wildercb/PrivacyTextBooks1.2 · Datasets at Hugging Face

text stringlengths 0 118
tection afforded should be the same secured to a published
writing under the copyright law. But the copyright law would
not prevent an enumeration of the letters, or the publication of
some of the facts contained therein. The copyright of a series
of paintings or etchings would prevent a reproduction of the
paintings as pictures; but it would not prevent a publication of a
list or even a description of them.1 Yet in the famous case of
1 " A work lawfully published, in the populai sense of the term, stands in this res
I conceive, differently from a work which has never been in that situation. The former
may be liable to be translated, abridged, analyzed, exhibited in morsels, complimented,
and otherwise treated, in a manner that the latter is not.
" Suppose, however,- instead of a translation, an abridgment, or a review,- the case
of a catalogue,- suppose a man to have composed a variety of literary works (' inno-
cent,' to use Lord Eldon's expression), which he has never printed or published, or lost
the right to prohibit from being published,- suppose a knowledge of them unduly ob-
tained by some unscrupulous person, who prints with a view to circulation a descriptive
catalogue, or even a mere list of the manuscripts, without authority or consent, does the
law Sallow this? I hope and believe not. The same principles that prevent more candid
piracy must, I conceive, govern such a case also.
' By publishing of a man that he has written to particular persons, or on particular
subjects, he may be exposed, not merely to sarcasm, he may be ruined. There may be
in his possession returned letters that he had written to former correspondents, with
whom to have had relations, however harmlessly, may not in after life be a recommen-
dation; or his writings may be otherwise of a kind squaring in no sort with his outward
habits and worldly pusition. There are callings even now in which to be convicted of
literature, is dangerous, though the danger is sometimes escaped.
" Again, the manuscripts may be those of a man on account of whose name alone a
mere list would be matter of general curiosity. Ilow many persons could be men-
tioned, a catalogue of whose unpublished writings would, during their lives or after-
wards, command a ready sale !" Knight Bruce, V. C., in Prince Albert v. Strange, 2 De
Gex & Sm. 652, 693.
This content downloaded from
209.222.219.5 on Thu, 29 Feb 2024 02:52:22 +00:00
All use subject to https://about.jstor.org/terms
202 HAR VARD LA W . RE VIE W.
Prince Albert v. Strange, the court held that the common-law
rule prohibited not merely the reproduction of the etchings which
the plaintiff and Queen Victoria had made for their own pleasure,
but also " the publishing (at least by printing- or writing), though
not by copy or resemblance, a description of them, whether more
or less limited or summary, whether in the form of a catalogue
or otherwise." ' Likewise, an unpublished collection of news pos-
sessing no element of a literary nature is protected from piracy.2
That this protection cannot rest upon the right to literary or
artistic property in any exact sense, appears the more clearly'
' "A copy or impression of the etchings would only be a means of communic
knowledge and information of the original, and does not a list and description of the
same? The means are different, but the object and effect are similar; for in both, the
object and effect is to make known to the public more or less of the unpublished work
and composition of the author, which he is entitled to keep wholly for his private use
and pleasure, and to withhold altogether, or so far as he may please, from the knowledge
of others. Cases upon abridgments, translations, extracts, and criticisms of published
works have no reference whatever to the present question; they all depend upon the
extent of right under the acts respecting copyright, and have no analogy to the exclusive
rights in the author of unpublished compositions which depend entirely upon the com-
mon-law right of property." Lord Cottenham in Prince Albert v. Strange,, IMcN.& G.
23, 43 (i 849). "Mr. Justice Yates, in Millar v. Taylor, said, that an auLhor's case was
exactly similar to that of an inventor of a new mechanical macLine; that both original
inventions stood upon the same footing in point of property, whether the case were
mechanical or literary, whether an epic poemn or an orrery; that the immorality of pirating
anotherman's invention was as great as that of purloining his ideas. Property in mechanical
works or works of art, executed by a man for his own amusement, instruction, or use, is
allowed to subsist, certainly, and may, before publication by him, be invaded, not merely
by copying, but by description or by catalogue, as it appears to me. A catalogue of such
works may in itself be valuable. It may also as effectually show the bent and turn of the
mind, the feelings and taste of the artist, especially if not professional, as a list of his papers.
The portfolio or the studio may declare as much as the writing-table. A man may employ
himself in priN ate in a manner very harmless, but which, disclosed to society, may destroy
the comfort of his life, or even his success in it. Every one, however, has a right, I appre-
'hend, to say that the produce of his private hours is not more liable to publication with-
out his consent, because the publication must be creditable or advantageous to him, than
it would be in opposite circumstances."
"I think therefore, not only that the defendant here is unlawfully invading the plain-
tiff's rights, but also that the invasion is of such a kind and affects such property as to
entitle the plaintiff to the preventive remedy of an injunction; and if not the more, yet,
certainly, not the less, because it is an intrusion,- an unbecoming and unseemly intru-
sion, -an intrusion not alone in breachbof conventional rules, but offensive to that inbred
sense of propriety natural to every man,- if intrusion, indeed, fitly describes a sordid
spying into the privacy of domestic life,- into the home (a word hitherto sacred among
us), the home of a family whose life and conduct form an acknowledged title, though not
their only unquestionable title, to the most marked respect in this country." Knight
Bruce, V. C., in Prince Albert v. Strange, 2 DeGex & Sm. 652, 696, 697.
2 Kiernan v. Manhattan Quotation Co., S0 How. Pr. I94 (1876).
This content downloaded from
209.222.219.5 on Thu, 29 Feb 2024 02:52:22 +00:00
All use subject to https://about.jstor.org/terms
THE RIGHT TO PRIVACY. 203
when the subject-matter for which protection is invoked is not
even in the form of intellectual property, but has the attributes
of ordinary tangible property. Suppose a man has a col-
lection of gems or curiosities which he keeps private: it would
hardly be contended that any person could publish a catalogue
of them, and yet the articles enumerated are certainly not intei-
lectual property in the legal sense, any more than a collection
of stoves or of chairs.1
The belief that the idea of property in its narrow sense was
the basis of the protection of unpublished manuscripts led an
able court to refuse, in several cases, injunctions against the
publication of private letters, on the ground that "letters not
possessing the attributes of literary compositions are not property

tection afforded should be the same secured to a published

writing under the copyright law. But the copyright law would

not prevent an enumeration of the letters, or the publication of

some of the facts contained therein. The copyright of a series

of paintings or etchings would prevent a reproduction of the

paintings as pictures; but it would not prevent a publication of a

list or even a description of them.1 Yet in the famous case of

1 " A work lawfully published, in the populai sense of the term, stands in this res

I conceive, differently from a work which has never been in that situation. The former

may be liable to be translated, abridged, analyzed, exhibited in morsels, complimented,

and otherwise treated, in a manner that the latter is not.

" Suppose, however,- instead of a translation, an abridgment, or a review,- the case

of a catalogue,- suppose a man to have composed a variety of literary works (' inno-

cent,' to use Lord Eldon's expression), which he has never printed or published, or lost

the right to prohibit from being published,- suppose a knowledge of them unduly ob-

tained by some unscrupulous person, who prints with a view to circulation a descriptive

catalogue, or even a mere list of the manuscripts, without authority or consent, does the

law Sallow this? I hope and believe not. The same principles that prevent more candid

piracy must, I conceive, govern such a case also.

' By publishing of a man that he has written to particular persons, or on particular

subjects, he may be exposed, not merely to sarcasm, he may be ruined. There may be

in his possession returned letters that he had written to former correspondents, with

whom to have had relations, however harmlessly, may not in after life be a recommen-

dation; or his writings may be otherwise of a kind squaring in no sort with his outward

habits and worldly pusition. There are callings even now in which to be convicted of

literature, is dangerous, though the danger is sometimes escaped.

" Again, the manuscripts may be those of a man on account of whose name alone a

mere list would be matter of general curiosity. Ilow many persons could be men-

tioned, a catalogue of whose unpublished writings would, during their lives or after-

wards, command a ready sale !" Knight Bruce, V. C., in Prince Albert v. Strange, 2 De

Gex & Sm. 652, 693.

This content downloaded from

209.222.219.5 on Thu, 29 Feb 2024 02:52:22 +00:00

All use subject to https://about.jstor.org/terms

202 HAR VARD LA W . RE VIE W.

Prince Albert v. Strange, the court held that the common-law

rule prohibited not merely the reproduction of the etchings which

the plaintiff and Queen Victoria had made for their own pleasure,

but also " the publishing (at least by printing- or writing), though

not by copy or resemblance, a description of them, whether more

or less limited or summary, whether in the form of a catalogue

or otherwise." ' Likewise, an unpublished collection of news pos-

sessing no element of a literary nature is protected from piracy.2

That this protection cannot rest upon the right to literary or

artistic property in any exact sense, appears the more clearly'

' "A copy or impression of the etchings would only be a means of communic

knowledge and information of the original, and does not a list and description of the

same? The means are different, but the object and effect are similar; for in both, the

object and effect is to make known to the public more or less of the unpublished work

and composition of the author, which he is entitled to keep wholly for his private use

and pleasure, and to withhold altogether, or so far as he may please, from the knowledge

of others. Cases upon abridgments, translations, extracts, and criticisms of published

works have no reference whatever to the present question; they all depend upon the

extent of right under the acts respecting copyright, and have no analogy to the exclusive

rights in the author of unpublished compositions which depend entirely upon the com-

mon-law right of property." Lord Cottenham in Prince Albert v. Strange,, IMcN.& G.

23, 43 (i 849). "Mr. Justice Yates, in Millar v. Taylor, said, that an auLhor's case was

exactly similar to that of an inventor of a new mechanical macLine; that both original

inventions stood upon the same footing in point of property, whether the case were

mechanical or literary, whether an epic poemn or an orrery; that the immorality of pirating

anotherman's invention was as great as that of purloining his ideas. Property in mechanical

works or works of art, executed by a man for his own amusement, instruction, or use, is

allowed to subsist, certainly, and may, before publication by him, be invaded, not merely

by copying, but by description or by catalogue, as it appears to me. A catalogue of such

works may in itself be valuable. It may also as effectually show the bent and turn of the

mind, the feelings and taste of the artist, especially if not professional, as a list of his papers.

The portfolio or the studio may declare as much as the writing-table. A man may employ

himself in priN ate in a manner very harmless, but which, disclosed to society, may destroy

the comfort of his life, or even his success in it. Every one, however, has a right, I appre-

'hend, to say that the produce of his private hours is not more liable to publication with-

out his consent, because the publication must be creditable or advantageous to him, than

it would be in opposite circumstances."

"I think therefore, not only that the defendant here is unlawfully invading the plain-

tiff's rights, but also that the invasion is of such a kind and affects such property as to

entitle the plaintiff to the preventive remedy of an injunction; and if not the more, yet,

certainly, not the less, because it is an intrusion,- an unbecoming and unseemly intru-

sion, -an intrusion not alone in breachbof conventional rules, but offensive to that inbred

sense of propriety natural to every man,- if intrusion, indeed, fitly describes a sordid

spying into the privacy of domestic life,- into the home (a word hitherto sacred among

us), the home of a family whose life and conduct form an acknowledged title, though not

their only unquestionable title, to the most marked respect in this country." Knight

Bruce, V. C., in Prince Albert v. Strange, 2 DeGex & Sm. 652, 696, 697.

2 Kiernan v. Manhattan Quotation Co., S0 How. Pr. I94 (1876).

This content downloaded from

209.222.219.5 on Thu, 29 Feb 2024 02:52:22 +00:00

All use subject to https://about.jstor.org/terms

THE RIGHT TO PRIVACY. 203

when the subject-matter for which protection is invoked is not

even in the form of intellectual property, but has the attributes

of ordinary tangible property. Suppose a man has a col-

lection of gems or curiosities which he keeps private: it would

hardly be contended that any person could publish a catalogue

of them, and yet the articles enumerated are certainly not intei-

lectual property in the legal sense, any more than a collection

of stoves or of chairs.1

The belief that the idea of property in its narrow sense was

the basis of the protection of unpublished manuscripts led an

able court to refuse, in several cases, injunctions against the

publication of private letters, on the ground that "letters not

possessing the attributes of literary compositions are not property