Francione's article in the University of Pennsylvania Law Review discusses infringment and fair use of copyrightable or noncopyrightable factual information and uses "The Nation" case, which went through multiple appeals and reversed decisions, as evidence. The Nation case (Harper & Row, Publishers, Inc., Et Al. v. Nation Enterprises Et Al) involves The Nation's publication of Gerald Ford's then unpublished manuscripts, the rights of which were owned by Time. Originally, The Nation's publication of the material was ruled as copyright infringement, but in an appeal, the decision was reversed. The use was seen as fair because it disseminated factual information of a political figure to the public. The Supreme Court, however, then reversed that decision. Until this case, fair use was seen as a "cure all" when it came to factual information and copyright infringement claims, but the Supreme Court "[truncated] substantially the fair use defense." Francione examines the approaches taken to reach the different decisions in this case. He denounces the "totality approach," which acknowledges that ideas and facts cannot be copyrighted but, when integrated with copyrightable forms of expression, the sum of the work is transformed into protectable material. He believes that the Supreme Court's final decision limits the fair use doctrine, which is a component of the law necessary to protect the First Amendment in order to "ensure the continued broad dissemination of factual works."
The Nation case and its analysis relates to the topic of copyright and the public interest because it sheds light on different opinions of how much consideration should be given to a work that includes information of note to the public. The original decision rejected the defense that the publication was was protected by the First Amendment. Rather, since the heart of the work was taken for commercial use and thus hurt the copyright owner's market, this was not fair use. When looked at in totality with the rest of the work, copyright laws did apply, despite the presence of factual information. The court of appeals, however, focused on the distinction between facts/ideas and expression, only the latter of which is protected by copyright. The court saw First Amendment values as crucial because The Nation's article included information on "political events of major significance, involving a former President of the United States. The paraphrasings concern the very essence of news and history." The court also rejected the original "totality approach." Although the court acknowledged that the work was for profit, it "noted that profit was 'legally irrellevant' when public benefit was involved." Clearly, this decision implies that when works benefit the public interest, the need to distribute such information trumps the owners' copyright benefits. The court in this case, in addition to the article's author, believes that serving the public interest is of utmost importance and in order for copyright law to do so, the fair use doctrine must be interpreted widely. The Supreme Court, however, reversed this decision and focused on the unpublished nature of the work. Copyright owners cannot suppress facts, but the First Amendment also protects the right not to speak publically, and thus fair use of unpublished works should be strictly defined. The Court rejects that information of public interest should widen the scope of fair use because doing so would "destroy any expectation of copyright protection in the work of a public figure." The dissenting opinion notes that such a constricted interpretation of fair use hurts the goals to promote science and the arts and to protect the First Amendment. Examination and analysis of this case highlights two sides of the argument concerning copyright's role in serving the public interest.