Reporting--or Theft? The AP rips off Hillary Clinton

[Dave Farber <dave () farber net>]

http://www.opinionjournal.com/editorial/feature.html?id=110003606



WATCHING THE NEWS 
Reporting--or Theft?
The AP rips off Hillary Clinton.
BY THOMAS H. LIPSCOMB
Tuesday, June 10, 2003 12:01 a.m.
There may have been hundreds lined up to get a signed copy of Hillary
Clinton's memoir yesterday, but the enormous hype over the book has already
raised questions a lot more interesting than what Hillary knew and when she
knew it about Bill and Monica. Last week, the Associated Press broke the
Simon & Schuster embargo on the book, "Living History," six days early,
creating a legal sideshow on the protection of copyrights.
According to Reuters, "AP spokesman Jack Stokes said the agency had not
broken the law and 'obtained the book through good old-fashioned
reporting.'" But since there seems to be a lot of controversy flying around
these days about just what "good old-fashioned reporting" is, it might help
to look at an opinion with some basis in the law.




In 1985, the Supreme Court considered a case against The Nation magazine for
publishing unauthorized portions of former President Gerald Ford's
forthcoming memoir from Harper & Row. The court found that The Nation stole
the memoir in advance of publication and demonstrably hurt Harper's sales
revenues and was therefore liable for damages. Here, likewise, the AP may
"disagree completely" with "the legal conclusions" of Simon & Schuster. But
it was Simon & Schuster's story to release, not the AP's.
It isn't the legal conclusions of the publisher that ought to concern the
AP, in other words, but those on the record from the Supreme Court.
Copyright is always under attack. Digirati John Perry Barlow's sweet notion
that "information wants to be free" can seriously damage today's American
economy. Entertainment content is now our largest export, and information is
the basis of more than half of gross domestic product.

The putative perpetrator, the AP, is a huge syndicate with more than 1,550
members among U.S. daily newspapers alone, along with 5,000 broadcast
stations in the U.S. and another 8,500 broadcast and print subscribers
spread over 120 countries. If Gerald Ford's book was adjudged damaged back
in the day by the tiny Nation, which had barely 25,000 subscribers, what
kind of damages may be due Simon & Schuster from a media heavyweight like
the Associated Press?

It is not a simple issue. Managing or failing to manage the publicity
attending the release of a major media property like Hillary Clinton's can
make the difference between a success and a financial disaster. With $8
million advanced to Sen. Clinton, it remains to be seen whether billionaire
Sumner Redstone's Viacom subsidiary Simon & Schuster made a generous
redistribution of his shareholders' assets to Mrs. Clinton's private purse
or made an intelligent business investment.

It has been a year of weak bookstore sales, and there is considerable
evidence from recent opinion polls that the American public these days
regard the Clintons as mostly a hairball it would like to get over. It is
quite possible to have a No. 1 bestseller for many weeks and still lose
millions on a book that was given too high an advance for the sales it is
able to generate. Simon & Schuster is spending millions beyond the $8
million printing and distributing.




Despite brave talk that the AP's leak will lead to more interest in buying
the book, the evidence of other spectacular thefts is not encouraging. In
1978, Nixon chief of staff H.R. Haldeman's "The Ends of Power" had
accumulated so many advance orders that it was on bestseller lists two weeks
before the book was in the stores. Then a Washington Post reporter on a
probationary hire that was not going to be renewed did a little "good old
fashioned reporting" of her own. She sneaked into a printing warehouse and
made a photocopy of the book she "borrowed," and the Post leaked the details
of the book on its front page--four days before the book's publication date.
Millions of dollars of revenues--including highly profitable sales of
newspaper and magazine rights--evaporated. The book was still a bestseller,
and with an author's advance of a little more than $100,000, it made a nice
profit. But it was clear that the public's appetite for another helping of
Watergate secrets had been seriously diminished by the premature leak.

Simon & Schuster is unlikely to be as lucky. Will it sue as it has
threatened to? The publisher, after all, not only is responsible for the
protection of shareholders' assets it invested in the Clinton book; it is
contractually responsible to its author for the defense of the copyright she
licensed to them as her publisher.

Media companies eagerly defending and improving the value of their
copyrights at the expense of the general public's traditional standards of
"fair use"--and the right to public domain in digital media--seem reluctant
to take on one another in old media like print. But stealing an author's
work from another publisher is just as much theft as the charges made by EMI
against Bertelsmann for its support of Napster in the case it brought last
week. It might be Mrs. Clinton's one shot to lecture on ethics.

Mr. Lipscomb is chairman of the Center for the Digital Future and CEO of
CardiACT Inc., a medical technology company. He was formerly the publisher
of The Ladies Home Journal.

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