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manner, is not a part of the realty: Towne v. Fiske, 127 Mass. 125, 34 Am. Rep. 353. But the contrary has been held as to steam radiators: Capehart v. Foster, 61 Minn. 132, 52 Am. St. Rep. 582, 63 N. W. 257. As to whether a baker's oven is a fixture, see Baker v. MoClurg, 198 Ill. 28, 92 Am. St. Rep. 261, 64 N. E. 701; Collamore y. Gillis, 149 Mass. 578, 14 Am. St. Rep. 460, 22 N. E. 46.
F. W. DODGE COMPANY v. CONSTRUCTION INFORMA.
[183 Mass. 62, 66 N. E. 204.) PROPERTY in Compiled Information and Reports.-One who collects information in regard to the contemplated erection of public and private buildings and the construction of sewers, waterworks, and other undertakings of public utility as soon after their contemplation as possible, and compiles and distributes such information daily to his customers under contracts with them, so that it is of commercial value by reason of the speedy use which can be made of it before the information contained therein has obtained general publicity, has a property interest in such information in which he is entitled to the protection of a court of equity. (p. 414.)
REPORTS AND INFORMATION-Publication of, What is not. The furnishing of reports and infor ion to customers und tract with them that they shall hold the information in strict confidence and for their purposes only, is not a publication thereof, so as to dedicate the reports or information to the public, and deprive their compiler and furnisher of his right of control. (p. 415.)
REPORTS AND INFORMATION--Enjoining the Surreptitious Obtaining and Using of.- Where information is obtained and compiled by the expenditure of labor and money, and, in the form of reports, is distributed to customers for a compensation, under a contract by which they agree not to divulge such reports or information, a third person may be enjoined from obtaining such reports or information from one of such customers, contrary to such stipulation, and using it for the purpose of conducting a rival business. (p. 415.)
Suit in equity to restrain the Construction and Information Company from obtaining from plaintiff's subscribers information procured and compiled by it and confidentially imparted to them under contracts binding them not to divulge it, and to restrain the other defendants from paying to the Construction company any sums of money for information thus wrongfully obtained. In the trial court the case was heard upon general and special demurrers of the Construction company, which were overruled, and the judge, being of the opinion that the decree overruling the general demurrer so affected the merits of the controversy that the matter ought to be determined by the supreme court, reported the case to it for further determination.
J. R. Dunbar and W. Odlin, for the plaintiff.
C. F. Choate, Jr., and E. C. Stone, for the first named de fendant
62 KNOWLTON, C. J. This case comes before us on demurrers to the plaintiff's bill. The plaintiff corporation has been engaged 63 for some years in the business of collecting information in regard to the erection of buildings both public and private, the construction of sewers, waterworks, and other undertakings of public utility, as soon after they are contemplated as possible. This information is carefully compiled and distributed each day to the plaintiff's customers in accordance with their contracts, enabling them very early to take such steps as may seem to them best to obtain contracts to do the work or to furnish supplies. The plaintiff, at great expense, has many servants and agents employed in the collection, preparation and distribution of this information, which it sells to its subscribers under a contract in writing whereby the subscriber binds himself to use the reports in strict confidence and for his business only. The formal contract with subscribers, annexed to the bill, which is in blank, with large spaces for writing in special arrangements, shows that the information may be printed, written or oral, and implies that the information furnished to the subscribers is such as pertains to their different kinds of business, so that different subscribers receive information in detail on different subjects, according to their interests. It also contains an agreement to be signed by each subscriber, to hold the information in strict confidence and for his business only.
The plaintiff avers that the defendant corporation is engaged in the same kind of business as the plaintiff, and that it has obtained unlawfully and dishonestly, from the plaintiff's subscribers, information furnished them by the plaintiff under these contracts, being aware of the terms of the contracts between the plaintiff and its subscribers, and that it is purchasing these reports from these subscribers for cash, and is furnishing them to its subscribers daily, and is informing the plaintiff's subscribers that by subscribing for the reports of the defendant they will obtain the advantages of the plaintiff's reports for a less price than the plaintiff charges for them. The plaintiff says that the defendant has thereby prevailed upon many of the plaintiff's subscribers to cease buying the plaintiff's reports, and has caused the plaintiff great loss and damage. The prayer of the bill is for an injunction and an account.
The important question in this case may be divided into two parts: 1. Has the plaintiff any property in the information after 84 it has been obtained at great expense and compiled for the use of its subscribers ? 2. Does it lose its property by publication, abandonment, or dedication to the public, when it furnishes the information to subscribers under these contracts ? The facts, before it has ascertained them, unless they are held for a special purpose, confidentially and as secrets, are not property; but when these facts have been discovered promptly by effort and at expense, and have been compiled and put in form, and are of commercial value by reason of the speedy use that can be made of them before they have obtained general publicity, they are property. They represent expensive effort and valuable service, and, in the form in which they are presented to subscribers, they may be used with a reasonable expectation of profit from the early possession of them. The information is not visible, tangible property, but there is a valuable right of property in it which the courts ought to protect, in every reasonable way, against those seeking to obtain it from the owner without right, to his damage. What the plaintiff has when the defendant seeks to obtain it from him is the possession of valuable information. This early possession is valuable in itself. The plaintiff has it and the defendant does not have it. If the defendant can obtain it legitimately he becomes the owner of the same kind of property, and the two may become competitors in the market as vendors to those who are willing to pay for it. But if the defendant, surreptitiously and against the plaintiff's will takes from the plaintiff and appropriates the form of expression which is the symbol of the plaintiff's possession, and thus, by direct attack, as it were, divides the plaintiff's possession and shares it, this conduct is a violation of the plaintiff's right of property. That there is a right of property of this kind has been decided in England in regard to information of stock quotations and other different kinds of news obtained to be furnished to those who will pay for it: Exchange Tel. Co. v. Gregory,  1 Q. B. 147; Exchange Tel. Co. v. Central News,  2 Ch. 48. This has also been held by different courts in this country: Kiernan v. Manhattan Quotation Tel. Co., 50 How. Pr. 194; Chicago Board of Trade v. Christie Grain etc. Co., 116 Fed. 944; National Tel. News Co. v. Western Union Tel. Co., 119 Fed. 65 294. We are of opinion that one's possession of information which he has obtained, compiled, and put in
form for a specific use, is a right which ought to be protected against those who would share it with him without his consent.
The next question is whether the giving of information by the plaintiff to its subscribers is a publication of it, such as dedicates it to the public and deprives the plaintiff of its right of control. It is well established that the private circulation of information or literary composition, in writing or in print, for a restricted purpose, is not a publication which gives the public a right to use it: Prince Albert v. Strange, 1 Macn. & G. 25; Jefferys v. Boosey, 4 H. L. Cas. 815, 867; Exchange Tel. Co. v. Gregory,  1 Q. B. 147; Exchange Tel. Co. v. Central News, (1897] 2 Ch. 48; Bartlette v. Crittenden, 4 McLean, 300, Fed. Cas. No. 1076. See, also, Tompkins v. Halleck, 133 Mass. 32, 43 Am. Rep. 480; The Mikado Case, 25 Fed. 183, 23 Blatchf. 347; Press Pub. Co. v. Monroe, 73 Fed. 196.
It has been held in Ladd y. Oxnard, 75 Fed. 703, 729, and in Jewelers' Mercantile Agency v. Jewelers' Weekly Pub. Co., 155 N. Y. 241, 63 Am. St. Rep. 666, 49 N. E. 872, that where a company published a reference book, or a book of mercantile agency credit ratings to an unlimited number of subscribers, under a stipulation that the book was furnished as a loan and not as a sale, and that it should not go into other hands, there was a publication. Each of these suits was brought under the l'nited States copyright act, for an infringement of the copy. right, and the decision was on the ground that by reason of publication the copyright was not perfected. In the latter case three of the judges did not agree that there was a publication. The thing sent out in these cases was a book designed to be preserved and used for a considerable time. It was in a convenient form for transfer from hand to hand, and for use from time to time by different persons. We do not think that these cases Very much resemble the case before us. The information given by the plaintiff in this case, as we infer, is of specific facts for particular persons or classes of persons, adapted to their interests, and furnished from time to time as the facts are ascertained. It seems very unlike the sale or loan of a large printed book, designed to be distributed among a large class of persons.
. We think the case falls within the principles 66 laid down in the cases first above cited. It makes no difference that the information in some of these cases was furnished by telegraph, and that in this it is furnished orally, or in writing or in print. We are of opinion that the averments of the bill do not show a pub. lication which deprives the plaintiff of its rights of property.
We have considered the case without reference to the ques. tion whether it would be possible to obtain a copyright upon the plaintiff's compilations, for we think its rights are the same, however this question might be decided. It would seem, however, to be impracticable to obtain copyrights in the course of the plaintiff's business, whether the material would be a subject for a copyright under the statute or not.
We do not deem it necessary to consider at length the objections raised by the special demurrer. Although the averments of the bill are not so full as might be desired, we are of opinion that they are sufficient.
An Author has, independently of any question of copyright, an exclusive property in his composition until, by publication, it becomes the property of the public: Tabor v. Hoffman, 118 N. Y. 30, 16 Am. St. Rep. 740, 23 N. E. 12; Palmer v. De Witt, 47 N. Y. 532, 7 Am. Rep. 480; note to Hoyt v, Mackenzie, 49 Am. Dec. 181. One writing & book may keep the manuscript without printing it, or may print it and determine that the public may not see it, or may give it private circulation for a restricted purpose without losing his commonlaw rights therein: Jewelers' Mercantile Agency v. Jewelers' Weekly Pub. Co., 155 N. Y. 241, 63 Am. St. Rep. 666, 49 N. E. 872.
FANEUIL HALL NATIONAL BANK . MELOON.
[183 Mass. 66, 66 N. E. 410.) NEGOTIABLE INSTRUMENTS
Release of Maker Without Affecting the Indorsers.-An agreement not to sue the maker of a negotiable instrument may reserve all rights against the indorsers. (p. 417.)
PARTNERSHIP_Release of the Firm Without Affecting the Liability of Its Members as Indorsers.—Where a negotiable note is executed by a partnership and indorsed by its members and others, an agreement not to sue the maker, but reserving all rights against the indorsers releases the firm as maker, but not the individual members as indorsers. (p. 417.)
S. R. Cutler and H. W. James, for the defendants.
66 MORTON, J. This is an action against the defendants as indorsers upon a promissory note to recover the balance due upon it. The case was heard upon agreed facts, and judgment was ordered for the plaintiff. The defendants appealed.