1880 QUEEN'S BENCH, C. P., AND EX. DIVISIONS. [Vol. VI. Ex.D. [6 Queen's Bench Division, 244.] Dec. 20, 1880-Ex. D. THE ATTORNEY-GENERAL V. THE EDISON TELEPHONE Telegraph-Telephone-Postmaster-General-Telegraph Acts, 1863 (26 & 27 Vict. c. 112), s. 3; 1868 (31 & 32 Vict. c. 110); and 1869 (32 & 33 Vict. c. 73), ss, 3, 4, 5, 6. Edison's telephone, for which patents were granted in 1877 and 1878, consists of a transmitter, a wire, and a receiver. electric currents of varying intensity pass along the wire, so that corresponding or When sounds are spoken into the transmitter, equivalent sounds are heard at the receiver, and two persons at a distance can thus converse with one another. A company leased these telephones to subscribers at yearly rents which produced a profit to the company, and arranged the wires so that subscribers could converse with one another when put into communication by a servant of the company: Held, that Edison's telephone was a "telegraph" within the meaning of the Telegraph Act, 1863 and 1869, although the telephone was not invented or contemplated in 1869. Held, also, that a conversation through the telephone was a "message," or at all events a "communication transmitted by a telegraph," and therefore a within the meaning of those acts; and that since the company made a profit out of the rents, conversations held by subscribers through their telephones were intelegram fringements of the exclusive privilege of transmitting telegrams granted to the Postmaster-General by the act of 1869, and were not within the exceptions mentioned in s. 5. INFORMATION. The facts and arguments appear in the judgment. Sir H. James, A.G., Sir F. Herschell, S.G., E. E. Kay, Q.C., C. T. Simpson, W. W. Karslake, and Moulton, for the Crown. Benjamin, Q.C., R. E. Webster, Q.C., and Cozens-Hardy, for the defendants. Cur. ado. vult. 245] 1880. Dec. 20. The judgment of the Court (Pollock, B., and Stephen, J.) was read by STEPHEN, J.: This was an information filed by the Attorney-General against the Edison Telephone Company of London (Limited), and heard before my Brother Pollock and myself on the 29th of November and four following days. The facts were not in dispute, and they were as follows: The defendant company was formed in August, 1879, for the purpose of working two patents granted to Mr. Edison, namely, one on the 30th of July, 1877, "for the invention of improvements in instruments for controlling by sound the transmission of electric currents, and the reproduction 1880 Ex.D. Attorney-General v. Edison Telephone Company of London. of corresponding sounds at a distance;" and the other, on the 15th of June, 1878, "for the invention of improvements in telephones and apparatus employed in electric circuits." The nature of the instruments patented, and the manner in which they are used by the company are as follows: The telephonic apparatus consists of three parts, namely-first, an instrument called a transmitting instrument, into which a person speaks: secondly, an ordinary telegraphic wire through which an electric current passes; thirdly, an instrument called a receiving instrument, at which another person hears sounds. The transmitting instrument consists of a mouthpiece, into which the person using the instrument speaks; a tympanum or disc, which vibrates under the impulse of the words spoken; and a substance brought into the lightest possible contact with the tympanum, and also brought into relation with the electric wire, the nature of which substance is such, that the vibrations of the tympanum are by its means represented by variations in the electric current in the wire. The wire is exactly like any other telegraphic wire. The receiving instrument consists of a cylinder of chalk, which is damped by some chemical liquid, and is capable of being made to revolve by clockwork; a metal disc which touches the cylinder of chalk; and a tympanum. When the apparatus is to be used, the chalk cylinder is made to revolve, whereby friction is produced between the surface of the cylinder and the disc which touches it. The electric current passes from the wire into the chalk, and as it passes decomposes a part of the liquid, by which the chalk is moistened. The amount of *decomposition is greater or less according to the [246 variations produced in the current by the vibrations of the tympanum at the transmitting end. The decomposition of the fluid varies the degree of friction between the chalk cylinder as it revolves and the metal disc applied to it. These variations are represented by vibrations in the metal disc, and these vibrations cause the tympanum at the receiving end to vibrate in correspondence with the vibrations of the tympanum at the transmitting end, and so to emit sounds equivalent to those which are uttered at the transmitting end. The sounds so reproduced differ from the sounds uttered by the speaker, but they reproduce these sounds with such precision and completeness, that the voices of different speakers at the transmitting end can be recognized and distinguished from each other at the receiving end. This account of the apparatus used by the Telephone Company would, of course, be altogether incomplete 1880 QUEEN'S BENCH, C. P., AND EX. DIVISIONS. [Vol. VI Ex.D. for scientific purposes, but it is, we think, sufficient for the purpose of explaining our judgment. We must now state the manner in which the apparatus described is used by the company. They have a central office in Queen Victoria Street, called the Central Exchange. They have also district offices in various parts of London called District Exchanges, and from the District Exchanges wires run to the houses or offices of subscribers in the neighborhood. At each exchange, district or central, is an instrument called a switch board, by which any two wires running from that exchange can be connected with each other. The switch board is an instrument well known in telegraphic operations, and is constructed as follows: The wires running to the place where it is kept are brought down in front of the switch board in a vertical direction and parallel to each other. Behind, but not in contact with them, are horizontal wires. If it is desired to connect any two of the vertical wires, a metal peg is pushed through a hole in each of the vertical wires to be connected till the peg touches the horizontal wire running between and behind the vertical wire. The electric current in the first vertical wire then passes down the peg put through that wire, along the horizontal wire, up the peg passed through the second vertical wire, and along the second wire. If a subscriber, A., 247] wishes to communicate with another *subscriber, B., the process is as follows: A. first attracts the attention of a servant of the company, stationed at the District or Central Exchange, as the case may be. He does this by pushing a button, by means of which an electric current lifts a spring, which keeps in position a small metal shutter, covering a number corresponding to A.'s name. The shutter falls. The servant upon this sees A.'s number, and connects his own receiving instrument with A.'s wire. A. thereupon names the person to whom he wishes to speak, namely, B. The servant puts A.'s wire in communication with B.'s wire, and shuts the shutter which had been opened, and A. and B. converse. When their conversation is over, one or both pushes his button and causes his shutter to fall, upon which the servant disconnects the wires. If the subscribers' wires are each connected with the same District Exchange, the words spoken pass over three separate wires, or portions of wire, which may belong to three different people, namely, A.'s wire, which may belong to or be rented by A., the small length of wire on the switch board, which belongs to the company, and B.'s wire, which may belong to or be rented by B. If A. and B. have to 1880 Ex.D. Attorney-General v. Edison Telephone Company of London. communicate through the Central Exchange, the words spoken would pass over five separate portions of wire, namely-first, A.'s wire, to the District Exchange, with which A. communicates; second, the company's trunk wire from the District Exchange to the Central Exchange; third, the small portion of wire on the switch board at the Central Exchange; fourth, the company's trunk wire between the Central Exchange and the District Exchange, with which B. communicates; and, fifth, B.'s wire to the District Exchange, with which B. communicates. Of these numbers, 2, 3, and 4 belong exclusively to the company, No. 1 may belong to or be rented by A., and No. 5 by B. Agreements are made between the company and its subscribers, by which the wire and the telephonic apparatus necessary for working it are leased to the subscriber at a rent in consideration of which the company contract, among other things, that they will," Upon request made through the said telephone at any time during the continuance of this agreement, between the hours of 9 A. M. and 6 P.M., Sundays excepted, put the lessee in telephonic communication with the telephone of any other subscriber to the *said exchange whose wire is free." The rents are [248 so calculated as to leave a profit for the company after paying the expenses of maintenance, &c. The information charges that the use in this manner of the apparatus described is an infringement of the exclusive privilege of the Postmaster-General as to the transmission of telegrams. We must now consider what that privilege is. It is created by the 4th section of the Telegraph Act, 1869 (32 & 33 Vict. c. 73), in these words: "The Postmaster-General . . . shall . . . have the exclusive privilege of transmitting telegrams within the United Kingdom of Great Britain and Ireland, . . . and shall also within that kingdom have the exclusive privilege of performing all the incidental services of receiving, collecting, or delivering telegrams except as hereinafter provided." The 3d section defines the words employed as follows: "The term 'telegram' shall mean any message or other communication transmitted or intended for transmission by a telegraph. The term 'telegraph' shall, in addition to the meaning assigned to it in the Telegraph Act, 1863, mean and include any apparatus for transmitting messages or other communications by means of electric signals. The Telegraph Act of 1863 defines "telegraph" thus: "The term 'telegraph' means a wire or wires used for the purpose of telegraphic communication, with any casing, coating, tube or pipe in 1880 Attorney-General v. Edison Telephone Company of London. Ex.D. closing the same, and any apparatus connected therewith for the purpose of telegraphic communication." Putting these enactments together, and substituting the definitions given for the words defined, the material part of s. 4 of the act of 1869 will stand thus: "The PostmasterGeneral shall have the exclusive privilege of transmitting messages or other communications transmitted, or intended for transmission, by any wire or wires used for the purpose of telegraphic communication, with any casing, coating, tube, or pipe inclosing the same, and any apparatus connected therewith for the purpose of telegraphic communication, or by any apparatus (other than such wire) for transmitting messages or other communications by means of electric signals." In simpler language, the PostmasterGeneral is to have the exclusive privilege of transmitting messages or other communications by any wire and appa249 ratus connected *therewith used for telegraphic communication, or by any other apparatus for transmitting messages or other communications by means of electric signals. The result of the definition seems to be that any apparatus for transmitting messages by electric signals is a telegraph, whether a wire is used or not, and that any apparatus, of which a wire used for telegraphic communication is an essential part, is a telegraph, whether the communication is made by electricity or not. It would include, on the one hand, electric signals made, if such a thing were possible, from place to place, through the earth or the air: and on the other, a set of common bells, worked by wires. pulled by the hand, if they were so arranged as to constitute a code of signals. By s. 6 of the act of 1869, "any company, corporation, or person who transmits, or aids, or is concerned in transmitting any telegram in contravention of the exclusive privilege" above referred to is rendered liable to a penalty of £5 for every such offence. Penalties are not asked for by this information, but the allegation made by it is that an offence has been committed, and the question for our determination is, whether this is or is not the case. The case for the Crown is that every such conversation as the one which we have supposed to take place between A. and B. is a "message or other communication transmitted by wire used for the purpose of telegraphic communication with certain apparatus (namely, a transmitting and a receiving instrument) connected therewith for the purpose of telegraphic communication;" and that whenever such a conversation takes place the speakers and the com |