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11. If what the plaintiff contended for was right then the defence of "common source" could never be available to anyone. The plaintiff based his contention on the ground that by quoting a passage from a decision or from another work he was in effect "selecting" the passage and since the copyright law protects selection he was protected and nobody else could thereafter make the same selection. I do not think the plaintiff was right in this contention of his. As I understand the law which protects selections I understand it to mean that only those selections are protected which the plaintiff makes for purposes of incorporating them in a "book of selections". It does not protect a selection which the plaintiff makes for purposes of explaining a legal or a scientific proposition that he has to explain while writing a commentary for the other man who after the plaintiff writes a commentary on that subject must, 'per necessity' have to make the same selection.

39. It was contended by the plaintiff that the defence of "common source" was not available to the defendants, inasmuch as, the defendants did not take that defence specifically in their written statement nor did they assert such a plea in any evidence. It is no doubt true that the defendants have not in so many words taken the plea of "common source" in their written statement, but a reading of the additional pleas of their written statement makes it clear to me that the defendants in substance and in effect raised a plea of "common source."