Evening star., 1945-06-19

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bound to reduce their competitors
opportunity to buy or sell the things
in which the groups compete.
Victory Of a member Of such {
combination over its business rival
achieved by such collective means
cannot consistently with the Sher.
man Act or with practical, everyda.
knowledge be attributed to indi.
vidual enterprise and sagacity"
such hampering of business rival.
can only be attributed to that which
really makes it possible-the col
lective power of an unlawful com
bination.
That the object Of sale is tn,
creation of product OF mans in
genuity does not alter this princi.
pie. Fashion Originators' Guild
Inc. v. Federal Trade Commission
312 U. s. 457. (See footnote lD.
1t is obviously fallacious to view
the by-laws here in issue as in.
stituting a program to encourag,
and permit full freedom and sal.
and disposal of property by it,
owners. Rather, these publisher,
have, by concerted arrangements
pooled their power to acquire, Il
purchase, and to dispose of new,
reports through the channels oi
commerce.
They have also 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" (See footnote 49,
Other News Agencies.
1t Is further contended that since
there are other news agencies which
sell news, 1t is not a violation OF
the act for an overwhelming ma
jority of American publishers tc
combine to decline to sell their. news
to the minority. But the fact that
an agreement to restrain trade does
not inhibit competition In all Of the
objects Of that trade cannot save
1t from the condemnation Of the
Sherman Act. (See footnote 16.)
1t Is apparent that the exclusive
right to publish news in a given
field, furnished by AP and alrof its
members, gives many newspapers a
competitive advantage over their
rivals. (See footnote 10 Con-
versely, a newspaper without Ar
service is more than likely to be
at a competitive disadvantage.
The District Court stated that it
was to secure this advantage over
rivals that the bylaws existed. It
is true that the record shows that
some competing papers have gotten
along without AP news, but morn.
Ing newspapers, which control 90
per cent of the total circulation in
the United States, have AP news
service. And the District Courts
unchallenged finding was that ZAP
is a vast. intricately reticulated or
the largest OF its kind
news from all over the
world, the chief single source OF
news for the American press uni
versally agreed to be of great con-
Nevertheless. we are asked to re-
verse these judgments on the ground
that the evidence failed to show
that AP reports, which might be
to their own "enter.
prise and sagacity," are clothed "in
the robes Of indispensability." The
absence OF "indispensability" is said
to have been established under the
following chain of reasoning: Ap
mas made its news generally avail
able to the people by supplying it
to q limited and select group OF
publishers in the various cities.
therefore. 1t is said, AP and It's
member publishers have not de-
prived the reading public of AP
news; all local readers have m
adequate access" to AP news, since
all they need do In any city to get
1t Is to buy, on whatever terms
they can In a protected market, the
particular newspaper selected for
the public by AP and its members
"Indispensability" Test.
We reject these contentious. The
proposed "indispensability" test
would fly In the face of the Ian
guage OF the Sherman Act and all
Of our previous interpretations Of
1t. Moreover, it would make that
law a dead letter in all fields of
business, a law which Congress hes
consistently maintained to be an
safeguard to the kind OF
private competitive business econ
omy this country has sought to
The restraints on trade in news
here were no less than those held
to fall within the ban Of the Sher-
man Act with reference to combina-
lions to restrain trade outlets in
the sale Of tiles, Montague Ss Co.
Y. Lowry, 1913 U. s. 80: or enameled
ironware, Standard Sanitary Mfe,
Co. v. United States, 226 U. s. 20
4s-49; or lumber, Eastern States
Lumber Retail Dealers Association
v. United States, 234 u. 8. 600, Gil:
or women's clothes, Fashion Orig
inators' Guild Of America, Inc, ct
al. v. Federal Trade Commission
supra; or motion pictures, United
States v. Crescent Amusement Co.
1913 U. S. 173.
Here, as in the Fasion Originators
Guild case, supra, 465, THE combi.
nation is in reality an EXTRACTOR.
ernmental agency, which prescribe.
rules for the regulation and re.
straint of interstate commerce, ant
provides extrajudicial tribunals TO,
determination and punishment O.
violations, and thus trenches upor
the power of the National leRisla.
ture and violates the statute
Addyston Pipe & Steel Co. v. United
States. ITS U. s. 211, 242."
BY the restrictive bylaws each O.
the publishers in the combination
has, in effect, surrendered himsel
completely to the control of tn,
association" Anderson v. Shipown.
ers Assn. 272 US. $50, 1852, in re.
spect to the disposition of the new
IN interstate commerce.
Therefore this contractual re.
straint Of interstate trade, design
ed in the interest Of preventin,
competition" cannot be zone of tn,
normal and usual agreements In ait