gladly have then become members of the Associated Press, if they could have secured election thereto.15 It is possible, also, that a large part of the readers of these papers were so situated that they could not secure prompt access to papers served by the Associated Press. The prohibition of the foreign governments might as well have been extended to the channels through which news was supplied to the more than a thousand other daily papers in the United States not served by the Associated Press; and a large part of their readers may also be so located that they cannot procure prompt access to papers served by the Associated Press. gainfully in competition with the original | porarily by arrangement with the Associated collector. The injustice of such action is Press the latter's foreign news service. For obvious. But to give relief against it would aught that *appears, all of the 400 subscribinvolve more than the application of existers of the International News Service would ing rules of law to new facts. It would require the making of a new rule in analogy to existing ones. The unwritten law posses. ses capacity for growth; and has often satisfied new demands for justice by invoking analogies or by expanding a rule or principle. This process has been in the main wisely applied and should not be discontinued. Where the problem is relatively simple, as it is apt to be when private interests only are involved, it generally proves adequate. But with the increasing complexity of society, the public interest tends to be come omnipresent; and the problems presented by new demands for justice cease to be simple. Then the creation or recognition by courts of a new private right may work serious injury to the general public, unless the boundaries of the right are definitely established and wisely guarded. In order to reconcile the new private right with the public interest, it may be necessary to prescribe limitations and rules for its enjoyment; and also to provide administrative machinery for enforcing the rules. It is largely for this reason that, in the effort to meet the many new demands for justice incident to a rapidly changing civilization, resort to legislation has latterly been had with increasing frequency. The rule for which the plaintiff contends would effect an important extension of property rights and a corresponding curtailment of the free use of knowledge and of ideas; and the facts of this case admonish us of the danger involved in recognizing such a property right in news, without imposing upon news-gatherers corresponding obligations. A large majority of the newspapers and perhaps half the newspaper readers of the United States are dependent for their news of general interest upon agencies other than the Associated Press. The channel through which about 400 of these papers received, as the plaintiff alleges, "a large amount of news relating to the European war of the greatest importance and of intense interest to the newspaper reading public" was suddenly closed. The closing to the International News Service of these channels for foreign news (if they were closed) was due not to unwillingness on its part to pay the cost of collecting the news, but to the prohibitions imposed by foreign governments upon its securing news from their respective countries and from using cable or telegraph lines running therefrom. For aught that appears, this prohibition may have been wholly undeserved; and at all events the 400 papers and their readers may be assumed to have been innocent. For aught that appears, the International News Service may have sought then to secure tem39 SUP.CT.-6 A Legislature, urged to enact a law by which one news agency or newspaper may prevent appropriation of the fruits of its labors by another, would consider such facts and possibilities and others which appropri ate inquiry might disclose. Legislators might conclude that it was impossible to put an end to the obvious injustice involved in such appropriation of news, without opening the door to other evils, greater than that sought to be remedied. Such appears to have been the opinion of our Senate which reported unfavorably a bill to give news a few hours' protection;16 and which ratified, on Febru 15 According to the by-laws of the Associated Press no one can be elected a member without the affirmative vote of at least four-fifths of all the members of the corporation or the vote of the directors. Furthermore, the power of the directors to admit anyone to membership may be limited by a right of protest to be conferred upon individual members. See By-Laws, article III, section 6. "The members of this corporation may, by an affirmative vote of seven-eighths of all the members, confer upon a member (with such limitations as may be at the time prescribed) a right of protest against the admission of new members by the board of directors. The right of protest, within the limits specified at the time it is conferred, shall empower the member holding it to demand a vote of the members of the corporation on all applications for the admission of new members within the district for which it is conferred except as provided in section 2 of this article." 18 Senate Bill No. 1728, 48th Congress, First Session. The bill provides: "That any daily or weekly newspaper, or any association of daily or weekly newspapers, published in the United States or any of the territories thereof, shall have the sole right to print, issue, and sell, for the term of eight hours, dating from daily or weekly newspaper, or the collected news the hour of going to press, the contents of said of said newspaper association, exceeding one hundred words. "Sec. 2. That for any infringement of the copyparty injured may sue in any court of competent right granted by the first section of this act the jurisdiction and recover in any proper action the damages sustained by him from the person making such infringement, together with the costs of suit." It was reported on April 18, 1884, by the Committee on the Library without amendment, and that it ought not to pass. Journal of the Senate, *265 +264 ary 15, 1911, the convention adopted at the might, with a view to making the remedy Fourth International American Confer- more certain and adequate, provide a fixed ence;17 and such was evidently the view also measure of damages, as in the case of copyof the signatories to the International Copyright infringement.22 right Union of November 13, 1908,18 as both these conventions expressly exclude news from copyright protection. *Or legislators dealing with the subject might conclude, that the right to news values should be protected to the extent of permitting recovery of damages for any unauthorized use, but that protection by injunction should be denied, just as courts of equity ordinarily refuse (perhaps in the interest of free speech) to restrain actionable libels,19 and for other reasons decline to protect by injunction mere political rights;20 and as Congress has prohibited courts from enjoining the illegal assessment or collection of federal taxes.21 If a Legislature concluded to recognize property in published news to the extent of permitting recovery at law, it 48th Congress, First Session, p. 548. No further action was apparently taken on the bill. When the copyright legislation of 1909, finally enacted as Act of March 4, 1909, c. 320 (35 Stat. 1075), was under consideration, there was apparently no attempt to include news among the subjects of copyright. Arguments before the Committees on Patents of the Senate and House of Representatives on Senate Bill No. 6330 and H. R. Bill No. 19853, 59th Congress, First Session, June 6, 7, 8, and 9, and December 7, 8, 10, and 11, 1906; Hearings on Pending Bills to Amend and Consolidate Acts Respecting Copyright, March 26, 27 and 28, 1903. 17 38 Stat. 1785, 1789, Article 11. Or again, a Legislature might conclude that it was unwise to recognize even so limited a property right in published news as that above indicated; but that a news agency should, on some conditions, be given full protec*tion of its business; and to that end a remedy by injunction as well as one for damages should be granted, where news collected by it is gainfully used without permission. If a Legislature concluded (as at least one court has held, New York and Chicago Grain and Stock Exchange v. Board of Trade, 127 Ill. 153, 19 N. E. 855, 2 L. R. A. 411, 11 Am. St. Rep. 107) that under certain circumstances news-gathering is a business affected with a public interest; it might declare that, in such cases, news should be protected against appropriation, only if the gatherer assumed the obligation of supplying it at reasonable rates and without discrimination, to all papers which applied therefor. If legislators reached that conclusion, they would probably go further, and prescribe the conditions under which and the extent to which the protection should be afforded; and they might also provide the administrative machinery necessary for insuring to the public, the press, and the news agencies, full enjoyment of the rights so conferred. Courts are ill-equipped to make the inves 18 Bowker, Copyright: Its History and Its Law,tigations which should precede a determinapp. 330, 612, 613. See the similar provisions in the Berne Convention (1886) and the Paris Convention (1896). Id. pp. 612, 613. In 1898 Lord Herschell introduced in Parliament a bill, section 11 of which provides: "Copyright in respect of a newspaper shall apply only to such parts of the newspaper as are compositions of an original literary character, to original illustrations therein, and to such news and information as have been specially and independently obtained." (Italics ours.) House of Lords, Sessional Papers, 1898, Vol. 3, Bill No. 21. Birrell, Copyright in Books, p. 210. But the bill was not enacted, and in the English law as it now stands there is no provision giving even a limited copyright in news as such. Act of December 16, 1911, 1 and 2 Geo. 5, c. 46. 19 Boston Diatite Co. v. Florence Mfg. Co., 111 Mass. 69, 19 Am. Rep. 310; Prudential Assurance Co. v. Knott, L. R. 10 Ch. App. 142. 20 Giles v. Harris, 189 U. S. 475, 23 Sup. Ct. 639, 47 L. Ed. 909. Compare Swafford v. Templeton, 185 U. S. 487, 22 Sup. Ct. 783, 46 L. Ed. 1005; Green v. Mills, 69 Fed. 852, 859, 16 C. C. A. 516, 30 L. R. A. 90. 21 Revised Statutes, § 3224 (Comp. St. 1916, § 5947); Snyder v. Marks, 109 U. S. 189, 3 Sup. Ct. 157, 27 L. Ed. 901; Dodge v. Osborn, 240 U. S. 118, 36 Sup. Ct. 275, 60 L. Ed. 557. tion of the limitations which should be set upon any property right in news or of the circumstances under which news gathered by a private agency should be deemed affected with a public interest. Courts would be powerless to prescribe the detailed regulations essential to full enjoyment of the rights conferred or to introduce the machinery required for enforcement of such regulations. siderations such as these should lead us to decline to establish a new rule of law in the effort to redress a newly disclosed wrong, although the propriety of some remedy appears to be clear. Con Act of March 4, 1909, § 25, c. 320 (35 Stat. 1075, 1081) provides, as to the liability for the infringement of a copyright, that "in the case of a newspaper reproduction of a copyrighted photograph such damages shall not exceed the sum of two hundred dollars nor be less than the sum of fifty dollars," and that in the case of infringement of a copyrighted newspaper the damages recoverable shall be one dollar for every infringing copy, but shall not be less than $250 nor more than $5,000. *267 (248 U. S. 182) DILLON v. STRATHEARN S. S. CO. THE STRATHEARN. The Circuit Court of Appeals certifies two questions to this court: First. Is section 4530 of the Revised Statutes of the United States, as the same was (Argued and Submitted Nov. 5, 1918. Decided amended by section 4 of the act of Congress, Dec. 23, 1918.) No. 361. 1. COURTS 384-CERTIFIED QUESTIONS CERTIFICATE-STATEMENT OF FACTS. Under Judicial Code, § 239 (Comp. St. 1916, § 1216), providing for certification of questions of law from Circuit Court of Appeals, and that Supreme Court may give instruction on the questions certified, or order whole record sent up for consideration and decision, and Supreme Court Rule 37, providing that the certificate shall contain a proper statement of the facts on which the certified questions arise, the certificate by itself, and without reference to transcript, must state the pertinent facts necessary for answering the questions. approved March 4, 1915, entitled "An act to promote the welfare of American seamen in the merchant marine of the United States; to abolish arrest and imprisonment as a penalty for desertion and to secure the abrogation of treaty provisions in relation thereto; and to promote safety at sea"-violative of the Constitution of the United States? Second. Is section 4530 of the Revised Statutes of the United States, as the same was amended by the last-mentioned act of Congress approved March 4, 1915, violative of the Constitution of the United States in so far as it provides: "That this section shall apply to seamen on foreign vessels while in harbors of the United CERTIFIED-States, and the courts of the United States shall be open to such seamen for its enforcement." The certificate, on certification of questions under Judicial Code, § 239 (Comp. St. 1916, § 1216), not sufficiently stating the pertinent facts, will be dismissed. On a Certificate from the United States Circuit Court of Appeals for the Fifth Circuit. Suit in admiralty by John Dillon against the steamship Strathearn; the Strathearn Steamship Company, claimant. On appeal from the District Court, the Circuit Court of Appeals certified questions. Certificate dismissed. Messrs. William J. Waguespack, of New Orleans, La., and Silas Blake Axtell, of New York City, for Dillon. 239 of the Judicial Code (Act March 3, 1911, [1] The certificate is made under section c. 231, 36 Stat. 1157 [Comp. St. 1916, § 1216]), which makes provision for the certification of questions of law to this court from a Circuit Court of Appeals. The section provides that this court may give instruction on the questions certified, or it may order the whole record sent up for consideration and decision. Rule 37 of this court (32 Sup. Ct. xiv) provides that in such cases the certificate shall contain a proper statement of the facts on which the questions of law arise. The certificate in this case fails to comply with this rule of court. It contains a partial statement of Dillon's contract with the ship. It states that no part of the sum sued for was Mr. Assistant Attorney General Brown, due under the shipping articles signed by for the United States. Dillon. It does not state the terms of pay Mr. Ralph James M. Bullowa, of New York ment agreed upon, when or where payments City, for Strathearn S. S. Co. were to be made under the contract, or what advancements, if any, were to be made during Mr. Justice DAY delivered the opinion of the voyage. The certificate concludes: the court. John Dillon, a British subject, filed a libel in admiralty in the United States District Court for the Northern District of Florida in which he claimed the sum of $125 alleged to be due him for wages as a carpenter on the steamship Strathearn. The District Court dismissed the libel (239 Fed. 583). An appeal was taken to the Circuit Court of Appeals for the Fifth Circuit. The libel was filed under the provisions, of section 4 of the Seaman's Act March 4, 1915, c. 153, 38 Stat. 1165, 1168 (Comp. St. 1916, § 8322).1 1 "Sec. 4. That section forty-five hundred and thirty of the Revised Statutes of the United States be, and is hereby, amended to read as follows: "Sec. 4530. Every seaman on a vessel of the United States shall be entitled to receive on demand from the master of the vessel to which he belongs "For information as to the facts of the case copies of the transcripts and briefs are herewith transmitted." one-half part of the wages which he shall have the voyage has been commenced, shall load or delivthen earned at every port where such vessel, after er cargo before the voyage is ended and all stipulations in the contract to the contrary shall be void: Provided, such a demand shall not be made before the expiration of, nor oftener than once in five days. Any failure on the part of the master to comply with this demand shall release the seaman from his contract and he shall be entitled to full payment of wages earned. And when the voyage is ended every such seaman shall be entitled to the remainder of the wages which shall then be due him, as provided in section forty-five hundred and twenty-nine of the Revised Statutes: • • And provided further, that this section shall apply to seamen on foreign vessels while in harbors of the United States, and the courts of the United States shall be open to such seamen for its enforcement.' For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Counsel argue the case by reference to the transcript of the record in the Circuit Court of Appeals, and it is apparent that a proper consideration of the case requires such reference. This transcript is no part of our record. This court alone has authority to have it sent up. The briefs in the Circuit Court of Appeals are no part of the record here. The certificate is required to state the pertinent facts in order that this court may answer the questions of law certified with reference to such facts, and not by searching the records and briefs of the Circuit Court of Appeals itself. [2] The certificate therefore fails to comply with our rule, *and in accordance with the established practice must be dismissed. Cincinnati, Hamilton & Dayton R. R. Co. v. McKeen, 149 U. S. 259, 261, 13 Sup. Ct. 840, 37 L. Ed. 725; Stratton's Independence v. Howbert, 231 U. S. 399, 422, 34 Sup. Ct. 136, 58 L. Ed. 285, and cases cited. Dismissed. (248 U. S. 185) SANDBERG et al. v. McDONALD. (Argued Nov. 5, 1918. Decided Dec. 23, 1918.) 1. SEAMEN No. 392. PAY 23-WAGES-ADVANCE MENT-FOREIGN SHIPS IN FOREIGN PORTS. Seamen's Act March 4, 1915, § 11 (Comp. St. 1916, § 8323), declaring it unlawful to pay a seaman wages in advance, that such an advancement shall in no case except as herein provided absolve from full payment of wages when actually earned, and that this section shall apply to foreign vessels "while in the waters of the United States," does not apply to advancements by foreign vessels in foreign ports. 2. STATUTES PRESUMPTION. *Mr. Justice DAY delivered the opinion of the Court. This case brings before us for consideration certain features of the so-called "Seaman's Act." Act March 4, 1915, c. 153, 38 Stat. 1165. The act is entitled: "An act to promote the welfare of American seamen in the merchant marine of the United States; to abolish arrest and imprisonment as a penalty for desertion and to secure the abrogation of treaty provisions in relation thereto; and to promote safety at sea." It contains numerous provisions intended to secure better treatment of seamen, and to 212-APPLICATION-INTENT- secure for them better conditions of service. Legislation is presumptively territorial and confined to the limits over which the lawmaking power has jurisdiction. 3. SEAMEN 23-WAGES-ADVANCE PAYMENT APPLICABILITY OF SEAMEN'S ACT. That Seamen's Act March 4, 1915, § 11 (Comp. St. 1916, § 8323), prohibiting payment of wages in advance to seamen, and declaring that an advancement shall not absolve from payment of wages when earned and shall subject the offender to criminal liability, declares the master and owner of any foreign ship violating the section liable to the same penalty that the master or owner of a vessel of the United States would be, strengthens the presumption that it was intended to deal only with acts committed within the jurisdiction of the United States. 4. SEAMEN 4-SEAMEN'S ACT-ABROGATION OF INCONSISTENT TREATIES. The provisions of Seamen's Act March 4, 1915, abolishing the right of arrest for deser The libel charges a demand in Mobile, Alabama, for one-half part of the wages then earned by the seamen, and the refusal of the master to pay the amount which the libelants claimed to be due. The master paid each of them what he conceived to be due, deducting certain advances made to the men at Liverpool, England, where the seamen were signed. The facts are: The Talus is a British ship and the libelants and petitioners citizens or subjects of nations other than the United States and at the time of employment by the ship and before boarding her they received certain advances at Liverpool by the ship or its agents, a practice usual and customary and not forbidden by the laws of Great Britain. The advance did not, as to any libelant, exceed the amount of a month's wages. The libelants boarded the ship at Dublin, Ireland, December 1, 1916, and remained in For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes *191 *190 her service until they left her at Mobile, providing him with employment, he shall for Alabama. The ship arrived in American waters on February 11, 1917, off Port Morgan, from whence she proceeded immediately to Mobile, where she remained until after February 24th, and unloaded and loaded cargoes. During the voyage and at Mobile prior to February 22d, libelants received certain payments from the ship in cash and in articles purchased from it. every such offense be deemed guilty of a mis- foreign vessels while in the waters of the United "The master, owner, consignee, or agent of any vessel of the United States, or of any foreign vessel seeking clearance from a port of the United States, shall present his shipping articles at the office of clearance, and no clearance shall be granted any such vessel unless the provisions of this section have been complied with." The genesis and history of this legislation is found in U. S. Compiled Statutes 1916, volume 7, section 8323, annotated. On February 22d libelants demanded of the master of the ship payment of one-half of the wages earned by them to that date. The master then paid to them a sum which, with the cash paid them and the price of the articles *purchased as stated above, together with the advances made in Liverpool, equaled or exceeded the one-half of the wages then earned by each of them from the commencement of his service for the ship. It was less, however, than such one-half wages if the advances at Liverpool had not been included in the credits. The master claimed that those advances should be deducted from the one-half wages, and did deduct them, and the sum or sums paid by the master to the libelants exceeded the amount of wages earned by them for the eleven days the shipments to seamen, and to protect them against had been in American waters. The libelants quit the ship February 24, 1917, and were logged as deserters on the same day. The Dingley Act of June 26, 1884 (c. 121, 23 Stat. 55, 56), which is the origin of this section, contains terms much like those found in this act. That statute, as the present one, in the aspect now before us, was intended to prevent the evils arising from advanced pay a class of persons who took advantage of their necessities and through whom vessels were obliged to provide themselves with seaUnder the foregoing statement of facts men. These persons obtained assignments, the question for decision is: Was the mas- of the advanced wages of sailors. In many ter entitled to make deduction from the sea-instances this was accomplished with "little" men's pay in the amount of the advance- or no service to the men who were obliged ments made at Liverpool? The District to obtain employment through such agencies. Court held that these advancements could not be deducted. 242 Fed. 954. The Circuit Court of Appeals reached the opposite conclusion. 248 Fed. 670, 160 C. C. A. 570. The pertinent section of the act for consideration reads: "Sec. 10. (a) That it shall be, and is hereby, made unlawful in any case to pay any seaman wages in advance of the time when he has actually earned the same, or to pay such advance wages, or to make any order, or note, or other evidence of indebtedness therefor to any other person, or to pay any person, for the shipment of seamen when payment is deducted or to be deducted from a seaman's wages. Any person violating any of the foregoing provisions of this section shall be deemed guilty of a misdemeanor, and upon conviction shall be punished by a fine of not less than $25 nor more than $100, and may also be imprisoned for a period of not exceeding six months, at the discretion of the court. The payment of such advance wages or allotment shall in no case except as herein provided absolve the vessel or the master or the *owner thereof from the full payment of wages after the same shall have been actually earned, and shall be no defense to a libel suit or action for the recovery of such wages. If any person shall demand or receive, either directly or indirectly, from any seaman or other person seeking employment, as seaman, or from any person on his behalf, any remuneration whatever for In the Dingley Act it was made unlawful to pay seamen's wages before leaving the port at which he was engaged. In the present act it is made unlawful to pay seamen's wages in advance of the time when he has actually earned the same. The Act of 1884 by its terms applied as well to foreign vessels as to the vessels of the United States, and masters of foreign vessels violating the law were refused clearance from any port of the United States. The present statute is made to apply as well to foreign vessels while in the waters of the United States as to vessels of the United States. In the present statute, in the section from which we have just quoted, masters, owners, consignees, or owners of foreign vessels are made liable to the same penalties as are the like persons in case of vessels of the United States. Such persons in case the vessels are those of the United States or foreign vessels, seeking clearance in ports of the United States, are required to present their shipping articles at the office of clearance, and no clearance is permitted unless the provisions of the statute are complied with. The Act of 1884 came before the United States District Court for the Southern District of New York in the case of The State of Maine, 22 Fed. 734. In a clear and well |