While the Supreme Court's decision banning the digital reuse of freelancers' articles without their permission has left publishers potentially liable for hefty fines for infringement, the ultimate financial and legal impact of the ruling for all parties in this complex case remains unclear.
The court's 7—2 ruling in favor of freelance writers in Tasini v. The New York Times (originally filed in 1993) upholds a 1999 Federal Appeals Court decision that found that the New York Times and its co-defendants had violated the copyrights of Jonathan Tasini and five other freelance writers by reproducing their work through their own Web sites and through databases such as Lexis-Nexis. The defendants in the suit are the New York Times, Newsday, AOL Time Warner, Lexis-Nexis and University Microfilms International (now known as ProQuest).
Tasini, president of the National Writers Union and lead plaintiff in the suit, said, "The court has upheld the spirit of the constitutional protection for copyright, which was written for the benefit of individual authors.... It's time for the media to pay creators their fair share. Let's sit down and negotiate." The American Library Association and the Association of Research Librarians also announced their support for the ruling.
The court's ruling addressed the question of whether digital publication of freelancers' articles was permitted as a "revision" of a collective work under a provision in the 1976 copyright act. While Justice Ruth Bader Ginsburg, writing for the majority, excepted microfilm reproduction, she wrote that digital databases "offer individual articles, not intact periodicals."
According to Emily Bass of the firm Gaynor & Bass, attorney for Sonia Jaffe Robbins and Barbara Garson, two of the six plaintiffs in Tasini v. The New York Times, the case will be remanded to the original district court. The Tasini case will be joined with three class-action infringement lawsuits (Laney v. Dow Jones, Authors Guild v. Dialog Corp. and Posner v. Gale Group), representing thousands of writers, that have been stayed pending last week's Supreme Court decision. Bass said the district court will be charged with sorting out an appropriate remedy.
But conversations with several publishing experts suggest that while the ruling may have some impact on book publishing, most book publishers will not be affected by it. However, one of the pending suits, Posner v. Gale Group, is filed against Thomson Learning's Gale Group, a reference and educational publisher. On its Web site (www.galegroup.com), the firm says that while it licenses from the New York Times, "We expect the burden of managing the articles... authored by freelance writers to fall on the individual publishers which originally commissioned or purchased the work." Gale Group also notes: "We would prefer to see a settlement between publishers and freelancers that will enable freelance work to remain accessible through our databases."
Alan Adler, v-p of legal and governmental affairs at the Association of American Publishers, told PW that the use of freelance contributors "is not as prevalent in book publishing." He did acknowledge a possible impact on textbook publishing, but said, "Our industry tends to have more detailed contracts than other industries. Electronic formats may be affected."
Vicky Speck, editorial director of reference publisher ABC-CLIO, which has been publishing electronically since the 1970s, told PW that its contracts had been reviewed to cover electronic rights. But Speck did note that "two of our major publications, America: History and Life and Historical Abstracts, are significant history abstracting and indexing services, and we have concerns about how the full-text providers are going to address the situation.... I expect the deletion of articles from these databases will have an adverse impact on research."
In a prepared statement, ProQuest CEO Joe Reynolds said that he was "disappointed" with the court's ruling, but he noted that his firm will work closely with publishers to "ensure copyright adherence."
Throughout the lawsuit, publishers have insisted they would delete freelancer articles from their databases rather than negotiate licenses for future use of the material. The New York Times, which has reported that the ruling would affect about 115,000 articles by 27,000 writers published between 1980 and 1995, immediately announced that it will pull freelance articles from its database. In a prepared statement, Arthur Sulzberger Jr., chairman of the New York Times Company, said, "The Times has lost this case and will now undertake the difficult and sad process of removing significant portions from its electronic historical archive."
The New York Times also issued an open call to freelancers, asking them to turn over their rights to the company in order to keep their articles online.
In her ruling, Justice Ginsburg dismissed publishers' threats of deletion, citing "numerous models for distributing copyrighted works and remunerating authors." Tasini called the deletions "a drastic step... they will only alienate broad segments of the public."
Tasini told PW, "The court's decision leaves us with the ability to resolve this problem." Tasini was referring to the Publication Rights Clearinghouse, set up by the National Writers Union to allow writers and publishers to track copyright ownership and payments for authorized resale of their works.
Michael Jacobs, v-p and general counsel of Lexis-Nexis, owned by Reed Elsevier, PW's parent company, said the database would begin deleting articles as soon as it is notified by the publishers. "It will have no material financial impact on us," Jacobs said. "We have three billion documents available, and this will affect only a small percentage of our news feed. But if you search again in three months, you may find some things missing."