Stealing a Book Is Theft

A judge condemns the early exposure of the Ford memoirs

Books by ex-Presidents have become a lucrative business. Each of the past four occupants of the White House made more money writing his memoirs than he earned in salary while President. But some citizens, especially journalists, have objected to former high officials' profiting from their inside knowledge. Victor Navasky, editor of the 117-year-old leftist weekly the Nation (circ. 48,000), raised that argument, among others, in April 1979 to justify his printing a 2,250-word article on President Gerald R. Ford's pardon of President Nixon that was little more than a summary of a pirated copy of Ford's then unpublished memoir, A Time to Heal.

Navasky admitted that the Nation did no additional reporting, not even to check how much of what Ford revealed was new. Nonetheless, contended Navasky, "What we did was a journalistic coup, and perfectly legal." Last week in Manhattan, however, U.S. District Court Judge Richard Owen, ruling on a suit brought by Ford's publishers, Harper & Row and the Reader's Digest Association, concluded that the Nation had violated federal copyright law. Said Owen: "The Nation took what was essentially the heart of the book."

The decision had been eagerly awaited by legal scholars because it appeared to involve a clash between the right to literary ownership (copyright), which is provided for in Article 1, Section 8 of the Constitution, and the First Amendment guarantee of a free press. Owen, however, held that much of what Navasky called "hot news" had long since been a matter of public record. Wrote the judge: "The 'revelations' of the Ford memoirs were not such news, 'hot' or otherwise, as to permit the use of. . . copyrighted material." Legal researchers generally endorsed Owen's decision, but several agreed with Columbia University Law Professor Benno Schmidt that it was "an excruciatingly close case." Said Schmidt: "If the law were reinterpreted to permit the maximum information to get to the public, the Nation would win." Navasky, unrepentant, agreed. Said he: "The court made a decision that intrudes on journalistic discretion, and we intend to appeal it."

Ford's publishers spent more than ten times as much on legal costs as they will recoup from the $12,500 award for damages. The sum that they were granted represents the fee that was lost when TIME, which had purchased first magazine publication rights, withdrew under a contractual provision after portions of the book appeared in the Nation. Owen suggested in his decision that only an "oversight" in the copyright law prevented him from awarding the publishers their legal costs. The publishers described the battle as one of principle. Said Brooks Thomas, president of Harper & Row: "This is a significant victory. It says that you cannot steal literary property merely by calling it news." This file is automatically generated by a robot program, so viewer discretion is required.