The Birmingham age-herald., 1918-12-24

1 stead of considering the rights of complainant and defendant, competi-
 tors in business, as between themselves.
 The right of the purchaser of a singl , | lcontents gratuitously, for any legiti-
 mate purpose not unreasonably inter-
 fering with compliments right to
 make merchandise of it, may be ad-
 mitted; but to transmit that news for
 commercial use, in competition with complainant-which is what defendant
 has done and seeks to justify-is-n very
 different matter. In doing this, defend
 ait, by it's very act, admits that it is
 taking material that has been acquired 1 by complainant as the result of or ganiza ton and the expenditure Of la Dor, skill and money, and which is salable by complainant for money, and that defendant in appropriating it aud selling it as it's own is endeavoring to reap where it has not sown, and by disposing of it to newspapers that
 are competitors fcomplainant's mem bers is appropriating to itself the harv- est of those who SOW.
 UNFAIR COMPETITION Stripped of all disguises, the process amounts to an unauthorized interfer- ence with the normal operation of com plainants legitimate business precise ly at the point where the profit IS to be reaped in order to devert a material portion of the profit from those who l have earned it to those who have not; with special advantage to defendant in the competition because of the fact that II is not burdened with any part of the expense of gathering the news. The transaction speaks for itself and a court ot equity ought not to hesitaNe | long in characterizing it as unfair comp petition in business.
 'The underlying principle is much the same as that which lies at the basis of the equitable theory of consideration in law of trusts-that he who has far ly paid the price should have the bene- f1cial use of the property. Pom Eq. Jur. Sec 981. It is no answer to say that complainant spends it's money for that which is too fugitive or evanescent to be the subject of property. That might, and for the purpose of the dis cussion we are assuming that it would, furnish an answer in common law controversy. But in a court of equity, where the question is one of unfair competition, if that which complainant has acquired fairly at substantial cost may be sold fairly at substantial profit a competitor who is misappropriating lit for the purpose of disposing of it to his own profit and to the disad- vantage of complainant cannot be heard to say that it is too fugitive or evanescent to be regarded as property It has all the attributes of property necessary for determining that a mis- appropriation of it by a competitor is funfair competition because contrary to good conscience.
 "The contention that the news Is aban- doned to the public for all purposes when published in the first newspaper is un-
 tenable. Abandonment is a question of
 intent, and the entire organization of
 the Associated Press negatives such
 purpose The cost of the service would be prohibitiye if the reward were to be
 so limited.
 No single newspaper, no small group
 of newspapers, could sustain the expen-
 diture Indeed, it is one of the most
 obvious results of defendants theory
 that, by permitting indiscriminate pub
 lication by anybody and everybody for
 purposes of profit in competition with
 the news gatherer, it would render pub
 lication protitless, or so little profitable
 rendering the cost prohibitive In com
 parison with the return. The practical
 needs and requirements of the business
 are reflected in complainant's bylaws which have been referred to- Their effect
 is that publication by each member must
 be deemed not by any means an aban.
 donment of the news to the world foi
 any and all purposes, but a publication
 for limited purposes; for the benefit oi
 the readers of the bulletin or the news.
 paper as such; not for the purpose of
 making merchandise of it as news, with
 the result of deprivkg complainant's
 other members of their reasonable op- portunity to obtain just returns for their | eSry