Mr Webster, in reply.
There was at one period no regular series of reports of the decisions of this court. Mr Cranch's reports had been published as far as the sixth volume; the rest of the matter, which afterwards formed the remaining volumes, was in manuscript. In this state of things, Mr Wheaton proposed a regular annual publication of the decisions, with good type, and to be neatly printed. It was found necessary that there should be some patronage from the legislature, there being so few persons who would purchase the reports. Mr Wheaton applied to congress, personally solicited its aid, and made a case which prevailed. Congress passed a temporary law, which was renewed again and again. The successor of Mr Wheaton has had the full benefit of the grant obtained by the personal exertions of Mr Wheaton.
If the work of the appellee be an interference with the rights of the appellants, it is not a heedless one; it may not be an intentional interference, but the acts which constitute it are intentional. The defendant was well advised of the injury which the appellants foresaw. This is fully proved by the evidence. The publication of the defendant has materially injured the appellants. Many volumes of Wheaton's Reports were on hand, unsold, at the time of the publication of the third volume of Condensed Reports.
The intention of the defendant was not to make an abridgement, but to make a substitute for the whole of the appellant's work. The reports of the appellant were the result of the joint action of congress and the reporter; they set the price. If congress had thought that the people should have them cheaper, they would have lowered the price. The defendant should not have run a risk in accommodating the public; they could judge for themselves.
The question before the court is one for the most enlarged and liberal consideration. Cases which are not in form, but are in substance an infringement of the author's rights, are to [p652] be viewed, as respects the author, liberally. This spirit pervades all the adjudged cases.
Has there been an indefensible use of the appellant's labours? In the Condensed Reports there is the same matter as in the reports of the appellant, under the same names. Is this an abridgement? An abridgement fairly done, is itself authorship, requires mind; and is not an infringement, no more than another work on the same subject. In the English courts there are frequently more reports than one of the same cases. These reports are distinct works. Abridgements are the efforts of different minds. The Condensed Reports have none of the features of an abridgement, and the work is made up of the same cases, and no more than is contained in Wheaton's Reports.
The attention of the court is called to certain facts. The laws of congress relating to the reporter's office do not bear on the question of copyright. There is no intimation in the statute of such an interference, or that the sum allowed the reporter is in lieu of copyright. The right in the reporter to fix the price of the volumes, recognizes a right to exclude others from publishing. He receives one thousand dollars, and gives eighty copies to the United States, of the value of four hundred dollars. Would he give up the copyright for this sum; this modicum? The law was intended to secure to him the rights he possessed, and to add to them also.
Before the statute of Anne, the copyright of authors was acknowledged. In 1769, it underwent investigation in the courts. The statute of Anne was passed 1711. Pennsylvania was settled in 1682. The common law was carried to Pennsylvania on its settlement; and the statute of Anne did not change or affect it. The copyright of an author existed in the colonies, and exists in the United States; and particularly in Pennsylvania.
It has been said by the counsel for the defendants, that there is no legislation in the state of Pennsylvania, or judgment of her courts recognizing the common law right. Before the revolution there were few books made; and there are no reports of the decisions of the courts anterior to that event. The common law is a fountain of remedy, perennial and perpetual. By [p653] its principles protecting rights when they are infringed, and its principles existing, although not called into action.
The import of the act of congress of 1790 is, that before its enactment, there were legal rights of authorship existing; it provides for existing property, not for property created by the statute. There is nothing for its provisions to stand upon, but the common law. That law is not one of grant or bounty; it recognizes existing rights, which it secures. The aim of the statute was to benefit authors, and thereby the public.
The right of an author to the production of his mind is acknowledged every where. It is a prevailing feeling, and none can doubt that a man's book is his book-is his property. It may be true that it is property which requires extraordinary legislative protection, and also limitation. Be it so.
But the appellants are entitled to protection under the statute. It is a clear case. All the statutes should be taken together. The decision of Judge Washington in Ewer v. Coxe, was not appealed from; and the question is for the first time before this court.
Is the deposite of the copy in the office of the secretary of state a condition precedent or subsequent? There is no question but that it is the latter. There is no need of the deposite being made until six months after publication. From and after the recording of the title, the right is secured, and the author may immediately bring his action for an infringement. Does this case stand differently from what it would if the action had been brought within six months after recording the title page? Ewer v. Coxe, says the book must be deposited, before the right arises; the statute says differently.
By the act of 1790 there were certain requisites, not prerequisites, enjoined on an author. Does the law of 1802 make the requisites of the act of 1790 pre-requisites? There are conclusive reasons against this. It was the intention of the law to add to, but not to charge the character of the law of 1790. If this was otherwise, there was a direct repeal of the second section of that law, by which an action is given upon filing the title page in the clerk's office.
The act of 1802 is in addition to the first act, but not a repeal of it. This is the hinge of this case. The construction [p654] contended for will repeal the second section of the act of 1790, and will create a forfeiture.
What reason is there to doubt that the copies were deposited as required by the law? It is the ordinary course of trade to deliver them. Is it an unfair construction to suppose that the one copy required by the laws to be delivered, is included in the eighty copies delivered as reporter? Is there not a special provision in the case of the reporter, that he shall deliver eighty copies, while others deliver one copy. The same term of six months is required for the delivery in both.