Opinion
No. 30.
December 2, 1929.
Appeal from the District Court of the United States for the Eastern District of New York.
Suit by Charles B. Guthrie against Walter S. Curlett and another. From a decree holding valid but not infringed three copyrights of plaintiff, plaintiff appeals. Modified and affirmed.
Under the authority of the Act to Regulate Commerce, known as the Hepburn Act (34 Stat. 586, § 2 [49 USCA § 6]), the Interstate Commerce Commission promulgated rule 11, Tariff Circular 18-A, effective September 1, 1909, which required every common carrier subject to supervision by the Commission to file with it an individual freight tariff index in three sections. The first section related to tariffs under which the carriage was initial; the second, to those under which the carriage was terminal; and the third, to miscellaneous information. Compliance with this rule cast upon the carriers a great deal of labor and expense, and resulted in the accumulation of a large mass of information in bulky form. Some railroads, notably the Erie, devised, and by special permission of the Commission used, a consolidated index covering together the freight tariffs of the principal line and its subsidiaries. In 1912, the Commission changed its rule to allow this to be done by such "family lines" without special permission.
In that year, there were on file with the Commission 950 freight tariff indexes, covering approximately 129,000 tariffs a year, and the appellant conceived the idea and devised a plan for putting all of the indexes into consolidated form. He wrote, published, and copyrighted a pamphlet entitled "Tariff Economics as Applied to the Tariff Index," explaining his idea and method of consolidation. His copyright for this booklet is Class A, XXc, No. 303,968, January 24, 1912. Early in 1912, he brought the matter to the attention of the Commission for the purpose of getting special permission to file such a consolidated index, and was asked to prepare and present an example to show the tariffs of ten carriers on one commodity. He prepared, published, and copyrighted such an example. He also secured a patent. His copyright certificate for this is Class A, XXc No. 315,145, May 10, 1912. The special permission to file which he desired was forthcoming, and he then obtained the appointment as agent for nine railroads to make and file such a consolidated index for them. He prepared, published, copyrighted, and filed it. It is known as "Western Lines Index No. 1," and his copyright certificate for it is Class A, XXc, No. 318,707, August 27, 1912. This, too, was patented. The method he used in making it was of necessity somewhat complicated and there is no occasion to describe it, except to explain that he grouped on certain pages information of more or less general applicability, and made reference to it wherever necessary by means of so-called compound specific interest symbols, used in columns sometimes showing the initials of one or more railroads, sometimes showing other information in condensed form, and sometimes showing a variation. These symbols were made by designating certain definite things with numerals or letters, and by using them in dark and light faced type, alone or in combinations having distinctive meanings to one familiar with the plan and use of the index. Although the appellant's consolidated index covered only nine railroads, it was so constructed that its scope could be readily extended to cover all, both as initial and delivering carriers, as well as to show the specific interest of each carrier participating in the shipment. The appellant was the first to conceive, express, and put into use such a consolidated index covering railroads that were not all parts of one common system.
In 1922, the appellee Curlett prepared and published a consolidated freight tariff index, which is claimed to have infringed the appellant's copyright. In 1923, the appellee Wilson published his, which is also claimed to infringe. Wilson was the successor of Curlett, and their works are identical in plan and scope. Their indexes are based on tariffs under which the railroads covered are delivering carriers, and they use the method of ruled columns containing condensed information and references to information of broad applicability, grouped elsewhere in the book. Their reference indicators are encircled numerals, sometimes used in combination with asterisks, and sometimes not. The use of asterisks alone in their columns is frequent. The appellant calls their reference indicators, when used in combination, compound specific interest symbols, and he is doubtless justified in so doing; but in this connection it must be noticed that not one of them is the same compound symbol the appellant uses, nor does one of them refer to the same information in the same way. Yet one knowing how to use the appellees' indexes can get from them exactly the same information concerning the tariffs they cover that can be obtained from the appellant's index concerning tariffs covered by it, and, whenever the appellant's index and the appellees' index cover the same tariffs, identical information concerning these tariffs can be obtained from each index. The appellees' indexes, also, are so designed that they can be readily expanded to cover all railroads.
The appellant first brought suit on his patents, with the result that they were held invalid for want of patentable subject-matter. Guthrie v. Curlett (C.C.A.) 10 F.2d 725. He then brought this suit for infringement of his copyrights. During the trial, he withdrew copyright No. 303,968 on the booklet entitled "Tariff Economics as Applied to the Tariff Index," but that copyright was, probably by inadvertence, included in the decree.
Emmet L. Holbrok, of New York City, for appellant.
Richard W. Barrett, of New York City (Melvin H. Coulston, of Washington, D.C., of counsel), for appellees.
Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
The appellant recognized the fact that the number and size of freight tariff indexes required to be filed made both their compilation and use difficult, and set himself to the task of solving the problem of putting them in such condensed form that these difficulties were lessened. His idea for solution consisted in a consolidation made possible by the use of ruled columns and compound specific interest symbols as above stated. This idea alone, apart from the means of expressing it, is not protected by his copyrights. Holmes v. Hurst, 174 U.S. 82, 19 S. Ct. 606, 43 L. Ed. 904; Dymow v. Bolton (C.C.A.) 11 F.2d 690; Nutt v. National Institute, Inc. (C.C.A.) 31 F.2d 236-239. His accomplished solution was his idea expressed in the form and arrangement he chose to use, and did use, in his example of the tariffs of ten railroads on one commodity and in his book entitled "Western Lines Index No. 1." The treatment of the subject in both of these works was his. The thought, arrangement, and style was original, and by them he made a useful contribution to the subject treated. What is sometimes called the theme or story was, in both of these works, the product of the intellectual faculties of the author, and the result was a new expression of known facts. The appellant's copyrights, Class A, XXc, No. 315,145, May 10, 1912 and Class A, XXc, No. 318,707, August 27, 1912, are, accordingly, both valid, and protect his expression of his ideas, or, to put the same thing in words as near to the claim of the appellant in this suit as the law will permit, protect his ideas when expressed as he expressed them. Dymow v. Bolton et al., supra; Edwards Deutsch Lithographing Co. v. Boorman et al. (C.C.A.) 15 F.2d 35; King Features Syndicate v. Fleischer (C.C.A.) 299 F. 533-536.
Indeed, it is by no means sure that the appellant contributed any new ideas, except in the particular arrangement and symbols he used. All else was in the public domain. The idea of consolidated freight tariff indexes had already been employed by the Erie and other railroads, and designating things by numerals or letters, alone or in combination, with or without the use of ruled columns and dark or light faced type, has been in common practice so very long that there is no way now of making that, except in the precise way he does it, the private property of any man.
Careful comparison of the appellees' works with that of the appellant fails to disclose a single instance where the means of expression used by the appellant has been copied. The intricate nature of the work, the subject involved, and the result to be obtained, make it inevitable that, within the scope of the works, the same information can be found; but the appellant has no monopoly upon information, or the purveying of information by a broad general method. He must be protected in his choice of expression, and his copyrights held to that. Baker v. Selden, 101 U.S. 99, 25 L. Ed. 841.
During the trial in the District Court the judge interrupted the continuity of the appellant's evidence by asking numerous questions of the witnesses. The extent to which this was done has been the subject of rather bitter comment on appeal. This criticism is quite unjustified by anything in the record. The subject-matter in controversy was difficult to understand. In such a trial it is hard to perceive how a judge can do better than to be vigilant in keeping witnesses from wandering, and incumbering the record with testimony which would serve but to prolong the trial and to confuse the issues. When the judge is the trier of the facts as well as the law, surely no one knows so well as he the points which have not been made plain to the one who must decide the facts. It is now claimed that important evidence was kept out of the case, but the appellant has not brought to our attention any such evidence that was offered and excluded. Nor was any objection taken.
The decree is modified, to omit copyright Class A, XXc, No. 303,968, January 24, 1912, and as so modified it is affirmed.