NEWSPAPERS REVIEW ARCHIVES AFTER TASINI VERDICT

By: Todd Shields More Court Dates Ahead After Supreme Court Ruling?


WASHINGTON -- Both sides in a bitter eight-year copyright battle
foresee more litigation following a landmark U.S. Supreme Court
ruling that publishers need permission before using free-lancers'
articles in electronic databases.

The high court, in a 7-2 ruling June 25, said publishers violated
copyright law by posting free-lance articles in electronic
archives and by selling articles to database companies. It sent
the case back to lower courts to decide penalties.

The New York Times Co., a media defendant in the case, quickly
began pulling free-lance articles from its Web-accessible
archives. It said the risk of expensive penalties for copyright
infringement was "too great." Gannett Co. Inc., Knight Ridder,
and the Tribune Co., all said they were reviewing electronic
archives.

The Times Co. said it would ask Congress to rewrite copyright law
to reverse the effect of New York Times Co. Inc. et al. v. Tasini
et al. The New York Times' publisher, Arthur O. Sulzberger Jr.,
said the paper was beginning the "difficult and sad process" of
deleting 115,000 free-lance articles written between 1980 and
1995. The articles, mainly in the travel section, Sunday
magazine, and book review section account for about 8% of
Times articles for the period. Sulzberger said losers
include historians, the public, and free-lancers themselves, who
benefit from the platform provided by the Times. The paper
asked writers who wish their work to remain in its archives to
contact it.

Executives at several papers said the decision would not affect
use of free-lancers, who since the mid-1990s have commonly signed
contracts granting electronic archiving rights. "It has no impact
on us day to day," said Robert Keane, chief of staff for
Newsday in Melville, N.Y., the other newspaper defendant
in Tasini. Likewise, Milwaukee Journal Sentinel Editor
Martin Kaiser said it would continue to use free-lancers in
coverage of high-school sports, the arts, and some suburban
government action. But, said Kaiser, "We're going to be more
vigilant" in ensuring free-lancers actually sign contracts.

At The Virginian-Pilot in Norfolk, Editor Kay Tucker Addis
said the ruling would have "minimal impact," although the paper
will not archive free-lance work without contracts.

The Supreme Court, in a decision written by Justice Ruth Bader
Ginsburg, said online databases are different from microfilmed
archives or bound volumes because the databases present articles
individually, not embedded in the context of a collection, such
as one day's newspaper.

Jonathan Tasini, one of six plaintiffs in the case, called for
negotiations toward a settlement and a licensing system. Times
Co. spokeswoman Catherine Mathis said such talks would be
impractical, in part because Tasini "doesn't represent all free-
lancers."

Tasini estimates writers will be owed billions of dollars;
defendants' lawyers suggest damages will be minimal.

Much will depend upon how many people can make claims before the
U.S. District Court in New York, which will decide the issue.

Attorney Charles S. Sims, who helped defend the Times Co., said
only the relative few writers who register copyright with federal
authorities might be eligible for damages.

Plaintiffs' attorney Emily M. Bass said all free-lancers whose
work appeared without permission in electronic archives might be
able to assert claims, adding, "It's clear to me we will have
several more years of litigation."



Todd Shields (tshields@editorandpublisher.com) is the Washington editor for E&P.



Related story:
FREE-LANCERS WIN TASINI CASE (06/25/01)



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