U.S. Supreme Court

Scribner v. Straus,210U.S. 352 (1908)Scribner v. Straus

No. 204, 205

Argued April 16, 1908

Decided June 1, 1908

210U.S. 352

APPEAL FROM THE CIRCUIT COURTOF

APPEALS FOR THE SECONDCIRCUIT

Syllabus

Bobbs-Merrill Co. v. Straus, ante, p.210 U. S. 339,followed as to construction of 4952, Rev.Stat., and the extent ofthe exclusive right to vend thereby granted to the owner of astatutory copyright.

Where the jurisdiction of the circuit court is invoked for theprotection of rights under the copyright statute, that court cannotconsider questions of contract right not dependent on the statutewhere diverse citizenship does not exist, or if it does exist,where the statutory amount is not involved.

Both the courts below having found that there was nosatisfactory proof to support complainants' claim againstdefendants for contributory infringement by inducing others toviolate contracts of conditional sale, this Court applies the usualrule, and will not disturb such findings.

147 F. 28 affirmed.

The facts are stated in the opinion.

MR. JUSTICE DAY delivered the opinion of the Court.

These actions were submitted at the same time, and admittedlyinvolve the same questions of law. The suits were brought, the oneby a partnership, as Charles Scribner's Sons,

Page 210 U. S. 353

and the other by a corporation, Charles Scribner's Sons,Incorporated, against R. H. Macy & Company, to restrain theselling at retail of the complainants' books, copyrighted under thelaws of the United States at prices less than those fixed bycomplainants, and from buying such copyrighted books except underthe rules and regulations of the American Publishers' Association.The learned counsel for the appellants in this case, by consent,filed a brief in the case ofBobbs-Merrill Co. v. Isidor Strausand Nathan Straus, Partners as R. H. Macy & Co., No 176,just decided,ante, p.210 U. S. 339. Sofar as the same questions are involved, the decision in No. 176 ispertinent to this case, and these cases are controlled by therulings made in that case.

The defendants carried on a department store. Among otherthings, they sold books at retail, some copyrighted and some not.In the year 1901, the American Publishers' Association was formedamong certain publishers of copyrighted books, and in theiragreement is found the following:

"III. That the members of the association agree that such netcopyrighted books, and all others of their books, shall be sold bythem to those booksellers only who will maintain the retail priceof such net copyrighted books for one year, and to thosebooksellers and jobbers only who will sell their books further tono one known to them to cut such net prices, or whose name has beengiven to them by the association as one who cuts such prices, orwho fails to abide by such fair and reasonable rules andregulations as may be established by local associations, ashereinafter provided."

Scribner's Sons' catalogue, invoices, and bill of goodscontained the following notice:

"Copyrighted net books published after May 1, 1901, andcopyrighted fiction published after February 1, 1902, are sold oncondition that prices be maintained as provided by the regulationsof the American Publishers' Association."

In the case of a new publisher, notice was given bycorrespondence and by sending a blank, as follows:

Page 210 U. S. 354

"American Publishers' Association"

"_____ 190_"

"In consideration of discount allowed on books bought from __________, we hereby agree that, for one year from date of publication,we will not sell net books at less than the retail prices fixed bythe respective publishers, nor fiction published after February 1,1902 at a greater discount than twenty-eight percent at retail, asprovided by the rules of the American Publishers' Association. Wefurther agree that we will not sell books published by members ofthe American Publishers' Association to any dealer known to us tocut prices of net books or of new except as above provided."

The new publisher was required to execute this pledge beforedeliveries were made, although, if dealers refused to sign, thetrade was still allowed to sell to them and would sell to them. Ifa new member made application for books, such application wasreferred to the association, and the agreement executed beforedeliveries were made.

Macy & Company refused to enter the association or to bebound by its rules. They sold books at less than the prices fixedby the association, and bought books from other dealers, includingpublications of complainants, and sold them at less prices thanthose fixed by the association. And they purchased from dealers whoknew that Macy & Company intended to sell at such prices.

Upon the theory that Macy & Company had notice of theseagreements, it was sought to hold them as copyright infringers.Both the circuit court (139 F.193) and the court of appeals (147 F.28) held that there was nothing in any of the notices of a claim ofright or reservation under the copyright law, and held that thequestion was one of the right of the complainants to relief in acourt of equity by virtue of their rights, independent of statutorycopyright, in view of the alleged conditional sale embodied in thenotice as to the copyright book. The circuit court of appeals held,rightfully, as we think, that this question was not open in thecase,

Page 210 U. S. 355

as in the first case there was no diversity of citizenship, norin either case a claim of damages in the sum of $2,000, requisiteto confer jurisdiction of questions of rights independent of thecopyright statutes.

Upon the allegations of the bill as to alleged contributoryinfringement of the copyright, that the defendant had induced andpersuaded sundry jobbers and dealers who had obtained copyrightedbooks from the complainants to deliver the same to the defendantfor sale at retail at less than the prices fixed by thecomplainants, and in violation of the agreement upon which thebooks were obtained, both the circuit court and the circuit courtof appeals held that there was no satisfactory proof that thedefendant did thus induce any person to break his agreement withthe complainants. It is contended in the brief of the complainantsthat these findings are opposed to the weight of the testimony, andparticularly violate the admissions of the answer; but we think,taking the answer altogether, it did deny the allegations of thecomplaint as to the conduct of the defendant in inducing dealers toviolate their agreements.

Upon the question of fact involved in this branch of the case,both courts below found against the contention of the complainantsin this respect, and, applying the usual rule in such cases, wefind no occasion to disturb such findings.

The decrees of the circuit court of appeals in both casesare

Affirmed.