Page:Public Ledger v. New York Times (275 F. 562).pdf/4

Rh weekly edition of the paper circulates in this country, and if it meant to subject that circulation to the plaintiff’s pleasure, I think there ought to be some express indication of such a purpose. The plaintiff’s right to sell the “news” elsewhere is not enough.

Moreover, if the contract was an assignment it was unnecessary for the Times to agree not to give the same rights to others. I know that the plaintiff argues that it is from this feature along with the other features of the contract that the assignment is to be inferred, but I answer that if people mean to make an assignment, they do not usually go about it in that way. What they appear to have been doing here is only to give the plaintiff the first look at the Times’ “proofs,” and not to give it to any one else. That is an understandable agreement without ambiguity, but it stops there. The plaintiff must go further and read into it a purpose undisclosed and even disguised, which the parties had no possible reason for leaving to conjecture, if they had really had it.

Finally, something is made of the phrase by which the Times agrees to do everything else necessary to protect the plaintiff. What, it is asked, can be the purpose of this if only a license was intended? It might retort, What was its purpose if an assignment was intended? So far as appears, the plaintiff was in either case protected by what it got in the contract. If it became a “proprietor,” the Times could do nothing to help it get its copyright. Such clauses are common enough, and mean nothing more than a vague obligation to do whatever else may come up that will secure to the other party the fruits of its bargain. In the case at bar perhaps the clause would cover such steps as the Times could consistently take to prevent the defendant and other American papers from getting early copies of its own issues, or by way of giving the plaintiff assistance in the despatch of mail or the use of the cables. Out of such general provisions nothing definite can be raised. It would indeed be a perverse interpretation which read into it any intention to include an assignment which could have been so easily expressed otherwise. I conclude, therefore, that the plaintiff was not the “proprietor” of the letter, and that the first cause of action must fail.

[3] The second is thought to involve a question of the extent of the doctrine of International News Service v. Associated Press, 248 U. S. 215, 39 Sup. Ct. 68, 63 L. Ed. 318, but I think it does not. The bill alleges that the defendant published the letter with a statement that it had been cabled to it with the permission of the Times, and that this was false. It further alleges that the defendant well knew of the plaintiff’s contract, and had often come into conflict with the plaintiff about their relative rights, because of it. If proved, the false statement would be a clear case of unfair competition. In saying that it had the permission of the Times, the defendant informed its readers that at least in this instance the plaintiff was not the sole purveyor of the Times’ news. As the plaintiff’s right to resell the news was dependent in large measure upon the exclusiveness of its relations with the Times, this might, and probably would, be highly injurious to its