Scribner v. Straus, 210 U.S. 352 (1908)

210 U.S.
352
28 S.Ct. 735
52 L.Ed. 1094
CHARLES SCRIBNER and Arthur H. Scribner, Trading as

Charles Scribner's Sons, Appts.,
v.
ISIDOR STRAUS and Nathan Straus, Individually and as
Copartners, Trading under the Firm of R. H. Macy &
Company. NO 204. CHARLES SCRIBNER'S SONS,
INCORPORATED, Appt., v. ISIDOR STRAUS and Nathan
Straus, Individually and as Copartners, Trading under the
Name of R. H. Macy & Company. NO 205.
Nos. 204, 205.
Argued and Submitted April 16, 1908.
Decided June 1, 1908.
Mr. Stephen H. Olin and Messrs. Olin, Clark, & Phelps for appellants.
Messrs. John G. Carlisle and Edmond E. Wise for appellees.
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
Schribner's Sons 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. Straus, No. 176 (just decided),
210 U. S. 339, 52 L. ed. , 28 Sup. Ct. Rep. 722. So 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:
'3. 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 hereinafter provided.'
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: American Publishers' Association.
_____ ___, 190_.
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 28 per cent 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.

10
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.
11
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 Fed.
193) and the court of appeals (78 C. C. A. 122, 147 Fed. 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 case, 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 copyright statutes.
12
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.
13
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.
14
The decrees of the Circuit Court of Appeals in both cases are affirmed.

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210 U.S.

CHARLES SCRIBNER and Arthur H. Scribner, Trading as

In the case of a new publisher, notice was given by correspondence and by

___ _, 190_.

In consideration of discount allowed on books bought from _ _ we

before deliveries were made.

Upon the allegations of the bill as to alleged contributory infringement of the

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