Evening star., 1945-06-19

the Associated Press case:
I think the judgment should b.
reversed. In respect Of most Of tn,
questions involved I might rest OF
the discussion by Judge Swan II
his dissenting opinion in the Dis
trict Court. The novelty and i'm
portance Of the questions, and tn.
summary disposition Of them In tn,
courts opinion. have, however
moved me to state my views II
detail.
This case deals with news.
News is information about matter!
Of general interest. The term ha!
been defined as "a report of a re.
cent event" The report may b,
made to one moved by curiosity OF
to one who wishes to make some
practical use of it. Newspapers OBJ.
tain such reports and publish then
as part Of a business conducted
for profit.
The proprietor of newspaper
when he employs a person to in.
quire and report, engages persona
service. suppose no one woulo
deny that he is entitled to the ex.
elusive use of the report rendered
as q result of the service for which
he contracts and pays. I suppose
that one rendering such service is
free to contract with his employe,
that the product Of his inquiries
the news he furnishes his employer
shall be used solely by the EN-.
ployer and not impaired to another
Result Of Effort.
As I have said, news is the result
OF effort in the investigation OF
recent events. Every newspaper
Is interested in procuring news OF
happenings in its vicinity, and main
tains staff for that purpose. Such
news may have some value to news
papers published in cities outside
the locality Of the occurrence.
I assume that If two publishers
agreed that each should supply a
transcript Of all reports he received
to the other, and conditioned their
agreement that neither would abuse
the privilege accorded, by giving
away or selling what was furnished
under the joint arrangement, there
could be no objection under the
Sherman Act.
I had assumed. although the opin-
lon appears to hold otherwise, that
such an arrangement would not be
obnoxious to the Sherman Act be-
cause many, rather than few, Joined
in 1t. think that the situation
would be no different if a machinery
were created to facilitate the ex-
change Of the news procured by
each OF the participants such as
a partnership, an unincorporated
association, or nonprofit corpora
ton.
I assume it cannot be questioned
that two or more persons desirous
or obtaining news may agree to
employ a single reporter, or a staff
OF reporters, to furnish them news.
and agree amongst themselves that,
as they share the expense involved,
they themselves will use the fruit
OF the service and will not give it
away or sell it. Although the pro-
cedure has obvious advantages, and
Is in itself innocent, I do not know,
from the opinion of the court,
whether it would be held that the
inevitable or necessary operation, or
necessary consequence of such an
is to restrain compe-
tition in trade or commerce and
that it is, consequently, illegal. (See
footnote y.
Joint Expense Report.
Many expressions in the opinion
seem to recognize that all AP does
Is to keep for its members that
which, at joint expense, its members
and employees have produced-its
report Of world events. Thus it is
said that the nonmembers are de-
MED access to AP news, not, be it
observed, to news.
Again it is said that the bylaws
"block all newspaper nonmembers
from any opportunity to buy news
from AP or any of its publisher
members again that the erection
OF obstacles to the acquisition of
membership can make it diff
cult, II not impossible, for non-
members to get any of the news
furnished by AP" If these ex-
pressions stood alone as the factual
basis of decision we should know
that the court is condemning joint
enterprise for the production of
something-here, news copy-which
those who produce it intend to use
for their exclusive benefit. But it
is impossible to deduce from the
opinion that this is the ratio Of
decision.
I do not understand that the
courts decision is pitched on the
fact that AP is a membership cor
poration. The same result could be
attained by resort to a multiparty
contract, to partnership. or to an
unincorporated association. The
choice of the form of the CO.
operative enterprise does not affect
the nature Of the problem presented.
(See footnote o.
Objects and Purposes.
AP was created to accomplish on
a mutual, nonproflt. basis the two
objects mentioned. Its purpose is
stated by its charter as "the collec-
ton and interchange, with greater
economy and efficiency, of informa-
ton and intelligence for publication
in the newspapers of its members"
The organization started on COM
paratively modest basis, to facin-
tate exchange of news reports
amongst its members. It has grown
into a comparatively maintained
news reporting agency having, in
addition, its own reporters and
agencies for the collection, arrange
ment, editing, and transmission to
its members, of news, gathered by
its employees, and those of others
with whom it contracts.
The question is whether the Sher-
man Act precludes such a co-opera-
tive arrangement and renders those
who participate liable to furnish
news copy, on equal terms, to all
which desire it. as the
court below has held. If so, it
must be because the joint arrange
mont cooStit1,tes q contract coynhj.