New-York tribune., 1909-09-11
DISSOLVES INJUNCTION
THE TIMES" LOSES CASE.
Jud dge Hand Decides That Copyright
on Ne1Cs Does Not Hold.

IN The New York Times Judge Hand. in the
United States Circuit Court. refused TO continue
the injunction
I am inclined think the injunction bad
he said. because if granted the suppose
ton that the copyright existed. Peary only. had
the right TO copyright the book and not The
Times.
Alfred a. Cook, Of the firm of Leventritt. Cook
& Nathan who procured the order. represented
the New York Times Company at the hearing;
James NJ Beck of the firm Of Sherman & Ster-
ling. appeared for the Sun Publishing Company,
and ". II. Van Benschoten. of the firm Of Bowers
& Sands. for the Press Publishing Company.
colonel James MOloney present as special
counsel Of THE New York Times"
The proceedings opened by Judge Hand
asking Mr.. Cook if the copies OF Commander
Pearys book had been mailed the Librarian of
Congress at the time of the issuance of the pre-
Imlnary restraining order. at late hour-on Thurs
day night Mr. Cook replied that the two copies
required by the copyright law were then en- route
10 Washington, and the afidavits annexed 10 the
morning papers established the fact that there had
been sales Of the copyrighted book
After this explanation Mr.. Beck. by agreement
with his associates made the argument for The
World" and The Sun" against the granting of a
permanent injunction lie stated that grave ques-
tions regarding the copyright law involved in
the application made by The New York Times"
and he had had hfte time to prepare the return.
AS great property rights involved by the
troVersy, he did not think IT fitting TO ask for
postponement to make fuller preparation.
application
this injunction is based pushed TO It's logical
conclusion said Mr.. Beck zone of the most i'm
poTtant events in the history OF the world could
be kept from the public, excepting such were
readers OF The New York Times II matters not
whether Peary the first or second white man
to reach the North Pole. The event was an his
torical one and through this proceeding il is
sought TO enjon The World and The Sun from
publishing great historical fact accomplished by
United States naval officer engaged on a public
mission.
could BE KEPT FROM WORLD"
IF the results OF Lieutenant Peary's northern
trip can be kept from all the people save those
who read The Times then the scope of copv-
right protection has been made to cover a wider
circle than applied matter hitherto written In
case the editor Of The Times decided to suppress
the story. then under the new construction Of
copyright Peary's story could be kept from the
people OF the entire world. Such contention can
not hold. for the copyright law does not apply to
the publication OF the statement Of vital
fact obtained from other sources than single in
divduaI"
Judge Hand interrupted Mr.. Beck to say that he
did not consider that the copyright law was in
tehned 10 choke off the printing OF a vital fact
but simply to protect the rights Of the author of
literary production. He said that the moving ps
pers' which had been hurriedly drawn up were
poor. and required 10 be supplemented
The only averment contained in the nsnars "
continued Mr. Beck, lis that the defendants printed
cable message from London containing baId
statement Of facts. summary which in no wise |
couio pe considered literary production in form
or character Their claim. If followed 10 a logical
conclusion, would have prevented the newsnaners
OF the world from publishing the fact that the
Spaniards had been whipped at Manila II Admiral
Dewey had previously entered into an agreement
with The Times
1T cannot be that the report of a naval officer
engaged on public mission Is private property
and can be copyrighted by a single newspaper II
Wouid be information for which the people Of +bA
"auon we're paying and were entitled TO as soon
as known. The copyright laws were frames 20
protect literary work, the advancement Of science
etc. but not TO monopoIze the recital of an his.
borical fact
Does It not apply to generals n1emoirs,,
asked Judge Hand
FACTS CAN'T BE COPYRIGHTED.
Yes because such memoirs have literary as
poets, replied Mr.. Beck. Il maintain that a haId
statement Of facts is not copyrightabIe and in the
event Of infringement tbs act prescribes dam,
ages. The question raised here is novel and de-
natabe one. and, as there Is question TO the
solVency OF the two respondents Tsthink itis the
duty OF a court of equity to say that perfectly
clear case has not been made out and the intunc-
ton refused. The penalty imposed by the la " IL
heavy, 81 a copy and by recovering II Lieutenant
Peary would probably make more than by selling |
his hook"
In reply. Mr. Cook said the respondents and their
counsel had been duly warned concerning the copy
right on Commander Peary's narrative, and. de-
spite that warning. The Sun and The World" |
printed the summary of his journey to and from |
the pole. Mr.. Beck denied that any such informa-
tion had reached his office and the managing ed |
itor of The Sum-" who court. declared that
h. had received such warning until : O'Clock |
this morning when the restraining order was
served
when Judge Hand referred 70 Tho appearance of |
the summary in Tho World" and The sun" * |
actly as it was printed The Times Mr. Reck |
said It similar 10 train time table. and !
printed IN book form, IT a pretence and
fraud sanctioned by law 1T is of those sub !
terfuses which the law permits" he added, and !
admitted that the summary It doubtless ap- |
psared in The London Times had been cabled to |
the respondents in this city before its appearance
in The Tines here.
The Court is face to face with the fact that |
there has been violation IF the preliminary In |
Junction" declared Mr. Beck. Neither The /
World nor The sun attempted print Peary's |
story this morning and the burden OF proof rests |
with the complainant show that We intend to /
print the story in its original and literary forms
In case you grant this injunction the fact will be |
used by Mr.. Ochs to advertise The New York !
Times. "
DOESN'T COME WITH CLEAN HANDS
The only object of this proceeding is further
advertise the fact that The Times possesses ex-
elusive rights to Lieutenant Pearys narrative. In
case an injunction is granted The Times VIII cir
culate from one end of the country 70 the |
other and it does not seem proper 10 me that that
newspaper should be allowed to make use OF this /
court TO advertise Peary story Of his trip to the
north II you examine The New York Times OF /
September YOU will find in IT printed Dr.. Cooks |
story Of the trip the North Pole exactly as 1t /
appeared in the Paris edition of The Herald and /
IL is therefore position TO come into court and
say we violated the copyright law in the same
way"
Judge Hand said that if the respondents did not
desire to be permanently enjoined they could pre-