Evening star., 1945-06-19

Of competing news agencies and OF
newspapers competitive with mem
bers Of the Associated Press"
The finding is vague for 1t fails
to specify what is meant by "other
restrictions The phrase cannot
mean the membership restrictions
Of the bylaws for those are men,
toned in the preceding clause Nor
does this courts opinion furnish
any additional light.
Not only is the finding attacked,
as the courts opinion admits, but,
in addition, the record negatives
the sweeping assumptions the court
INDUCES respecting the effect Of
APPS activities.
The opinion states that (the
members) have, by concerted ar
rangements, pooled their power to
acquire. to purchase. and to dis
pose of news reports through the
channels Of commerce." and, in
addition, have pooled their eco
nomic and news control power and,
IN exerting that power, have en-
tered into agreements which the
District Court found to be plainly
designed in the interest OF prevent
ing competition
This sentence Is characteristic of
the opinion. In the first place, as
will later appear, the record pre-
sents no question of purchasing
power" One cannot purchase the
events Of history; he can employ
some one to report them to him
Does the sentence mean that AP
has purchased" all or most of the
available reporters in the Nation or
the world?
Contradicted by Proofs.
Secondly. the sentence seems to
attribute to AP some sort of mo-
nopolization of the newspaper pub
fishing business. And, finally, it
seems to attribute to the court be-
low finding that AP has unduly
or unreasonably restrained trade.
AS will appear. the court below
made no such finding and, because
1t could not do so, sought another
ground on which to base its de-
cision. Moreover the facts assumed
are specifically denied by the an
swer. and contradicted by the
proofs.
The uncontradicted proofs to
which I shall later refer show that
nonmember publishers not only
have obtained, and now obtain. COM
plete and satisfactory news cover
age from other agencies, but have
prospered and grown without .AP
news service.
1t is said in the opinion that the
bylaws, as obstacles to member
ship tend to make 1t dificult to OBJ
tain news furnished by AP or its
members and that It is apparent
that the exclusive right which AP
members have gives many news
papers a competitive advantage
over their rivals. But the events
OF life are open to all who INQUIRE
There is no dearth Of those willing
20 inquire and report those events,
for proper compensation.
Thus, the court must here he
holding that if a concern gathers
from the air, from the sunlight or
from the waters Of the sea, by its
e1lort and ingenuity, something that
others have not garnered, it must
make the results Of its activity open
to all, for If it sells to some and
not to others the former will have
competitive advantage. The ex-
elusive use OF that which is thus
obtained always, in a sense, gives a
competitive advantage over those
less active and enterprising.
The opinion seems to mean that
no contract, however narrow its
effect, however innocent its pur-
pose, which in the least degree
restricts competition (see footnote
y. can survive attack under the
Sherman Act; that no such concept
as reasonable restraint, a restraint
limited to the legitimate protection
OF ones property or business. and
limited IN space or in time, or af-
1ectlng a few only Of all those en-.
gagged IN a given trade, is free of
illegality.
Is not this to re-establish the
harsh and sweeping effect attributed
70 the statute in United States v
Irans-Missouri Freight Association
l66 U. S. 200, and United States v
Joint Traffic Association. I'll U. S.
sos, which was abandoned more
than 30 years ago, for the view
ever since maintained, that the
statute merely adopted the COM
mon-law concept of undue and un-
reasonable restraints of trade. fSee
footnote g.
Speculative Ruling.
II the court is now to revert to
the harsh and mechanical applica-
ton Of the act that every agree
ment which in any measure re-.
strains trade. Notwithstanding the
trulsm that every agreement con-
cernlng trade . restraints" (see
1ootnote 81 is illegal, the ruling
should be made explicit and not
lett IN the realm Of speculation.
of'AiAAoAA odyS JIldU Ullc DlS-
trict Court found that the bylaws
contained provisions designed to
stlfle competition in the newspaper
publishing field" The District
Court made no finding and reached
no conclusion that AP imposed any
restraint which was undue or un-
reasonable, and the matter quoted
IN footnotes and 8 of the courts
opinion does not support any such
gloss as this court places on what
the District Court said in its opi,n-
ions or its formal findings and con-
clusions, as a mere reading will
demonstrate.
If collateral restraints in aeree-
ments for the sale Of d business. and
others OF like sort, permitted and
enforced at common law, and here
tofore under the Sherman Act (see
tootnote 10). as well, are now to
fall under condemnation, we should
know the fact.
The opinion assumes that the
competitors Of AP suffer from an
inability to buy news. It is replete
with intimations that the CO.
operative activities Of AP have, in