PUBLIC AFFAIRS PRESS v. RICKOVER
Legal provision: 28 U.S.C. 2201
Argument of Harry N. Rosenfield
Chief Justice Earl Warren: Number 36, Public Affairs Associates Incorporated, etcetera, Petitioner, versus Vice Admiral Hyman G. Rickover and Number 55, the Vice Admiral Hyman G. Rickover, Petitioner, versus Public Affairs Associates Incorporated.
Mr. Rosenfield, you may proceed with your arguments.
Mr. Harry N. Rosenfield: Mr. Chief Justice, may it please the Court.
This case involves the question whether an official Government press release is a government publication.
If it is, it may not be copyrighted.
More broadly stated, the issue before this Court is whether any press release, government or private, is a government publication within the statutory restrictions against the copyrighting of government publication when it comprises a speech made by a high ranking Government official, delivered while on official duty and dealing with matters falling within the scope of his official duty or into the connection or relationship between that duty and the subject matter of the papers involved.
The petitioner in this case sought the declaratory judgment that Vice Admiral Hyman G. Rickover had no copyrightable interest in 23 of his public speeches.
We allege that this was so, because these were Government publications and therefore, we’re in the public domain.
The District Court held two things.
First, that these were not Government publications and secondly, that there have not been any general publications and therefore copyright was properly taken.
The Court of Appeals affirmed on the first point, reversed on the second point, and remanded for trial on a certain titles.
The facts in this case are completely undisputed, Your Honors.
The petitioner is a publisher operating in the District of Columbia.
The respondent is the honorable and highly regarded Admiral Rickover, who during all of the time of these proceedings critical dates held two positions simultaneously.
Within the navy, he was the Assistant Chief of the Bureau of Ships for Nuclear Propulsion and simultaneously, within the Atomic Energy Commission, he was the Assistant Director for naval reactors.
During all of the time when the critical facts before the Court were involved, the Admiral was engaged on two major government projects, the construction of this country's first atomic submarine, the Nautilus and the construction of this country's first commercial atomic power plant at Shippingport, Pennsylvania.
Between October of 1955 and January of 1959, the Admiral made 23 speeches, publicly delivered.
I should like to break these down into two groups for the convenience of the Court.
The 23rd one had on its face a copyright registration.
The other 22 did not.
Among the first 22 speeches, 13 were issued as official press releases of the Department of Defense.
Owing to the fact that the printed record fails to disclose this clearly enough, I have asked the clerk to make available to me this morning the actual speech press releases that are in the record before this Court, this is from your record.
I have -- I've chosen four at random out of the 13.
You will note that in each one, this is the portion that was used by the clerk to print the record, this little piece here, you will note that across the top of each one of these speeches, the blue band news release please note this, Department of Defense, Office of Public Information, Washington D.C.
In the center is the CO of the Department of Defense.
Off to this side, hold for release until delivery of the press, off to this side is the Official Department's number of the press release number and its series.
Below that is the Department of Defense telephone and the extension of its Public Information Office, so that anyone can get further information.
This particular speech of the naval revolution, 13 were issued in this particular form.
Additionally to this, seven were issued by the Atomic Energy Commission and these again out of the right -- out of the record.
Not quite as colorful, but across the side, AEC and on the top of it, United States Atomic Energy Commission, Washington D.C. for release and the telephone number for future information.
This particular one or I should say that in each case, the Admiral is identified by his official titles in both departments.
Unknown Speaker: (Inaudible)
Mr. Harry N. Rosenfield: It does, sir.
The one that I read to you earlier, the Naval Revolution says, “Hold for release until delivery of address expected about 2 P.M. Eastern Daylight Saving, Saturday September 14th, 1957.”
Justice Charles E. Whittaker: Is there any dispute about what that word “release” as there used means?
Mr. Harry N. Rosenfield: In -- there's no dispute so far as we are concerned.
The allegation by the respondent is that that negates general publication in part.
Apart from that, there's no dispute that I'm aware off in the record.
The similar kind of information appears on the -- on the AEC Press Release.
Justice Felix Frankfurter: Are you going to tell us to whom these were issued prior to delivery?
Mr. Harry N. Rosenfield: I certainly shall, Mr. Justice Frankfurter and let me do that right now.
Each of this was released by the Department of Defense for the Atomic Energy Commission as the case maybe and in some cases, both.
They were released widely through the public information services of each of the -- of the consigned agency as a -- well, I shall draw no conclusion.
They were released in this fashion.
Unknown Speaker: The press got this?
Mr. Harry N. Rosenfield: The press got these.
They were issued as widely as the Department of Defense and the Atomic Energy Commission distributed to the press, to anybody else that asked this for it.
Justice Felix Frankfurter: They have a distribution list, I think.
Mr. Harry N. Rosenfield: They have a distribution list.
Justice Felix Frankfurter: In each one of these agencies.
Are those lists, are the recipient of these releases in the record?
Mr. Harry N. Rosenfield: They are not, sir.
Justice Felix Frankfurter: Is there any characterization of them?
I suppose all the wire services.
Now, what specific newspaper?
Mr. Harry N. Rosenfield: None were indicated except that Mr. Justice Reed, sitting by designation below characterized them in discussing -- in discussing the issue of general publication is saying it would be hard to have distributed them all widely than these speeches were distributed.
I should like to continue with my answer to your question, Mr. Justice Frankfurter, in addition to being distributed officially, each of the speeches was distributed by the Admiral in three ways.
First, 50 copies were made available by him to the sponsor of the address of the occasion.
In each case, 50 copies were made available by him personally for distribution by the speeches sponsored to the press or others.
Justice Felix Frankfurter: Before delivery.
Mr. Harry N. Rosenfield: Before delivery; in addition, the Admiral distributed copies to those who asked for copies after delivery or to those unsolicited whom he deemed to be interested in this.
And third, he distributed them or he had them distributed at the National Press Club here in Washington, although not one of the 23 speeches was there delivered.
Justice Felix Frankfurter: You mean they were on file there?
Mr. Harry N. Rosenfield: They were on the press release table as handouts for anybody to take bearing in mind that the National Press Club constitutes 45% of its membership as non-press people.
Justice Charles E. Whittaker: May I ask you?
Mr. Harry N. Rosenfield: Yes, sir.
Justice Charles E. Whittaker: Is there any difference in the manner of distribution of a copyrighted one, the 23rd from the others?
Mr. Harry N. Rosenfield: The record is not clear on this Mr. Justice Whittaker, but I think this much is clear.
I assume and at least I am presenting to the Court the assumption that the 23rd copy which I have here, which did not have any indication, this is the 23rd copy, at the bottom of which it says, “Copyright 1958 H.G. Rickover.”
It does not have the indicia of a Government press release.
I assume and I -- I present to this Court my argument on the assumption that this was released only by him personally and not by the Government.
Apart from that, the record is silent now, Mr. Justice Whittaker.
Now, I think it's important to note, Your Honors that in connection with these Government press releases, there was neither oral nor written disclaimer of official states.
No way does there appear any of these that this was a private statement.
Anything which would indicate anything other than it was a Government document.
There was no limitation on its use or in the nature of its distribution.
I might add that the first 22 which were not copyright registered at the time of their distribution as press releases was subsequently -- these were subsequently registered for copyright after the speech had been delivered and --
Justice William J. Brennan: For someone who doesn't know how you do it, how do you register something for a copyright?
Mr. Harry N. Rosenfield: You simply file a form, I have here, there's a copy in the record, the form, you file a form which consist of two short pages, give the author, the title, the date of the publication, what's new on it, and sign it, and pay $2 and it registers.
Justice William J. Brennan: Now, when do you put the notation on it?
Mr. Harry N. Rosenfield: The notation under the law must be on the copyrighted item at the first date of publication and this Mr. Justice Brennan --
Justice William J. Brennan: Well, what I'm trying to get is you file a form first or what?
Mr. Harry N. Rosenfield: The form need not to be filed first.
One may put copyright registration on it and then file after.
Justice William J. Brennan: And how long you may wait before you file it?
Mr. Harry N. Rosenfield: One of the cases is held as long as 18 months.
The courts -- the statute says reasonably but as long as 18 months provided no one has been deceived.
Justice William J. Brennan: But I gather now that the form in the cases of 22 is filled out and filed.
How long after the --
Mr. Harry N. Rosenfield: The form was filed December 1st, 1958.
Some of the speeches date back to October 1955.
The last of them is October 1959.
I think it's important for the Court's understanding to realize that when these were copyrighted after distributed, they were retyped and this blue band and the slash across the top, Atomic Energy Commission were cut out, so that the copyright office had concealed from it the original nature of their original distribution.
Justice William J. Brennan: Is that significant?
Mr. Harry N. Rosenfield: It may be.
It may be significant.
Justice Charles E. Whittaker: Well, does the fact that the application is finally made, constitute any res judicata effect upon or estop one from attacking --
Mr. Harry N. Rosenfield: No sir.
Justice Charles E. Whittaker: -- the prior publication or dedication to public domain?
Mr. Harry N. Rosenfield: No, sir.
Because the -- the statue reads that they make -- no copyright may subsist in matter which is in the public domain and therefore, the mere copyright registration is not res judicata as to whether it is or is not in public domain.
Justice Felix Frankfurter: May I ask this?
Mr. Harry N. Rosenfield: Yes sir.
Justice Felix Frankfurter: These were 22 speeches delivered over a span of what two years?
Mr. Harry N. Rosenfield: Four years.
Justice Felix Frankfurter: Four years.
Now, was the registration application filed, did you say sometimes two or three years after, is that right?
Mr. Harry N. Rosenfield: That's correct.
Justice Felix Frankfurter: Was there an application in -- in block for all of them?
Mr. Harry N. Rosenfield: There was an application in block and this is it.
They were all filed at one time, the first 22 --
Justice Felix Frankfurter: Yes.
Mr. Harry N. Rosenfield: -- were filed in block at one time on the same date, but with a separate application from the 23rd.
Justice Felix Frankfurter: Now, are any of the challenge publications -- publications that were made in the intervening period that is between delivery of these speeches and notice of registration?
Mr. Harry N. Rosenfield: Yes, all of them are, sir.
Justice Felix Frankfurter: All of them were in between but after notice was sought to be given in the way you've indicated by retyping or whatever it was --
Mr. Harry N. Rosenfield: I beg your pardon.
Let me make sure that I state that correctly.
These speeches were delivered and the press releases were issued in a period between October, 1955 and the end and prior to December 1st, 1959, excuse me, 1958.
Justice Felix Frankfurter: 1958.
Mr. Harry N. Rosenfield: After all have been issued, the 22, as press releases, after that, only then was an application made for registration.
Justice Felix Frankfurter: To cover them all?
Mr. Harry N. Rosenfield: To cover them all.
Plus a preface which is not here involved.
Justice Felix Frankfurter: And in the meantime the -- there were publications in non-allowed source -- at non-allowed sources which are the sale as infringement?
Mr. Harry N. Rosenfield: Correct.
Justice Felix Frankfurter: Both of the -- both of the -- whatever common law rights maybe claimed or are there no common law rights claimed.
Mr. Harry N. Rosenfield: Yes, sir.
But the claim can't --
Justice Felix Frankfurter: Both look for so-called common law rights in literary property and for the protective statutory, is that right?
Mr. Harry N. Rosenfield: That's correct.
The respondent here claims he had common law right because these were not published as distributed.
It's important for the Court to realize for whatever weight it wishes to give it Mr. Brennan -- Mr. Justice Brennan that each of these speeches was written in long hand according to the record by the Admiral at home.
The final draft of each of these speeches was typed by his government secretary in the Department of Defense on Government facilities and Government time.
Twenty of these speeches were issued, were (Inaudible) by Government officials on Government time and issued as Government materials.
Two of these first 22 were not issued as speeches at all, but were used in other ways.
The Department of Defense regulations at the time we're involved in here.
Forbid the use of Defense Department facilities or personnel for private publications.
The general regulations of the navy at the time here involved provide that in connection with all non-official publications, the author must indicate two things, a positive disclaimer of official status and an affirmative statement of private views.
It is clearly recognized and admitted that as to all 23 of these speeches, even the one that was copyrighted, the prior to release, no such disclaimer was made despite the requirement of the regulations.
All 23 of these speeches were delivered while the Admiral was on official duty.
He had not taken leave for personal purposes.
Only four of these speeches were delivered in the City of Washington.
All the others including one in general, in connection with all the others, the Admiral's travel was paid for by the Government of the United States.
I should say in fairness, that when honorarium was offered to the Admiral, he did not accept them personally, but he designated a private charity for that transmission.
I should like to make it clear at the outset that this case involves no question of secrecy whatsoever either because of National Security or executive privilege.
No such issue was involved in this case.
The issue arose when the petitioner requested copies of two speeches, the last two that were not copyrighted in order to pull from them in part.
The Admiral refused to permit him to quote from them, although he wasn't even advised and didn't know how much quotation was involved.
Now, I think an important --
Justice Felix Frankfurter: (Voice Overlap) breaking long enough.
Mr. Harry N. Rosenfield: I beg your pardon, yes sir?
Justice Felix Frankfurter: To get some free information that is always part of (Inaudible) must you take out a -- how much of a quotation requires permission that every sentence of a concededly copyrighted word, must you have permission for every clause or every sentence of the quotes?
Mr. Harry N. Rosenfield: Mr. Justice Frankfurter, the Second Circuit said that this question of fair use is one of the most difficult questions in the whole field of copyright.
I have attempted to brief this in my reply brief.
The normal rule seems to be that where it's small enough so as not to be substantial in taking away the person's livelihood or economic value out of the original copyright where it is not used for a commercial motive, it may be used.
But this question of fair use which I might -- I might add at this point, the Admiral says it's sufficient.
We don't need a constitutional right of the press.
All you have is fair use.
Fair use is so complicated that in one of the most recent issues of the American Association of University Professors' Board, a professor who faces this came to the sad conclusion, you better ask for consent.
Justice Felix Frankfurter: Well, that's what -- that's what I've been noticing that people --
Mr. Harry N. Rosenfield: You better ask for consent or you're in trouble.
Justice Felix Frankfurter: -- ask permission for -- half the clause of those lines or --
Mr. Harry N. Rosenfield: That's right, sir.
I happen personally to be the executor of the state of the distinguished author and I get questions for two sentences, request for two sentences, as little as two sentences quotations, it irritates me but I don't deny it.
This is one of the very issues and we have said that to be -- to be relegated to fair use makes no sense under the circumstances and in any event doesn't deprive us of the constitutional right.
I think the contents of these speeches are of the utmost importance to illustrate our position.
I have indicated there are 23 such speeches.
Ten of them deal with a naval warfare and atomic energy.
Justice William O. Douglas: Did your client add anything to these speeches, editing them or providing commentaries or footnotes or appendices or --
Mr. Harry N. Rosenfield: I'm afraid I've failed to indicate sir that this was a proceeding for a declaratory judgment.
There was no publication made in this case --
Justice William O. Douglas: But I mean, put the -- it was your proposed --
Mr. Harry N. Rosenfield: They would have been --
Justice William O. Douglas: Your proposed use was just the speeches as (Voice Overlap)
Mr. Harry N. Rosenfield: Quotations from the speeches as is.
Justice Felix Frankfurter: In another work or --?
Mr. Harry N. Rosenfield: In another work.
Justice Felix Frankfurter: In another work not -- why did the dissemination of the Admiral --
Mr. Harry N. Rosenfield: I should say sir that I'm not going out of the record.
I wish to be fair to the Court.
The record doesn't disclose that it would be in another word.
I can tell you from my personal information that this was in a work dealing with atomic energy, but I do want to be fair, the record does not disclose this fact.
Justice Felix Frankfurter: How many of these speeches and other personal curiosity, how many of these speeches of the educational (Inaudible) of the Admiral?
Mr. Harry N. Rosenfield: Ten.
Justice Felix Frankfurter: Ten.
Mr. Harry N. Rosenfield: Out of the 23, 10 are on naval warfare and atomic energy, 10 are on Education and three were delivered in connection with the bestowal on the Admiral of awards or medals for his government service by private individuals.
I should like to discuss each of these, sir.
In the 10 dealing with atomic energy and naval warfare, two main subjects were discussed, the effect -- the industrial effect of atomic energy on naval construction and the revolutionary effect of atomic energy on naval warfare.
Let us look to the speeches themselves.
The very first, I should say that on page 105 and 106 of the record is a list of these various speeches.
And I shall refer -- with your kind permission, I shall refer to the numbers in the order in which they appear here which are in the date of delivery.
The very first speech dealing with metallurgy and atomic power is devoted from the very outset and I quote, “To the major problems in the use of metals in the application of atomic energy to the propulsion of ships, and to the Admiral's besieging his audience, the National Metals Congress for help in solving these varied problems.
The eight speech, “The Challenge of Nuclear Power”, and I'm choosing two in each instance, exhorts industry to help in the technical and industrial aspects of his official job.
Permit me to quote one paragraph and I'm quoting as indicated on our brief at page 29.
“Just as the strength of a chain is no greater than that of its weakest link, so that the successful operation of a nuclear power plant depends on the reliability of all its parts, not alone the nuclear reactor, but also the heat exchanges, pumps, valves etcetera.
In fact, our experience,” said the Admiral, “With the full operating plants of the naval reactors program has shown that it is these components, the industrial components, which are proved less reliable than the nuclear reactor itself and also their delivery time is poor.
Here, I believe is the challenge to industry,” he threw out.
As to the second general subject in these 10 speeches --
Justice Felix Frankfurter: No, the 10 -- I don't need to interrupt you though I do?
According tanner of the direction of this argument that these are matters that are in guarantee of official quality?
Mr. Harry N. Rosenfield: Mr. Chief -- Justice Frankfurter is always ahead of me, the answer is yes.
The purpose, the thrust of my argument is that all 23 of these speeches as will be indicated, are part of the official scope of his duty.
The second group in the first 10, dealt with the revolutionary effect of nuclear energy on naval warfare.
The second speech, nuclear power and the navy had as it theme and I quote, “The impact of nuclear power on the navy and two of the basic principles of waging naval warfare.”
The speech goes on at great length to tell how the Nautilus, our submarine which he constructed came to be built, the navy's plans for future vessels of the same kind and the atomic energy's plans for future naval reactors, bearing in mind, both of these were his employers.
And the last of these 10 first speeches on industrial effect that I should like to quote, is the one revolution at sea 11 and 14 are substantially identical although with different titles and the theme here was, and I read from the bottom of page 29, “Today, our navy is in the midst of another change, conversion from oil to nuclear power and he deals at great length was the conversion to nuclear power and the resulting effect on naval warfare.
So much for the content of the first 10 speeches, now to the second 10 group and I don't mean to imply that the first 10 came in the first order.
These are simply by classification, those dealing with the relationship of national defense for education.
At this point, it is important to bring to the Court's attention as we've done on our brief, certain -- certain little known facts of record and a public record concerning the Admiral's own duties in his own job.
It is our point, and I think sufficiently, we hope proved in the -- in the brief, that the Admiral's official duties, this particular Admiral's official duties required him to be an educator, to operate schools in his official duty.
I direct your attention to the quotation from the 23rd speech which appears on page 31 of our brief, in the middle of the page, you will recall that this was the speech that was attempted to be copyrighted before issuance.
Though, and I'm quoting of course from the Admiral, “Though I have never taken a course in education, I have been running schools for years.
We have set up schools for our own engineers, and for our industrial people as well as for officers and men who operate on nuclear ships.
In our post-graduate program, we teach the exacting requirements of reactor design, construction and management.”
In testimony before a congressional committee in the very period in question here between 55 and 59, specifically in 1957 and I quote from the bottom of page 34 of our brief, the Admiral's total to house appropriation to make, “We run quite a number of schools of our own because there is a great shortage of scientists and engineers and we found we could not depend too much on our schools and our available training program.
We have to train our own.
We are running at the present time within the period of question.
A number of different schools within the naval program ranging from the one of the submarine base at New London, Connecticut for teaching nuclear theory to officers and unlisted man to others and I shall not continue.”
As a matter of fact, the record clearly shows -- the public record clearly shows that one of these schools was created by the Admiral for his own work.
Speech number 15, dealing with education in the nuclear age, shows on its phase that was delivered as the dedication of the New London School to which he talks, which he created and he asks questions in his dedicatory remarks.
“Why do we need a school here that cost so much money?
Why do we need a school which is limited in its clientele?”
And he answers, “Bearing in mind that this is the navy's nuclear expert number one, we have no choice, but to develop a new kind of navy man to run a new kind of ship.
The schools -- the school provides the kind of education needed by officers and men of a nuclear navy not provided elsewhere.”
I have indicated that he was employed by two agencies by the Atomic Energy Commission as well.
He created a school for them.
I quote from his testimony before a congressional committee.
In 1959 when he was asked by the chairman of the committee to state your qualifications for talking about education, and in part the Admiral said, “I was instrumental in setting up the Oakridge School of Reactor Technology in Oakridge for the Atomic Energy Commission.”
Justice Hugo L. Black: Suppose he had made all of these speeches after he left the service, these identical speeches, what would you say then?
Mr. Harry N. Rosenfield: I think sir -- and this is one of the tough problems that we face in our (Inaudible).
I think there might have been a difference because here, he was purporting to speak for the Government.
In each case, he was dealing with matters within the confines of his own official duty as we shall show.
He was dealing with matters within his own peculiar knowledge, not available to anyone else.
We're not stressing beyond stating it that the issue also involves use of Government facilities.
We're pointing out our major; the gravamen of our argument is although we bring the other end that he was in the conduct of his official duties.
Now, if he's beyond his official duties, different questions arise and they could well have been a different ruling in our judgment.
Justice John M. Harlan: Your quarrel with the Court of Appeals in this stage of the case; one fact do you think they drew the wrong conclusions from the facts or they followed a wrong standard what is it --
Mr. Harry N. Rosenfield: The lateral Mr. Justice Harlan.
There's no question as to the fact.
We believe they applied the wrong rule of law.
Justice John M. Harlan: In what perspectives that they --
Mr. Harry N. Rosenfield: The rule of law applied by the court below was that a publication could be a government publication, only if it was called for by his duties.
Justice John M. Harlan: You mean if he'd received an order to make a speech.
Mr. Harry N. Rosenfield: That's right or to put it in his blunter terms as the trial justice put it, the works for higher doctrine, that he wasn't hired to make speeches.
He wasn't hired to write speeches.
Our position is two-fold.
First of all, here is one of the navy's top 26 people.
It is interesting to note in this regard that the Admiral himself rejects the -- the argument of works for hire.
At the bottom of page 21 of our brief, we've indicated from a transcript, I regret Your Honors that this is in typed -- imprinted form yet but it's our reason.
The respondent's own view of his duties, “I do not know what hat I am wearing.
I understand that I have some job descriptions in the navy and the AEC but I have been too busy to read them.
I only know that I am responsible and that is enough” and we think he's right and the court below was wrong.
When you get a man of this high level of discretionary authority Mr. Justice Harlan, the issue that's confronting the man in his official duty is what he makes to the job.
Somebody else would have made a difference Your Honor.
Justice William J. Brennan: Well, Mr. Rosenfield.
Mr. Harry N. Rosenfield: Yes sir.
Justice William J. Brennan: What the -- significance that we give about Exhibit 24, that the secretary cases disclaimer that at least on the part of the navy and he's done (Inaudible)
Mr. Harry N. Rosenfield: In my judgment the Howard and Lyons case, 360 U.S. in 1959 answers this.
The Court is not foreclosed from looking at whether or not this is official duty merely because the United States says it is or is not.
The facts speak for themselves.
The fact that -- that there was a -- a statement that this was not his official duty, I think is contradicted by the facts of the record in the speeches themselves and in the way this man behaved on his job.
For example --
Justice William J. Brennan: Was there any reliance put on that disclaimer below?
Mr. Harry N. Rosenfield: My recollection is there was sir.
Justice William J. Brennan: There was?
Mr. Harry N. Rosenfield: There was.
Justice Felix Frankfurter: May I ask you --
Mr. Harry N. Rosenfield: Yes sir.
Justice Felix Frankfurter: May I ask you this question?
It is implied that this is pre-legal advice.
Mr. Harry N. Rosenfield: Sir, if I can give any pre-legal advice to the distinguished Justice, I shall be honored.
Justice Felix Frankfurter: Well, I speak on behalf of all members of the Court and I'm not authorized to do so.
More unto this Court go and address to learn his party say law school from various parts of the country on the jurisdiction and from the Supreme Court of the United States, are those addresses -- would you say or would you draw a distinction that those addresses are not copyrightable?
Mr. Harry N. Rosenfield: I would say they are not copyrightable sir and we brief this in our brief for this reason. As a matter of fact I have been so --
Justice Felix Frankfurter: I'm not (Voice Overlap)
Mr. Harry N. Rosenfield: No, no.
I understand sir.
I realize the purpose of the question.
Justice Felix Frankfurter: (Voice Overlap) the problem I said.
Mr. Harry N. Rosenfield: Well, I don't mean -- I don't mean to be impregnate but I have taken the liberty at pages 15 and 16 of our reply brief, this green document of making these various observations that merely because a speech or a page -- this by the way does -- is limited to speech, it could be a memorandum, a paper.
Merely because --
Justice Felix Frankfurter: (Inaudible)
Mr. Harry N. Rosenfield: Merely because something is written by a person who is in the Government service doesn't mean that it's a part of his official job.
For example, (Inaudible) was surprised when Edwin Arlington Robinson was in the U.S. Customs Bureau, that doesn't make his poetry, government publications nor to answer the -- your question Mr. Justice Frankfurter.
If I may be permitted to be personal in respect of members of this Court when the Chief Justice made a speech in California before the cardiovascular agency and talking about Foreign Affairs, I don't think this was a public document.
Justice Felix Frankfurter: He can copyright that speech?
Mr. Harry N. Rosenfield: I think he can copyright that speech.
[Laughter] I think -- as a matter of fact -- as a matter of fact, it's a very interesting difference as to the way they're treated.
This is the copy of the press release of the Chief Justice's remarks.
The Chief Justice looks surprise.
[Laughter] I got it -- I got it served from the Public Information Office.
You notice the difference in handling this.
The Chief Justice doesn't purport to speak in official capacity.
Chief Justice Earl Warren: They are copyrighted.
Mr. Harry N. Rosenfield: [Attempt to Laughter] Now our point --
Justice Felix Frankfurter: (Voice Overlap) specific.
Mr. Harry N. Rosenfield: Our point is this, on the point that you raise; the Constitution of the United State says that the judicial power shall extend to cases and controversies.
Chief Justice Marshall said in Osborne against the Bank, “The judicial power is capable of being acted upon only when the subject is submitted in a case.”
Mr. Justice Field in Smith against Adams in 130 U.S., Mr. Justice Day in Muskrat 219 said the same thing.
Justice Felix Frankfurter: So that when I talk, except from the bench, I'm not a judge, is that right?
Mr. Harry N. Rosenfield: With one exception sir, with one exception.
Justice Felix Frankfurter: When I'm on the circuit.
Mr. Harry N. Rosenfield: Of course still you're on the bench.
Justice Felix Frankfurter: Yes.
Mr. Harry N. Rosenfield: I think the Chief Justice has two additional obligations.
One, the obligation under the constitution to sit at the impeachment, to preside over the impeachment of the President, I think this is an official duty.
Secondly, to preside over the judicial Congress and of course this Court has the obligation of rules.
If what happened by members of this distinguished happens within the confines of those things, I think its Government publication.
Justice Felix Frankfurter: We wouldn't be asking if we weren't justices.
Mr. Harry N. Rosenfield: That's right, that's right.
But it isn't related to the work for which the scope of your authority is limited by the Constitution.
Justice Felix Frankfurter: So that if I now wrote, to be very specific, if I now wrote to Mr. Landsford, I did a book on the business of the Supreme Court, is that copyrightable?
Mr. Harry N. Rosenfield: I think it is sir.
And I think that --
Justice Felix Frankfurter: But I must allow my secretary to take part in that, isn't that right?
Mr. Harry N. Rosenfield: No sir, we're not arguing and I wanted to make it clear sir, we're not arguing alone that the fact that the secretary was used or the Government paper was used is sufficient.
We do argue as the Sawyer case did in the Second Circuit that one may draw an inference from the use of Government facilities as to whether or not the author deemed them to be the government.
Justice Felix Frankfurter: But how much?
Mr. Harry N. Rosenfield: Exactly.
There are some things -- there are some things in which I would be perfectly willing to leave the matter to be settled by disciplinary action on the administrative level, but to be specific in answer to your question, I don't -- we have a specific question, again, forgive me for being personal.
Mr. Justice Brennan and Mr. Justice Black delivered successive lectures at the Madison Lecture Series on the Bill of Rights in New York University.
I don't think these are government publications and we don't claim they are government publications.
Our claim is not that everything that Government officer does is public.
Only those things connected or related with their official function makes the product part of his official --
Justice Felix Frankfurter: Not arising out of their official function.
Mr. Harry N. Rosenfield: Not necessarily merely arising out but connected with or related with.
Justice William O. Douglas: What do you do with the Whitton case?
Mr. Harry N. Rosenfield: This sir is -- is clear.
There, the documents that dealt with his official duty were not copyrighted.
The rec -- the opinions of this Court, the documents that dealt with things that his official duty did not require him to do were privately copyrighting, which is precisely what we are arguing.
Justice William O. Douglas: I thought traditionally, a reporter made at least head notes?
Mr. Harry N. Rosenfield: Well, but it was -- it wasn't the head notes there that were involved.
It was -- it was the -- the descriptive notes in which he did --
Justice William O. Douglas: But he -- it didn't appear that he did those at night at home.
Mr. Harry N. Rosenfield: Well, but whether he -- whether he did at night or at any --
Justice William O. Douglas: -- or holidays.
Justice Felix Frankfurter: You mean the introductory statement of fact?
Mr. Harry N. Rosenfield: No.
The rows note and that kind of note.
Justice William O. Douglas: Yes.
Mr. Harry N. Rosenfield: Were notes that were unrelated to the specific facts of the case but show where this case fit into general jurisprudence of the subject.
Justice William O. Douglas: But they were presumably done in -- in office hours --
Mr. Harry N. Rosenfield: Well Mr. Justice --
Justice Felix Frankfurter: It was brought in the official reports.
Mr. Harry N. Rosenfield: That's right.
Justice Felix Frankfurter: Official report.
Mr. Harry N. Rosenfield: But -- but we are not saying that as to these, these were part of his job.
In other words, we come back to the point, what I am saying is that for it to be part of the public duty, it's got to be part of his job.
I might add furthermore that the Whitton case was decided by the Court prior to the statutes here involved.
Justice William O. Douglas: I understand that.
Mr. Harry N. Rosenfield: In 1895 and 1899 so that one of the -- the major tripod, part of the tripod on which I'm arguing wasn't present in those cases, but I think the rule would be the same, that these were not related to his job, just as the reporter of this Court at this time, if he would to write descriptive analysis of the jurisprudence resulting from this Court's activities would not be within the cause of action.
Justice Felix Frankfurter: Now there are number of articles in the -- what is that?
Mr. Harry N. Rosenfield: Lawyers Edition.
Justice Felix Frankfurter: No, no, no the -- not the supplement for the F.2d, but another series of federal rules of --
Mr. Harry N. Rosenfield: Federal rules of decisions.
Justice Felix Frankfurter: Now, I see from time to time articles by various district judges about pre-trial practice, discovery, etcetera, etcetera, expositions and elucidations of the rules of civil procedure.
Judge John Jones, United States District Judge for the Seventh District of New York, where do you do draw the line there?
Mr. Harry N. Rosenfield: I say that's private sir.
Justice Felix Frankfurter: That's private.
Mr. Harry N. Rosenfield: Because again, the judicial power is limited as judicial power to cases in Congress.
Justice William J. Brennan: Well, Mr. Rosenfield, in that same context, this Court has a rule making --
Mr. Harry N. Rosenfield: Yes sir.
Justice William J. Brennan: -- power and --
Mr. Harry N. Rosenfield: And this is why I exempt it – exempt it from my previous remarks.
Justice William J. Brennan: Well, the -- the Rule 16 is one of Governments pretrial.
I have made a number of addresses throughout the country on pretrial efficient use of that rule whether those (Inaudible) for.
Mr. Harry N. Rosenfield: Mr. Justice Brennan, I've been -- I've been torn in writing this brief on certain issues because I was tempted to follow what Mr. Justice Jackson once said, “Never cite to this Court anything that one of its members wrote off the bench.”
And I think in a real sense, what he was saying is what I'm talking --
Justice Felix Frankfurter: If I would follow that.
Mr. Harry N. Rosenfield: Pardon?
Justice Felix Frankfurter: That was if I would follow that.
Mr. Harry N. Rosenfield: I haven't followed it myself sir.
I -- I don't mean to be snide or but I think -- I think you can drive me to a difficult point.
I'm not of all sure that when I heard the Chief Justice spoke before the Federal Bar Association on the question of the delaying the Courts but then he was talking officially, because of his -- the character of his activities before the judicial conference.
I think if the Chief Justice were to ask one of the justices right in the circuit, to conduct the surveillance over the -- the affairs of the circuit, I think I'd be implying to say that that was official duty rather than private.
I think there can be -- the tough case will always come, but I think the overall umbrella, is that as a whole, if may be permitted to put it in this bluntness terms you speak only when you sit on that chair, ex cafadra and not otherwise with the exception of these other things which I have mentioned.
Justice Tom C. Clark: (Inaudible)
Mr. Harry N. Rosenfield: No.
I've been trying to say no sir.
I certainly would not think that your speeches on traffic safety Mr. Justice Clark are government publications.
I think those were in your private capacity, a very important capacity but private.
With the Court's permission, I should like to move to the question of the second group of speeches because again, I think the facts here are the critical things before the Court.
To come back to the question that was raised, I think by Mr. Justice Harlan.
Not, that there is any dispute on the facts, but as to the rule of law to be applied to the facts.
Justice Hugo L. Black: May I ask you if your argument is based exclusively on constitutional grounds or is it based in part on the interpretation of the statute?
Mr. Harry N. Rosenfield: Both sir; we allege -- our fundamental argument is this, that there is -- there are two statutes which say that there shall be no copyright of any kind either by the Government or the author, in government publications.
The difficulty with the situation is that there's no definition of government publication so that this Court has to turn to the general rules of law.
On that score, we have two arguments.
The first, that this Court has frequently decided the meaning of words not defined in the statute and its basic position always has been in this respect to use the sensible interpretation.
The ordinary meaning as Mr. Justice Frankfurter said, the words of many usages, you use the familiar meaning that the ordinary man accords to and our position on this Court is putted in its bluntness terms is very simple.
This purports to be a Government document.
It looks like a Government document.
It's issued and treated as a government document.
It's regarded by the people who received it as a Government document, on the Government's rule of a common sense interpretation.
It is the Government.
Justice Felix Frankfurter: But you know what they said, the accusation looks like it, it reads like it.
You know what they did about (Inaudible) that all qualities of fear but it didn't have the authority.
Mr. Harry N. Rosenfield: But this did [Laughter] this does.
This has the authority of the issuing agency.
Justice Felix Frankfurter: But Secretary Gates disavowed it.
That's also worth evident isn't it?
Mr. Harry N. Rosenfield: Yes, but here it is under his only imprimatur and furthermore --
Justice Hugo L. Black: Are they all like to have exactly?
Mr. Harry N. Rosenfield: Sixteen are of this character, seven are of the Atomic Energy Commission, two are not released at all and one has no government imprimatur at all, the 23rd and what I am saying sir is very simple.
I'm saying that a Government press release is a government publication and lest I've interpreted as saying this alone.
Let me point out to you, that the statutes of the United States place upon the Superintendent of Documents in the Government printing office, the obligation of publishing a monthly catalog of government publications.
He has said on an official press release is a Government document.
The library of Congress in a publication's bibliography of Government documents has said likewise.
The American Library Association has said likewise and I -- I venture to say that Mr. Justice Harlan in Barr said the same thing although, I shan't -- I shan't not go into that at this point.
What I'm trying to say --
Justice Felix Frankfurter: And yet -- yet on your own statement awhile ago, though the Chief Justice authorizes the press office (Inaudible) whoever does that, to issue a release about some personal matter or some personal matters, some (Inaudible) and so on.
Mr. Harry N. Rosenfield: Here it is.
Look at the difference.
Justice Felix Frankfurter: Is that a release because you are little too universal for my case if you say every release meaning, everything that is issued through the information.
Mr. Harry N. Rosenfield: No, I beg your pardon.
You caught me up in a mistake.
Every release which purports to be a release of the Government on which the Government has made the decision that this is to be a government release with the consent to the author as in this case, because he personally distributed the same things with his consent.
We say that irrespective of anything else, although this is by no means our whole argument, this is only really the threshold of our argument in answer to Mr. Justice Black, that this becomes a Government document and I would like to point out to Your Honors --
Justice Hugo L. Black: Now, you're referring only now to those of that time when (Voice Overlap)
Mr. Harry N. Rosenfield: Within the 22, the first 22.
Justice Hugo L. Black: But you're not referring to the other --
Mr. Harry N. Rosenfield: I'd like at this point to get to the 23rd, because here, we have a problem of the general rule of law, because this doctrine that I have talked about, the common sense, interpretation and statute, applies only to the one so denominated.
This Court has dealt with the problem of when there -- when an individual in the public service has acted within the confines and the scope of his official duty.
And we think there are two cases -- two groups of cases, first, the copyright cases.
In the Sawyer case in the Second Circuit, the Court of Appeals dealt with this precise subject.
There, an employee of the Department of the Interior, the executive assistant, a high level employee was sent to the -- to Alaska to inspect reindeer, I don't quite know whether he counted them but he inspected reindeer and these facilities of the department.
He came back had a map drawn and copyrighted it.
The District Court said that where an employee creates something in connection with his duties under the employment, it belongs to the employer.
This map was prepared as a result of and relating to his duties in Alaska.
The Second Circuit affirmed the rule of law.
A similar rule of law was adopted in the colorful Lewis and Clark Expedition, about Captain Clark's notes, but I'd like to go further.
This Court has had to decide when things are done within the course of official duty and here, I come back to the Barr case.
The problem arises in defamation cases, where the issue is, where otherwise actionable liable is issued by a government employee, is it privileged because it's within its official duty.
In the Spalding case, Spalding against Vilas in 1896, Mr. Justice Harlan said, that the test of official duty was whether it involved and I quote, “Action having more or less connection with the general matters committed by law is control or supervision”.
The precisely same rule was established in the Barr case in 1959 and whatever the -- the split in the Court may have been on the issue of privilege -- of privilege whether absolute or conditional, both sides of the Court was one exception.
I think Mr. Justice Stewart was the one exception, accept that this rule of law of connection is settling the issue.
Now how closely the relation should be, the connection that I'm talking about?
Spalding said more or less connected.
Barr said that it is sufficient if the action comes within the outer perimeter of the petitioner's line of duty.
The Sawyer case said it's sufficient if it's in the general area of the widest relationship.
As a matter of fact in the Barr case, this Court specifically rejected the doctrine established below, in answer to Mr. Harlan, I'm talking to the rule of law and not the facts.
The court below said that it had to be required by his official duties.
This Court in Barr specifically rejected and I quote, from the bottom of page 23 of my brief, “That petitioner was not required by law or by direction of his superiors to speak out.”
Remember, this was a press release case Your Honors.
It was not required, cannot be controlling in the case of an official, a policy making rank, where the concept of duty encompasses the sound exercise of discretionary authority.
Justice John M. Harlan: Could I ask you a question?
Mr. Harry N. Rosenfield: Yes, sir.
Justice John M. Harlan: Supposing that when Admiral Rickover first undertook to publish his own speeches, the Government had stepped in and said, “No, this is our property,” could it have recovered -- could it be prevented Rickover from publishing?
Mr. Harry N. Rosenfield: Yes sir.
As a matter of fact --
Justice John M. Harlan: In other words, what I'm getting at, the statute, Section 8 of the Copyright Act does not destroy the Government's common law rights in unpublished material.
Mr. Harry N. Rosenfield: Exactly right sir and my position --
Justice John M. Harlan: Now, the Government has never done that?
Mr. Harry N. Rosenfield: The Government has never done it and this is --
Justice John M. Harlan: What standing have you got then to complain to the Government itself and unless it has forfeited those rights?
Mr. Harry N. Rosenfield: Well, we have two standards.
This is part of the -- of the reason for our constitutional argument.
We say in this particular case on the doctrine of the Court in the Wilmington Parking Authority case in the last session of this Court, in the last term of this Court.
We say that the United States Government is a joint participant in the legal act -- in the illegal activity.
We say that -- that the very point you've made sir.
This is part of our complaint whereas the Government has in other cases as we've shown in our brief prevented individuals from doing precisely what others in the military service, it didn't here and that by illegally failing to prevent him, it was a joint participant.
Justice John M. Harlan: Joint participant of what?
Mr. Harry N. Rosenfield: In an -- in unconstitutional depravation of our right under the First Amendment.
Justice John M. Harlan: What's the First Amendment got to do with this if this is copyrighted, why the First Amendment has got nothing to do with it and if it isn't copyrighted, the First Amendment is equally --
Mr. Harry N. Rosenfield: We claim sir that the First Amendment, is abridged in this case for the very simple reason that a copyright -- a private copyright monopoly over publicly made speeches within the scope of official federal duty, is the denial of the freedom of the press on the ground that the basic purpose of the freedom of press guarantee of the First Amendment, was to protect the people's right to know.
And that the freedom of the press concept, was not to give certain business special rights.
But through then to protect the people's right to know and what we're saying in this case is a very simple thing that the decision below hobbles this right to know.
And that as Mr. Justice Holmes said, there's a line of growth of constitutional argument.
200 years ago, the Zenga case said there was liberty to print.
83 years ago, this Court in Jackson said, there was liberty to distribute.
Four years ago the Buckler case said there was liberty to read.
We are saying now with the Constitution being a sensitive document under the Hurtado case that freedom of access is the next step, because of the New York Times said not so long ago.
Freedom to produce a blank page is hardly freedom of the press.
Freedom of access to governmentally released documents, we contend, is part of freedom of press.
In the Cumming's case, this Court said, that Constitution deals with substance not challenge, with the thing not the name.
Your Honors, we say that at this time in history, the thing and freedom of the press is freedom of access to officially released Government document.
Justice John M. Harlan: Could I go back to one thing --
Mr. Harry N. Rosenfield: Yes sir.
Justice John M. Harlan: -- in a moment?
As I understand it, you would recognize that the Copyright Act is not destroyed in the Government's common law rights in --
Mr. Harry N. Rosenfield: Quite the contrary we --
Justice John M. Harlan: -- but you affirm that.
Now, what I want ask you is, has the Government as distinguished from Rickover, done anything to lose its common law rights?
Mr. Harry N. Rosenfield: Well, if we adopt the argument that it has given in the prima facie right prevent us from publishing this material at the penalty of $250 fine each time they publish any one document, we are saying that they have participated in an illegal grant of copyright registration, which they had no right to give because this was a Government document.
They -- the Government administers the copyright.
Justice John M. Harlan: Because they have the right to get the property back in your hypothesis from Rickover.
Mr. Harry N. Rosenfield: That's correct and we are saying that failure to do so makes them a joint participant in the abridgement of our constitutional right.
Justice Felix Frankfurter: What the Government might say Mr. Rosefield that while you say the Government has done this and the Government has done that and the Government has done the other thing.
The Government after all must be some people.
And the Government has nothing to do with it except, you correct me if I'm wrong, all that the Government has to do is this that Admiral Rickover wrote this thing at home so you told us.
Mr. Harry N. Rosenfield: That's right.
Justice Felix Frankfurter: And then he brought it down to his office the next day.
He then told his secretary, would you have this or was then or somebody typed it out (Inaudible) and give it to the information officer and distribute.
That's all the Government's participation.
Mr. Harry N. Rosenfield: I beg your pardon sir.
It also register this -- it also registered the copyright.
Justice Felix Frankfurter: The Government?
Mr. Harry N. Rosenfield: Yes sir.
The government operates the copyright office.
The government operates --
Justice Felix Frankfurter: Yes.
Well -- but certainly the registered copyright didn't know whether this Rickover's property or the Government's property.
Mr. Harry N. Rosenfield: Well, what we are saying --
Justice Felix Frankfurter: Well, if I may --
Mr. Harry N. Rosenfield: I beg your pardon.
Justice Felix Frankfurter: -- and then pick me up.
And there -- and therefore, the Government may say not that we own this copyright that Secretary Gates may say, “I have no idea that Admiral Rickover was doing this thing.”
I'm going to hold them over to close.
I'm going to tell him, you Admiral, don't you ever do this again.
Because you, yourself has indicated that these are nice questions as to what is done within the job and what is done outside of the job, sometimes even the Chief Justice when he leaves his chair as a Chief Justice and he's indicated -- sometimes the justice maybe a judge when he leaves the chair.
These are nice questions and they can't be decided by such appealing generality as an access to information?
Mr. Harry N. Rosenfield: No.
I'm not saying access to information.
I'm saying, connection with his work.
Justice Felix Frankfurter: Well, but Secretary Gates may say, “You have no business to have this done on Government time.
You have no business to have this nice blue navy label over there.”
Mr. Harry N. Rosenfield: Well, I come back sir to the fact that this Court has said in the Howard (Voice Overlap) it isn't that.
Justice Felix Frankfurter: I don't mean to say -- I don't mean to say we are foreclosed by what Secretary Gates has said or anything there.
I'm suggesting that in the scale of determination that's also a weightage --
Mr. Harry N. Rosenfield: I have no doubt about that sir but what I am suggesting is that this Court has before it and agreed this example of evasion of law as we have shown in our -- in our petition.
Justice John M. Harlan: Well, the thing that puzzles me is this, I -- the first part, it seems to me to be a scrap between or should be a scrap between the Government and Rickover and you say you come into the thing because the Government by failing to assert its rights against Rickover raises a new -- a -- raises a violation so to speak for you of a constituted --
Mr. Harry N. Rosenfield: Well, I say two things Mr. Justice Harlan.
Justice William J. Brennan: -- is that your argument?
Mr. Harry N. Rosenfield: This is only part of my argument.
My argument is that a government publication by statue is in the public domain and cannot be copyrighted.
Therefore, I have a right to use a government publication by statute (Voice Overlap)
Justice John M. Harlan: Yes, but I thought you agreed with me that the Government has done nothing here in the way of publication that divested of its own common law of rights in this --
Mr. Harry N. Rosenfield: This is correct, but what we are claiming here --
Justice John M. Harlan: -- so there's been no publication then.
Mr. Harry N. Rosenfield: We are claiming -- we are claiming -- we're asking for a declaratory judgment to prevent the Admiral from attempting to prevent us from using the stuff.
He claims the right to this and if we -- if we are put to the actual publication of it and we may have to pay in on the sums in penalties under the Constitution -- under the statute.
We're saying, in addition to our constitutional right, that we have the right under the statute to publish any document which is a government publication that this is a government publication and we have a right to publish it and we wish a declaratory judgment.
Justice John M. Harlan: What your position comes down to in a simple form is that by failure to act, the Government in effect in violation of Section 8 has conferred copyright rights on Rickover?
Mr. Harry N. Rosenfield: In part --
Justice John M. Harlan: That's the essence of your position.
Mr. Harry N. Rosenfield: Our statutory position and our constitutional position --
Justice John M. Harlan: Your constitutional position is a fortiori so to speak?
Mr. Harry N. Rosenfield: That's -- that's right sir and in connection, if I may make one private further comment with Mr. Justice Frankfurter's point.
In connection with our argument, we have shown in our petition, cases in which they were admitted public documents.
Documents; if you look at 50 -- page 53 of the gray volume, a document which is admittedly an official history of the United States Army in World War II.
If you look at the bottom, it's copyrighted by the army historian.
And then the next succeeding pages 54 and 55, we see a whole list of 28 volumes admittedly government documents, admittedly official histories privately published and what we are saying is that the absence of an opportunity given for this Court to state clearly what the issue is has caused what we think to be an erosion of a statutory right and a serious breach of statutory requirement.
Justice Felix Frankfurter: Well, now Admiral Samuel E. Morison, who is the official historian of the naval warfare of the last war in his whatever it is (Inaudible) 17 or 15 volume, do I get the impression that these are not copyrighted by him?
Mr. Harry N. Rosenfield: I don't know the facts sufficient.
First of all, the Admiral is not a public official.
He was once but he isn't now.
He's a professor --
Justice Felix Frankfurter: (Voice Overlap) he was put on to reservist the other day.
Mr. Harry N. Rosenfield: Well, I don't --
Justice Felix Frankfurter: What I want to know is this?
People who are writing the history of either army or navy or either war, meaning by that, they are selected by the armed services by the Secretary of Defense or even the President as to Admiral Morison was.
They are officially sent to have full access to all the documentation.
Is it your impression --
Mr. Harry N. Rosenfield: No, it is not my position that merely because access is made to official use by private people that the documents --
Justice Felix Frankfurter: These are the service.
These are paid by Uncle Sam.
Mr. Harry N. Rosenfield: Well, there is a very strong problem as to when the question of contract employees come in, but I'm talking about official employees of the United States Government and my position is that where the army historian, a General of the United States Army is full-time employed by the army for the purpose of writing history, this is a government document and I say it's publication as a private document is a breach of statute and a denial of Constitution.
Justice Felix Frankfurter: I read your briefs, but do you deal with the related problem of invention by people in government employ -- employment.
Mr. Harry N. Rosenfield: We -- we attempt --
Justice Felix Frankfurter: So that's a very -- this Court has found that a very thickly problem.
Mr. Harry N. Rosenfield: Your Honor, in our reply brief, this green document, we -- we attempt to point out that the Dubiliar case, which is the principal case involved is clearly inapplicable here for variety of reasons, including among other that it is mooted by an executive order that there was a fundamental difference between -- in the statute as well as in the constitutional picture between the copyright and the patent law and we also point out whatever value it may have that the Admiral himself in connection with that position affirmed the position we're affirming here.
Justice Hugo L. Black: Suppose there has been a suit filed against Admiral Rickover, the lateral, in connection with some critical statements he made, is it your argument that he could have claimed immunity under the Barr versus Matteo case?
Mr. Harry N. Rosenfield: This is -- this is precisely what I claim and if I may be permitted just a moment to explain that.
Let's take this speech, the very first speech in which he complains of the industry's failure to produce the right things.
He's saying that the valves are no good that you don't produce on time and you're holding this down on the national defense.
Let us suppose in the sense that Mr. Justice Black is doing that there was only one contractor that was obviously involved in this.
And it was clear that everybody concern that the Admiral was maligning that contractor.
There is not doubt in my mind and I think there wouldn't be any in this Court's mind that the Admiral would have the right under the Barr against Matteo both majority and minority, Mr. Justice Stewart except, in saying that this was privileged because it was part of his official duty.
Now the Admiral can't have it both ways.
He can't say it's privileged because it's governmental there, but it's non-governmental here and therefore, I can copyright it and this is this -- the gravamen of our position.
Justice Hugo L. Black: Assuming that you are right on that but you presented in your brief the reasons why the Barr and Matteo would also refer to a copyrighter?
Mr. Harry N. Rosenfield: Yes sir.
Justice John M. Harlan: And preclude that.
Mr. Harry N. Rosenfield: Yes sir, because the fundamental issue is the same, the scope of official duty.
Chief Justice Earl Warren: Mr. Rosenfield, there are certain regulations of the Department of Defense concerning press releases, I say they've quoted in the --
Mr. Harry N. Rosenfield: Yes sir.
Chief Justice Earl Warren: -- in the record.
I'm looking at page 100 now.
Were those proceedings followed in these cases?
Mr. Harry N. Rosenfield: No sir, they were not because there were two sets of regulations.
Chief Justice Earl Warren: Yes, I know that.
Mr. Harry N. Rosenfield: In the -- in the -- in the activities of the Department of Defense, under the Department of Defense regulations and I'm -- may I refer you to page 102.
I should like to emphasize by my voice the different points I wish to point out in the first and second sentence.
Personnel of the Department of Defense, military and civilians, who write for outside publication not in connection with their official duties, we claim this was in connection with official duties.
In the second sentence, search activity will not be conducted during normal working hours or accomplish with the use of Department of Defense facilities or personnel.
In this case, it's admitted that this was breached.
He did use official personnel, he did use official facilities.
Justice John M. Harlan: Could I --
Mr. Harry N. Rosenfield: Yes sir.
Justice John M. Harlan: -- oh, pardon me if I'm interrupting you.
What I want to ask you, is the Government given an opportunity to come in to this lawsuit?
Mr. Harry N. Rosenfield: Yes sir, at two levels.
The district judge invited the U.S. Attorney for the District of Columbia into the case and it was rejected or at least it was not -- it was not availed though and in -- in our petition before the Court on page 29, this gray volume, we asked -- page 29 of the gray volume Mr. Justice Harlan.
We made a special request to this Court, I don't need to be interpreted with the Court Mr. Chief Justice, but want to answer Mr. Justice Harlan's question, requesting this Court to ask the Solicitor General to file a major security even in connection with our petition or if granted in connection with the -- with the merits for five reasons, as an employer, as an administrator of the copyright office who had to know the meaning of 17 U.S.C. 8, as an operator on the government public printing office who had to know what a government publication is, as a Government of the United States controlling its entire operation and as a representative of the people seeking a just administration of the law.
This Court so fit not to do so.
Justice John M. Harlan: Alright, I suppose the Government, since you've given them notice, that they thought they had an interest, they could have come in and (Inaudible)
Mr. Harry N. Rosenfield: I have some private--
Justice John M. Harlan: They wouldn't need any arguing from us.
Mr. Harry N. Rosenfield: It's not part of the record so I won't indicate.
I do know that the Government -- the Government was sufficiently interested to circulate all of the departments of the Government in this area.
I -- I'd rather not to give further information because it's not part of the record, I thank you.
Chief Justice Earl Warren: Mr. McDonald.
Argument of Joseph A. Mcdonald
Mr. Joseph A. Mcdonald: Mr. Chief Justice, Your Honors.
Here, we have a man of great intellect and enormous energy, who threw his work in the navy, has come to the conclusion that what this country needs is better education.
Shortly after the Second World War, he had a great fortune to be assigned to Oakridge with a small team to decide whether it would be possible to use the power in connection with atomic fusion and he came back recommending that it could be used -- that it could be used for propulsion of vessels and that it could be used and should be used in submarines because that's where it would be the most useful.
The success of his recommendation attracted so much attention that requests to make speeches came in with regularity.
He took these opportunities and in the course of the speeches while some of them quite naturally deal with his experiences and the first one was before the Metals Congress, very natural that he would talk to them about the problems in connection with metals.
But practically every speech, I won't say everyone, but practically every speech hits on this idea of improving American education.
Now, I don't want to spend too much time on this portion of it because I have a great deal to talk about the matter of dedication in connection with the case Number 55, whether or not the early speeches were dedicated, but I do want to emphasize that the first 12 of these speeches were delivered before Sputnik was fired and this man anticipated and named the lead that Russia had and he drove on the subject of doing a better job in this field of education.
In speech number six, which was November 20, 1956 a year before Sputnik, what concerns me most about the Russian school program is not the coercive element, which speaks totalitarian programs, but the solid evidence that Russia has found a way to inspire her children with the desire to put forth their utmost mental efforts.
And right after Sputnik, November 22, 1957, the powerful thrust of Sputnik's launching device did more than penetrate outer space.
It also appears that thick armor and casing our complaisant in America's present and future technological supremacy.
Now, time doesn't permit an analysis of each of these 22 speeches, but they were all delivered with mounting emphasis toward this question of education to such extent that he drew down upon his shoulders the rest of all the educators or as he calls them “educationists.”
Now, I shall concentrate in the first part of this argument, on the fact that the speeches as written belong to the Admiral, the second half will be that he did not dedicate them.
Now, the first half I divide as follows.
Chief Justice Earl Warren: Before you get to that, may I ask Mr. McDonald, is this consistent with -- in the party apart from his duties as an Admiral in the navy with the responsibility he has in these two positions here.
Mr. Joseph A. Mcdonald: I think it's consistent with his duties.
Chief Justice Earl Warren: Well, is it a part of it?
Mr. Joseph A. Mcdonald: It is certainly not a part.
Chief Justice Earl Warren: Why?
Mr. Joseph A. Mcdonald: He was not expected to make speeches.
As a matter of fact, he has clients who make speeches when requested at sometimes.
He could not have been compelled to make a speech.
Chief Justice Earl Warren: Everybody does that.
Mr. Joseph A. Mcdonald: He could not have been compelled to make a speech.
Chief Justice Earl Warren: The reason I ask that is because I'm looking at this regulation on page 100 of the record where it says, “The people of the United States are properly interested in the Department of Defense and the steps it is taking to protect the national security.
The Department of Defense has an obligation to inform the public with respect to the department's activities and to provide the public with accurate, factual, and other proper information regarding the army, navy, airforce and marine corps and then the public access shall be limited only by restrictions imposed in the national interest pursuant to law in order to safeguard information requiring protection in the interest of the national defense.
Now, was he -- was he pursuing that General Policy of the department when he delivered these speeches and when the -- the information officer sent them out as a -- as a press release from the Department of Defense?
Mr. Joseph A. Mcdonald: I do not think he was following this per se, but what he did was not inconsistent with this, but let me emphasize that when he spoke and when he discussed subjects in connection with the construction of these engines, the mode of power, it was not news.
All of that information has been previously released in official documents.
What he said was news worthy but he wasn't divulging any secrets.
I think it's desirable to concentrate on this directive, and also on the parallel navy department, general regulation.
And before I seem to be skipping to the navy regulation, let me turn Mr. Chief Justice to part five of the DoD directive to which you have just referred.
Chief Justice Earl Warren: Yes.
Mr. Joseph A. Mcdonald: Here, they make a distinction between personnel who write for outside publication.
Chief Justice Earl Warren: Yes.
Mr. Joseph A. Mcdonald: This is what the Admiral was doing, writing for outside publication.
Chief Justice Earl Warren: Did he follow those regulations?
Mr. Joseph A. Mcdonald: He followed them with respect to submitting the speeches for security clearance.
He did not follow them with respect to stating that the views expressed herein are those of the writer and not necessarily those of the navy department.
He started to do that when this litigation reached the courthouse.
It was inadvertent.
Frankly, I wish he hadn't included the line on the first speech in each subsequent one, but I'm sure that he would not have wanted to include such statement in his speech because I'm sure that it would have provoked laughter.
When if --
Chief Justice Earl Warren: Did he follow (Voice Overlap)
Mr. Joseph A. Mcdonald: Pardon me sir.
Chief Justice Earl Warren: Go ahead, did he follow the course of it, which said that he shouldn't' use Government personnel or to do these things?
Mr. Joseph A. Mcdonald: It is very clear in the statement of facts that he used his secretary's services and that he had a secretary take the (Inaudible) master to the mimeograph room and have the speeches processed.
In that respect, there is a technical violation of the strict letter of these regulations.
Chief Justice Earl Warren: And isn't the -- isn't he putting it out by the press officer, isn't that a part of the --
Mr. Joseph A. Mcdonald: Now, with respect --
Chief Justice Earl Warren: -- using the personnel?
Mr. Joseph A. Mcdonald: First, respect to putting it out, I think it's essential to -- to be clear on the manner of distribution of the speeches.
This mimeographing and distribution was handled very much in the same way as an executive of any business corporation would have his lecture to a class or rest to a business association mimeograph the company offices and distributed.
I call your attention to the stipulation in page eight of the record.
And there in paragraph 3, in less than half of page is the complete compass of what was presented to Judge Holtzoff in the District Court.
And this talks about the press office of the navy sending them out in all frankness and I've been in this since the very beginning when the complaint was served, the cover sheet is more a happenstance in the (Inaudible), that's what they put on top of a speech to indicate the release time and I rely on this very heavily from the standpoint of no dedication later.
I say, it doesn't indicate that it's official and it was not distributed to the best of my knowledge through the press office of the navy.
Paragraph 3 says, and I must call your attention to the fact that they were distributed -- they were also made available to the press through the Public Information Office of the Department of Defense or the Atomic Energy Commission or both.
The Admiral took, most of the burden of distributing these, he sent batches of 50.
That's the element on which Mr. Justice Reed relied in the Court of Appeals to the sponsor of the speech where the speech was to be delivered.
This is not to be added to the others.
This is really the package that went out.
Now, in hindsight we can wish that these were a little more specific about just who sent the speeches where.
Chief Justice Earl Warren: Well, I understood Mr. Rosenfield to say there was no difference of opinion between you on the facts and that this press release was in no respect different from the normal press release in the department and then it went through the same channels to the same people.
Now, is that true?
Mr. Joseph A. Mcdonald: I think that that is a slight exaggeration of the scope paragraph 3 of the statement of facts.
I wish to stand on paragraph 3 emphasizing that this distribution was not as wide as one that would have been the case if the secretary of the navy had sent one out.
I realize Mr. Chief Justice that in this connection, I am getting a bit of a face, because of the language of this paragraph 3.
Chief Justice Earl Warren: Where is that there?
Mr. Joseph A. Mcdonald: Well, in paragraph 3 it does say that they were made available -- this is on page 8 of the transcript of the record.
It does say that they were distributed through the Public Information Office of the Department of Defense.
Now how many were distributed is not a matter of record, believe it or not.
This is hard to say.
Justice John M. Harlan: Well, isn't that open for further exploration under the Court of Appeals remand in the District Court?
Mr. Joseph A. Mcdonald: Yes, there will be a remand that this should be affirmed to determine the extent to which, this plaintiff, petitioner in 36 may use the protected speeches now.
Justice John M. Harlan: In other words, the Court of Appeals did not as a matter of law reverse as I understand it, the District Court on dedication.
In other words, it simply says that it was wrong and holding as it did and then they send it back for a full exploration of the facts, isn't that right?
Mr. Joseph A. Mcdonald: Well, Mr. Justice Harlan, they did reverse on dedication.
Justice John M. Harlan: Well, they reversed -- yes in the sense that the –-
Mr. Joseph A. Mcdonald: And said that nevertheless some of these speeches were properly protected.
Justice John M. Harlan: Well, as to the scope of dedication, that's what I am trying to get at, the Court of Appeals left that open on remand, isn't it?
Mr. Joseph A. Mcdonald: I'm -- I'd like to agree with you, but I must say that what the Court of Appeals did was recognized that in some of the speeches, the Admiral's rights as a copyright owner were unquestioned because they said he did not write it pursuant to orders.
He properly copyrighted them.
This is beginning with number 23, and therefore he may restrict their use and that's what he put back to the District Court.
Justice Felix Frankfurter: Well, as to those – as to the 323, you have to rest on the common law right.
Mr. Joseph A. Mcdonald: Exactly so Your Honor.
Now, my point is that the issuance of writing, the making of speeches is encouraged by the department as a matter of good personnel relations as well as affording an opportunity for the public to be informed.
Justice Felix Frankfurter: May I ask Mr. McDonald?
As to the remission by the Court of Appeals for the District Court, that would relate to further speeches by the Admiral and not -- is that right?
Mr. Joseph A. Mcdonald: It would relate to all of those commencing with the speech number 23 which was made December 11, 1958.
Justice Felix Frankfurter: Now as to those, have we – under the facts in the record as to what, how they were distributed and what kind of flag they bore or see.
This is really --
Mr. Joseph A. Mcdonald: Well --
Justice Felix Frankfurter: -- a request for instruction natural enough as to the future I take it.
Mr. Joseph A. Mcdonald: He has made a total of 36 speeches by this time, yes, 13 of them since the litigation.
Those have been individually copyrighted.
Justice Felix Frankfurter: And are they -- is there container or their label or their color in the record or these are things (Inaudible) these are naturally relied on, what about those?
Are they the same navy then or --
Mr. Joseph A. Mcdonald: Believe it or not Your Honor, I'm going to have to advice you about that when we come back at 10 o'clock in the morning.
I really --
Justice Felix Frankfurter: But if you don't know now, it's not in the record.
Mr. Joseph A. Mcdonald: I have -- this is not in the record and I have --
Justice Felix Frankfurter: So how come you can't advice it?
Mr. Joseph A. Mcdonald: you see, this record was based on a situation that existed as of December 1959, October 1959 when the case was tried.
Justice Felix Frankfurter: What does this mean, statement of fact arrived at during argument, do you gentlemen of the bar talk this out or write it quickly, that's why we get this ambiguous paragraph 3.
Mr. Joseph A. Mcdonald: Well, this is --
Justice Felix Frankfurter: I say ambiguous because why do I say that.
If there are speeches that were made available through the Public Information Office in the next sentence, in distributing the speeches that Admiral Rickover made, I wouldn't call that elegant phrase, would you Mr. McDonald?
Mr. Joseph A. Mcdonald: No, I would not and I also must concede that there are two methods of distribution here, one, through the Public Information Office and the other by the Admiral.
I do not wish to confuse the situation by attempting now to minimize this distribution.
I will stand on that statement.
Now, if I may return to your question about what they arrived at during trial.
The minute this suit started, there were many requests for notices to produce, examination before trial and with this busy defendant trying very hard not to wrap the flag around him, I took the position with Judge Holtzoff that there were not many facts that would require examination of defendants during the trial or before trial that we could concede, we could admit, we could possibly stipulate.
So we started to draft a stipulation and we responded to request to admit.
And on the eve of the date of the trial, we were still without a signed stipulation but nevertheless I went in with one, this one containing the inelegant phrasing.
Practically, complete so that Judge Holtzoff said, “Well what's all the argument?
And there were only two points and Mr. Brush trying the case for Public Affairs Press and I arrived at the two missing links in what is, what purports to be a complete statement of facts.
Frankly, I wish it were more specific --
Justice Felix Frankfurter: The reason I'm pressing you on this, the reason (Inaudible) is much lighter possible is when I have to look a little ahead in this by chance this should be reversed and significantly should be found where the Court of Appeals did not find it the fact that the flag was wrapped around -- not wrapped around but around the (Inaudible) with the seal and all the rest the Court in its opinion should -- should find significant in those facts.
If one has any two impression of the Admiral, he is not the most ironical or specific character, isn't he?
And he might find there differentiations for the future, so then I want to know what are we deciding?
This is a declaratory judgment case and therefore we have to be forfeiting?
Mr. Joseph A. Mcdonald: Your Honor, you have before you the question of his right to write and my only hesitation, my understanding is that since this litigation, the cover sheet does not bear their banner but I am not sure enough of it if you say so.
Justice William J. Brennan: Is the Admiral has sort of an act duty?
Mr. Joseph A. Mcdonald: He is, yes sir.
Justice Felix Frankfurter: Well, it's not merely to recover (Inaudible) the fact that he allowed distribution to the information service, if the fact that he has his own secretary in part doing it.
All the details maybe involved in under an opinion and therefore leave this question open as to what about a situation where these ingredients are not present on it.
Mr. Joseph A. Mcdonald: But you see at present and ever since the litigation or since December 1958, he has copyrighted each speech individually.
Justice Felix Frankfurter: I know but on Mr. Rosenfield's argument, the copyright makes no difference if these other elements either by way of buttressing or essential significant are in the case and he may take them out of a specific case and you'll be coming up here and say no, this is different because none of these elements suppress it.
Isn't that true?
It doesn't require a property to forecast that from (Inaudible) does it?
Mr. Joseph A. Mcdonald: May I say Your Honor that if there is a banner there now, it's with the Government's acquiescence.
They've known about this for three years and have not moved in on it.
Each one is individually copyrighted and not objected to by his superiors.
Justice Felix Frankfurter: Yes, but the Government told him that it's a federal conspiracy.
Mr. Joseph A. Mcdonald: These elements of the use of facilities, secretarial and otherwise have been characterized by both the District Court and the Court of Appeals as being minor and not affecting the basic question of who owns the material.
Chief Justice Earl Warren: How about travel -- travel pay that -- travel expenses that the Government paid on when he delivered these speeches, is that a certain material?
Mr. Joseph A. Mcdonald: The Admiral arranged his itinerary so that he was able to make these speeches in connection with the many (Inaudible) required by his work and that too was mentioned in the statement.
There was not an extra dollar of transportation paid by the Government just to make a speech.
But particularly in the years 1955 to 1958, he was all over the country on short notice and you'll note in the speech that they're written at home or while traveling because he did so much of it.
I think that the only way to look at the Government participation whether it's a secretarial service or airplane travel is that it is a minor part of the entire picture.
The question is was this man hired to write?
Was he expected to write?
Was he told to write and the answer to that is no.
Both courts have agreed on that, the Court of Appeals unanimously.
Chief Justice Earl Warren: Was it his province or was he supposed to make these releases on any subject at any time?
Mr. Joseph A. Mcdonald: No, Your Honor.
Chief Justice Earl Warren: He was not?
Mr. Joseph A. Mcdonald: No, that was not part of his work.
Chief Justice Earl Warren: To make any press releases of any kind?
Mr. Joseph A. Mcdonald: That is right.
Justice Hugo L. Black: You think then that the strength that he had then sued for libel for something in here he could not have treated privilege under the Barr and Matteo case?
Mr. Joseph A. Mcdonald: I am sure he could not.
First, I take the question even though I know he wouldn't think of raising it, but if he had I'm sure he would lose that because this is so clearly not --
Justice Felix Frankfurter: Are those -- are the questions the same?
Mr. Joseph A. Mcdonald: I don't believe so.
Barr against Matteo involved --
Chief Justice Earl Warren: How is it involved?
Mr. Joseph A. Mcdonald: -- a memorandum issued by a government official consistent with his employment.
He didn't have to do it but he exercises judgment and did it and so he couldn't hide behind the protection of the statute.
Justice Hugo L. Black: What you're saying in that connection is that facts are different.
You also say as I understand it that it would not follow at all because he should be sued for libel that he couldn't copyright it.
Mr. Joseph A. Mcdonald: No.
Chief Justice Earl Warren: How does a -- how does a private citizen know whether -- whether he has a right in -- in court, in a libel case in connection with the press release of an Admiral if they come out in exactly the same form and they're prepared in the same way, the same facilities are used and -- and the travel is at the expense of the Government, the same in each case?
How does a private citizen know how to -- how to be guided in that situation?
Does he has to go through a lawsuit before he finds that this wasn't the real press release even though it had the imprimatur of the Defense Department or is there someway he can know beforehand so he know his rights?
Mr. Joseph A. Mcdonald: Well, conceivably if the party defamed, knew as much about the law as Mr. Rosenfield, he might be discouraged by the existence of the label and the official appearance.
He might say, “No, you'll have a perfect defense.”
I guess he would have to sue.
He has to go to a lawyer and ask and inquire.
But as I see it, there's a great distinction between an administrative officer who issues a memorandum as a matter of his own exercise of discretion which can be said to be consistent with his authority and this defendant, petitioner in 55, who has this burning desire to get a message across to people and goes out making speeches.
He's not speaking for the Government.
Chief Justice Earl Warren: But you'd hardly say that this little administrative officer in the housing -- in a housing project would have greater power and authority then the Admiral with these two titles that he has or that he would have a greater range of discretion under Barr versus Matteo which says that even if it comes within the perimeter of his duties then he has a right to make a press release and has absolute immunity from libel.
Mr. Joseph A. Mcdonald: But his -- this housing administrator's action was running hand and hand with his duties, his duties as a disciplinarian in the department.
The Admiral's speeches are obviously made to gatherings to express his own point of view.
Chief Justice Earl Warren: Well then let's go to Howard versus Lyons.
Now, he wasn't disciplining an officer there.
He was -- he is going outside and he was disciplining citizens for having criticized, his administration of a navy post.
Have you -- have you distinguished that and he did that not because he was obliged to do that, because he had some general powers within the perimeter of his duties to make whatever press releases he thought were good for the service.
And he did and this Court held that he was immune from libel, absolutely immune.
Mr. Joseph A. Mcdonald: I think his action there were -- was more closely related to his official duties than these speeches to the Admiral.
I see very little connection between these speeches in the Admiral's duties.
Justice Felix Frankfurter: Let me ask you this Mr. McDonald.
In this record, whether it produced any letters from the Secretary of the Navy amending these speeches or any of them or approval of the educational campaign that the Admiral was waging or saying you're doing in the navy a great service?
Mr. Joseph A. Mcdonald: No Your Honor.
The most significant letter has already been referred to, the one from Secretary of the Navy, then Gates, to Mr. Schnapper Chief Executive of the petitioner in 36.
That's dated December 20 of 1958, less than a month before this litigation was commenced and it said, your letters concerning the matter of placing copyright notice on lectures on education by Admiral Rickover had been received.
Admiral Rickover has obtained his copyright as a private citizen, not in connection with his official capacity.
Therefore, I do not deem it's proper for the Department of the Navy to render a legal opinion as to its validity.
Should you wish to challenge the validity of Admiral Rickover's copyright, you are of course certainly free to do so insofar as the Department of the Navy is concerned and it was thereafter that Mr. Schnapper went to the Court.
This is to my way of thinking a complete --
Justice Felix Frankfurter: Did the department take any note of these speeches feature while they were proceeding?
Is the Admiral a hot favorite of the Department?
Mr. Joseph A. Mcdonald: May I say in that connection, that in view of what he said about the curriculum of the Naval Academy, in view of what he said about the Department of Defense's attitude on patents, and with respect to the rotation of senior officers and the desirability of unifying the services.
It must be clear that if they were picking a spokesman, he would be one of the last, if not the last chosen as the department's spokesman.
These speeches therefore as I see it were entirely the Admiral's, people hearing him, knew that he was speaking his own mind and they, therefore, should not be considered as having belonged to the Government.
And the interpretation placed on these speeches by the superintendent of documents is interesting.
It may not be controlling.
I think this is a question of law that has to be decided by a Court, and now by this Court.
But, I regarded as extremely important that the monthly catalog of Government publications, which lists many publications including process publications, meaning, those which are not printed by the conventional method, but including multi (Inaudible), those catalogs do not include at any of these speeches.
And the requirement is, as stated right on the cover of the monthly catalog.
Under the provisions of the Printing Act of January 12 1895, all government publications are listed in the monthly catalog.
Chief Justice Earl Warren: I was wondering Mr. McDonald, why if it was totally unofficial, would the press officer in releasing it, give it an official number?
Mr. Joseph A. Mcdonald: I believe this is extremely important too.
They do not bear an official number.
Chief Justice Earl Warren: I understood Mr. Rosenfield to say so.
Mr. Joseph A. Mcdonald: And this is a lack of appreciation of what is an official number.
The number that you see on the top of those speeches is followed by a year date.
This is just a multi living job, a job number in the Multi-List Department.
And in the text, which is cited by Mr. Rosenfield, void and rips on government publications, the 1949 edition 52 re-print, which I have.
On page 210 it says, “In dealing with Navy Department publications, since World War II, there have been so many publications of the Department that each Navy publication, there is a symbol indicating the issuing bureau followed by a number.”
For example, NAVPERS, N-A-V-P-E-R-S, it's capital letters and then a number, NAVMED for the medical code.
And for the Bureau of Ships in which the Admiral serves, NAVSHIPS, and in this Government catalog you will find subdivisions so that under Navy, you'll come to view ship, but under view ship nothing with respect to the Admiral's speeches, so for what it is worth, the superintendent of documents doesn't list them.
And the semi-annual list of periodicals released as statistical statements which up until February of 1961 was carried in the catalog of government publications are headed.
All publications received by the division of public documents library are listed in this portion.
I would like to say a word about the nature of the speeches from the standpoint of containing technical information.
As indicated in the brief, the data concerning the development of nuclear power particularly in connection with the shipping ports speech which is I see it is the most technical one of the whole list.
That is on page 46 and 47 of our brief, gives information concerning the extent to which the data was already in the hands of the public.
Now, the second and third parts of my opening half of this argument are designed to stress the fact that this was not an impairment of the public's right to know and that it acted for the benefit of the department and the country for him to speak.
Much has been made about the difficulty of this fair use concept.
And I will grant that in many cases it's difficult to determine just how much had been use is fair, but this is something which depends on each particular situation.
And I am sure that in this situation where the Admiral distributes press releases, hold press releases, hold for release until so and so, it's obvious that the press that is the newspapers and the news periodicals can certainly take, they're invited to take.
Even if he didn't have at the foot, no permission needed when newspaper or news periodical use right above the copyright notice, the newspapers could still use that material because it is news worthy.
They could cover the speech by saying, “Last night Admiral Rickover said” and it's inconceivable to me that any copyright under those circumstances would be able successfully to proceed against the newspaper.
Now, it's also essential to bear in mind that the copyright does intend to bottle up any this information.
The information itself, the ideas conveyed in the speeches can be used by anyone, people other than newspaper publishers, the writers of a book.
This plaintiff, petitioner in number 36 could have written a book and describe what Rickover thinks and use elements from his speeches to the greatest extent he'd wished without running --
Justice Hugo L. Black: Without violating the copyright --
Mr. Joseph A. Mcdonald: -- without filing the copyright law because he would be discussing principally in his own words, what the Admiral had said, if he lifted large quotations, he would have some latitude there, but there's a tremendous difference between merely taking excerpts and doing what the plaintiff-petitioner in 36 intended to do, publish the speeches.
As indicated in Exhibit 5, the letter from Mr. Edmondson the vice -- the Executive Vice President of the (Inaudible), the publisher of the Admiral's book Education and Freedom based on the first nine or ten of these speeches.
It would be very unfortunately he said to Mr. Schnapper following up on Schnapper's threat to sue the Admiral if he didn't get permission.
It would be very unfortunate to have two volumes of the speeches on the bookshelves currently.
This would be a disorganized approach and what the Admiral did was rewrite the nine to form the basis for his education and freedom.
And that's an important consideration because no man likes to have a collection of 20 speeches unedited put out in the batch.
At the end of three years this is what Rickover thinks to take that title as an example.
I think this would be unfair, because if he wants people to see in a book what he thinks, he'll present it in book form.
There's a tremendous difference between the two media.
Justice Felix Frankfurter: Well does it appear that the petitioner here wanted to re-print in bulk?
Mr. Joseph A. Mcdonald: I believe it does.
It -- the complaint in the action for declaratory judgment is certainly broad enough to do so, paragraph 5 of the complaint.
And while the original letter from Schnapper to Admiral Rickover, said that he wanted to quote from them in the fourth coming book.
You will find on page 6 of the transcript that contemporaneous with the request in writing, there were telephone conversations between the parties meaning Schnapper and Rickover, whereby the plaintiff Shnapper that is, made it clear the he wished to publish the defendant's speeches.
Chief Justice Earl Warren: We'll recess now Mr. McDonald.
Argument of Joseph A. Mcdonald
Chief Justice Earl Warren: Associates, Incorporated, versus Vice Admiral Hyman G. Rickover and Number 55, Vice Admiral Hyman G. Rickover, versus Public Affairs Associates.
Mr. Joseph A. Mcdonald: Mr. Chief Justice, Your Honors.
After yesterday's session, I checked the file with respect to the current practice as to the cover sheets on the speeches and found there is no banner, Navy or AEC.
None has been used.
No cover sheet with a banner has been used since -- prior to December 1st, 1958 when that first speech was copyrighted individually, the one for delivery on December 11.
The distribution of the speeches was also changed at that time so that from that date, they were not available through the public information of the -- Public Information Office of the Navy.
Inquiries now made to the Public Information Office are referred to the Admiral's Office, and the Admiral's Office distributes these multi list speeches of which I have copies here.
They are on plain white paper, headed with the disclaimer, and the language concerning the release, the identification of the sponsorship, and the fact that the Admiral has prepared these remarks for public delivery.
Justice John M. Harlan: What was the date on which that procedure was (Inaudible)
Mr. Joseph A. Mcdonald: It started with the speech prepared for December 11, 1958, and that was the first one to be copyrighted.
It was copyrighted individually and for that purpose was put on plain white paper.
Unknown Speaker: That's the one (Inaudible)
Mr. Joseph A. Mcdonald: Yes sir.
Chief Justice Earl Warren: And that in your opinion makes a substantial legal difference between the two, Mr. McDonald?
Mr. Joseph A. Mcdonald: No, I would like make it clear Your Honor that we do not concede that these changes were necessary for the successful maintenance of our position as to individual ownership in the Admiral.
But they were affected frankly to remove any vestige of a question and to put that much at rest.
The disclaimer was commenced may I add for the first time on October 29th, 1959 and of course, we concede that that was required by the language of the Navy regulation and its omission prior to that time was an oversight.
I made a statement yesterday that the Admiral's duties did not include the issuances -- the issuance of press releases.
And that is correct.
I checked with him on that as well as the speech handling and was advised that he has never issued one on behalf of the Navy.
Now occasionally of course, members of the press will approach him and you frequently see his name in the papers, but this is not pursuant to a press release which he has put out.
Justice Felix Frankfurter: May I -- may I go back a minute, please?
When was this -- when was the change made?
Mr. Joseph A. Mcdonald: December 1st, 1958, that was the first speech made --
Justice Felix Frankfurter: Is that post (Inaudible)
Mr. Joseph A. Mcdonald: No sir.
It was post the contact by Schnapper to the Admiral in October 1958.
Justice Felix Frankfurter: But not (Voice Overlap), anyhow, litigation was in the air.
Mr. Joseph A. Mcdonald: Litigation was in the air, and the complaint was filed January 16th, 1959.
With respect to whether the petitioner in Number 36 wished merely to quote from the speeches rather than to publish them in full, I want to be sure you realize that.
While the Exhibit Number 1, the letter from Schnapper to Admiral Rickover ends with the statement I am very anxious to quote from them in the forthcoming book.
Contemporaneous with that request as memorialized in the statement of facts, page 6 of the record.
There were telephone conversations, this is page 6, middle of the page, contemporaneous with that request, there were telephone conversations between the parties whereby the plaintiff made it clear that he wished to publish the defendant's speeches.
In paragraph 5 of the complaint which appears at the foot of Record 3, says in its second sentence, the plaintiff desires to publish such speeches as have been made by the defendant.
I think of paramount importance here is the fact that the -- in addition to the Department of Defense Directive which is reproduced on the record page 99 to 103 in which it says in its paragraph 5, top of page 102 of the record, personnel who write for outside publication not in connection with their official duties on any subject shall ascertain and so forth that it will not interfere with their regular duties, the Navy Manual, a public information manual, which is reproduced on page 7A in the appendix to our brief in 55, U.S. Navy Public Information Manual, an official publication of the department labeled (Inaudible) P1035, Article 0514 provides in its sub (a), within the bounds of security, the writing of articles, speeches and similar material intended for publication on topics of military and professional interest is desirable and so authorized and in (b), commanders will provide full cooperation compatible with military security and/or assistants in the preparation of such material.
But the important one is in sub (e) over on page 8A, “military and civilian personnel may receive pay for private literary effort”.
This is a very clear recognition that personnel are encouraged to write and to own what they write else they could hardly receive pay for it.
It adds in that sentence to complete --
Justice Hugo L. Black: That clause says, “However, they may not receive pay or other remuneration for the preparation of material on which their duties require them to provide gratuitously.”
Mr. Joseph A. Mcdonald: Thank you, I should have added that myself.
Justice Hugo L. Black: What does that mean?
Mr. Joseph A. Mcdonald: This means that where they are required, if the Admiral had been required to make the speech, then he could not demand any pay for it.
These rounds out the sentence, first, they may receive pay for private literary effort but they may not receive pay or any other remuneration for the preparation of material required by their duties.
I think this makes a fine distinction between the two types of writing, one pursuant to orders or inline of duty and the other aside -- outside the line of duty, as a private undertaking.
Chief Justice Earl Warren: But it does require that he -- when that is done that the -- I'm looking at (g) now on the same page, that caused their signature to appear on such articles together with a statement to the effect that the opinions or assertions contained herein are the private ones of the writer, and are not to be construed as official or reflecting the views of the Navy Department or the naval service at large.
Mr. Joseph A. Mcdonald: That is correct Your Honor.
That incorporates in this directive or manual the language of Navy Regulation --
Chief Justice Earl Warren: Yes.
Mr. Joseph A. Mcdonald: -- in 1252 we previously referred to.
Chief Justice Earl Warren: But as to these early ones, that was not done?
Mr. Joseph A. Mcdonald: The disclaimer did not appear on the early ones, that is correct.
That was --
Chief Justice Earl Warren: Do they now under --
Mr. Joseph A. Mcdonald: They do.
They have ever since October 1959.
The first speech made after the trial at which this came out and I realized that it was an oversight and the admiral commenced to include the disclaimer on the printed copy.
Chief Justice Earl Warren: Now, I noticed another one, “Immediately upon the acceptance of such articles for publication, the writer so forward the complete copy of such articles to the Secretary of the Navy for the files of the Navy Department,” that follows the sentence I just read.
Was that done?
Mr. Joseph A. Mcdonald: And that was done, yes Your Honor.
In addition, the Defense Director was complied with, requiring that the material be submitted for security review.
Each of the --
Chief Justice Earl Warren: Yes.
Mr. Joseph A. Mcdonald: -- speeches, from the very first one, contains a stamp of clearance.
Justice Hugo L. Black: Suppose this (e) or (g) had had -- after the sentence to which the Chief first referred, as to the opinions being the private ones of the writer, suppose it had gone on and said and if this is not done, there can be no copyright awarded to the writer, would you say that would be valid or invalid?
Mr. Joseph A. Mcdonald: I think that would be an attempt Your Honor to alter the statute and the laws -- the interpretation of the statute as it now exists.
I don't believe that the government regulation could've done that.
Justice Hugo L. Black: You mean you do not believe that the Government regulation could bar its officials from taking advantage of the Copyright Law that Congress had passed?
Mr. Joseph A. Mcdonald: Well, I'll say this.
The Department in my opinion could have ordered the Admiral not to write.
Justice Hugo L. Black: And suppose he did, suppose he did write, and then tried to get it copyrighted, would the Department of Defense's orders determine his right to get that copyright?
Mr. Joseph A. Mcdonald: In my opinion, they would not.
He'd be subject to discipline but his writing assuming and obviously this was contrary to orders not pursuant to orders, that would be his own work.
He would own it.
He'd be able to copyright it, and he'd be subject to disciplinary action.
Such a prohibition -- such an order not to write would not affect his rights in the material he wrote contrary to orders.
Justice Hugo L. Black: Suppose he wrote it on the company time, the company, I mean Government time, Government (Voice Overlap) --
Mr. Joseph A. Mcdonald: Now get into an area, but I feel very sure of this, this is a man who works around the clock and around the calendar.
He really doesn't have any office hours, and I, presently, well-aware of this
.As the stipulation says, he wrote it on the plane, in hotel rooms, at home, while traveling, and it's just -- if you will pardon the characterization, a human dynamo or perhaps I should say a human reactor and he is always on the go.
I don't know how you'd pin this man down to office hours and I think that comes to be more of a -- I hate to call it a detail, but it doesn't go to the heart of the matter.
When a man has --
Justice Hugo L. Black: I was asking you in connection with the question I had just asked you.
Suppose they -- they have said that the man shall not write on company time.
Mr. Joseph A. Mcdonald: Oh, then --
Justice Hugo L. Black: He shall not use Government time.
He shall not use Government employees.
Mr. Joseph A. Mcdonald: And if they really made him (Voice Overlap) --
Justice Hugo L. Black: And if he does and write something, he cannot get it copyrighted.
Could that be enforced?
Mr. Joseph A. Mcdonald: He would still merely, in my opinion, be subject to being disciplined for disobeying the order not to write on Government time.
Justice Hugo L. Black: Why could they -- why could they not bar him from getting it copyrighted?(Voice Overlap) --
Mr. Joseph A. Mcdonald: Because they have in effect told him not to write this material at this time and place.
He has disobeyed that order.
He -- what he has done has been done by himself in violation of an order.
This is all the more reason that the material belongs to him which he wrote in violation of the order.
Justice Hugo L. Black: I suppose you'd draw to some extent on the fact that the constitution provides the copyright.
I don't know how much that has to do (Inaudible).
Mr. Joseph A. Mcdonald: I'm so -- I'm so sorry, but this is fundamental that the copyright statute is based on the Constitution of the United States, Article 1, Section 8, Clause 8, authorizes Congress to enact statutes to promote the progress of science and useful arts to encourage authors and inventors and enable them to get the exclusive right to their writings and their discoveries.
This is a right of the Admiral and it could be altered in my opinion by putting his employment, his career on the line by violating an order, but nobody could take away from him his right to own what he does write.
Justice Hugo L. Black: Have there been any prior cases on the right to copyright of a government employee who --
Mr. Joseph A. Mcdonald: Oh (Voice Overlap) --
Justice Hugo L. Black: -- had violated Government orders?
Mr. Joseph A. Mcdonald: Not in violation of Government orders.
I don't believe so.
Two of the cases have resulted in the material written by the employee belonging to the Government, Heine against Appleton and Sawyer against Crowell-Collier where the men in Sawyer against Crowell-Collier really used government personnel who were subordinates to prepare the map in question.
Heine against Appleton was a man engaged to prepare sketches in connection with Commodore Perry's explorations.
And when he claimed that he owned the sketches and know the part of your contract was that you would make these sketches for the expedition.
So they belonged to the Government.
But I don't know of any case where a man was ordered not to write and did so.
But I feel very sincerely that in violating the order, he would subject himself to discipline but what he wrote would be his.
He has a constitutional right to it and a statutory right to it, because the copyright statute in protecting works which are copyrighted also recognizes in its Section 2 the common law rights of authors in there writings up to the time that they are published.
Justice Felix Frankfurter: There's a famous -- under the most distinguished scholars, I believe the founder of Modern Sociology -- a great deal of his writing on sociology, writing from employee of the Department of Agriculture.
I'm not suggesting that this is like it, but I shouldn't suppose that would've barred him from copyrighting his books on dynamic sociology as he called it, but what he -- although he disobeyed orders not to use his government time writing this.
Mr. Joseph A. Mcdonald: There were orders there that he should not write.
I -- if there were, I think he would still own what he wrote.
Justice Felix Frankfurter: But of course he would.
He might be fired but, that doesn't bar him from copyrighting it.
Mr. Joseph A. Mcdonald: May I --
Justice Felix Frankfurter: I'm not suggesting it's anything like it.
I know judges who write novels and short stories (Inaudible)
Mr. Joseph A. Mcdonald: May I point out that the Admiral was charged with concealment of some sort at the time he deposited on December 1st, 1958 a compilation of the first 22 speeches in order to have them copyrighted if possible as a compilation.
Now, in that case of course, each speech was redone to leave out the banner.
It was retyped on plain paper and this was very natural.
He didn't claim to own the material in the banner, what he claimed to own was the words he had written.
He couldn't begin to copyright that banner.
He took off the cover the sheet, had the text on that page retyped and incorporated all 22 of them in a compilation which was deposited for copyright.
Now frankly, I'm not going to spend a minute on the nature of that copyright unless you wish because I will concede that copyright in a compilation doesn't give the depositor anymore rights than he had in the individual components of the compilation.
But, I do want to point that connected with that there was some intimation here that the Register of Copyrights had conspired with the Secretary of the Navy to buckle up this material which should have been government material and prevented its use by publishers in violation of the First Amendment, and this is absolutely contrary to the fundamental concepts of the Copyright Law.
The Register of Copyrights doesn't hand out copyright.
You obtain copyright in this country in published works by publishing the work with a notice of copyright in the proper place.
It's as simple as that.
You don't have to go near the copyright office.
Frankly, you don't.
The mere fact of publication with notice gives you copyright for 28 years.
Now the statute does say that promptly, thereafter, you must deposit.
And you must deposit with a claim with an application for registration of your claim to copyright.
Now, there was some reference to an 18 month rule.
This is really not so.
I'm not quibbling about the fact that in that particular case, approximately 18 months, I think it was 14.
It makes no difference but there's no particular deadline within which you must file your work with an application for registration of your claim.
The Washingtonian case, 306 U.S. says, “That it cannot -- the copyright cannot be defeated by such a delay.”
As a practical matter, in as much as you have to accompany a complaint in infringement with proof that you've acquired a copyright, you have to file an application and get a certified copy thereof to attach to your complaints so the practical requirement is that you must apply the copyright before you sue and nobody can say what that is.
I personally think it could be 27th of the 28 years.
Now, this is brings me to the point where I have hardly time to press on your attention, the part of this case on which we are appealing.
We've been discussing the very interesting and important main point.
But Mr. Justice Reed and Judge Danaher agreed with him in a divided court, in the Court of Appeals, reversed Judge Holtzoff with respect to the dedicatory effect of the distribution in the form of press releases of the early speeches.
I really feel that this was error.
Mr. Justice Reed's opinion refers to the fact that taking the whole thing in the round including the fact that there was performance here, and so many copies here and so many copies here.
It involved a dedication.
The first place performance alone is not a dedication.
The distribution of the copies only can constitute a dedication.
You can put a play on Broadway, not copyrighted, no dedication.
No dedication until you distribute copies.
I urged upon you a consideration of an interesting case, White against Kimmel which is decided 10 years ago in California.
Judge Yankwich writing made a remarkable survey of the law of dedication through wide publication.
In that case, a book was involved.
Don't forget that here a speech was involved and there is a difference.
The speech is prepared for oral delivery and when you distribute it in a form of a press release, it's for the convenience of the press to let people know what you plan to say.
And I will say that when the Court of Appeals in the Ninth Circuit reversed Judge Yankwich, they did so without citing a single case.
They praised the opinion of the District Court remarkably clear and comprehensive review of the law with respect to a dedicatory divestitive type of distribution of copies.
But they said he had stretched the facts a little bit.
There was a dispute whether 75 or 200 copies had been distributed and they said that in this case that he had gone just a little too far.
They said this case of the books distributed by the writer in White against Kimmel is not thought to be comparable with those cases involving publication of lecture notes or the distribution of copies of a minister sermon among the members of his congregation.
It is by such assimilation that the trial court endeavors to satisfy the criterion.
But White, in distributing these books, White does not appear in the record as a teacher or as a propagandist endeavoring to persuade.
He is not pictured as a man with a message.
I sincerely feel that Rickover is a man with a message.
If Rickover's speeches had been before Judge Yankwich, he would obviously have decided the case exactly as he did in White against Kimmel.
And I believe, giving due attention to the language as expressed by the Court of Appeals itself that if Rickover speeches had been there involved, the Court of Appeals would not have reversed Yankwich and therefore I commend to you Judge Yankwich's decision in that case and the treatment of it by the Court of Appeals.
Justice Felix Frankfurter: May I trouble you to -- to refresh my -- rather not -- refresh my collection, I read the Lewis and Clark opinion, as a matter of literary interest, a geographic interest and I forgot what -- I didn't obtain what the real decision was.
But technically its a -- I don't know what (Inaudible)
Mr. Joseph A. Mcdonald: It's a very long opinion --
Justice Felix Frankfurter: (Voice Overlap) -- what did they decide about (Voice Overlap) --
Mr. Joseph A. Mcdonald: -- but it's fascinating.
Justice Felix Frankfurter: What did they decide in that opinion?
Mr. Joseph A. Mcdonald: They decided that the notes kept by Captain Lewis of the Lewis and Clark Expedition which later proved to be very valuable after they have had been found in a trunk in somebody's attic in Saint Paul had been written by Captain Lewis not as a part of his regular duties on the expedition.
Captain Clark had been enjoined by President Jefferson to keep careful notes and make a report because they realized they were working on the purchase at the time.
They realized that this would be of great future importance to the country, but what happened was that formal reports were duly sent to Washington, but then these other notes which Judge Nordbye in his beautiful opinion though somewhat long said was the private writings of Lewis.
And therefore when they were found in an attic and traced to an Indian office in Oklahoma where Lewis was between then -- between his expedition and his retirement, stationed in the office of Indian Affairs, these were pieces of personal property that belonged to his successor who found them in the old desk in Oklahoma, took them home to Saint Paul and he retired, and the descendant of his found him in the attic.
They didn't belong to the Government and its important Your Honor that in that case, the United States really got in there and pitch.
They made a great claim for these documents and they lost the case.
Justice Felix Frankfurter: It stopped there, didn't it?
Mr. Joseph A. Mcdonald: It went to the Court of Appeals which just praised Judge Nordbye's opinion and said this is a --
Justice Felix Frankfurter: But it stopped in the Court of Appeals?
Mr. Joseph A. Mcdonald: It did sir.