On Wednesday, the US Supreme Court will hear oral arguments in a copyright case that has fast become a landmark for the digital age. Much as the Napster Inc. imbroglio will help determine the future of the intersecting worlds of music and technology, the high court's decision in the New York Times vs. Tasini could reshape the electronic publishing of written work and photographs.
The case pits the venerable Gray Lady, along with publications such as Sports Illustrated and the Lexis-Nexis database firm, against six freelance writers, led by Jonathan Tasini, president of the National Writers Union. The central issue: Whether the Times and other publications are obligated to pay freelance authors for electronically redistributing, via a computerized database, such as Nexis.com, or on CD-ROM, work that was originally published in newspapers and magazines.
When the case was originally filed in 1993, electronic databases and reproductions were still largely the province of stingy research librarians and special computer terminals. But as the dispute wound its way up to the high court, the popularity of businesses such as Lexis-Nexis has skyrocketed, largely because of the ease of access afforded by the Internet. Currently, 2.2 million subscribers conduct more than 700,000 searches on the database each day, with the majority of searches coming via the Web. On tap are 11,900 databases filled with content from 31,300 sources, including thousands of newspapers and magazines.
That's quite a cash cow for publishers, and freelancers say they just want a fair piece of the action.
"This shows the greed and the arrogance and the disrespect on the part of the industry," says Tasini, who is personally involved because of four pieces he wrote that were published in the Times and Newsday. "These businesses simply do not want to pay writers."
Tasini says the solution is to track reuses of individual works and compensate authors accordingly, much as the American Society of Composers, Authors and Publishers does for music composers. The National Writers Union has struck a deal with literary database Contentville, establishing a Publications Rights Clearinghouse for freelancers that transfers 30 percent of Contentville's download fee whenever a registered freelance piece is accessed via Contentville.
That model can be extrapolated to other computerized databases. But the publishers in the case, which are supported by a host of companies, from Dow Jones to Knight Ridder to the National Geographic Society, say that publishing articles through outlets such as Nexis.com qualifies as a "revision" of the original work, e.g., of a particular issue of the Times. Thus, say the companies, the Copyright Act of 1976 protects it as part of a publisher's collective copyright. The freelancers counter that such redistribution isn't merely a revision of the original publication, because customers can download articles written over a number of years in any combination they choose.
The publishers' case was dealt a blow Thursday, when a federal appeals court ruled that National Geographic had violated the individual copyright of a freelance photographer when it republished his photographs in a CD-ROM compilation.
The Times, Lexis-Nexis and the other petitioners have found support from the likes of documentary-maker Ken Burns, historian Doris Kearns Goodwin and Pulitzer Prize-winning author David McCullough. Renowned constitutional lawyer Laurence Tribe will argue the publishers' case. The publishers say that if the Supreme Court rules against them, they'll be forced to strip freelance work out of Lexis-Nexis and destroy CD-ROMs containing such work. Tasini says that claim is a specious "doomsday scenario" that the publishers invoke because they don't want to treat freelancers fairly.
The freelancers are backed by the American Library Association, the Authors Guild, and writers such as Jean Strouse and Tracy Kidder. Marybeth Peters, the US Copyright Office's register of copyrights, also supports the writers. In a letter to Congress, Peters wrote that reproducing freelance articles on Nexis and CD-ROM without further compensation "interferes with authors' ability to exploit secondary markets. The result would be an unintended windfall for publishers of collective works."
Since the case was filed in 1993, publishers have revised their freelance agreements specifically to include language authorizing them to reproduce works in computer databases and online. That revision led to a class action against the Boston Globe, which is owned by the New York Times Co. In the lawsuit, the National Writers Union and other unions allege unfair and deceptive trade practices. Richard Gulla, a Globe spokesman, declined to comment on the pending case, but said that his newspaper's freelance agreements are "more freelancer-friendly" than those of many other publications.
Bruce Keller, another of the publishers' lawyers in the Supreme Court case, says that the Globe lawsuit, and others that are awaiting the outcome of the Supreme Court ruling, show that freelancers are motivated by little more than a desire to soak the publishers.
"It has very little to do with copyright," says Keller. "It has to do with freelancers trying to change the conditions with which they deal with publishers [and] bootstrap themselves into a better position than they have."
The publishers won at trial, but an appeals court ruled for the writers. Now, it's up to the Supreme Court to decide how to apply decades-old copyright law to an entirely new, digitized world.