SUPREME COURT HEARS ARGUMENTS IN TIMES V. TASINI

By: Todd Shields Justices Consider Questions About Copyright In Digital Age


Newspapers could face massive liability and online databases
could be gutted if freelance writers retain rights to their
articles in electronic archives, a publishers' lawyer told the
U.S. Supreme Court today.

A lawyer for those suing the publishers told the justices that
media company defendants had no right to post writers' work
online without compensation.

The arguments came in The New York Times v. Tasini, a case
that poses fundamental questions about copyright in a digital
age.

The justices will decide whether writers are owed payment for
online use of their articles by The New York Times,
Newsday, Time Inc., the Lexis/Nexis archive and University
Microfilm International, which sells compilations of New York
Times editions.

The case may have only limited effects upon future freelance
contracts. Since electronic rights emerged as an issue in the
mid-1990s, many newspapers and other companies have included
waivers of electronic rights in contracts for freelance writers,
and such arrangements would merely continue.

However, payment for as many as 100,000 articles written by
freelancers before the mid-1990s and posted on the Lexis/Nexis
archive could be at stake, plaintiffs' attorneys asserted.

The media companies say that if they face liability for
improperly including articles by freelance writers in online
compilations, they will be forced to delete thousands of works to
head off potentially costly lawsuits. Indeed, The Washington
Post, The Oregonian newspaper and U.S. News & World
Report magazine all have begun withholding articles from some
public versions of their archives, plaintiffs said in briefs.

"We're going to have a serious problem with our kids doing
homework and professors of history finding out what happened in
the middle of the 20th Century," Laurence H. Tribe, attorney for
the Times and other defendants, told the justices today.

The freelance writers say there is no need to remove articles
from archives. Publishers should negotiate a settlement, or one
could be reached in a class-action lawsuit, lead plaintiff
Jonathan Tasini said after today's court session. He said
predictions of massive deletion from databases - and hence
gaps in the historical record - were "rubbish."

"It's about money," Tasini said. "The publishers are making money
from this. It's my work. I should be paid."

Tasini and other writers, including five co-plaintiffs still with
the case, filed their lawsuit in 1993. They lost an initial trial
but won before the 2nd U.S. Circuit Court of Appeals, and the
media companies appealed to the Supreme Court.

In questioning today, Justice Stephen G. Breyer expressed worry
over possible gaps in the nation's archival record if publishers
remove articles to forestall litigation.

A plaintiffs' victory, Breyer said, could "wipe out the history
of the 20th Century. Most schoolchildren today will be looking
for information on machines, and if it isn't there (important
writings) will disappear."

But several other justices questioned whether newspapers were
following copyright law in relaying articles to Lexis/Nexis. They
bored in upon a seemingly fine point: whether electronic archives
represented a revision of a newspaper, or a new work.

If electronic archives represent merely a revision, then the
collective copyright that media companies hold upon the original
publication likewise applies to the subsequent electronic
version; the companies may publish without fear of litigation.

But if the electronic versions represent a new use of the
material, then newspapers, magazines and database service may
have fallen afoul of the 1976 federal copyright law.

Whether the archives are in fact a new use could, in turn, depend
upon whether newspapers transfer their contents wholesale to the
likes of Lexis/Nexis (a revision, for copyright purposes) or
whether the transfer is done article-by-article (a new and
arguably impermissible use of an author's work). The point
excited much debate today.

At one point Justice John Paul Stevens asserted, "They send it as
a bundle. They don't send it in separate pieces."

Plaintiff's attorney Laurence Gold replied, "They send it as a
bundle of pieces."

Justice Antonin Scalia addressed the point moments later. "You
have to establish they are sent over as separate articles,"
Scalia told plaintiffs' lawyer Gold. "My understanding is ...
each one has a code which enables it to be treated a separate article."

"Right!" replied Gold. "They are transmitted or streamed as a set
of distinguishable electronic files. But they are not a unit."

Scalia said he understood that newspapers do not send electronic
databases of their entire day's edition in one large,
undifferentiated file. "That would be quite useless," Scalia
said. Users "don't want The Washington Post of May 2. They
want individual articles."

"Right!" replied Gold. He said microfilm or microfiche records do
not violate copyright law because they reproduce a newspaper in
its entirety.

Tasini said he was encouraged by the thrust of the justices'
queries. Tribe said he could not tell how the court was leaning.

No decision is expected before summer.

Those supporting Tasini include the American Library Association,
the Association of Research Libraries, and Marybeth Peters, the
U.S. Register of Copyrights, historian Jacques Barzun, writer
Tracy Kidder, journalist Nicholas Lemann, and the Authors Guild.

Those filing briefs in support of the media companies included
historian Doris Kearns Goodwin, filmmaker Ken Burns, and author
David McCullough.



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



Copyright 2001, Editor & Publisher.