Big Media v. Freelancers: The Justices at the Digital Divide - The New York Times


For scholars, the electronic archives of contemporary journalism are a mother lode of history. For publishers and database owners, they are valuable intellectual property. But for a group of angry freelance writers, these archives are a legally dubious bazaar where their wares are peddled without their consent.

So the writers sued publishing giants like The New York Times Company and Time Inc., arguing — as actors, screenwriters and musicians have argued elsewhere — that their work has been unfairly appropriated.

On March 28, after a seven-year fight that produced contradictory lower court decisions, the freelancers' case will be argued before the United States Supreme Court, opening the way for the court's first decision on the murky issue of who owns what on the digital frontier.

The writers argue that they retain ownership of their work. But, they say, publishers are illegally making the work available to new, paying audiences through electronic database owners like Lexis-Nexis and companies like University Microfilms International, which put the archives on CD- ROM's. Seeking to share in the bounty, they cite the 18th-century lexicographer Samuel Johnson, who said, "No man but a blockhead ever wrote, except for money."

The publishers respond: You already have your money. We paid for the freelance work. The archive is only a revision of our original publications, just like microfilm. If the court says that publishers have no automatic right to put disputed work into an electronic archive, then we must consider deleting it. All of it — opinion pieces, magazine articles, book reviews, anything that could provoke new lawsuits.

A sharp debate among historians and biographers has followed. Pulitzer Prize- winning historians like David McCullough, Doris Kearns Goodwin and David M. Kennedy are lining up with the publishers, while the writers have support from the Pulitzer Prize biographer Robert K. Massie and the science writer and biographer James Gleick.

Laurence H. Tribe, late of the Florida recount battle, will argue the publishers' case before the Supreme Court. Kenneth W. Starr, late of the special counsel's office, is the counsel of record for the National Geographic Society, which also sided with The Times, Time and Newsday. Along with Lexis-Nexis and University Microfilms, these three were the defendants in the original lawsuit. Lining up with the plaintiffs — Jonathan Tasini, the president of the National Writers' Union, and five other freelancers — are the United States Register of Copyrights and both the American Library Association and the Association of Research Libraries — groups that have been grappling with the rising price of online periodicals.

The sides offer dueling visions of the dire consequences that await if their foes prevail. Bruce P. Keller, a lawyer for the publishers, said last week: "If they win, everyone will lose. The publishers will lose because they stand the risk of possible copyright liability judgments. The public will lose because the historical record will be incomplete, and the freelancers will lose because their articles will no longer be included" in electronic archives.

Mr. Tasini responds: "The issue we're facing is the same issue that actors are facing and screenwriters are facing. All of us are saying we deserve a fair share of revenue that these big media companies are making in the digital age. You want to use my work? You have to pay."

Mr. Gleick, in a separate interview, added: "I'm really sort of shocked and disappointed that any writers and historians can be on the other side. How can you get writers to say, `Steal my work — don't bother paying me please'?"

The percentage of newspaper and magazine archives contributed by freelancers is not yet known, and it is unclear how much a defeat in this case could cost the publishers. Damages could be awarded in a later court proceeding, if the Supreme Court rules for the writers.

The case turns on the question of ownership. There is no question that the publishers bought the right to print the articles. Changes that Congress made in the copyright laws in 1976 to enhance the rights of freelancers made it clear that these writers still own their articles after publication, but that publishers could still include them in "revised" versions of the newspaper. Now, do electronic archives qualify as a "revision"?

The writers argue that the solution lies in a rights clearinghouse, akin to the American Society of Composers, Authors and Publishers, which licenses performance rights for music owned by Ascap members. Mr. Tasini's group, the National Writers Union, established such a clearinghouse in 1994. The publishers' lawyers argue that this sort of clearinghouse can never protect against maverick freelancers who hope to make more money through lawsuits.

As Mr. Keller said, "It may be in the eyes of many freelancers that the potential reward is greater by suit." He added, "If that is true, the only way to reduce the right of infringement liability is to delete today in advance of the claim they may make tomorrow."

Mr. Tasini responds, "Authors on their own are not going to sue people if there's another solution that's simpler and easier."

Leon Friedman, a professor of copyright law at Hofstra Law School, who filed a brief on behalf of the freelancers, scornfully calls the prospect of archival deletions "the parade of horribles." But the prospect of a historical record with holes in it was enough to bring the publishers some high-powered academic support. This brought out comparable support on the writers' side. Now, an array of award-winning writers, professors and historians are facing off across the Tasini divide.

The publishers and database operators enlisted, among others, Ken Burns, the documentary-film maker, and the authors Richard N. Goodwin and Gordon S. Wood. The freelancers have enlisted, in addition to Mr. Gleick and Mr. Massie, scholars and authors like Jacques Barzun, Tracy Kidder, Jack Miles and Jean Strouse.

Mr. Gleick, an Internet entrepreneur and author who worked for The Times for 10 years as a reporter and editor and still contributes to the paper, said he doubted that the integrity of electronic archives would suffer if publishers had to pay freelancers for copyrights. "Where's the evidence this ever happened?" he asked. "It's a straw man." He added that the publishers' legal argument rested on a "contortionist's claim" that Nexis is an edition of The New York Times.

Those aligned with the freelancers argue in legal papers that there is "a vast difference between a single edition of a newspaper or magazine and the Nexis database, which incorporates material from so many different sources."

The writers are concerned about potential economic loss. Mr. Massie, a former president of the Author's Guild, called the publishers' position "another attempt to take from authors the little they make."

Arthur Sulzberger Jr., chairman of The New York Times Company, responded: "The Times has long believed and continues to believe that it fully compensates its journalists, both financially and otherwise. The advent of another form of distribution does not change that, any more than the introduction of the New York Times News Service many years ago changed it. The Times could not be the newspaper it is without the great writers it has had and continues to have to this day."

The legal brief filed by the authors who are aligned with the publishers warns of damage to scholarship if publishers, feeling legally vulnerable, excise bits of their archives. Such gaps, the brief argues, represent "a grave threat to the quality and completeness of historical scholarship."

Jack N. Rakove, a history professor at Stanford University who joined in that brief, said in an interview, "If, in fact, there is a serious chance that complications in getting authorial permission would lead to the dilution of future historical archives, it would be of serious concern."

But, he said, he was also a freelancer and did not want "to deny the legitimacy of their concerns."

When the case was filed in December 1993, electronic archives had been in widespread use for at least a dozen years, but freelancers usually arranged assignments and fees with newspaper editors on an informal, oral basis. Since the lawsuit was filed, both Newsday and The Times have instituted a system of formal contracts for freelancers. These specify that the publishers have the rights necessary for electronic uses.

Time Inc. is a defendant in the suit thanks to an article in Sports Illustrated. The magazine's contract with the freelancer who later joined the infringement suit did not mention digital rights. Time Inc. contracts now do so.

In suing, the freelancers relied on the Copyright Act of 1976. The crucial language gives publishers who buy freelance work "only the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series." Lexis-Nexis, the publishers argue, is just such a revision of a collective work.

In August 1997, Judge Sonia Sotomayor, of United States District Court in Manhattan, ruled for the publishers, saying "the electronic databases retain a significant creative element of the publisher defendants' collective works."

In September 1999, the United States Court of Appeals for the Second Circuit overturned this decision, ruling: "Nexis is a database comprising thousands or millions of individually retrievable articles taken from hundreds or thousands of periodicals. It can hardly be deemed a `revision' of each edition of each periodical that it maintains.