WASHINGTON, May 2.—Argu¬ments in proceedings brought in an effort to have set aside injunctions restraining the Interna-tional News Service, or Hearst Service, from pirating news dispatches of The As-sociated Press began today in the Supreme Court. The opening argument was made by Samuel Untermyer, representing the Hearst Service, who will conclude tomorrow, after which Frederick W. Lehmann will present The Associated Press’s side of the suit. Senator Johnson of California will close for the Hearst Service.
Mr. Untermyer attacked especially the contention of The Associated Press that news had property value, and charged that if the lower court injunctions were sus-tained The Associated Press would be al-lowed to become a “despotic monopoly.”
Admitting that the International News Service had been guilty of selling news sent out by the other organization, the at-torney insisted The Associated Press had been guilty of the same practice despite affidavits of employes of The Associated Press denying it.
The Associated Press also was attacked by Mr. Untermyer for bringing the present proceedings at a time when Great Britain and the allied Governments had denied the use of their cables to the International News Service for the transmission of news. He declared The Associated Press took advantage of this situation to institute the suit “because they thought the International News Service could be destroyed.”
In explanation of the action of the Allied Governments, Mr. Untermyer de-clared it was due to news matter sent by the International News Service to its office in this country regarding the torpedoing of the British battleship Audacious and the naval battle of Jutland, and because headlines printed in one newspaper receiving the Hearst Service de¬scribed London as being in flames.
Frequent questions were asked during the argument by members of the court regard-ing the property value of news. They want-ed to know also why, although the lower courts restrained the International News Service from pirating Associated Press news through employes of newspapers tak-ing the latter service, an appeal was taken to the Supreme Court only from the part of the injunctions enjoining the taking of news from bulletin boards and early editions of Associated Press newspapers.
Mr. Untermyer summarized the ques-tions involved as follows:
“Is there a right of property in news or knowledge of the news or in the quality of ‘firstness’ in the news that will survive its publication by the gatherer in any of the newspapers to which it has been delivered for the express purpose of publication and sale until the gatherer of the news and all of its customers have secured their reward; or does this news become public property as soon as it has been published by any of the papers to which it has been surrendered without restriction for that specific pur-pose? In other words, is there a sanctity of property right reserved to the news gatherer against the effects of publication as to mat-ter that is admittedly uncopyrightable greater than that given by the statute to copyright matter?
“Assuming that the court would create a precedent in a case where it would be neces-sary to preserve a business against piracy in this case both parties and their respective members and customers have apparently from the time of their organization acted upon exactly opposite construction and un-derstanding of the law. News displayed on bulletin boards and printed and sold in early editions of newspapers has been regarded as public property, which it is in law and in fact. Each of these parties has freely taken the other’s news and they are bound by that practical construction of their rights and obligations. The fact that one of them claims that it verifies and rewrites the story it takes from the other, while the other does not, is purely a question of business policy that in no wise affects their legal rights as deter-mined by their long continued acts.
“There can be no remedy ni law or equity unless actual damage is shown. Courts are not established to try out moot or academic questions. The complainant says it is not organized for profit, and that it makes no money difference to it what is the financial outcome of its activities. That being so, if there are any remedies, they inhere in the members and not in the corporation, which is organized on the grotesque theory that it is not engaged in business.
“The attempt by this order to protect complainant’s members in their local news in a suit to which they are not parties and in which the judgment could not, therefore, be binding or reciprocal is without precedent or reason. Conversely, if the defendant sued the complainant, could it secure an injunction that would run in favor of all the defendant’s stockholders and customers?
“There is no element of unfair competi-tion involved. The defendant is not seeking to palm off complainant’s news as its (de-fendant’s) news, nor as complainant’s news, but simply as news that has been made available to every one. It has not se-cured it surreptitiously or as the result of a breach of contract, but publicly by paying for the paper containing it and in which it was authorized to be published. If defend-ant is right in its contention that it is public property, as the parties have always regard-ed it, there is nothing unfair in taking it. If, contrary to precedent and to the acts of the parties as evidencing their constructions of their rights—both parties—it is now held to be private property, its use would be en-joined on that ground, but in no event on the theory of what is known as unfair com-petition. There is no such element in this case.
“Both the parties are in the position with respect to news that has been published of the man with an unpatentable idea or trade secret that has cost him years of labor and vast sums of money to develop. Or of the architect who has created a beautiful struc-ture, or the landscape gardener who has laid out a novel garden, or of any one of the many inventions in beauty, usefulness, and science, that are not patentable. So long as he keeps these things to himself he will be protected against their surreptitious taking. When he releases them they belong to the public.
“What the complainant is here trying to do is to release the news and at the same time hold on to it. That is impossible and in this case it is inequitable, for in the past it has been taken from the defendant, and now that events have temporarily changed, it seeks to escape from the consequences of its own action.
“There is a manifest inconsistency in the attitude of the District Court, when it very properly declined to differentiate between ‘tips’ and ‘re-writes,’ decided that the prac-tice was universal in the newspaper trade and yet enjoined the defendant from contin-uing it on condition that the complainant would submit to a like injunction which the later was, of course, delighted to do at that particular juncture.
“This decision sets up a new and dan-gerous rule. The measure of a plaintiff’s right is now made dependent, not on the extent to which the defendant has infringed a definite known rule of law, but upon an intangible unknown element that depends upon the extent of the activities of the plaintiff and those whom it happens at the moment to represent. If the news is taken from a paper of local circulation it may be immediately taken and used all over the United States except in that locality, for its commercial value will have passed away after the paper has been circulated in its own town. If, however, it happens to be a member of The Associated Press that same item of local news becomes ipso facto in-violate until every one of the 1,630 Associ-ated Press newspapers in the United States and possibly until after The Associated Press agencies in foreign countries have utilized it. Is not this a reductio ad absur-dum?”
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