The news scimitar. (Memphis, Tenn.) 1907-1926, 1918-12-30
Brandeis Dissents.

The great development Of agencies
nov furnishing country wide dlstrlbu-
tion of news. the vastness Of our ter
ritory, and improvements in the means
81 transmitting intelligence have made
IL possible for a news agency or news
papers to obtain, without paving COM
pensation, the fruit of another's efforts
and to use news so obtained gainfully
in competition with the original col
leCtor. The injustice Of such action is
obvious, But 10 give relief against it
would involve more than the appliCa-
tion of existing rules Of law TO new
facts. 1t would require the making OF
a new rule in an analogy to existing
ones.
1.-THE rule for which the plaintiff
contends would effect w imno~tant o.
tension Of property rights and a cor
responding curtailment OF the free use
Of knowledge and IDEAS; and the facts
Of this case admonish ua OF tue ~-n-
ger involved in recognizing such a
property right in news without impos-
ing upon news gatherers corresponding
obligations.
Courts are i'll equipped to make the
investigations which should precede a
determination Of the limitations which
should be set upon any property right
In news or of the circumstances under
which news gathered by a private agen-
cy should be deemed affected with a
public interest. Courts would be DOW
erless to prescribe the detailed regula-
tons essential to full enjoyment of the
rights conferred or to introduce the
machinery required for enforcement of
such regulations, Considerations such
as these should lead us to decline to
establish a new rule of law in the ef-
fort to redress a newly disclosed wrong,
although the propriety of some remedy
appears to be clear,
IF the news involved in the case at
bar had been posted in violation OF
any agreement between the Associated
Press and its members. questions Sim
liar TO those in the ticker cases might
have arisen. But the plaintiff does not
contend that the posting was wrong
full or that any papers were wrongfully
issued by its. subscribers. On the con-
trary, it is conceded that both the
bulletins aud the papers were issued
in accordance with the regulations of
the plaintiff. Under such circumstances,
for a reader Of the papers purchased
IN the open market, or a reader of the
bulletins publicly posted to procure and
use gainfully information therein con-
tanned does not involve inducing any
one to commit a breach either of con
tract or Of trust or committing or in
any way abettins a breach of conf
dence."
Justice Brandeis declared "a general
publication is effective to dedicate lit
erary property to the public, regardless
Of the actual intent Of it's owner"
Plaintiff further ~contended,' the
opinion continues, that defendants
practice constitutes unfair competition
because there is appropriation without
cost to itself OF values created by the
plaintiff; and 1t Is upon this ground
that the decision Of this court appears
to be based. TO appropriate and use
for profit knowledge and ideas pro-
duced by other men. without making
COMPENSATION or even acknowledgment,
may be inconsistent with a finer sense
Of propriety; but with the exceptions
indicated above, the law has hereto
fore sanctioned the practice. Such TAX
ing and gainful use Of a product OF
another which for reasons OF public
policy the law has refused to endow
with the attributes Of property does
not become unlawful because the prod
uct happens to have been taken from
a rival and is used in competition with
him"