A showdown before the U.S. Supreme Court on Wednesday could lay
the ground rules for who owns the electronic rights to stories that have
previously appeared in print newspapers and magazines.
Legal experts say the case, The New York Times v. Tasini, could
shape the debate over copyright and written content in the electronic age
in the same way the Napster file-swapping lawsuit is molding the digital-music scene.
"It's about e-rights in cyberspace," said Orrie Dinstein, an intellectual
property lawyer at King & Spalding, who has discussed strategy in sessions
with freelancer Jonathan Tasini, but was never retained as counsel. "If the
Supreme Court affirms, it will send an important message about how courts
are willing to apply copyright laws to digital material."
On one side are the freelance writers, who say they should get additional
money if a publication repackages their work in forms such as CD-ROMs or
Lexis-Nexis archives. On the other side are the publishers, who argue that
they are simply distributing revisions of work they've already paid for--a
practice that's legal under copyright law.
A victory for the freelancers could mean millions in back pay for articles
that have appeared on the Web or in other electronic forms. Publishers,
meanwhile, argue they would have to strip their archives of freelance
pieces, leaving holes in historical documents that would harm educators,
researchers and the public at large.
The suit was first filed in 1993 by six freelancers who claimed that
publications including The New York Times, Time magazine and several
others didn't have the rights to publish their articles in various
electronic forms. A district court sided with the publishers, but an
appeals court reversed that decision in September 1999 and ruled in favor
of the freelancers.
The publishers then appealed to the Supreme Court, which agreed to take the
case. It will hear oral arguments Wednesday and render a decision sometime
Both the publishers and the freelancers say their arguments will have
sweeping consequences for electronic content of all types. Chuck Sims, a
partner at Proskauer Rose who's filed briefs on behalf of some publishers,
said a freelancer victory would rob the public of some electronic archives,
including many pieces in op-ed, travel, book review and food sections,
which often rely heavily on freelance copy.
"Every newspaper in the country, and magazine as well, will immediately do
whatever they can to pull off freelance articles," Sims said, adding that
many already have taken down pieces while waiting for the case's outcome.
Worse, he said, historians searching for information won't
know that, say, a piece detailing a certain incident during the Gulf War
has been pulled out of an archive. "If the publishers lose this case, one
of the awful things is you won't know what you're not getting," he said.
But Tasini, one of the freelancers in the case, accused publishers of scare
tactics. "There's a simple solution: Pay the writers," he said. If the
freelancers win, "tens of thousands of writers will have the ability to be
compensated for being ripped off."
Still, Tasini said the case goes beyond his quest for some back pay. It
comes down to content ownership in the digital age, when it's easier and
cheaper than ever before to distribute works in electronic form. If he
wins, he said, the ruling "will essentially say that media companies do not
own all information."
The case has attracted the attention of a wide variety of people.
Librarians and the U.S. Copyright Office have filed briefs siding with
freelancers. Historians including documentary filmmaker Ken Burns have weighed
in on behalf of publishers, fearing a freelance victory would
interfere with research. Tasini calls writers who oppose him, such as Burns,
Already, the case is having repercussions in the publishing world. Many
publishers have rewritten freelance contracts in recent years, demanding
the electronic rights to a piece in addition to print rights.
So far, courts mostly have sided with freelancers. Tasini won the most
recent round at the appeals level. And just last week, a freelance
photographer scored a victory against the National Geographic Society when
a federal appeals court ruled that the company had to compensate him for
magazine pictures that later turned up in a CD-ROM collection of older
In a move that could pose a challenge to publishers trying to defend
electronic collections that include freelance works, the court ruled that
National Geographic had created a new work because the package contained
searching software and another program that showed a montage
of photographs including works by the freelancer who was suing the company.
To quell fears about incomplete archives, the judges urged a lower court to
consider ordering National Geographic to pay the photographer for his work
rather than pull the images from the package, writing, "we urge the court
to consider alternatives, such as mandatory license fees, in lieu of
foreclosing the public's computer-aided access to this educational and
Norman Davis, a partner at Miami-based Steel Hector & Davis who represented
the freelancer in his fight against the National Geographic, predicted more
cases like his and Tasini's as courts grapple with new technology that blurs
intellectual property lines.
"This is a different time than the creative community has ever known,"
Davis said. "Whether it's the Internet, digital storage or DVD, there are
packaging opportunities that never existed before. It's this new packaging
opportunity that raises questions that have never been asked before, and
the courts--one by one--are trying to sort them out."