Evening star., 1945-06-19

competition either between news
agencies or newspapers.
In another aspect Of the issue OF
restraint, the opinion ignores i'm
portant facts. While it correctly
states that, in the daily morning
field, AP embraces 81 per cent in
number and 96 per cent in circula-
ton, 1t fails to state that UP serves
such newspapers representing 40
per cent in number and 64 per cent
in circulation.
Again, in respect of the daily
evening field, whereas AP mem
bers represent SO per cent in num-
Der and II per cent In circulation,
UP accounts for As per cent In
number and IS per cent In circula :
ton.
1t will be seen that there is du-
plication because many newspapers
take more than one of the existing
services. Thus, as Of 194l, of the
373 domestic morning English Ian
guage dailies-with a total circula-
ton Of 15,849, 9,132-152, with a total
circulation Of 10,70l ,498, were SUBJ
scribers OF UP and IS, with a total
circulation OF 4,149,929, were SUBJ
scribers Of ms; and, Of the l,4so
domestic daily evening English
language newspapers-with a total
circulation Of 19,616.674-664, with
a total circulation Of 1e, ,7s1 900 were
subscribers Of UP and 206, with a
total circulation of 8,608,180, were
subscribers of ms.
The record indicates that, in the
large. the events reported by the
leading agencies are the same; the
differences between the reports be-
ing in the way they are written. In
ability to peruse an AP report
therefore, does not mean that the
reader fails to obtain knowledge of
what is happening, but of a particu-
lar reporters account Of the event
Affidavits in Record.
Finally, the record contains af-
hdavits which must, on the motion
for summary judgment, be taken as
true, Of % persons who are In the
newspaper business. These are too
lengthy to quote.
In general the testimony was to
this effect: Ten said the UP service
was adequate and complete; l3 said
that AP service was not necessary
to the success OF a newspaper; one
said that newspaper was at no
competitive disadvantage through
lack OF AP service. and FIVE testified
their papers to which AP member
ship was open, elected to use COM
peting services.
AS OF September; l941, more than
900 domestic newspapers which were
subscribers Of UP were not members
OF AP. The fact is that AP does
not attempt to restrain its members
from taking services from other
agencies. 1t is little wonder that
the District Court refrained from
finding that AP had unduly or un-
reasonably restrained competition
between news agencies or news
papers.
I conclude, therefore, that there
is no justification for a holding
that the operations of AP must in
evitably result, or that its activities
have in fact resulted, in any undue
and unreasonable restraint Of free
competition in any branch of trade
or commerce.
Third-Have AP and its members
intended, or attempted. to monopo-
lize a branch of trade? AS I have
already pointed out, the events
happening in the world are as open
to all men as the air or the sun
light. The only agency required
to report them Is a human being
who will inquire. Surely the supply
Of reporters is not less difficult to
monopolize than the events to be
reported.
The court below reached conclu-
sions as to monopoly which were
required by the record:
ZAP does not monopolize or DOM
mate the furnishing of news re-
ports, news pictures, or features tc
newspapers in the United States.
ZAP does not monopolize or dom
mate access to the original source
of news.
ZAP does not monopolize or dom
mate transmission facilities for the
gathering or distribution of news
reports. news pictures, or features.
No Monopoly on History.
If the opinion of this court means
to suggest that while the news can
be gathered by any one, because
no one has, or can have, a monopoly
OF the events of history, AP monop-
olizes the services of those who re-
port news which its energies and
efforts have employed and trained
(Which is not shown, then, I SUBJ
nit, we have a new concept OF
monopolization, namely. that where
some person, out of materials open
to all, creates his own product by
hiring persons to produce it, that
person may not determine to whom
he will sell and from whom he will
withhold the product. Such a con-
cept can only be justified on the
public utility theory upon which
the court below proceeded, of which
I shall say something later.
In spite of the quoted conclusions
Of the District Court (and no facts
are cited in this courts opinion
which negative their accuracy, ]
must take it that the court intends
to hold that the pleadings ano
proofs disclose, without question, an
intent or attempt to monopolize.
I have quoted the finding made
below that AP does not prevent, OF
hinder nonmember newspapers from
obtaining access to domestic OF
foreign news. The facts and fig
ures I have cited above indicate NO
intent or attempt to absorb the en-
tire field Of news gathering and re-
porting, to exclude all others from
the field, or to take over the entire
field, to the end that no newspaper
or combination of newspapers can
obtain reports Of the news.
Paragraph 3 Of the complaint
charges an attempt to monopolize
q part Of trade and commerce and
combination and conspiracy to