth.
"Shall we now be robbed of this con-
eolation in the solitude and silence of
our misery? Is it possible in Germany
that even 'red' sailors could have sold
for 500 marks the last poor remnant
of the honor of an undying hero?
A British Admiral (Beatty) renounces
the handing over of a U-boat which, as
victor, he wishes, with noble gesture, to
bestow upon the vanquished, as one is
accustomed to leave his sword to the
brave commander of a conquered fort
ress. Revolutionaries in German naval
uniform prefer, we are told. 500 marks.
These dishonorable men venture again
to tread German soil with their wages
of sin.
"Can it really be true? Many a tear
would flow In the German fatherland.
So. everything is lost. Including honor.
we could not then sink lower in the
estimation of the world it is Impossible."
Store ' Open
Only From
9 A. M. 'to
6-P. M.
Merchandise of of Merit Only"
Store Open
Only From
9 A. M. to
6 P. M.
JO
SOVIET SENDS DELEGATES
M. RadekIIeads Moscow Represen
tatives to Berlin.
COPENHAGEN, Dec 53. The Berlin
correspondent of the Social Demo-
kraten reports the arrival in Berlin of
delegation from the soviet, govern
ment at Moscow, headed by M. Radek.
Berlin advices, dated December 11.
stated that the executive committee of
the soldiers' and workmen's council
had canceled the invitation it has ex
tended to Adolph Joffe, the Bolshevik
Ambassador to Germany, and M. Ra
dek, a member of the Bolshevik em
bassy in Berlin, to come to Berlin for
the congress of thficounclia. The can
cellatlon was at the request of the
Berlin cabinet.
AERIAL PLAN IS SUBJECT
Allies and United States to Confer
on Future Navigation.
PARIS', Dec 23. (Havas.) Retire
sentatives of several allied powers and
the United States will hold a confer
ence in Paris early in t e New Year
to consider the future of international
aerial navigation, the Echo de Paris
announces. Great Britain, Italy. Bel
gium, France and the United States
will be represented at the conference,
which will study the questions of how
to prevent airplanes of different na
tionalities from crossing customs bar
riers and how to prevent postal or com
mercial airplanes from being trans
formed into bombing machines within
a few minutes. The result of the de
liberations of the conference, the paper
adds, will have to be accepted by Ger
many and her former allies in the peace
treaty.
INSANITY PERRY DEFENSE
Lieutenant Enters'lea of Not Guilty
to Murder Charge.
SAN DIEGO, CaL. Dec 23. Lieutenant
Halver E. Perry was arraigned before
a military courtmartlal today on i
charge of murdering his superior of
fleer. Captain Abram' Posner, near Bo-
nita on the night of December 2, last.
Captain E. J. Kelley, counsel for
Perry, after entering a plea of not
guilty on his behalf by his client.
stated that the question of Perry's san
ity would be raised. Brigadier-General
W. D. Short, president of the court.
then announced that a medical board
would be appointed to examine Perry.
PUBLIC PROJECTS FAVORED
California Council of Defense Asked
to Aid Soldiers.
SAN FRANCISCO. Dec. SI, A pi
that it use its efforts to secure a quick
opening up of proposed public construc
tion projects in order that discharged
soldiers and war industry workers may
be given work as soon as possible, was
received by-the State Council of De
fense from Secretary of War Baker,
today.
CASE GOES T0MR. GREGORY
Action Regarding Packers Up to De
partment of Justice.
CHICAGO, Dec 23. The report of
the Federal Trade Commission on the
meat-packing industry has been turned
over to the Department of Justice for
its consideration and such action as it
may deem proper, it was announced by
publication is effective to dedicate nt-'United States District Attorney Clyne
erary property to the public regardless
of the actual Intent of its owner.
OFFICER TO BE -DECORATED
Commander of "Lost Battalion" Will
Receive Congressional Medal. ,
BOSTON, Dec. 23. Lieutenant-Colonel
Charles W. Whittlesy. commander of
the famous "lost battalion," which for
five days was cut off from its division
in France, will be publicly decorated
tomorrow with a Congressional medal of
honor for conspicuous gallantry and in
trepidity in action with the Germans
northeast of Binarville, in the Forest
du Argonne, France, October 2 to 7,
1918.
Bolshevik Staff in Berlin.
AMSTERDAM. Dec 23. While
Adolph Joffe. the Russian Bolshevik
ambassador to Germany, has not re
turned to Berlin, after leaving some
time ago by' request of the govern
ment, the staff of the embassy is
again in the German capital, according
to a Berlin telegram today,
, Canadian Corn Exports Free.
MONTREAL, Dec 23. The Corn Ex
change has been advised by the De
partment of Trade and Commerce at
Ottawa of the removal of the restric
tions on the exportation from Canada of
all kinds of coar grains. '
here today.
Charles B. Morrison, a Chicago law
yer, has been appointed a special as
sistant to the Attorney-General to co
operate with Oliver E. Pagin. attorney
for the Department of Justice and. Mr.
Clyne in the case.
WAR REVENUE BILL PASSED
(Continued Krom First Pase.)
This Store Has Prepared Its
Stocks and Displays, Its Sell
ing Space, Its Service Conven
iences And Its Prices to Meet
All Demands.
G
Come to this store today, no
matter how long your gift list, and
from the' best stocks, of Christmas
merchandise we have ever had here
choose quickly, easily. Over forty
departments stocked with assort
ments that are still inclusive will
see that you get what you need
and promptly.
Mere
And in many parts of the store
Christmas merchandising precedents
have been forgotten in order to reach
great banner gains, so that prices on
practical merchandise of the "essen
tial" kind have been very materially
lowered. In short, shop where you
will in this store, you'll find some
thing you want for less.
i
I
I
i
i
Walk through all
parts of the store; it
never looked so attract
ive, and the hints to be
noted are worth the trip.
Although our Toy
Shop is the newest in
town, we are told that
it is the only one that
ample stocks.
still
las
Walking to the Sec
ond Floor and taking
an elevator from there
takes you "up" much
quicker. Try it!
The Rest Rooms for busy shoppers
are on the Second Floor. Additional
resting rooms are to be found on the
Mezzanine Floor.
Our Sweet Shop affords the most
delectable sweets, made fresh daily.
It is rapidly gaining a reputation
among its patrons.
DAM BREAK CAUSES HAVOC
Shingle MiH Swept Away and
Houses Toppled Over.
SEATTLE, Dec 23. Reports received
here from North Bend. Wash., said a
thingle mill was swept away, several
houses were toppled over and a por
tion of the Chicago, Milwaukee & St.
Taul Railroad washed out when a mill
dam near Edgewick. Wash., gave way
early today..
The dam broke, it was said, as the
result of pressure of wauer caused by
leakage from the city of Seattle's Cedar
River dam. located above North Bend.
EXPORTS BANJS RELAXED
Foodstuffs, Fodders and Feed May
Be Sent to Other Lands.
WASHINGTON, Dec 23. Sweeping
relaxation of restrictions on the ex-
ports of foodstuffs, fodders and feed
to the pan-American republics, Canada,
Cuba and the West Indies, was an
nounced tonitcht by Chairman McCor
mick of the War Trade Board.
Girl Defendant Discharged.
P.OCHFSTER. N. Y., Dec
!3.-
trial at Geneseo of Mr. Gladys Gannon
Webster, charged with the murder of
her father-in-law, Edwin E. Dyer Web
ster, in August last, came to a sudden
termination this morning when Justice
Robert F. Thompson directed the Jury
to bring in a verdict of not guilty and
discharged the 19-year-old wife and
The mother tfcanf of Innuf f ioient evidence.
Malted Milk was originated by Her
lick. Avoid Imitations and substitutes.
Adv.
Derations in prosperous past years
would go untouched.
Regarding his plan to increase in
come taxes on the wealthy. Senator La
Follette said:
"Whatever may have been the forces
Did You Receive Dayton
Glasses for
Christmas?
Many did. because we
no!d dozens of "orders.
Those so fortunate should
come in soon and have
their eyes examined for
the glasses. We will add
and welcome you to our
large list of pleased patients.
m
Utm
Flftn and Washington Sin.. 60X-50S ttwetland
iiiuitiiiiB, iiUn Hour.
flllilliil!
Christmas
Dinner
ii Tomorrow
at
The
Multnomah Hotel
Will Be a Feast of
Good Things to Eat,
Good Music and!
Delightful- Dancing
$1.50 Per Plate. Reservations Taken.
I Service From 5:30 to 8 P. M.
Supper From 9:30 to 12.
Dancing.
We have
decorations
for your
Christmas
tree
plenty of
then!
All those twinkly. winky things that make your
tree the joyous thing it is. Strings of shining balls,
yards and yards of tinsel and cunning little ornaments.
i
Colored glass beads and the
tiniest of tiny Santa Clauses.
Such a fascinating array of
Christmas tree pretties!
Yesterday people told us this
is the only store that still has
good supplies, bur, of course, they
will not last throughout the day.
And Plenty of
Wheel Goods, too W
These, too, we are told, are here
only! There are automobiles, coaster
wagons, velocipedes, hand cars, kiddie
cars and all the things on wheels that
active kiddies are hoping Santa will
bring them.
If CnS
I -
Placed for your convenience on the Basement Floor.
man vvoue cad vc
.ef MerckanJi of cJ Merit Only"
' -