Response Respondent — Public Affairs Associates, Inc. v. Rickover

Supreme Court brief1962

Ask Donna

What actually matters in this document.

Text

ae wo oY oe tO :

=e Office Supreme Court, U.S.

SJ PREME COURT. J, ue F i y - D

A TAR 's) 62/

NE —=+ JAMES 8. BROWNING. Clerk

IN THE

Suprene Court of the United States

OcToOBER TERM. 1969"

Vick Apwirnat Hywan G. Rickover, Petitioner

Pupuic Arratrs Associates, Inc. Trading as

Pustic Arrairs Press, Respondent

On Conditional Cross-Petition for a Writ of Certiorari

to the United States Court of Appeals for the

District of Columbia Circuit

RESPONSE FOR RESPONDENT

PUBLIC AFFAIRS ASSOCIATES, INC.

STANLEY B. Frosu

i300 Connecticut Ave. N.W.

Washington 6, D.C.

Harry N. RosENFIELD

1735 De Sales Street. NW.

Washington 6, D. C.

Attorneys for Respondent

INDEN

Memorandum on Conditional Cross-Petition tin Ne. 739)

Reply to Opposition to Petition for Writ of Certiorari

iin No. O1974

i. Petition in No. 649 presents questions of law

Il. Confliet among Courts of Appeals

HI. Conflict with applicable decisions of this Court.

Bubilier is inapplicable

1, Patent and copyright are basically different

2. Ditlerent statutory bases for Government officials

3. Dubilier moot

4. Cross-Petitioner comes without “clean hands”

IV. Unsettled questions of Federal law

V. Unsettled Constitutional questions

Conclusion

CUPATIONS

CASES:

A.F.L. v. Swing, 312 U.S. 321

Alfred Bell & Co. v. Catalda Fine Arts, 191 F.2d 99

Associated Press v. United States. 326 U.S. 1]

Benny v. Loew's Inc.. 239 F. 2d 532. aff'd per curiam

by equally divided court. 356 U.S. 43

Bridges v. California, 314 U.s. 252

Callaghan v. Myers. 128 U.S. 617

Dellar v. Samuel Goldwyn, Inc.. 104 F. 2d 661

Fisenschiml vy. Faweett Pub.. Inc. 246 F. 2d 598. cert.

denied 355 U.S. 907

First Trust Co. of St. Paul v. Minn. Historical Soc., 146

F. Supp. 652. aff'd sud nom. U.S. v. First Trust Co. of

. Peal, 251 fF. 24 273

Page

.10

i Index Continued

Page

LCA, vu b. & Oe Ce, S27 U.S. 3

Sawvery. Crowell, 16 F. Supp.. 471. aff'd 142 F.2d 497.

cert. dented 3235 US. 735 110

Tok-vig ve Broce Pub. Co. Lol F.2d 664 1]

Us. v. Dubilier Condenser Corp., 289 U.S. 178 5-9

Los.v. Felin & Co. 334-008. 624 5

U.S. v. Parke, Davis & Co.. 362 U.S. 29 3

Wheaton v. Peters. 8 Peters 59] >

\\ bSCOMS En Kleetrie Co.. v. Dinere Co.. 282 | SS. 813 5

CONSTITUTION. STATUTES AND Expect rive Action:

Constitution, First Amendment. Second Clause 2.10. 12

\tomie Energy Act of 1946 7

NAS. Act of 1958, $305 6.7

Patents. 35 U.S.C. 260 6

Printing Law. FE OS.C. 58 y ae, Ae

Research and Marketing Act of L916 7

Los. Senate. Committee on Interstate and For. Comm. 13

LoS. Senate, Select Committee on Small Business:

1959 Hearings ri

1960 Hearings 8

Executive Order No. LOO96 8

ALE.C.. Patent Poliey Statement 9

Dept. of Defense Regulations, 32 C.F.R. Part 9 7

Dept. of HLE.W. Regulations. 15 C.FLR. Part 6 7

Leeat WRITINGS:

Annot.. Application and effect of “shop rght rule’, 61

A.L.R. 2d 356 7

Buckle. Property Rights in Creative Works, 32 J. Par.

Orr. Soc. $14 6

Index Continued il

Pave

Cohen. Fair Use in the Law of Copyright. Ascar, Cory-

RIGHT Law Sywupositw Ne. 0. 16 (1955) 1]

Finkelstein, Public Performance Rights. 7 Coryrient

PROBLEMS ANALYSED 69 0

Gunnels. Copyright Protection for Writers Emploved by

the Federal Government. 960 Wasn. U.L.Q. 182 1

Here. The Patentee v. the Copyrightee, Ascav. Cory-

hiGHT Law Sywpositvi. Sth Series. 191 6

latman, Fain Use or Copyricurep Works, Copyright

Office Study No. 10. p. 15 41958) 1]

Needham, Pape Recording, Photocopying & Fair Use.

Ascap, Copyricut Law Syupositm No. 6. p. 75

(1959) 1]

Recent Cases. Copyright. 9 Carn. ULL. Rev. 104 3

Recent Cases, Copyright. 33 Texp, L. Q. 305 6

Recent Decisions. Copyrights. 5 Virw. L. Rev. 38] I

STEDMAN. Parents 6-7 6

Wicwore. Evinencr. 1:2 3

Wririncs ov Jawes Vaptsosx. ¥ 1:598 1]

\IISCELLANEOL Ss:

~ Frankfurter. Jo. comment from Bench. 20 LoS.L Weer

3186 y 4

Halaby. N.E.. testimony before Senate 1

Rickover, testimony on patent policy 6.9

United States. Brief betore the Court 1]

Washington Post. Feb. 22. 1961 1:

IN THE

Supreme Court of the United States

Ocroper Teru. 1960

No. 739

Vick Apwiran Hywan G. Ricnover. Petitioner

Pernice Arras Associutes, Ine.. Trading as

Puspiic ArFairsS Press, Respondent

Response of Respondent to Conditional

Cross-Petition for Writ of Certiorari

Publie Affairs Associates Inc.. Trading as Publie Affairs

Press. respectfully submit this Re-ponse to the Conditional Cros--

Petition fora Writ of Certiorari in Ne. 739.

The Conditional Cross-Petition in No. 739 also includes ma-

terial (pages 7-14) which is tantamount of an Opposition to the

Petition fora Writ of Certiorari filed by Public Affairs Associates

in No. 649. Consequently, this Response will include

(1) a Memorandum on the Conditional Cross-Petition in

No. 739, and

(2) a Reply to the Cross-Petitioner’s Opposition to the Peti-

tion in No. 649.

MEMORANDUM ON CONDITIONAL CROSS-PETITION

(IN NO. 739)

Cross-Petitioner in’ Ne. 739 requests a conditional writ ot

certiorari on the issue of dedication i.e. whether dissemina-

tion of his speeches in otheial press release form prier te

attempted copyright: registration pleced them ino the pull

dlomain.

The nature and manner of such release have important rela

tionship to the seope of the Cross-Petitioner’s official dutie-. and

to the Constitutional guarantee of Freedom of Pres- Iwn

major psstes taised by the Petittron im Ne OVO, Tn this contest

the growing tendenes of top-level Government ofheials te “gos

ernment-by-press-release””) makes the Conditional Cross-Petition

in No. 739 meritorious of this Court’. consideration, especially

because of a third issue raised in) No. OF9: the need for thi-

Court to deal with the unsettled but tnpertant questions of eo

struction of the Copyright Net and the Printing Paw. in partie 4

ular, clarification of the meaning of “Government peblication.—

Public Affairs Associates. Tne. therefore. raise mo obpeetio

to the granting of the Conditional Cross-Petition in Ne. 730.

the Petition m No. O19 be oranted,

REPLY TO OPPOSITION TO PETITION FOR WRIT OF

CERTIORARI CIN NO. 649)

The CrossPetitioner’s opposition to the Petition in Neo G19

makes various arguments whieh. it is respectfully sulmyitterd

present no valid reason for denial of the Petition in Ne. OF9.

I. Petition in No. 649 presents questions of law.

In alleging that the Petition in No. 649 present~ questions ot

1 Ch. Mr. Justice Frankfurter’s comment from the Bench that “the

public relations counsel is part of our American way of life” 20 Los

L. Week 3186 (Dec. 19, 1960)

tact and not of law. Cross-Petitioner misconceives the entire

port. Petitioner in Ne. O19 does not contest the tacts as found

bin the eourts below: Petitioner eotitests only the erroneous rule

of faw applied tw those court= to the undisputed facts.

There is nota single disputed issue of tact inthis case. Both

the Trial Court, 177 Bo Supp. at 002. and the Court of Appeals,

2B. 2d at 264. decided the case upon an “agreed statement

of tacts and undisputed document: in the reeord. What is in

dispute is whether Government press releases containing speeches

vv oa high-level tederal otheer on matters related to and con.

nected with lis otheral duties are “Government publications”

ond theretore not subject to copyoght under the Copyright Vet

and the Printing Law. or whether they are private publication-

lewaily subjeet te yo reht. This determination is a legal one.

Phe legal consequences of undisputed taet- raise questions ot

laws ones which are traditionally sulijeet te appellate review

and inne degree intrusive upon the fact-finding tanetions of the

lower courts,

This Court hax sand that ior oa question of law whether the

lower court “applied the kD ae standard to essentially und:s-

puted taet<" . that “the legal effeet ot evidence is a question of

law *) and that its funetion is “to aseertain the meaning of the

findings [ot tact] in order to determine their legal signifieanee 7”

The Petition in Ne. 649 does not require this Court to review

the taets since both parties accept the Lact. a= found below. Thi-

Petitron presents the Court with a variety of important quesion-

oft Law. for example:

1 Weestonr ON bvrener 2 bd eed Tob: see also Wiseomein

Flectric Co. v. Dumore Co... 282 0.8. 813 + 18304.

1 nited States v. Parke. Davis Co J62 Eos. 20) bb 1960),

Interstate Commerce Commission v. Lourmsille and No Ro Ce. 227

ts. 88, 92 (1913).

> Lmited States vo John J. Felin & Co. 334 ULS. 624. 649 (1948).

(1) The legal scope of Votheial duty” and “otheial responsr-

bility” of a Government otheial:

(2) The /egal meaning of the statutory term “Governmen

publication” as used in the Copyright Net and the Printing Law:

(3) The legal effect of Cross-Petitioner’s status as a top-level

ecovernment ofheral: and

(4) The Constitutional issue of Freedom of Pres- under the

birst Amendment.

Il. Conflict among Courts of Appeals.

All the other Courts of Appeals that have ruled on this precise

the applicable rule of the Law from that adopted by the Court

below.” In Saver in the Second Circuit) and the Lewis and

Clark case in the Fighth Cireuit® both eourts ruled that whethe:

a Government emplovee’s publication was within his others

duties depended on the relationship between the subject matte:

of the publication and the responsibilities of his Government

position. These two Court. of Appeals ruled that such connec:

tion between the publieation’s subject matter and the emplovee’-

ofheral duties created a Government publication. The Court

beelow. however, reyected any stich doctrine of ‘relationship

or Meomnection.” and mstead adopted the conflicting leval doe-

thine that a “Government publication” comes inte beige onky of

it was the spree ifie object ot the emplovees duties to produc eit.

In addition. Sawyer attached weight to the tact that Government

facilities and time were used to produce the publieation. Whereas

the Court below dismissed such criteria altogether. Ino short.

7 46 F. Supp. 471 (DCS. DN.Y. 19421, affd 142 F.2d 497 62d

Cir, LORD. cert. denied $23 Us. 735 «19440.

S First Trust Co. of st! Pauly. Minn. Historical Society. 146 F. Supp.

652.668 (D.C. Minn. 1956). aff'd sub nom. Vos. y. First Trust Co. of

St. Paul. 251 F.2d 686.691 (8th Cie, 1058).

the Courts of Appeals for the Second and Eighth Cireuits apply

directly conflicting legal doctrines from that adopted below.

Hl. Conflict with applicable decisions of this Court.

Cross-Petitioner does not deny that the dispositive legal

question here is whether his activities were in the course of his

offieial duties as a top-ievel Government ofheial. Nor does he

deny that the applicable decisions of this Court cited in the

Petition (pp. & 11) deal precisely with the question of determit-

ing when the activities of an executive official of the Federal

Government come within his “otheial duties.”

To avoid the impact of these directly applicable decision-.

Cross-Petitioner cites decisions of this Court dealing with report-

ing af judicial opinions. The two decisions cited are Callaghan

r. Veers, 128 U.S. 617 twhich was decided in 1888 and did

not relate toa Federal otheer at all). and Wheaton rv. Peters. 3

tos. (Peters) SOL (rendered in 1834).

The cases cited do not related to executive otheials of top-level

rank. Both eases pre-dated the controlling statutes here involved.

The prohibition against copyrighting of “Government publica-

tions” originated in the Printing Law (44 U.S.C. 58) in 1895, 28

Stat. 608, §52: the prohibition in the Copyright Aet (17 LSe.

8) was enacted in 1909, 35 Stat LOTS. $7.

Consequently the decisions in these two cases have no effect

on the current legal situation controlled by the statutes cited.

The Cross-Petitioner also cites a patent case. U.S. 2. Dubilier

Condenser Corp.’ Although this case was heavily relied upon

by the District Court and strongly urged upon the Court of

Appeals in Cross-Petitioner’s briet below, the Court of Appeal-

ignored the case altogether.

Dubilier is inapplicable to the present case for at least four

reasons:

* 280 LOS. 178 (1933). Mr. Justice Stone dissented. with Mr. Justice

Cardozo and Chief Justice Hughes concurring therein.

1. Patent and copyright are basically different.

Dubilier involved a patent; (ae present case involves copy-

right. The Constitution “recognizes that the standards for

patents and copyrights are basically different" And. the

statutory standard of valid patentalile inventions is considerably

different from the definition of copyrightable subject matter.”

Because “there is a wide distinction between a pateut and a

1°

altogether controlling as to the other.”

2. Different statutory bases for Government officials.

In Dubilier this Court itself pointed out that its decision was

based Upon unique statutory provision- applicable only te

patents. that Government ofheials had been specifically auther-

ized to take out patents for their Government work coder a

statute going back to 1883, and that the statute gave to the United

States a free shop-right to use such patents.!? Tt has also been a

well-recognized part of our law for the U.S. Government itself

to hold patent rights on inventions devised by public servant

and private parties engaged Ly government agencies. For

example. the National Aeronautics and Space Aet of LO58

| |

‘0 Alfred Bell & Co. vy. Catalda Fine Arts. LOL F.2d 99, Loweo2 (L951)

ithe various legal and practical differences are outlined at length.

' Buckle. Property Rights in Creative Works { Comparison of

Finkelstein. Public Performance Rights... . 7 Corymieut Prowirsts

Axarysep (1951) 69.70. See also Herr. The Patentee v. the Copy-

rightee, Ascap, Copyricut Law Syuvostun, Fifth Series (1L95d+. 19]

i... the differences... are many.” )

'2 Sreoman, Patents 6-7 (1939): Recent Cases, Copyright-Richt of

Government Officer... 33 Teme. L. Q. 365.369 (1960) (Decisions in

the patent cases would not necessarily be controlling in copyright cases”)

13 289 LS. 178, 189, 201, 192. The statute presently appears in

35 U.S.C, 26.

requires certain patents to be in the Government's name.'*

A similar provision prevails in the field of atomic energy.”

By direction of Congress the Department of Agriculture in-

cludes in its contracts a requirement that the results of its re-

search and investigations be made available to the public either

by dedication, assigament to the Government, or such other

means as the Secretary shall determine.'® In still other agencies.

the applicable statute authorizes Government agencies to take

litle to such patents in the public interest.!7

In copyright, a completely different and contrary. statutory

pattern prevails. The Copyright Aet, 17 U.S.C. 8. and the

Printing Law, 44 U.S.C. 58. specifically prohibit both the Gov-

ernment itself as well as Government emplovees from taking

the situation with patents.’’ the Government has. no shop-right

in copyrighted materials.

'f Section 305, 72 Stat. 435 (1958), 42 Us C. 2457.

'S Atomic Energy Act of 1946, as amended, 68 Stat. OFF (1954), 42

U.s.C. 2182 41958).

'© Research and Marketing Act of 1946, 7 U.S.C. 427i.) The De vart-

inent’s Consistent practice has been te require an assignment of patent

rights to the government, Statement of Assistant Secretary of Agricul-

ture. “Patent Policies of Departments and Agencies of the Federal

Government-L959” Hearings Bejore a Subcommittee of the Senate

Select Committee on Small Business, 86th Cong. Ist Sess... on “The

Effect of Federal Monopoly Policies on Competition, Monopoly. Beo-

nomie Growth, and Small Business.” Dee, 8 9. 10, 1959, p. 354

‘hereinafter referred to as Senate Hearings).

'T For Defense Department. see Senate Hearings, at p. 338 et seq:

12 CER. Part 9: for Department of Health. Education and Welfare.

see Senate Hearings, at 361: 45 CPLR. Part 6.

'S The only exception is for the Postmaster General in’ connection

with illustrations of stamps. 17 U.S.C. 8 (proviso in first paragraph)

'Y In patents, shop-rights most commonly arise not by express agree:

ment but “by implication of the circumstances of the employment.”

Annot.. Application and effect of ‘shop right rule’... 61 A.L.R. 2d 356,

368 (1958).

3. Dubilier moot.

Executive Order No. 10096" has mooted Dubilier?' This

Order establishes a uniform patent policy for government em-

ployees’ inventions which gives to the U.S. Government (except

vs waived) “the entire right title and interest” in all inventions

made by any government employee

“( 1) during working hours, or (2) with a contribution by the

Government of facilities, equipment, materials, funds. or in-

formation, or of time or services of other Government em-

plovees on official duty, or (3) which bear a direct relation

to or are made in consequence of the official duties of the

inventor.”

1. Cross-Petitioner comes without “clean hands.”

Cross-Petitioner’s reliance upon Dubilier is inconsistent with

his public espousal of an exactly opposite position for other

Government officials; he comes here without “clean hands.”

As recently as April 8. 1960. he told a Senate Committee that

“Where the Government bears all or nearly all the co-t. where

the facilities belong to the Government. aad where the Govy-

ernment bears all the risk. the people should own the patents.

The American people are spending their money for the re-

search and development; therefore, the patents should belong

to them.?? ... The Government should own patents resulting

from work it has financed.?> ... I believe that patents should

20 Jan. 23, 1950, 3 C.F.R. 292 (1949-1953 comp.)

“' Cf: Recent Cases, Copyright... . 9 Catu LBs. bee, 105

(1900+. Cross-Petitioner’s Counsel substantially agreed with this

view. Brief for Appellee Below. pp. 8-9.

22 LS. Senate. Select Committee on Small Business. Subcommittee

on Monopoly, Patent Policies of Government Departments and Agencies

1960, Committee Print, 86th Comg, 2nd Sess.. April & 19600 p. 2

(hereinafter cited as Conference)

25 Id at 6,

))

eenerally belong to the Government where Government moneys

is used to develop them 7-4

In view of a justifieation urged by the Trial Court for it-

decision (i.e. that private copyright is necessary “to encourage

. 7 a 95 .

intellectual development” of government. official-*?). Cross-

Petitioner's farther comments to the Senate Committee are il-

luminating:

“Nor do PT agree with the. statement frequently made that

inless there is such a patent provision. their emplovees will

not work assiduously. TP have never seen anything of the

sort. A man who has an idea in his mind. if he is worth hi-

salt. will want to get it out. He will fight all obstacles to cet

. +26

it out.

And again:

“oS .. ARC and NASA work. In these Selds the law places

ownership of patents initially in the U. >. Government. Thi-

vives the Government the opportunity to make them available

to everyone. In omy opinion, this is a good system. beeause

it makes new information available quickly. Otherwi-e.

as7

there is the possibility of withholding information .. .

24 Id at 7.

S177 F.Supp. at 604.

** Id. at 5. Cross-Petitioner is an AEC as well as Navy official. ABC.

patent poliey is this: “It is the Commission’s view that where the

(Commission sponsors and pays for research and development

that the resultant inventions and discoveries should be the property of

the Government for the benefit. not only of the particular contractor.

but of the-general public... Evervone is entitled to the use of

the scientific and technical data and the inventions and discoveries

that have resulted from Commission contracts.” Statement of AEC’s

Assisiant General Counsel for Patents, Senate Hearings. at pp.

234-35.

For the aforesaid reasons. it is respectfully submitted that

Dulilier is not an “applicable” decision of this Court.”

IV. Unsettled questions of Federal law.

In claiming that the Petition in No. 649 involves no un-ettled

law. Cross-Petitioner ignores the Copyright Office’s -tatement

that the present law in this field i- unsettled and that its clarifiea-

tion is necessary. (See Petition in No. O19. pp. 10-171. Cross

Petitioner's only answer is that Congress ean change the Liw if

it wants to do so; this is but an admission that the law is umn

~ettled.,

Cross-Petitioner contends that this Court is incompetent to

deal with the question of unsettled law (p. 13). We reject such

argument. Tf this Court applies te the facts of the instant case

the legal doctrines it has elsewhere enunciated as to the scope

of “official duty” of a Government officer (see Petition in Ne.

619. pp. 8-11). or the legal rules applied by the Court of

\ppeals for the Second and Eighth Circuits in copyright eases.

this Court's decision will be fully effective not only in dealing

with this particular ease. but al-o in setting a clear poliey that

can prevent conflicts with the law described in the Petition in

No. O49 at pages 18-22.

V. Unsettled Constitutional questions.

Cross-Petitioner would abolish the Freetom of Press provision

of the First Amendment. He argues that there is no Constitu-

tional issue of Freedom of Press in this case because the only

protection to. the press is through the doctrine of “fair use”

28 A contrary decision by this Court is all the more rea’ for go ont.

ing the Petition in No. 649, in order that the Bench. the Bar. the Gov-

ernment and the public at large mav know which of two allegedly

applicable lines of decisions of this Court are te control, those defining

“official duty” or those in the patent realm.

(p. 14).°% Thus summarily stripped of Constitutional standing

and guaranty, Freedom of Press would be relegated to the role

of a non-statutory exception to Copyright Act. Gone would be

the publie’s “right to know: ”? gone the safeguard of “the widest

possible dissemination of information from diverse and antag-

onistic sources: *' gone the “right of freely examining public

characters and measures. and of free communication thereon:

gone the protection for “dissemination of controversial informa:

tion which the public i3 entitled to receive’? —— gone, as Consti-

tutional rights.’* all these and other attributes of a Free Press.

2) "Fair use” is an undependable reed for a free press to lean upon.

The Copyright Office has said. “Fair use is not a predictable area of

Office Study No. 10. p. 13 trimeo. Aug. 1958)... Another commentator

has said that. “There is no agreement on the nature ef the doctrine”

and has pointed to the “confusion as to the nature and source of the

doctrine” Needham. Tape Recording. Photocopying and Fair Use.

Ascar, Copsricut Law Sy Meositm No. 6. p. 75 (1959). See Della

is “the most troublesome problem in the whole law of copyright”).

Ci also: Cohen, Fair Use In The Law Of Copyright, Ascav, Copyricit

Law SyMpositw No. 6, 43. 46 (1955).

619, p. 25).

1} Associated Press vo United States, 326 Us. 1. 20 (1945).

“6 Wartives OF Jaws Manso, 398 (1906 ed.) In the exercise

of its Constitutional rights a Free Press is not limited in quoting from

the text of official statements. “ However, the doctrine of “fair use” will

not permit quotation of substantial portion of such important materials.

Benny v. Loew's. Inc. 239 F. 2d. 532. 536-7 (9th Cir. 1956). aff'd per

curiam by equally divided court, 356 U.S. 43 (1958): Toksvig v. Bruce

Pub. Co. ISL F.2d 664.666 (7th Cir. 1950).

UL S. Government's Brief before this Court. quoted in’ Petition

(No. OF95 at pp. 24-25.

4 "Fair” use is only a privilege not a right. 3 VILL.L.Rev. 361, 385

(1958.) Furthermore it is net even a question of law: “. . . the issue

of fair use is a question of fact.” Eisenschiml v. Fawcett Publications.

Swe Dh F.2d 598.604 (7th Cir. 1957) cert. denied 355 U.S, 907 11957).

Nowhere is there the slightest scintilla of legal justifieation for

such bizarre Constitutional interpretation. Cross-Petitioner’s

ergnment eviscerates the First Amendment's guaranty of Free-

dom of Press.

On the other hand. this Court guards First Amendment right-

“with a jealous eve.” Cross-Petitioner’s extraordinary pro-

posal would fly directly in the face of this Court's pronounce-

ment that

“).. the First Amendment does not speak equivocalls

It must be taken as a command of the broadest scope that

explicit language. read in the context of a liberty-loving so-

ciety. will allow.”

Petitioner in No. 649 respectfully submits that the Cros--

Petitioner's improper use of copyright to deny the American

people and press the right of access to or even of quotation from

his official statements publicly made as a top-level Government

official presents a serious constitutional question involving Free-

dom of Press under the First Amendment.

Cross-Petitioner would deny Petitioner freedom of press

heeause he is a so-called “free rider” (p. 14). By the same

token the press at large is also a “free rider.” Cross-Petitioner’s

claim in this regard indicates his fundamental legal position:

Le. that any segment of the press can at his will or whim be

denied not only the Constitutional right of Freedom of Pres-

but even Cross-Petitioner’s substituted “right” of “fair use.”

Petitioner submits its Petition in No. 649 on the <ubstantive

hasis of important issues of law -uch as the major undecided

questions of Constitutional law. the unsettled problems of staiu-

tory construction, and the unresolved conflict= with applicable

decisions of this Court and of other Courts of Appeals.

The expressed will of Congress that “Government publica:

tions” shall not be copyrighted. and the substantial evidence

3 A.P.L. v. Swing, 312 U.S. 321. 325 11941).

of conflicts with or evasions of this Congressional policy.”

as outlined in the Petition in No. 649 (pp. 18-22. and Appendices

E-K}. speak for themselses.

CONCLUSION

For the foregoing reasons, both the Petition in No. 649 and

the Cross-Petition in No. 739 should be granted.

Respectfully submitted.

STANLEY B. Frost

Harry N. Rosenrrenp

March 196]

7 The Petition (No. 649) outlined eight categories of conflicts with

or evasions of the Copyright Act (pp. 18-22). For official confirmation

that the Air Force, Army. Navy. A.E.C. and N.A.S.A. have engaged

in self-styled “gimmicks” to evade statutory restrictions upon Govern-

ment agencies and personnel, see testimony of N. E. Haiaby. Federal

Aviation Administrator-Designate. before U.S. Senate Committee on

Interstate and Foreign Commerce, Feb. 21, 1961. Official Transcript.

pp. 19-26 and 61: Washington Post. Feb, 22. 1961. p. Ad. col. 4-5.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.