"As long as the actions of this combination of individuals are lawful to this point it is not clear how they can become unlawful because of their subsequent acts directed against the same person or corporation."1

In Massachusetts, where the tide of judicial rulings flowed most strongly in the opposite direction, a counter current is disclosed in the following expression of Mr. Justice Holmes, now of the Supreme Court of the United States:

"It is plain from the slightest consideration of practical affairs, or the most superficial reading of industrial history, that free competition means combination, and that the organization of the world, now going on so fast, means an ever-increasing might and scope of combination. It seems to me futile to set our faces against this tendency. * * * If it be true that workingmen may combine with a view, among other things, to getting as much as they can for their labor, just as capital may combine with a view to getting the greatest possible return, it must be true that when combined they have the same liberty that combined capital has, to support their interest by argument, persuasion, and the bestowal or refusal of those advantages which they otherwise lawfully control."18

Congress Overrules Restrictive Decisions.-To whatever degree Lawler v. Loewe (the Danbury Hat case), 235 U. S. 522, has altered or expressly opposed this view, it is itself overruled by Congress, which, if within the limits of the Constitution, is the supreme authority, empowered to fix and establish the principles, policy and measures which together constitute the law of the nation.

Fourth: Labor Organizations May Grant Financial Aid. Strike Benefit Fund is Private Property.-The fourth clause is as follows:

"Or from paying or giving to, or withholding from, any

17 American Federation of Labor et al. v. Buck's Stove & Range Co., Cir. Ct. of App., Dist. of Columbia, No. 1916 (decided March 11, 1909). 18 Vegelahn v. Gunter, 167 Mass. 92, 44 N. E. 1077, 35 L. R. A. 722; 57 Am. St. Rep. 443 (1896).

person engaged in such dispute, any strike benefits or other moneys or things of value."

Two leading cases in State courts1o have held that if the strike is intended to accomplish an unlawful purpose, strike benefits in aid thereof will be enjoined. But in the only case of this description disposed of in a Federal court, the opposite conclusion was reached, and the reason assigned was—

"the strike benefit fund is created by moneys deposited by the men with the general officers for the support of themselves and families in times of strike, and the court has no more control of it than it would have over deposits made by them in the banks."20

Two leading cases recently decided in the English courts, bear out the correctness of this view.21

Fifth: Right to Peaceably Assemble Established.

Existence of Dispute does not Illegalize Otherwise Lawful Act. The fifth and sixth clauses of this paragraph-and the final expression as to specified particular rights-are contained in the following words:

"Or from peaceably assembling in a lawful manner, and for lawful purposes; or from doing any act or thing which might lawfully be done in the absence of such dispute by any party thereto."

The conduct described in these sections is so obviously proper and is so far removed from any just ground of attack that it would appear a useless expenditure of attention-a work of supererogation-to attempt to give reasons or enter upon any argument in support thereof.

The doctrine is generally stated as a legal proposition in the able decision by Judge Noyes in a leading case:

"A laborer, as well as a builder, trader, or manufacturer, has the right to conduct his affairs in any lawful manner,

19 Reynolds v. Davis, 198 Mass. 294, 84 N. E. 457, 17 L. R. A. N. S. 162 (1908); A. S. Barnes & Co. v. Chicago Typographical Union, 232 Ill. 402, 83 N. E. 932, 14 L. R. A. N. S. 1150, 122 Am. St. Rep. 129 (1908). 20 A. S. Barnes v. Berry, 157 Fed. R. 883.

21 Densbey, etc., Collieries v. Yorkshire Miners' Assoc'n, 75 L. J. K. B. 284; Lyons v. Wilkins, 67 L. J. ch. 383.

even though he may thereby injure others.

The

damage is present, but the unlawful object is absent. And so the essential question must always be, whether the object of a combination is to harm others or to exercise the rights of the parties for their own benefit."22

These clauses, 5 and 6, constitute a corollary of the preceding provisions of this paragraph. The reasoning is the same, only less radical than is required to support the second clause, which governs picketing.

14. RIGHTS OF LABOR CONFIRMED.

General Policy Declared.-The concluding words of this important paragraph are:

"Nor shall any of the acts specified in this paragraph be considered or held to be violations of any law of the United States."

This omnibus provision is declaratory of an attitude by Congress with regard to organized labor, which makes it mandatory upon the Federal courts to recognize their rights as declared in this law. It is an evolution from long and varied discussions before legislative councils and in courts.

22 National Fire Proofing Co. v. Mason Builders' Assoc'n, 169 Fed. 260, 265.

CHAPTER XV.

ANTI-TRUST LAWS IN THEIR RELATION TO PAT

ENTS AND COPYRIGHTS.

1. Origin and Purpose of Exclusive Grants.

2. Scope of Exclusive Powers under Patent Laws.

3. Copyright Laws as Construed under Anti-Trust Statutes. 4. Protection of Public is End Sought by Anti-Trust Laws.

1. ORIGIN AND PURPOSE OF EXCLUSIVE GRANTS.

Power is Conferred by Constitution.-The narrative of the origin and early history of the power whereby Congress confers exclusive rights upon authors and inventors can be compressed within the space of annals at once both short and simple. Article I of the Constitution contains the basic grant:

"Section 8. The Congress shall have power

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

Early Action by Congress.-This power was exercised by Congress among the first after the organization of our government. The subject was taken up at the second session of the First Congress, and a law was enacted authorizing a patent to be issued to the inventor of any useful art, etc., upon his petition

"granting to such petitioner, his heirs, administrators or assigns, for any term not exceeding fourteen years, the sole and exclusive right and liberty of making, using and vending to others to be used, the said invention or discovery."

Such patent, the statute further declares, "shall be good and available to the grantee or grantees by force of this act, to all and every intent and purpose herein contained." The amendatory act of 1793 contains the same language; and the whole indicates the legislative intent to carry out the power to that end conferred upon Congress under the Constitution.

The exclusive powers under copyright are contained in Revised Statutes, Section 4952; see also, 2 Federal Statutes Annotated, pages 255 et seq. Under the common law, authors always retained the right to control or restrain the publication of their works by others; but if they exercised the right of publication themselves, they dedicated their work and had no further control in the matter. Thus the constitutional and legislative grant is in effect an extension of the ancient common law right, and this is performed by removal of the former rule of law that publication means dedication. Thenceforth, upon complying with certain prescribed regulations as to filing, etc., the author is empowered to issue his literary productions by the thousand instead of handing about his original work, which was the extent to which his rights could be exercised with safety to his power of ownership or control, under the common law.

Relative Extent of these Exclusive Rights.-Patents are granted for inventions or discoveries in mechanisms, processes and compositions of matter which contribute to the progress of the "useful" arts and sciences. Such inventions or discoveries frequently involve broadly new principles and work revolutions in entire lines of industrial and scientific endeavor. Inventors are therefore, entitled to grants of a scope commensurate with the scope of their inventions, determined, however, by the language of the patent claim. In the cases of patents for such broadly new and useful inventions the courts are disposed to give as broad and liberal a construction to the grant as possible under the language used and give the inventor the benefit of what he has discovered. This line of judicial reasoning proceeds upon the theory that the object and purpose of the patent laws are to induce the inventor to disclose for the ultimate public benefit a discovery which he might otherwise utilize for his sole advantage and enrichment by practicing it in secret; hence, it is to the public interest that a monopoly for seventeen years shall be conferred in return for a full disclosure of his invention so that the public may have the benefit of its free enjoyment when the term of grant expires.

So, too, in the case of copyright, the statute contemplates that authors shall be encouraged in their work by the grant of exclusive rights to publish and sell the fruits of their labors for limited periods. These periods are much more liberal than in the case of patents, however, for the original copyright runs for