Evening star. [volume] (Washington, D.C.) 1854-1972, 1918-05-03
Attorney Asserts News
Service Case Has Not
Been Tried on Its Merits

Samuel Untermyer of New York
making the principal argument in the
Supreme Court today for the Interna-
tional News Service in opposition to
injunctions obtained by the Associated
Press to prevent the International from
! pirating it's news dispatches, declared
that the case had never been tried on
its merits. and denied that any element
OF unfair competition was involved.
Mr.. Untermyer summarized the oues-
tions involved as follows:
| "G Is there a right OF property in
news or knowledge Of the news or in
| the quality of firstness' in the news
| that will survive Its publication by
| the gatherer in any Of the newspapers
J to which it has been delivered for the
express purpose Of publication and sale
until the gatherer of the news and all
Of its customers have secured their
| reward; or does this news become pub
| lie property as soon as 1t has been
published by any of the papers to
which it has been surrendered with
out restriction for that specific pur-
pose? In other words, is there a
sanctity of property right reserved to
the news gatherer against the effects
of publication as to matter that is adj
mittedly uncopyrightable greater than
that given by the statute to copy
righted matter?
Opposite Construction of Law,
"(2) Assuming that the court would
create precedent in case where it
would be necessary to preserve a bust
ness against piracy, in this case both
parties and their respective members
and customers have apparently from
the time of their organization acted
upon the exactly opposite construction
and understanding of the law. News
displayed on bulletins and printed and
sold in early editions of newspapers
has been regarded as public property
which it Is in law and in fact. Each
of these parties has freely taken the
others news and they are bound by
that practical construction of their
rights and obligations. The fact that
| rewrites a story it takes from the
other. whilst the other does not, is
purely a question of business policy
that in no wise affects their legal
rights as determined by their longcon-
tinued acts.
"tD There can be no remedy in law
or equity unless actual damage is
shown. Courts are not esta blished to
try out moot or academic questions.
The complainant says it is not organ
lied for profit and that it makes no
| money difference to it what Is the
financial outcome of it's activities. That
being so, IL there are any remedies they
| inhere in the members and not in the
corporation which is organized on the
grotesque theory that 1t Is not engaged
in business
go The attempt by this order to
protect compliments members in their
local news in suit to which they are
not parties and In which the Judgment
could not. therefore. be binding or recip-
rocal is without precedent or reason.
| Conversely. If the defendant sued the
n q n j,,5,
ton that would run in favor Of all the
defendants stockholders and CUSTOM
ers?
"Competition Not Involved"
"(5) There is no element Of unfair
competition involved. The defendant
is not seeking to palm Off complainant's
complainant's news. but simply as
news that has been made available to
every one. 1t has not secured it sur
|reptitiously or as the result Of a
breach of contract, but publicly by
paying for the paper containing it, and
in which it was authorized to be pub
llished. II defendant is right in its con-
tention that it is public property as the
parties have always regarded it, there
Is nothing unfair IN taking 1t. II con-
trary to precedent and to the acts of
the parties as evidencing their con-
struction Of their rights-both parties
1T is now held to be private property
its use will be enjoined on that ground,
is known as unfair competition. There
is no such element In this case.
"(6) Both the parties are in the po-
sition. with respect to news that has
been published, of the man with an un-
lpatentable idea or trade secret that has
cost him years Of labor and vast sums
of money to develop; or Of the architect
| who has created beautiful structure,