Bobbs-Merrill Co. v. Straus, ante,
p. 210 U. S. 339
followed as to construction of 4952, Rev.Stat., and the extent of
the exclusive right to vend thereby granted to the owner of a
Where the jurisdiction of the circuit court is invoked for the
protection of rights under the copyright statute, that court cannot
consider questions of contract right not dependent on the statute
where diverse citizenship does not exist, or if it does exist,
where the statutory amount is not involved.
Both the courts below having found that there was no
satisfactory proof to support complainants' claim against
defendants for contributory infringement by inducing others to
violate contracts of conditional sale, this Court applies the usual
rule, and will not disturb such findings.
147 F. 28 affirmed.
The facts are stated in the opinion.
MR. JUSTICE DAY delivered the opinion of the Court.
These actions were submitted at the same time, and admittedly
involve the same questions of law. The suits were brought, the one
by a partnership, as Charles Scribner's Sons,
Page 210 U. S. 353
and the other by a corporation, Charles Scribner's Sons,
Incorporated, against R. H. Macy & Company, to restrain the
selling at retail of the complainants' books, copyrighted under the
laws of the United States at prices less than those fixed by
complainants, and from buying such copyrighted books except under
the rules and regulations of the American Publishers' Association.
The learned counsel for the appellants in this case, by consent,
filed a brief in the case of Bobbs-Merrill Co. v. Isidor Straus
and Nathan Straus, Partners as R. H. Macy & Co.,
just decided, ante,
p. 210 U. S. 339
far as the same questions are involved, the decision in No. 176 is
pertinent to this case, and these cases are controlled by the
rulings made in that case.
The defendants carried on a department store. Among other
things, they sold books at retail, some copyrighted and some not.
In the year 1901, the American Publishers' Association was formed
among certain publishers of copyrighted books, and in their
agreement is found the following:
"III. That the members of the association agree that such net
copyrighted books, and all others of their books, shall be sold by
them to those booksellers only who will maintain the retail price
of such net copyrighted books for one year, and to those
booksellers and jobbers only who will sell their books further to
no one known to them to cut such net prices, or whose name has been
given to them by the association as one who cuts such prices, or
who fails to abide by such fair and reasonable rules and
regulations as may be established by local associations, as
Scribner's Sons' catalogue, invoices, and bill of goods
contained the following notice:
"Copyrighted net books published after May 1, 1901, and
copyrighted fiction published after February 1, 1902, are sold on
condition that prices be maintained as provided by the regulations
of the American Publishers' Association."
In the case of a new publisher, notice was given by
correspondence and by sending a blank, as follows:
Page 210 U. S. 354
"American Publishers' Association"
"In consideration of discount allowed on books bought from _____
_____, we hereby agree that, for one year from date of publication,
we will not sell net books at less than the retail prices fixed by
the respective publishers, nor fiction published after February 1,
1902 at a greater discount than twenty-eight percent at retail, as
provided by the rules of the American Publishers' Association. We
further agree that we will not sell books published by members of
the American Publishers' Association to any dealer known to us to
cut prices of net books or of new except as above provided."
The new publisher was required to execute this pledge before
deliveries were made, although, if dealers refused to sign, the
trade was still allowed to sell to them and would sell to them. If
a new member made application for books, such application was
referred to the association, and the agreement executed before
deliveries were made.
Macy & Company refused to enter the association or to be
bound by its rules. They sold books at less than the prices fixed
by the association, and bought books from other dealers, including
publications of complainants, and sold them at less prices than
those fixed by the association. And they purchased from dealers who
knew that Macy & Company intended to sell at such prices.
Upon the theory that Macy & Company had notice of these
agreements, it was sought to hold them as copyright infringers.
Both the circuit court (139 F.193) and the court of appeals (147 F.
28) held that there was nothing in any of the notices of a claim of
right or reservation under the copyright law, and held that the
question was one of the right of the complainants to relief in a
court of equity by virtue of their rights, independent of statutory
copyright, in view of the alleged conditional sale embodied in the
notice as to the copyright book. The circuit court of appeals held,
rightfully, as we think, that this question was not open in the
Page 210 U. S. 355
as in the first case there was no diversity of citizenship, nor
in either case a claim of damages in the sum of $2,000, requisite
to confer jurisdiction of questions of rights independent of the
Upon the allegations of the bill as to alleged contributory
infringement of the copyright, that the defendant had induced and
persuaded sundry jobbers and dealers who had obtained copyrighted
books from the complainants to deliver the same to the defendant
for sale at retail at less than the prices fixed by the
complainants, and in violation of the agreement upon which the
books were obtained, both the circuit court and the circuit court
of appeals held that there was no satisfactory proof that the
defendant did thus induce any person to break his agreement with
the complainants. It is contended in the brief of the complainants
that these findings are opposed to the weight of the testimony, and
particularly violate the admissions of the answer; but we think,
taking the answer altogether, it did deny the allegations of the
complaint as to the conduct of the defendant in inducing dealers to
violate their agreements.
Upon the question of fact involved in this branch of the case,
both courts below found against the contention of the complainants
in this respect, and, applying the usual rule in such cases, we
find no occasion to disturb such findings.
The decrees of the circuit court of appeals in both cases