Smith Thompson

“ In the colony of New York, in the year 1786, a law "to promote literature" was passed, reciting, "whereas, it is agreeable to the principles of natural equity and justice, that every author should be secured in receiving the profits that may arise from the sale of his works; and such security may encourage persons of learning and genius to publish their writings, which may do honour to their country, and service to mankind;" and then making provision, for securing to authors the sole right of printing, publishing and selling their works for fourteen years. ”

“ For it is the constant practice, in chancery, to grant injunctions to restrain printers from publishing the works of others, which practice can only be sustained on the ground that the penalties given by the statute, are not the only remedy that can be resorted to. In Miller v. Taylor, Lord Mansfield says, the whole jurisdiction exercised by the court of chancery, since 1710, the date of the statute of Anne, against pirates of copies, is an authority that authors had a property antecedent, to which the act gives a temporary additional security. It can stand upon no other foundation. ”

“ That the right of publication must for ever depend on the claimant's property in the thing to be published. Whilst the subject of publication continues his own exclusive property, he will so long have the sole and perpetual right to publish it. But whenever that property ceases, or by any act or event becomes common, the right of publication will be equally common. ”

“ The copyright of authors has been solemnly adjudged in Great Britain, to be a right at common law. The right to useful inventions seems, with equal reason, to belong to the inventors. The public good fully coincides, in both cases, with the claims of individuals. ”

“ But how stands the case, with respect to the effect of publication by the author, according to Mr Justice Yeates's own rule. He says, "in all abandonments of such kind of property, two circumstances are necessary," an actual relinquishing the possession, and an intention to relinquish it. That the author's name being inserted in the title page is no reason against the abandonment; for many of our best and noblest authors have published their works from more generous views than pecuniary profit. Some have written for fame, and the benefit of mankind. ”

“ It seems to be supposed, that the right claimed is to the ideas contained in the book. The claim, says Mr Justice Yeates, is to the style and ideas of the author's composition; and it is a well established maxim, that [p673] nothing can be an object of property which has not a corporal substance. The property claimed is all ideal; a set of ideas which have no bounds or marks whatever—nothing that is capable of a visible possession—nothing that can sustain any one of the qualities or incidents of property. Their whole existence is in the mind alone. ”

“ In my judgment, every principle of justice, equity, morality, fitness and sound policy concurs, in protecting the literary labours of men, to the same extent that property acquired by manual labour is protected. The objections to the admission of the common law right of authors, are generally admitted to be summed up, in all their force and strength, by Mr Justice Yeates, in the case of Miller v. Taylor. These objections may be classed under two heads: the one founded upon the nature of the property or subject matter of the right claimed ”

“ The complainants, though citizens of New York, are entitled to the benefit of those laws for the protection of their property; and have a right to prosecute their suit in the courts of the United States.
If, by the common law of England, an author has the copyright in his literary compositions, it becomes necessary to inquire whether that law is in force in the state of Pennsylvania. ”

“ From the first principles of proprietorship in property, an author has an exclusive [p691] and perpetual right, in preference to any other, to the fruits of his labour. Though the nature of literary property is peculiar, it is not the less real and valuable. If labour and effort in producing what before was not possessed or known will give title, then the literary man has title, perfect and absolute, and should have his reward. ”

“ This article is to be construed distributively, and must have been so understood; for when congress came to execute this power by legislation, the subjects are kept distinct, and very different provisions are made respecting them. All the laws relative to inventions, purport to be acts to promote the progress of the useful arts. They do not use any language which implies or presupposes any existing prior right to be secured; but clearly imply that the whole exclusive right is created by the law, and ends with the expiration of the patent. ”

“ The force of such limitation upon the right, is not readily perceived. If the right exists, it is a common law right, growing out of the natural justice of the case; being the result of a man's own labour. He thinks the statute of Anne fixes a just limitation. ”

“ Nothing, says he, is more erroneous, than the practice of referring the origin of moral rights, and the system of natural equity, to the savage state, which is supposed to have preceded civilized establishments, in which literary composition, and, of consequence, the right to it, could have no existence. But the true mode of ascertaining a moral right, is to inquire whether it is such as the reason, the cultivated reason of mankind must necessarily assent to. ”

“ It is a forced and unreasonable interpretation, and in violation of all the well settled rules of construction, to consider it as restricting, limiting or abolishing any pre-existing right. Statutes are not presumed to make any alteration in the common law, further or otherwise, than the act expressly declares. ”

“ Judge Hopkinson, who tried the cause now before the court, thinks the act of 1790 will not admit of the construction given to it by Judge Washington; but that under that act the publication in a newspaper, and delivery of a copy of the work to the secretary of state, are prerequisites to the establishment of the right; and such I understand to be the opinion of a majority of this court, by which the construction of the act of 1790 by Judge Washington is overruled. I have already attempted to show that this construction of the act of 1790 cannot be sustained ”

“ I think I may assume as a proposition not to be questioned, that in England, prior to the statute of Anne, the right of an author to the benefit and profit of his work, is recognized by the common law. No case has been cited on the argument, and none has fallen under my observation, at all throwing in doubt this general proposition. Whenever the question has been there agitated, it has been in connection with the operation of the statute upon this right. The case of Miller v. Taylor, 4 Burr. ”

“ This is contained on the title page of the very book purchased, and cannot be presumed to escape the notice of the purchaser. It is there, in terms, announced, that the author claims the right of publication; and whoever purchases, therefore, does it with notice of such claim, and is bound to use it in subordination thereto. Mr Justice Yeates admits, that every man is entitled to the fruits of his own labour; but that he can be entitled to it only, subject to the general rights of mankind, and the general rules of property ”

“ Whereas, the improvement of knowledge, the progress of civilization, the public weal of the community, and the advancement of human happiness greatly depend on the efforts of learned and ingenious persons, in the various arts and sciences ”

“ With respect to English statutes which have been considered in force in Pennsylvania, we have the most satisfactory evidence in the report of the judges of the supreme court of that state, made under an act of the legislature passed April 7th, 1807, 3 Binn. ”