Arguing before the U.S. Supreme Court March 28 in the copyright infringement case of Tasini v. The New York Times, Laurence Tribe, attorney for the publishers, was glib, quick-witted and creative in arguing that under a disputed section of the 1976 copyright act, publishers did not need explicit permission to use the work of thousands of freelance contributors in electronic databases. On the other hand, Laurence Gold, arguing in support of Tasini and the freelance writers, was neither quick nor very creative, and at points during the proceeding he seemed unsure of just what arguments to make in support of his clients.
Observers are always cautioned against drawing conclusions based on the give-and-take of the court's oral sessions, but publishers must feel confident that their claims—that freelancers have been paid and the use of their articles in electronic databases is a legal and permitted "revision" of the original publication—were clearly and confidently presented before the court. Despite Gold's halting performance, writers can be encouraged that several justices seemed particularly well versed in the issues on the writers' side. Justices Scalia, Ginsburg, Souter and Rehnquist repeatedly interrupted Tribe, peppering him with questions, or they offered arguments in support of the writers' positions in the absence of substantive responses from Gold.
First filed in 1994 by Jonathan Tasini, president of the National Writers Union, the lawsuit found its way to the Supreme Court after a 1999 appellate court ruling overturned a lower court decision from 1997 and ruled against the publishers, making them potentially liable for millions of dollars in damages for violating the copyright of freelance writers. The New York Times is the principal defendant in the case, but other parties named in the suit include Lexis-Nexis and University Microfilms.
The justices seemed particularly interested in whether the publications were transmitted to the databases in their entirety, all at one time, or whether they were transmitted piecemeal. The justices were also very interested in having the writers' side indicate exactly where infringement is alleged to begin in the process of making articles available digitally.
Tribe began by noting that the practice of compiling articles in microfilm archives has never been questioned in the past. Scalia was quick to interrupt and asked if microfilm archives include "the entire work." Justices Rehnquist and O'Connor wanted to know whether articles existed separately or in some relationship to the original volume in which they were first published. "You can't wrap fish in it," quipped Tribe, "but it's all there." "Can you get the whole Washington Post?" Scalia asked Tribe at one point. "If you ask for it," Tribe said.
Tribe quickly went on to argue that if the ruling is sustained, publishers will be forced to remove freelancers' articles from these databases, leaving holes in the historical archive. In fact, argued Tribe, publishers will pull articles even if there is a negotiated settlement, because there are so many articles (more than 100,000) and so many journalists (more than 18,000) involved that they still would be subject to infringement suits from "unlocated" authors. Justice Ginsburg responded that "in the real world," that seemed unlikely.
The justices also wanted to learn how editions of the New York Times or the Washington Post were transmitted to databases like Lexis-Nexis. "Is the paper transferred completely or article by article?" asked Breyer. "The case may turn on this." Indeed, as the hour wound down, Justices Breyer and Stevens kept probing to get an indication of exactly where in the process—when the works were transmitted, say, to Lexis-Nexis, or when users retrieved articles at the other end—writers are alleging that infringement took place. Breyer seemed very concerned with the potential deletion of material from databases, saying, "If infringement occurs at the point kids are looking up information, then fair use may be involved. They may not be able to find information because it's too expensive to get copyright permission."
Scalia objected to Tribe's argument that the publishers were merely transferring an electronic revision to a larger database of revisions. "This doesn't exist," said Scalia. "It's not a revision, it's scattered all over... if you sent the whole paper you wouldn't have a problem; otherwise you need to pay for it." Gold labored to make the point that "Lexis-Nexis exploits works on an article by article basis," but he never seemed able to answer the justices' questions clearly.
In rebuttal, Tribe emphasized, "There is no disaggregation when publishers send the file [to databases]. The exact text is sent, plus the indexing codes. The writers are saying that the way you have to do things in the 21st century is a violation of copyright. These are a Luddite's arguments."
Outside on the steps of the Supreme Court, Tasini told reporters, "Tribe is wrong" about the manner in which articles are transmitted. He stressed that technical questions about infringement were not the issue and called publishers' threats to remove documents from databases "a red herring. Copyright is supposed to protect authors, to allow them to make a fair living." Tasini also said, "The First Amendment ensures that no one entity can control information. Publishers are blaming the victim. We're not Luddites; all writers want their work out there. They just want to be paid fairly. It won't be easy, but with bargaining we can figure this out."