February, 1903, when he left it. The defendant also gives two other addresses, which the copyrighted book has not.

"Starbard, Nathaniel W.'

The name so appears in the Gen. of both books. The correct spelling is 'Starbird.'

""Willson, Alexander E. Both books (Gen.) give his business address as '28 School St. Room 56.' The correct room number is '59.' The defendant gives the middle initial 'W,' in place of 'E.'

"I find also that the following names, also incorporated in the defendant's book by means of original canvassers' slips, are names of persons who had died since the insertion of their names in the copyrighted book, but before the defendant's canvass, viz.: Gensler, William, died July 8, 1903; Leonard, Frank A., died June 22, 1903; Morrison, George G., died July 3, 1903; Ramsay, William H., died May 28, 1903; Scully, Charles H., died June 13, 1903; Sproul, Charles W., died June 17, 1903; Wood, James F., died June 28, 1903. One of the defendant's canvassers testified to having personally canvassed the apartment hotel where Frank A. Leonard last resided, according to the copyrighted book, but not to the specific information he obtained (if any) regarding this name. He did testify that, such information as he got, he got there. Testimony was introduced by the complainant tending to show that Leonard's widow moved away from the hotel before the date of this canvasser's alleged visit. In the other instances the presumption arising is rebutted only by the general testimony of the defendant's employés that they obeyed the instructions given them to make no use of the copyrighted book in their canvass. I find, however, that in the case of William Gensler a sign was found by one of the defendant's canvassers, on March 17, 1904, at the said Gensler's former place of business, reading, 'William Gensler, Hairdresser.' In the case of the name of William H. Ramsay, barber, his name was found upon a doorplate at his address on the same date, but all that was on the door plate was 'W. H. Ramsay.'

"What is said above applies to the name 'Alario Joseph,' which appears in both business directories-under 'Hairdressers' in the copyrighted book, under 'Barbers' in the defendant's. He left the address given July 4, 1903. “(13) I find, upon the indications afforded by the instances cited in the preceding paragraph, that there has been some copying of names or information contained in the copyrighted book, independently of questions drawn from it or the settlement of such questions. I am unable to find, upon any evidence before me, whether, in the instances above given, the original canvassers, or the persons who transferred their slips to the copy for the printers, or who else, were responsible in these cases. Otherwise than as appears in the instances referred to, I find no evidence of copying independently of drawing questions as explained above (paragraph 6).

"(14) I also find some reason to believe from the indications afforded by the defendant's 'checkbooks' (paragraph 6) that its original canvass was not as full and complete as might have been expected. The total number of copyrighted names checked as not obtained by canvassers has not been counted by either side, and is only to be ascertained by estimate. The president of the defendant company estimated it at one-quarter. Neither has the number of copyrighted names blue-dotted been counted, and this also can only be estimated. The same witness estimated it at one-quarter of the names not obtained by canvassers, which would be 6.25 per cent. of the whole. Mr. Hyde estimated it for the general directory at 22 per page, which would be, in all, 41,162 for the whole number. The estimate on behalf of complainant is 27.2 per page, or 50,891 for the whole. If either of the two latter estimates, which seem to be more likely to approximate the truth than the former, be accepted, the number of copyrighted names not returned by the defendant's original canvassers, which must have been considerably larger still, is not easily accounted for consistently with the theory of a thorough original canvass by the defendant. Other facts leading to the same result are that a large number of prominent and well-known names in the copyrighted general directory and a large proportion of such headings in the copyrighted business directory, as 'Masters in Chancery,' 'Hospitals and Dispensaries,' 'Piano Tuners,' 'Clubs,' 'Artists,' are shown by the checkbooks not to have been obtained by the original canvass. The total number of names in the defend

ant's general directory being 318,000, as above found (paragraph 4), if Mr. Hyde's estimate of the number of names blue-dotted be deducted, there will be left 276,838, as the number of those obtained by the defendant independently of the use of questions drawn. If the complainant's estimate of the bluedotted names be deducted, the remainder will be 267,109.

"(15) Not counting the three fictitious names (paragraph 8), there have been indicated above 53 instances which are found to show copying from the copyrighted book. For the purposes of the hearing before me, about 600 cases of error, omission, or discrepancy in the copyrighted book, being about onefifth of one per cent. of all the defendant's names, were compared on behalf of the complainant with the defendant's book. About 8.8 per cent., therefore, of the entire number compared, are found to be reproduced by the defendant. Thirty-nine of the instances referred to are cases where questions were drawn upon blue-dotted names, or 6.6 per cent. of the whole number examined. If the blue-dotted names be taken as numbering 25 per page, which is 16% per cent. of all the copyrighted names, and if all the questions drawn on blue-dotted names be assumed to show copying in the same proportion as the number examined, the percentage of all the copyrighted names improperly reproduced by blue-dotting would be 1.10 per cent. As above found, however, the process of blue-dotting and drawing questions was not the method of reproducing the copyrighted matter in all the cases where it has been reproduced. In 14 instances (paragraph 12) it must be ascribed to some other part of the work of preparation. The defendant requests the finding that in the case of all the 600 names examined, but not put in evidence by the complainant, errors in the copyrighted book were found not to have been reproduced, or else to have been corrected by the defendant. I find that the defendant corrected the complainant's errors in some of these cases, but I do not think that any further finding regarding such names is warranted by the evidence.

"(16) The complainant has remaining on hand 195 copies of its copyrighted book. The price at which they are regularly sold is $6. It may reasonably expect to sell 75 more copies; one reason why the number is not greater being that it expects, in regular course, to publish a 1904 directory in July. If, therefore, the only damage to the complainant by publication of the defendant's book is the loss of sale of copies of its copyrighted book, such damage will not exceed $450. The damages to the complainant's business, however, which will result from the publication of a rival directory such as the defendant's book, will be much greater, and will be of such a nature that they cannot be estimated at law, and will be in that sense irreparable.

"(17) The defendant has expended, in compiling, printing, and binding its proposed directory, between $35,000 and $40,000. The issue of the injunction prayed for by the complainant will probably result in the total loss of this investment. The advertisements inserted in the book have been inserted under a contract providing for payment when the book is published, and the total amount so paid for advertising is a good many thousand dollars. The book, if published, will be of substantial value.

"(18) The galley proof slip annexed to the third affidavit of Charles D. Marcy, filed in court February 29, 1904, is found not to be a part of the defendant's book as printed. I find, that pages 1617 and 1618, being the pages of the defendant's book whereon the matter appearing on said galley proof slip would have appeared in the book, were, as those pages appeared in the printed proof sheets before me, printed on different type from the remaining proof sheets, and inserted by pasting, in the place of other pages removed, among the proof sheets submitted. I find, however, upon the evidence of the printer who set it up, called as a witness by the complainant, that he was directed by defendant to print no further from the galley proof slip at some time prior to the filing of the bill of complaint. Pages 1617 and 1618, as they appear finally in the defendant's book, omit two of the names referred to in Marcy's affidavit No. 3, and correct the errors pointed out by said affidavit in the four remaining instances.

"(19) Except as set forth in this report, I find no reason to question the good faith or honest intention of any person concerned in the enterprise of preparing the defendant's book.

129 F.-49

"My conclusions of law are as follows:

"(1) The question referred to above in par. 7, viz., 'Is it lawful, in the preparation of a directory, to copy, verify, check, and correct copyrighted information, with intent to reproduce it, save as corrected, in a competing book?' is one which does not appear to be settled by any express and controlling decision. The English cases (Kelly v. Morris, L. R. 1 Eq. 697: Morris v. Ashbee, L. R. 7 Eq. 34; Morris v. Wright, L. R. 5 Ch. 279: Moffatt v. Gill. 86 Law Times R. 465) and the following in the United States (Banks v. McDivitt, 13 Blatchf. 163, Fed. Cas. No. 961; List v. Keller [C. C.] 30 Fed. 772; E. Thompson Co. v. American, etc., Co., 122 Fed. 924, 59 C. C. A. 148, 62 L. R. A. 607; Colliery Co. v. Ewald [C. C.] 126 Fed. 843) seem to be those most closely relating to the point to be decided. It does not appear, therefore, to be a clearly settled question of law. My own opinion (of course, submitted with diffidence, under the circumstances) is that the question should be answered in the negative. My conclusion of law, therefore, is that none of the information incorporated in the defendant's book by means of questions drawn as above, whether settled or not, can be published without violating the complainant's copyright.

"(2) The infringement found is clear in law and substantial in amount, whatever be the decision of the question referred to above under 1.

"The validity of the complainant's copyright and its infringement as above by the defendant's proposed book being established, the complainant is entitled, upon general principles, to have the publication of the book enjoined pending further proceedings, at least as to so much of the work as is a plain infringement, and such injunction is granted in the ordinary course. It is, however, granted or refused in every case according to the discretion of the court. The facts which may be supposed to guide the court in exercising such discretion have been found above."

Alexander P. Browne, for complainant.

Gaston, Snow & Saltonstall and Thomas Hunt, for defendant.

HALE, District Judge (after stating the facts). In this case, after a full hearing of the parties and their witnesses, the master has made an ample, detailed, and complete report, embodying a careful analysis of the testimony. We have copied this report in full, as it, with the bill in equity, constitutes the record; and so we need not recite its details.

The master has found that the damage to the complainant, by publication of the defendant's book, will be, in the loss of the sale of its copyrighted book, a sum not exceeding $450. He finds further that the damages to the complainant's business which will result from the publication of a rival directory, such as the defendant's book, will be much greater, and will be of such a nature that they cannot be estimated at law, and will be in that sense irreparable. He further finds that the defendant has expended in compiling, printing, and binding its proposed directory between $35,000 and $40,000; that the issue of the injunction prayed for by the complainant will probably result in the total loss of this investment; that the advertisements inserted in the book have been inserted under a contract providing for payment when the book is published, and the total amount so paid for advertising is many thousand dollars; that the book, if published, will be of substantial value. He states the leading question of law which arises in the case, namely: Is it lawful, in the preparation of a directory, to copy, verify, check, and correct copyrighted information, with intent to reproduce it, save as corrected, in a competing book? And he says that this question is one which does not appear to be settled by any express and controlling decision. He then refers to the leading English and

American cases, and concludes that, in his opinion, none of the information incorporated in the defendant's book by means of "drawing questions," whether settled or not, can be published without violating the complainant's copyright. He further finds that there has been an infringement, whatever may be the decision on the above question.

Since the presentation of this report, our attention is called to Dun v. International Mercantile Agency (C. C.) 127 Fed. 173, a case just decided, in which Judge Lacombe says:

"It is not disputed that defendant made use of complainant's book in preparing its own publications. Thanks to such use, it discovered the names of individuals, firms, and corporations engaged in business, and therefore desirable for inclusion in its book, which names had apparently not been discovered by the investigations of defendant's own canvassers, nor found in some other publication. The names thus obtained from complainant's book aggregated certainly hundreds, possibly thousands. Was this an unfair use of the complainant's book? Had this question been presented to this court a year ago, the answer might not improbably have been in the affirmative. Such use of another's compilation was approved in Moffatt v. Gill, 86 Law Times Rep. 405, but that decision was not controlling here, and for reasons assigned in Colliery Engineering Co. v. Ewald (C. C., Oct. 9, 1903) 126 Fed. 843, it was thought that its conclusions were harsh and inequitable. Nevertheless, propositions which work hardship to the individual are sometimes sustained on grounds of public policy, and the opinion of the Court of Appeals of this Circuit in Thompson Co. v. American Lawbook Co. (July, 1903) 122 Fed. 922 [59 C. C. A. 148, 62 L. R. A. 607], expressly approves the doctrine of Moffatt v. Gill. In view of that decision, which is, of course, controlling here, injunction cannot be granted upon the undisputed facts."

It will be seen that this case, which is the latest American authority, approves and confirms the doctrine of Moffatt v. Gill, in which the court said:

"You cannot, where another man has compiled a directory, simply take his sheets, and reprint them as your own; but you are entitled, taking the sheets with you, to go and see whether the existing facts concur with the description in the sheets, and, if you do that, you may publish the result as your own."

See, also, Pike v. Nicholas, L. R. 5 Ch. 251, and other cases cited. and commented on in Coppinger on Copyrights (3d Ed.) p. 201.

It seems to us that there is strong reason for holding that the publisher of a new directory has a right to take an old directory, and be guided by it to original sources of information, and that if, so guided, he goes to those sources of information and obtains facts, he may publish those facts, even though they consist of names and addresses which are identical with those published by the old directory. But upon this motion for a temporary injunction it is not necessary, nor fitting, for the court to pass upon this question. The master has wisely reported that it is not conclusively settled. We have pointed out also that he has found that there has been infringement, and that the damage to the complainant from the publication of the defendant's work may be, in a sense, irreparable. But these findings, if sustained by the court, do not necessarily lead us to the conclusion that an unlimited interlocutory injunction should be granted. We have pointed out also the finding with reference to the effect upon the defendant if the injunction is granted. as prayed for.

It is the business of a court of equity to inquire not only whether serious and irreparable damage is to be done to the complainant if the tem

porary injunction is refused, but also to inquire whether or not the injury done to the defendant by the granting of an injunction will be disproportionate to the benefit derived by the complainant. In Hanson v. Jaccard Jewelry Co. (C. C.) 32 Fed. 202, the court said:

"On an application for an injunction pending suit, it is proper for the court to consider the harm that would be done to the complainant by refusing such an order, in comparison with the damage that might be sustained by the defendant in consequence of granting the same."

In Trow Directory, etc., Co. v. Boyd (C. C.) 97 Fed. 586, Judge Lacombe said:

"Nevertheless an injunction to the full extent prayed for by the complainant would, if issued now, be practically a judgment in advance of trial, which would work irreparable injury to the defendant, while it seems as if the complainant might be sufficiently protected by a bond and an account of sales."

In West Publishing Co. v. Lawyers' Co-op. Pub. Co. (C. C.) 53 Fed. 265, Judge Coxe said:

"It is the duty of the court in all these cases to take into consideration the situation of both parties, and not to issue the writ except in the plainest cases, where the result will be irreparable injury to defendant, without corresponding advantage to plaintiff."

In Sargent v. Seagrave, 2 Curt. 553, Fed. Cas. No. 12,365, Judge Curtis said:

"The court looks to the particular circumstances to see what degree of inconvenience would be occasioned to one party or the other by granting or withholding the injunction.”

In Spottswoode v. Clarke, 2 Phil. Ch. 157, the chancellor said: "Here is a publication which, if not issued this month, will lose a great part of its sale for the ensuing year. If you restrain the party from selling immediately, you probably make it impossible for him to sell at all. You take property out of his pocket and give it to nobody. In such a case, if the plaintiff is right, the court has some means, at least, of indemnifying him by making defendant keep an account, whereas, if the defendant be right, and he is restrained, it is utterly impossible to give him compensation for the loss he will have sustained. And the effect of the order in that event will be to commit a great and irremediable injury."

Dron on Copyright, p. 516, says:

"The question of granting a preliminary injunction is affected by many considerations. It depends chiefly on the extent of the doubt as to the validity of the copyright, and whether it has been infringed, the damage which will be sustained by the plaintiff if the injunction is withheld, and the injury that will be done to the defendant if it is granted. The court will exercise its discretion in following that course which appears most conducive to justice to both parties."

See, also, Coppinger on Copyright (3d Ed.) p. 269.

In Ladd v. Oxnard (C. C.) 75 Fed. 703, Judge Putnam, in this circuit, has fully considered the subject which is now before us. At page 732 he considers the question of what loss is "irreparable," within the meaning of the law. He cities Parker v. Woolen Co., 2 Black, 545, 17 L. Ed. 333, where the word "irreparable" is held to cover cases "where the loss of health, the loss of trade, the destruction of the means of subsistence, or the ruin of the property must ensue." In the case last cited,