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'NYT' Looks to High Court After Appellate Rebuff
Calvin Reid -- 4/17/00

The New York Times has asked the Second Circuit Court of Appeals in Manhattan to delay executing its mandate after the court declined to reconsider a ruling issued in late 1999 that publishers must have permission to include the work of freelance writers in electronic databases. A spokesperson for the New York Times told PW that the paper of record's lawyers are considering whether to file a petition to the U.S. Supreme court to review the case.

Lawyers for Jonathan Tasini, president of the National Writers Union, who filed the suit along with nine co-plaintiffs, were surprised by the move and accused the New York Times and its co-defendants of resorting to delaying tactics.

Catherine Mathis, a spokesperson for the NYT, told PW that the defendants, who also include Newsday, Time Warner and other media companies, have 90 days to file a request for Supreme Court review. Mathis said the defendants are considering filing the petition "because the case raises so many issues about the Internet. We think that the U.S. Supreme Court should review it."

The suit, filed in 1994 by Tasini, charged publishers with copyright infringement for unauthorized use of freelancers' work in electronic databases. In late 1999 the appellate court reversed the district court and said that publishers must get permission from the freelancers. The ruling could make publishers liable for millions of dollars in payments to writers whose work has already been digitally repackaged. In its petition the New York Times claimed that the ruling would force publishers to pull freelancers' material from databases, crippling researchers and forcing them back to using paper.

Lawyers for plaintiffs were perplexed at the Times' actions. Emily Bass, of the New York firm Gaynor & Bass, told PW the move "d sn't surprise me," but said "any arguments they could raise have already been thoroughly considered and rejected." Bass also explained that after declining to reconsider its reversal, the appellate court was set to begin hearings on the amount of damages the defendants are liable for. Patricia A. Felch, from the Chicago firm Banner & Witcoff, also pointed to this to emphasize that there has not been a final judgment in the suit, and "it's not likely that the Supreme Court will take a case that isn't even over."

Felch said the Supreme Court generally only reviews cases where there have been a number of contradictory rulings, which has not happened in this suit. She called the likelihood of the case being accepted "remote. This smacks of harassment. It just means more briefs, more legal fees and more delays. It shows how scared the New York Times is of this opinion."
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