A legal dispute between Simon & Schuster and the Associated Press over the newswire's decision to publish passages from Hillary Clinton's memoir, Living History, in June 2003 in violation of a media embargo has been settled, with the AP agreeing to include a new program on copyright issues as part of its news training.
The program, the companies said in a joint statement, "will focus on the use of copyright material in news reporting, an issue of increasing complexity." Other houses will be invited to participate in its shaping.
At the time of the incident, Simon & Schuster expressed concern that publishing the excerpts could jeopardize a serialization deal with Time as well as several TV appearances.
While the excerpt's publication was used by some in the media to show the inherent problem of embargoing a newsworthy book, and despite the excerpts' publication, Clinton's title went on to be a bestseller anyway—the publisher had continued to maintain long after the incident that the AP action was a violation of S&S's publication rights. In a New York Times article about the media's possible violation of Knopf's Bill Clinton embargo just a few months ago, S&S spokesperson Adam Rothberg continued to decline to comment on the outcome of the dispute, characterizing it as an unresolved legal negotiation.
But many legal experts said that while publishers' anxieties were understandable, their legal arguments weren't very strong. "It's a tough road for them," said Roger Zissu, an intellectual property lawyer who actually argued on behalf of the publisher of Gerald Ford's memoir and against the Nation's embargo jump in the landmark case Harper & Rowv. Nation Enterprises. He said, "I know publishers want to control things. But in many cases, the kinds of things the working media is interested in are not likely to be infringing. Something can still be fair use even if it interferes with a publicity campaign."
He distinguished between alleged copyright infringement in the new cases and the Nation precedent, in which nearly two full chapters were published prior to the material's embargo date. In most current cases, however, Zissu said, publishers were objecting to the quality of material, not its volume, which watered down the publishers' argument by making it harder to meet the legal test that examines the amount of copyrighted material published. A second test, economic harm, was equally difficult to establish in this case and in many other contemporary cases where the books go on to become bestsellers.
One of S&S's main contentions—that the information being released before the book's publication constituted a particular kind of infringement because it could harm sales—doesn't stand up, Zissu said, because if one were to accept that the release of a book's material in another channel causes harm, then one would have to make the same case post-publication, a position that would be untenable.
Experts agreed that publishers had possibly the strongest argument if they made a contractual case against a bookseller for jumping an embargo, though experts pointed out that legal action against a partner wasn't likely to happen anytime soon.
S&S, like Scholastic and other publishers in recent years, has been worried about the media's ferocity in breaking embargoes in a time when secrecy and TV exclusives are deemed more important than ever to the success of a book. Even AP executive editor Kathleen Carroll, whose organization clearly favors a more open policy, acknowledged in the statement: "The number of public figures who pen books loaded with news items has increased the need for journalists to have the best possible understanding of publishing laws and the balance between the obligation to respect intellectual property rights and the right to report the news."
But in the end, said publishing-law expert Martin Garbus, it's a battle that may be as likely to be fought outside a courtroom as in a formal judicial setting. He told PW: "Publishers will continue embargoing books. Media will continue violating it. This AP settlement settles nothing."