Straus v. American Publishers' Ass'n

affirmed. In discussing the' question presented, however, the court expressed the opinion ¡that the effect of the copyright statute of the United States was to give to the owner of the copyright such a monopoly in the sale of copyrighted books that he cotild make any agreement restricting the sale of the books by others to whom the owner of the copyright had sold them without being subjected to the.regulations of the various States in relation thereto, Chief Judge - Parker saying : “ A combination creating a monopoly of the sale of books not protected by copyright offends against the law of- .this State as much as if it related to bluestone [Cummings v. Union Blue Stone Co., 164 N. Y. 401 ] or to envelopes [Cohen v. Berlin & Jones Envelope Co., 166 N. Y. 292 ], and according to this complaint, which must be-accepted as true on this review, such an outcome is hot-only possible but probable. -But it is not of. moment whether sucha result, is probable or not, for the test to be applied is, what may be done under the agreement?” In relation to copyright booksj however,. the court applied what it understood to be the rule of the Supreme Court of the United States^[1] as applied to patented articles, saying : “ ‘The very object of these laws is monopoly, and the rule is, with few exceptions, that any conditions which are not in their very nature illegal with regard to this kind of property imposed by the patentee and agreed to by the licensee for the right to manufacture or use or sell the article, will be upheld by the courts. The fact that the conditions in the contracts keep up the monopoly or fix prices does not render them illegal.’ That reasoning is employed as to patent rights. It is equally applicable to copyrights, the protection of which was perhaps the leading object of the association and agreement attacked in this action.” In an action brought in the Circuit Court of the United States by the Bobbs-Merrill Company, who was a party to these agreements to enforce the right of the owner of a copyrighted book to impose a condition as to the price at which the book should be resold by the purchaser; the court, as I read its opinion, held that under the copyright statutes of the United States when once the owner of the copyright had “vended” the books the owner of the copyright had no further control over them. In that'case the court said : “It is the contention Of the appellant that the Circuit Court erred in failing to give effect to the provision of section 4952^[2] protecting the owners of the copyright in the sole right of vending the copyrighted book or other article; and the argument is that the statute vested the whole field of the right of. exclusive sale in the copyright owner; that he can part with it to another to the extent that he sees fit, and may withhold to himself, by proper reservations, so much of the right as he pleases. * * * It is not denied that one who has sold a copyrighted article, without restriction, has parted with all right to control the sale of it. The purchaser, of a book, once sold by authority of the owner of the copyright, may sell it again, although he could not publish a new edition of it. * * * The-precise, question, therefore, in this case is, does the1 sole right to vend (named in section 4952) secure to the owner of the copyright the right, after.a sale of the book, to a purchaser, to restrict. future sales. of the' book ' at. retail, to the right to sell it at a certain price per copy,, because of a notice in the book that