rather an opera, namely a speech, and certainly literal. In naming it a mute instrument, I distinguish it from what delivers the speech by a sound, such as a trumpet in music, or the mouths of others.]

The second point of the minor is: that the counterfeiter undertakes the author's business, not only without any permission from the owner, but even contrary to the owner's will. Given that he is a counterfeiter because he invades the province of another, who is authorized by the author himself to publish the work: the question is, whether the author can confer the same permission on yet another, and consent thereto. It is, however, clear that, as then each of them—the first editor and the person afterwards usurping the publication of the work (the counterfeiter)—would manage the author's business with one and the same public, the labour of the one must render that of the other useless and be ruinous to both; therefore a contract between the author and an editor that contains the corollary, to allow yet another besides the editor to venture the publication of the author's work, is impossible; consequently the author was not entitled to give the permission to any other, [including by implication a] counterfeiter), and the counterfeiter should not have even presumed this; by consequence the counterfeiting of books is a business totally contrary to the will of the proprietor, and yet undertaken in the proprietor's name.

From this ground it follows that not the author, but the editor authorized by him, suffers damages. For as the author has entirely, without reservation, given up to the editor his right to the managing of his business with the public, or to dispose of it otherwise, so the editor is the only proprietor of the transaction of this business, and the counterfeiter encroaches on the editor, but not on the author.

But as this right of transacting a business, which may be done just as well by another, is not inalienable (jus personalissimum), assuming that no corollary exists otherwise in the author's contractual agreement with the editor, so the editor, as he has been authorized to have power over the work, also has the right to transfer his right of publication to another; and as the author must consent to this, he who undertakes the business from the second hand is not a counterfeiter, but a rightfully authorized editor, i.e. one to whom the editor, who was appointed by the author, has transferred his power over the work.

II. Refutation of the Counterfeiter's pretended Right against the
Editor.

The question remains still to be answered: since the editor projects to the public the ownership over the work of the author, does not the consent of the editor (and by implication also the author, who gave the editor legal control over it) to every use of the work, including reprinting it, result automatically from ownership of a copy of the work, such that such consent is automatically furnished to whoever purchases a copy of the work, however disagreeable such consent to permit counterfeiting may be to the editor? For the prospect of profit has perhaps enticed the editor to undertake, with the risk of having the published work counterfeited, the business of editor, where this risk is more likely since the purchaser has not been excluded from counterfeiting via an express contract, because it would hurt the editor's business if the editor tried to obligate all potential purchasers of the work to agree to a contract forbidding counterfeiting, because potential purchases would generally not consent to such an agreement and therefore would be less likely to purchase a copy of the work. My answer to this question is that the ownership of the copy does not furnish the right of counterfeiting. I prove this by the following ratiocination:

A personal positive right against another can never be derived from the ownership of a thing only.

But the right of publishing a work is a personal positive right.

Therefore, the right of publishing never can be derived from the ownership of a thing (the copy) only.

Proof of the Major

With the ownership of a thing is indeed accompanied the negative right to resist any one who would hinder me from the use of it at pleasure; but a positive right against a person, to demand of him to perform something or to be obliged to serve me in anything, cannot arise from the mere ownership of a thing. It is true this positive right might by a particular agreement be added to the purchase contract whereby I acquire a property from anybody; e.g. that, when I purchase a commodity, the seller shall also send it to a certain place free from expenses. But then the right against the person, to do something for me, does not proceed from the mere ownership of my purchased thing, but from a particular contract.

Proof of the Minor

If someone can dispose of something at pleasure in his own name, then that someone has a right to that thing. But if someone can perform only in the name of another, he transacts this business such that the other is thereby bound, as if the business were transacted by himself. (Quod quis facit per alium, ipse fecisse putandus set). Therefore my right to the transacting of a business in the name of another is a personal positive right, to necessitate the author of the business to guarantee something, namely, to answer for everything which he has done through me, or to which he obliges himself through me. The publishing of the work is now a speech to the public (by printing) in the name of the author, and is consequently a business in the name of another. Therefore the right to it is a right of the editor's against a person: not merely to defend himself in the use of his property at pleasure against him; but to necessitate him to acknowledge and to answer for as his own a certain business, which the editor transacts in his name; consequently this is a personal positive right.

The copy, according to which the editor prints, is a work of the author's and belongs totally to the editor after he has purchased it, either in the manuscript form or the printed form, to do with it everything the editor pleases, where said doings can be done in the editor's own name; for that is a requisite of the complete right in a thing, i.e. ownership. But the use, which the editor cannot make of it except only in the name of another (namely the author's), is a business (opera) that this other transacts through the owner of the copy, where in addition to the ownership of the copy, a particular contract is still requisite for other rights to be provided to the owner of the copy.

Now, the publication of a book is a business which can only be transacted in the name of another (namely the author, whom the editor presents as speaking to the public through him); therefore the rights of transacting the business of publishing the book is separate from the rights that are associated with the ownership of a copy of the book. The right to publish the book can legally be acquired only by a particular contract with the author. Who publishes without such a contract with the author (or, if the author has already granted this right to another, i.e. to an authorized editor, without a contract with that authorized editor) is the counterfeiter, who then damages the authorized editor, and must make amends to him for all damages.

Universal Observation

That the editor transacts his business of editor not merely in his own name, but in the name of another*** (namely the author), and without whose consent cannot transact this business at all, is confirmed from certain obligations which fix themselves