When a Scoop Is "Piracy"

By Michael S. Serrill

The case had sharply divided the many-gabled house of publishing. On one side stood the nation's major book publishers. On the other were some of its most influential newspapers, including the New York Times, the Washington Post and the Gannett chain. Reporters and editors could be found in both camps. At issue was the media's right to publish immediately what they regard as news against an author's right to protect a soon-to-be-published manuscript.

The book publishers and authors won the final encounter last week when the U.S. Supreme Court held 6 to 3 that the Nation magazine had committed publishing "piracy" by quoting too liberally from a "purloined" copy of Gerald Ford's memoirs, A Time to Heal. But the majority opinion, written by Justice Sandra Day O'Connor, was so narrowly drawn that even many of those who had sided with the Nation were not seriously upset. "There is always a natural tension between the First Amendment and copyright law," said Bruce Sanford, general counsel for the Society of Professional Journalists, "and this does not alter the balance very much."

The case arose in 1979 when the Nation obtained a copy of Ford's manuscript from an undisclosed source and quickly put together a summary of 2,250 words, 300 of which were direct quotations. The chosen quotes featured the ex- President's defense of his pardon of Richard Nixon, and Nation Editor Victor Navasky argued that Ford's own words on the pardon and other subjects were "hot news." The book's publishers, Harper & Row and Reader's Digest, sued, charging that Navasky had violated the copyright laws and stolen former President Ford's right to determine the time and place for first publication of his recollections.

The publishers sought $12,500 in damages, the amount lost when TIME, which had purchased first magazine publication rights, dropped its plan to print a 7,500-word excerpt. A contract clause had been specifically designed to protect TIME in the event of prior publication by another magazine or newspaper. The publishers won in federal district court. But the U.S. Court of Appeals in New York City held that the unauthorized publication was justified under the fair-use clause of the copyright law. The clause allows protected works to be quoted for purposes of criticism, teaching, research or news reporting.

In reversing that decision, the Supreme Court ruled that "the unpublished nature of a work" tends "to negate a defense of fair use." Wrote O'Connor: "Where an author and publisher have invested extensive resources in creating an original work and are poised to release it to the public, no legitimate aim is served by pre-empting the right of first publication." The majority made clear that "no author may copyright facts or ideas." Protection is limited to "those aspects of the work . . . that display the < stamp of the author's originality." The Nation's view that using Ford's words was "essential to reporting the news story," said O'Connor, would "destroy any expectation of copyright protection in the work of a public figure."

Justice William Brennan disagreed, writing for the dissenters that the Ford quotations were not "excessive or inappropriate to the Nation's news reporting purpose." Spokesmen for the leftist weekly complained that the ruling was a triumph of capitalism over journalism. "The decision places property rights over First Amendment rights," said Nation Executive Editor Richard Lingeman, and gives former officials greater control over information that belongs to the public.

One lawyer who publicly supported the Nation privately conceded, however, "Navasky asked for it. He basically said, 'I wanted to scoop the President and get publicity for the Nation magazine.' That was guaranteed to anger any court." Other lawyers worried about the majority's apparent distaste for scoops in general. But O'Connor did state explicitly that the Nation had "every right to seek to be the first to publish information." The trouble was that its report had as its "dramatic focal points" the former Chief Executive's own words. Copyright experts say the court's restriction should not be hard to abide by. "There is nothing in the decision that inhibits journalists' effective newsgathering," says Harvard Law School's Arthur Miller. "The only thing the court says they cannot do is pirate. It says we cannot allow people to steal the essence of copyrighted work, or people will never write."

With reporting by David Beckwith/Washington