found by both courts to have been pursued by defendant systematically with respect to complainant's news, and against it the circuit court of appeals granted an injunction. This practice complainant denies having pursued, and the denial was sustained by the finding of the district court. It is not contended by defendant that the finding can be set aside, upon the proofs as they now stand. The other use is to take the news of a rival agency as a "tip" to be investigated, and if verified by independent investigation, the news thus gathered is sold. This practice complainant admits that it has pursued and still is willing that defendant shall employ. Both courts held that complainant could not be debarred on the ground of unclean hands upon the score of pirating defendant's news, because not shown to be guilty of sanctioning this practice. As to securing "tips" from a competing news agency, the district court (240 Fed. 991, 995), while not sanctioning the practice, found that both parties had adopted it in accordince with common business usage, in the belief that their conduct was technically lawful, and hence did not find in it any sufficient ground for attributing unclean hands to complainant. The circuit court of appeals (2 A.L.R. 317, 157 C. C. A. 436, 245 Fed. 247) found that the tip habit, though discouraged by conplainant, was "incurably journalistic," and that there was "no difficulty in discriminating between the utilization of tips and the bodily appropriation of another's labor in accumulating and stating information." goods as those of the complainant, char-, acteristic of the most familiar, if not the most typical, cases of unfair competition. Howe Scale Co. v. Wyckoff, Seamans & Benedict, 198 U. S. 118, 140, 49 L. ed. 972, 986, 25 Sup. Ct. Rep. 609. But we cannot concede that [242] the right to equitable relief is confined to that class of cases. In the present case the fraud upon complainant's rights is more direct and obvious. Regarding news matter as the mere material from which these two competing parties are endeavoring to make money, and treating it, therefore, as quasi property for the purposes of their business because they are both selling it as such, defendant's conduct differs from the ordinary case of unfair competition in trade principally in this: that, instead of selling its own goods as those of complainant, it substitutes misappropriation in the place of misrepresentation, and sells complainant's goods as its own. Besides the misappropriation, there are elements of imitation-of false pretense in defendant's practices. The device of rewriting complainant's news articles, frequently resorted to, carries its own comment. The habitual failure to give credit to complainant for that which is taken is significant. Indeed, the entire system of appropriating complainant's news and transmitting it as a commercial product to defendant's clients and patrons amounts to a false representation to them and to their newspaper readers that the news transmitted is the result of defendant's own investigation in the field. But these elements, although accentuating the wrong, are not the essence of it. We are inclined to think a distinction It is something more than the advantage may be drawn between the utilization of of celebrity of which complainant is be- tips and the bodily appropriation of news ing deprived. matter, either in its original form or The doctrine of unclean hands is in-after [244] rewriting and without invoked as a bar to relief; it being insisted that defendant's practices against which complainant seeks an injunction are not different from the practice attributed to complainant, of utilizing defendant's news published by its subscribers. At this point it becomes necessary to consider a distinction that is drawn by complainant, and, as we understand it, was recognized by defendant also in the submission of proofs in the district court, between two kinds of use that may be made by one news agency of news taken from the [243] bulletins and newspapers of the other. The first is the bodily appropriation of a statement of fact or a news article, with or without rewriting, but without independent investigation or other expense. This form of pirating was dependent investigation and verification; whatever may appear at the final hearing, the proofs as they now stand recognize such a distinction; both parties avowedly recognize the practice of taking tips, and neither party alleges it to be unlawful or to amount to unfair competition in business. In a line of English cases a somewhat analogous practice has been held not to amount to an infringement of the copyright of a directory or other book containing compiled information. In Kelly v. Morris, L. R. 1 Eq. 697, 701, 702, 7 Eng. Rul. Cas. 102, Vice Chancellor Sir William Page Wood (afterwards Lord Hatherley), dealing with such a case, said that defendant was "not entitled to take one word of the information the circuit court of appeals. In brief, it restrains any taking or gainfully using of the complainant's news, either bodily or in substance, from bulletins issued by the complainant or any of its members, or from editions of their newspapers, "until its commercial value as news to the complainant and all of its members has passed away." The part complained of is the clause we have italicized; but if this be indefinite, it is no more so than the criticism. Perhaps it would be better that the terms of the injunction be made specific, and so framed as to confine the restraint to an extent consistent with the reasonable protection of complainant's newspapers, each in its own area and for a specified time after its [246] publication, against the competitive use of pirated news by defendant's customers. But the case presents practical difficulties; and we have not the materials, either in the way of a definite suggestion of amendment, or in the way of proofs, upon which to frame a specific injunction; hence, while not expressing approval of the form adopted by the district court, we decline to modify it at this preliminary stage of the case, and will leave that court to deal with the matter upon appropriate application made to it for the purpose. previously published without independ-, upon the going down of the mandate from ently working out the matter for himself, so as to arrive at the same result from the same common sources of information, and the only use that he can legitimately make of a previous publication is to verify his own calculations and results when obtained." This was followed by Vice Chancellor Giffard in Morris v. Ashbee, L. R. 7 Eq. 34, where he said: "In a case such as this no one has a right to take the results of the labor and expense incurred by another for the purposes of a rival publication, and thereby save himself the expense and labor of working out and arriving at these results by some independent road." A similar view was adopted by Lord Chancellor Hatherley and the former Vice Chancellor, then Giffard, L. J., in Pike v. Nicholas, L. R. 5 Ch. 251, 39 L. J. Ch. N. S. 435, 18 Week. Rep. 321, 7 Eng. Rul. Cas. 108, and shortly afterwards by the latter judge in Morris v. Wright, L. R. 5 Ch. 279, 287, where he said, commenting upon Pike v. Nicholas: "It was a perfectly legitimate course for the defendant to refer to the plaintiff's book, and if, taking that book as his guide, he went to the original authorities and compiled his book from them, he made no unfair or improper use of the plaintiff's book; and so here, if the fact be that Mr. Wright used the plaintiff's [245] book in order to guide himself to the persons on whom it would be worth his while to call, and for no other purpose, he made a perfectly legitimate use of the plaintiff's book." A like distinction was recognized by the circuit court of appeals for the second circuit in Edward Thompson Co. v. American Law Book Co. 62 L.R.A. 607, 59 C. C. A. 148, 122 Fed. 922, and in West Pub. Co. v. Edward Thompson Co. 100 C. C. A. 303, 176 Fed. 833, 838. In the case before us, in the present state of the pleadings and proofs, we need go no further than to hold, as we do, that the admitted pursuit by complainant of the practice of taking news items published by defendant's subscribers as tips to be investigated, and, if verified, the result of the investigation to be sold, the practice having been followed by defendant also, and by news agencies generally, is not shown to be such as to constitute an unconscientious or inequitable attitude towards its adversary so as to fix upon complainant the taint of unclean hands, and debar it on this ground from the relief to which it is otherwise entitled. There is some criticism of the injunction that was directed by the district court The decree of the Circuit Court of Appeals will be affirmed. Mr. Justice Clarke took no part in the consideration or decision of this case. Mr. Justice Holmes: When an uncopyrighted combination of words is published there is no general right to forbid other people repeating them, in other words, there is no property in the combination or in the thoughts or facts that the words express, Property, a creation of law, does not arise from value, although exchangeable, a matter of fact. Many exchangeable values may be destroyed intentionally without compensation. Property depends upon exclusion by law from interference, and a person is not excluded from using any combination of words merely because someone has used it before, even if it took labor and genius to make it. If a given person is to be prohibited from making the use of words that his neighbors are free to make, some other ground must be found. One such ground is vaguely, expressed in the phrase "unfair trade." This means that the words are repeated by a competitor in business in such a way as the decision of the court, the defendant should be enjoined from publishing news obtained from the Associat by the plaintiff unless it gives express credit to the Associated Press; the number of hours and the form of acknowledgment to be settled by the district court. Mr. Justice McKenna concurs in this opinion. to convey a misrepresentation that materially injures the person who first used them, by appropriating credit of some kind [247] which the first user has ed Press for hours after publication earned. The ordinary case is a representation by device, appearance, or other. indirection that the defendant's goods come from the plaintiff. But the only reason why it is actionable to make such a representation is that it tends to give the defendant an advantage in his competition with the plaintiff, and that it is thought undesirable that an advantage should be gained in that way. Apart from that, the defendant may use such unpatented devices and uncopyrighted combinations of words as he likes. The ordinary case, I say, is palming off the defendant's product as the plaintiff's; but the same evil may follow from the opposite falsehood,—from saying, whether in words or by implication, that the plaintiff's product is the defendant's; and that, it seems to me, is what has happened here. Mr. Justice Brandeis, dissenting: There are published in the United States about 2,500 daily papers.1 More than 800 of them are supplied with domestic and foreign news of general interest by the Associated Press,-a corporation without capital stock, which does not sell news or earn or seek to earn profits, but serves merely as an instrumentality by means of which these papers supply themselves at joint expense with such news. Papers not members of the AssoFresh news is got only by enterprise ciated Press depend for their news of and expense. To produce such news as general interest largely upon agencies it is produced by the defendant repre- organized for profit.2 Among these sents by implication that it has been ac- agencies [249] is the International quired by the defendant's enterprise and News Service, which supplies news to at its expense. When it comes from one about 400 subscribing papers. It has, of the great news collecting agencies like like the Associated Press, bureaus and the Associated Press, the source gener- correspondents in this and foreign counally is indicated, plainly importing that tries; and its annual expenditures in credit; and that such a representation gathering and distributing news is about is implied may be inferred with some $2,000,000. Ever since its organizaconfidence from the unwillingness of the tion in 1909, it has included among defendant to give the credit and tell the sources from which it gathers news, the truth. If the plaintiff produces the copies (purchased in the open market) news at the same time that the defendant of early editions of some papers pubdoes, the defendant's presentation im-lished by members of the Associated pliedly denies to the plaintiff the credit of collecting the facts and assumes that credit to the defendant. If the plaintiff is later in western cities, it naturally will be supposed to have obtained its information from the defendant. The falsehood is a little more subtle, the injury a little more indirect, than in ordinary cases of unfair trade, but I think that the principle that condemns the one condemns the other. It is a question of how strong an infusion of fraud is 2 The Associated Press, by Frank B. necessary to turn a flavor into a poison. Noyes, Sen. Doc. No. 27, 63d Congress, First The dose seems to be strong [248] Session. In a brief filed in this court by enough here to need a remedy from counsel for the Associated Press the numthe law. But as, in my view, the onlyber of its members is stated to be 1030. ground of complaint that can be recognized without legislation is the implied misstatement, it can be corrected by stating the truth; and a suitable acknowledgment of the source is all that the plaintiff can require. I think that, within the limits recognized by Press and the bulletins publicly post- Some members of the Associated Press are also subscribers to the International News Service. Strictly the member is not the publishing concern, but an individual who is the sole or part owner of a newspaper, or an executive officer of a company which owns one. By-laws, art. 2, § 1. such item was suggested by or taken from a paper or bulletin published by an Associated Press member. No question of statutory copyright is involved. The sole question for our consideration is this: Was the International News Service properly enjoined from using, or causing to be used gainfully, news of which it acquired knowledge by lawful means (namely, by reading publicly posted bulletins or papers purchased by it in the open market), merely because the news had been originally gathered by the Associated Press and continued to be of value to some of its members, or because it did not reveal the source from which it was acquired? The "ticker" cases, the cases concerning literary and artistic compositions, and eases of unfair competition, were relied upon in support of the injunction. But it is admitted that none of those cases affords a complete analogy with that before us. The question presented for decision is new; and it is important. which, in some degree, involve creation, invention, or discovery. But by no means all such are endowed with this attribute of property. The creations which are recognized as property by the common law are literary, dramatic, musical, and other artistic creations; and these have also protection under the copyright statutes. The inventions and discoveries upon which this attribute of property is conferred only by statute are the few comprised within the patent law. There are also many other cases in which courts interfere to prevent curtailment of plaintiff's enjoyment of incorporeal productions; and in which the [251] right to relief is often called a property right, but is such only in a special sense. In those cases, the plaintiff has no absolute right to the protection of his production; he has merely the qualified right to be protected as against the defendant's acts,, because of the special relation in which the latter stands or the wrongful method or means employed in acquiring the knowledge or the manner in which it is used. Protection of this character is afforded where the suit is based upon breach of contract or of trust, or upon unfair competition. The knowledge for which protection is sought in the case at bar is not of a kind upon which the law has heretofore conferred the attributes of property; nor is the manner of its acquisition or use nor the purpose to which it is applied, such as has heretofore been recognized as entitling a plaintiff to relief. News is a report of recent occurrences. The business of the news agency is to gather systematically knowledge [250] of such occurrences of interest and to distribute reports thereof. The Associated Press contended that knowledge so acquired is property, because it costs money and labor to produce and because it has value for which those who have it not are ready to pay; that it remains property and is entitled to protection as long as it has commercial value as news; and that to protect it effectively, the defendant must be enjoined from making, or caus- First: Plaintiff's principal reliance ing to be made, any gainful use of it was upon the "ticker" cases; but they while it retains such value. An essential do not support its contention. The leadelement of individual property is the ing cases on this subject rest the grant legal right to exclude others from enjoy- of relief, not upon the existence of a ing it. If the property is private, the general property right in news, but upon right of exclusion may be absolute; if the breach of a contract or trust concernthe property is affected with a public ing the use of news communicated; and interest, the right of exclusion is quali- that element is lacking here. In Board of fied. But the fact that a product of the Trade v. Christie Grain & Stock Co. 198 mind has cost its producer money and U. S. 236, 250, 49 L. ed. 1031, 1039, 25 labor, and has a value for which others Sup. Ct. Rep. 637, the court said the are willing to pay, is not sufficient to board "does not lose its rights by cominsure to it this legal attribute of prop- municating the result [the quotations] to erty. The general rule of law is, that persons, even if many, in confidential rethe noblest of human productions-lations to itself, under a contract not to knowledge, truths ascertained, concep- make it public, and strangers to the trust tions, and ideas—become, after voluntary will be restrained from getting at the communication to others, free as the air knowledge by inducing a breach of trust, to common use. Upon these incorporeal and using knowledge obtained by such a productions the attribute of property is breach." And it is also stated there continued after such communication only (page 251): "Time is of the essence in in certain classes of cases where public matters like this, and it fairly may be policy has seemed to demand it. These said that, if the contracts with the plainexceptions are confined to productions tiff are kept, the information will not become public property until the plaintiff has gained its reward." The only other case in this court which relates to this subject is Hunt v. New York Cotton Exch. 205 U. S. 322, 51 L. ed. 821, 27 Sup. Ct. Rep. 529. [252] While the opinion there refers the protection to a general property right in the quotations, the facts are substantially the same as those in the Christie Case, which is the chief authority on which the decision is based. Of the cases in the lower Federal courts and in the state courts it may be said, that most of them, too, can, on their facts, be reconciled with this principle, though much of the language of the courts cannot be. In spite of anything that may appear in these cases to the contrary, it seems that the true principle is stated in the Christie Case, that the collection of quotations "stands like a trade secret." And in Dr. Miles Medical Co. v. John D. Park & Sons Co. 220 U. S. 373, 402, 55 L. ed. 502, 516, 31 Sup. Ct. Rep. 376, this court says of a trade secret: "Anyone may use it who fairly, by analysis and experiment, discovers it. But the complainant is entitled to be protected against invasion of its right in the process by fraud or by breach of trust or contract." See John D. Park & Sons Co. v. Hartman, 12 L.R.A. (N.S.) 135, 82 C. C. A. 158, 153 Fed. 24, 29. The leading English case, Exchange Teleg. Co. v. Gregory & Co. [1896] 1 Q. B. 147, 65 L. J. Q. B. N. S. 262, 74 L. T. N. S. 83, 60 J. P. 52, is also rested clearly upon a breach of contract or 3 Board of Trade v. Tucker, 137 C. C. A. 255, 221 Fed. 305; Board of Trade v. Price, 130 C. C. A. 302, 213 Fed. 336; McDearmott Commission Co. v. Board of Trade, 7 L.R.A. (N.S.) 889, 77 C. C. A. 479, 146 Fed. 961, 8 Ann. Cas. 759; Board of Trade v. Cella Commission Co. 76 C. C. A. 28, 145 Fed. 28; National Teleg. News Co. v. Western U. Teleg. Co. 60 L.R.A. 805, 56 C. C. A. 198, 119 Fed. 294; Illinois Commission Co. v. Cleveland Teleg. Co. 56 C. C. A. 205, 119 Fed. 301; Board of Trade v. Hadden-Krull Co. 109 Fed. 705; Cleveland Tel. Co. v. Stone, 105 Fed. 794; Board of Trade v. C. B. Thomson Commission Co. 103 Fed. 902; Kiernan v. Manhattan Quotation Teleg. Co. 50 How. Pr. 194. The bill in F. W. Dodge Co. v. Construction Information Co. 183 Mass. 62, 60 L.R.A. 810, 97 Am. St. Rep. 412, 66 N. E. 204, was expressly based on breach of contract or of trust. It has been suggested that a board of trade has a right of property in its quotations because the acts reported originated in its exchange. The point has been mentioned several times in the cases, but no great importance seems to have been attached to it. trust, although there is some [253] reference to a general property right. The later English cases seem to have rightly understood the basis of the decision, and they have not sought to extend it further than was intended. Indeed, we find the positive suggestion in some cases that the only ground for relief is the manner in which knowledge of the report of the news was acquired.* If the news involved in the case at bar had been posted in violation of any agreement between the Associated Press and its members, questions similar to those in the "ticker" cases might have arisen. But the plaintiff does not contend that the posting was wrongful or that any papers were wrongfully issued by its subscribers. On the contrary, it is conceded that both the bulletins and the papers were issued in accordance with the regulations of the plaintiff. Under such circumstances, for a reader of the papers purchased in the open market, or a reader of the bulletins publicly posted, to procure and use gainfully, information therein contained, does not involve inducing anyone to commit a breach either of contract or of trust, or committing or in any way abetting a breach of confidence. Second: Plaintiff also relied upon the cases which hold that the common-law right of the producer to prohibit copying is not lost by the private circulation of a literary composition, the delivery of a lecture, the exhibition [254] of a painting, or the performance of a dramatic or musical composition. These cases rest upon the ground that the com 4 In Exchange Teleg. Co. v. Howard, 22 Times L. R. 375, 377, it is intimated that it would be perfectly permissible for the defendant to take the score from a newspaper supplied by the plaintiff and publish it. And it is suggested in Exchange Teleg. Co. v. Central News [1897] 2 Ch. 48, 54, 66 L. J. Ch. N. S. 672, 76 L. T. N. S. 591, 45 Week. Rep. 595, that there are sources from which the defendant might be able to get the information collected by the plaintiff and publish it without committing any wrong. Copinger, Copyright, 5th ed. p. 35, explains the Gregory Case on the basis of the breach of confidence involved. Richardson, Copyright, p. 39, also inclines to put the case "on the footing of implied confidence." 5 Ferris v. Frohman, 223 U. S. 424, 56 L. ed. 492, 32 Sup. Ct. Rep. 263; American Tobacco Co. v. Werckmeister, 207 U. S. 284, 299, 52 L. ed. 208, 217, 28 Sup. Ct. Rep. 72, 12 Ann. Cas. 595; Universal Film Mfg. Co. v. Copperman, 134 C. C. A. 305, 218 Fed. 577: Werckmeister V. American Lithographic Co. 68 L.R.A. 591, 69 C. C. A. 553, 134 Fed. 321; Drummond v. Altemus, 60 |