Page:Harvard Law Review Volume 32.djvu/604

568 568 HARVARD LAW REVIEW matter of news has not the sole right of making it pubhc/^ unless, through contracts or other property rights, he can control the sources of informa- tion. Facts must be open to all who can fairly learn them, but equity will not permit them to be discovered by means of breaches of contract or of confidence.^^ Again, one who makes a site or a city an especially advantageous place for the production of a particular commodity, cannot, as Mr. Justice Brandeis points out, prevent others from engaging in the same business in the same locality and thus profiting by the industry of the pioneer.^^ The economic needs of society require that no such shackles be put upon the development of its resources. One may copy exactly the unpatented or uncopyrighted work of another.^^ Here again the gain to the public from competition under the existing economic order is paramount. In spite of certain language in some of the cases,^^ it is conceded that there is no absolute property in news. These cases, as Mr. Brandeis points out, involved breaches of contract or of confidence. The question seems to be. Is a few hours' delay in the transmission of news to certain quarters of such importance that to prevent such delay public policy requires that the law permit appropriation of news gathered by others? Per contra, it is doubtful whether the enormous expense and labor of gathering news from every part of the earth will be continued without legal protection to the product. The dissenting opinion points to the evils which might arise from a failure of certain communities or newspapers to receive the news gathered by a powerful organization and refers the problem to the legislature. If, however, there is deemed to be a serious public interest involved, we are still not obliged to allow appropriation; the courts can very well deal with the situation on principles of public utility law. Either the shutting off of the correspondents of competitors from the sources of news,^' or the great outlay required to maintain a news-gathering agency, may result in a virtual monopoly.*^ Illinois has so held.^^ The association 134 C. C. A. 305 (1914); Thomas v. Lennon, 14 Fed. 849 (1883); Caird v. Sime, 12 A. C. 326 (1887). ^ Sports and General Press Agency, Ltd. v. "Our Dogs" Publishing Co. Ltd., [1916] 2 K. B. 880, cited by Mr. Justice Brandeis. 1* Morison v. Moat, 9 Hare, 241 (1851); Board of Trade v. Christie Grain & Stock Co., 198 U. S. 236 (1905); F. W. Dodge Co. v. Construction Information Co., 183 Mass. 62, 66 N. E. 204 (1903). " Elgin National Watch Co. i>, Illinois Watch Co., 179 U. S. 665 (1901). But where a geographical name has acquired a special trade significance, passing off by means of the use of this name will not be permitted. Wolf Bros. & Co. v. Hamilton-Brown Shoe Co., 165 Fed. 413 (1908); French Republic v. Saratoga Vichy Co., 191 U. S. 427 (1903). 1* Saxlehner v. Wagner, 216 U. S. 375 (1910); Elaterite Paint & Mfg. Co. v. S. E. Frost Co., IDS Minn. 239, 117 N. W. 388 (1908); Gendell v. Orr, 13 Phila. (Pa.) 191 (1879). 18 See Western Union Telegraph Co. v. Foster, 224 Mass. 365, 369, 113 N. E. 192, 194 (1916); Cleveland Telegraph Co. v. Stone, 105 Fed. 794, 795 (1900). " For example, it seems in the principal case that the allied governments pro- hibited the correspondents of the International News Service from obtaining news in their respective countries and from using the cable and telegraph Unes therefrom. 1* See Wyman, Pxjblic Service Cokporations, §§ 120-56, especially §§ 138 and 156. " Inter-Ocean Publishing Co. v. Associated Press, 184 111. 438, 56 N. E. 822 (1900);