FC: Update on Supreme Court case involving freelance databases

[Declan McCullagh <declan () well com>]

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Background: http://www.politechbot.com/cgi-bin/politech.cgi?name=tasini
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From: "Jonathan Tasini" <jt () pipeline com>
Subject: Supreme Court commentary
Date: Fri, 18 May 2001 20:24:53 -0400
Organization: National Writers Union

Press/Colleagues: in preparation for the anticipated Supreme Court decision,
we thought you would be interested in the below (apologies if you have
received this via a different transmission)

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Free-Lance Authors Have the Right to Get Paid for the Electronic Fruits of
Their Labor
Jonathan Tasini
Legal Times

May 16, 2001

In their May 3 commentary "From the Publishers' Corner: Another Look at
'Tasini' " attorneys Bruce Keller and Michael Potenza portray their
representation of the publishers in New York Times Co. v. Tasini as almost a
heroic act in the public interest.

After all, they say, if the Supreme Court upholds the free-lance writers'
victory in the appellate court, the consequences would be "disastrous for
publishers, libraries, scholars, students, and even the six free-lancers"
who brought the case.

As the lead plaintiff in the case, I'd like to thank Keller and Potenza for
their concern for writers.

However, as I hope to show here, the only true consequence if the Supreme
Court upholds our argument is that publishers will have to stop breaking the
law and start paying free-lance writers when they want to use the writers'
articles in electronic databases and other electronic media.

On two facts, Keller and Potenza are correct: Our lawsuit was filed in 1993
(the National Writers Union developed the legal theory of this case long
before most of the world had even heard of e-mail). And the district court
did rule against us on our infringement argument under Section 201(c) of the
Copyright Act.

Thankfully, Patricia Felch, representing four of the six plaintiffs,
persuaded the 2nd U.S. Circuit Court of Appeals in 1999 to see clearly that
what the publishers were having uploaded onto electronic databases were
completely new works, and not, as the publishers tried to argue, permitted
revisions of their collective works -- the printed periodicals -- within the
meaning of Section 201(c).

And what is the intent of Section 201(c)? Keller and Potenza argue that
their view of the law represents the "appropriate compromise between the
interests of free-lancers and publishers." Not so, says Marybeth Peters, the
U.S. register of copyrights.

In a letter to Rep. James McGovern, D-Mass., which was placed in the
Congressional Record and cited in Supreme Court briefs, Peters wrote,
"Section 201(c) was intended to limit a publisher's exploitation of
freelance authors' works to ensure that authors retained control over
subsequent commercial exploitation of their works."

The publishers' view of the statute, she wrote, "is beyond the scope of the
statutory language and was never intended because, in a digital networked
environment, it interferes with authors' ability to exploit secondary
markets. Acceptance of this interpretation would lead to a significant risk
that authors will not be fairly compensated as envisioned by the compromises
reached in the 1976 Act. The result would be an unintended windfall for
publishers of collective works."

Finally, Peters wrote, "The issue in Tasini should not be whether the
publishers should be enjoined from maintaining their databases of articles
intact, but whether authors are entitled to compensation for downstream uses
of their works."

Of course, Keller and Potenza would surely have preferred that Peters' views
were not made public. Whom would you believe, the official guardian of the
U.S. copyright system, who has been an impeccable public servant for decades
and has no financial stake in the outcome of the case, or some very powerful
corporations, which earn billions of dollars and spend millions on hired
legal guns to stiff-arm writers?

Keller and Potenza attempt to belittle the "flawed theories" of the 2nd
Circuit -- and of the 11th Circuit in Greenberg v. National Geographic
Society (March 22, 2001) -- by suggesting that the judges imagined the
copyright infringements at issue. Though I'm not a lawyer (despite my
mother's exhortations), I doubt that then-Chief Judge Ralph Winter, who
wrote the unanimous opinion in Tasini, ascended to his position by engaging
in hallucinatory thinking.

Actually, it's the district court's ruling in our case that is bizarre. In
Ryan v. Carl Corp. (1998), the U.S. District Court for the Northern District
of California took a pro-author view of the meaning of Section 201(c),
leading ultimately to a multimillion-dollar class action settlement for
authors. Furthermore, in similar cases abroad -- in the Netherlands,
Belgium, and France -- the legal system has sided with authors.

CHICKEN LITTLE

With a weak legal argument, the publishers' lawyers, including Harvard
Professor Laurence Tribe, have put Chicken Little to shame, racing around
and proclaiming the end of the complete historical record as we know it if
writers win. They've even dredged up a handful of people to shill for their
position, among them historian Doris Kearns Goodwin and filmmaker Ken Burns.

Yet Keller and Potenza seem perplexed that I continue to maintain that
describing such dire consequences is hyperbolic nonsense. Again, let me draw
from real experts, this time on the historical record: librarians.

In an amicus brief filed on our behalf, the American Library Association
(which represents 61,000 librarians) and the Association of Research
Libraries (which represents 122 institutions) assert that "affirming the
Second Circuit's judgment need not unleash the dire consequences predicted
by Petitioners and their supporting amici." Later in the brief, they state
unequivocally, "Hard copies and microform copies of these works will not
cease to exist, and there is no credible suggestion that such copies would
need to be pulled from library shelves or microfilm collections and
destroyed."

In fact, the librarians effectively say that the publishers have been
misleading the courts and the public by exaggerating the publishers' own
role as custodians of the historical record. As the amicus brief states,
"Despite the utility and wide availability of commercial electronic
databases, they are collections of information designed to meet particular
market demands and do not fulfill the traditional roles of libraries and
archives."

Finally, and perhaps most telling, the librarians say, "Although they
overstate their function as 'archives' and 'libraries,' Petitioners and
their supporting amici understate the extent to which this case is
ultimately about money."

The librarians are well aware of the money issue since they pay billions of
dollars in licensing fees to publishers every year for access to
information. And for that reason, librarians are quite qualified to envision
a system where, as their amicus brief states, "commercial electronic
database publishers could be required to pay for works on a group basis,
such as is done with the voluntary system of blanket performance licenses of
musical compositions administered by ASCAP and BMI."

That is precisely what the National Writers Union has proposed. In fact, we
have created a licensing system for authors, the Publication Rights
Clearinghouse (www.nwu.org).

Keller and Potenza make reference to the Supreme Court oral argument to
specifically cite Justice Stephen Breyer's reaction to their Chicken Little
scenario. What they fail to note is that it was clear that many of the
justices were quite skeptical of the publishers' argument that the
availability of newspaper articles on electronic databases constituted
simply a revision of their collective works.

Justice Antonin Scalia said, "You're inventing a revision that has no real
world existence." Justice Sandra Day O'Connor noted, "[W]hen I've used
something like [Nexis], I've gone to an author's name or a subject matter
and tried to retrieve an individual article, not the whole newspaper." And
Justice David Souter remarked, "If I want an article by Smith, I understand
that I can search for an article by Smith, not for the entire New York Times
or Washington Post in which Smith's article occurred."

IT'S OUR WORK

Finally, Keller and Potenza paint the Tasini plaintiffs as Luddites. No,
we're not. We're people who believe in respect for the law. We work for a
living, and we want to get paid for the fruits of our labor, consistent with
the law.

Indeed, in my view, the publishers' position is contrary to the
Constitution. Article I, Section 8, reads in part: "The Congress shall have
Power ... To promote the Progress of Science and useful Arts, by securing
for limited Times to Authors and Inventors the exclusive Right to their
respective Writings and Discoveries." The Framers believed that authors and
inventors would only thrive if they received the fair return that only comes
from controlling their own work. To ensure that writings and discoveries
would be placed in the hands of the people, the Framers granted these
exclusive rights only for "limited Times."

The publishers' view is also a direct assault on the First Amendment. The
Framers firmly believed that the only way to ensure a free and democratic
society was to make sure that no one power or entity could control
information -- and that goal would be best met by ensuring that individuals
had control of their own works. The publishers' position is this: The only
good intellectual property laws are those that protect their property.

Our hope is that the Supreme Court will affirm a principle more than 200
years old: Authors deserve their fair share.

Jonathan Tasini, president of the National Writers Union, is the lead
plaintiff in New York Times Co. v. Tasini. He was one of four plaintiffs
represented in the 2nd Circuit argument by Patricia Felch, now with the
Chicago office of Banner & Witcoff.


JT

Jonathan Tasini
President
National Writers Union
113 University Place
NY, NY 10003
212-254-0279
Union Web: www.nwu.org




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