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| Technology - ZDNet - updated 8:15 PM ET Apr 12 |
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Digital rights case to be heard by Supreme CourtBy By Lisa M. Bowman, ZDNet NewsThe New York Times v. Tasini could shape the debate over copyright and written content in the electronic age.
Legal experts say the case, The New York Times v. Tasini, couldshape the debate over copyright and written content in the electronic agein the same way the Napster file-swapping lawsuit is molding the digital-music scene. "It's about e-rights in cyberspace," said Orrie Dinstein, an intellectualproperty lawyer at King & Spalding, who has discussed strategy in sessionswith freelancer Jonathan Tasini, but was never retained as counsel. "If theSupreme Court affirms, it will send an important message about how courtsare willing to apply copyright laws to digital material." On one side are the freelance writers, who say they should get additionalmoney if a publication repackages their work in forms such as CD-ROMs orLexis-Nexis archives. On the other side are the publishers, who argue thatthey are simply distributing revisions of work they've already paid for--apractice that's legal under copyright law. A victory for the freelancers could mean millions in back pay for articlesthat have appeared on the Web or in other electronic forms. Publishers,meanwhile, argue they would have to strip their archives of freelancepieces, leaving holes in historical documents that would harm educators,researchers and the public at large. The suit was first filed in 1993 by six freelancers who claimed thatpublications including The New York Times, Time magazine and severalothers didn't have the rights to publish their articles in variouselectronic forms. A district court sided with the publishers, but anappeals court reversed that decision in September 1999 and ruled in favorof the freelancers. The publishers then appealed to the Supreme Court, which agreed to take thecase. It will hear oral arguments Wednesday and render a decision sometimeafter that. Both the publishers and the freelancers say their arguments will havesweeping consequences for electronic content of all types. Chuck Sims, apartner at Proskauer Rose who's filed briefs on behalf of some publishers,said a freelancer victory would rob the public of some electronic archives,including many pieces in op-ed, travel, book review and food sections,which often rely heavily on freelance copy. "Every newspaper in the country, and magazine as well, will immediately dowhatever they can to pull off freelance articles," Sims said, adding thatmany already have taken down pieces while waiting for the case's outcome.Worse, he said, historians searching for information won't know that, say, a piece detailing a certain incident during the Gulf Warhas been pulled out of an archive. "If the publishers lose this case, oneof the awful things is you won't know what you're not getting," he said. But Tasini, one of the freelancers in the case, accused publishers of scaretactics. "There's a simple solution: Pay the writers," he said. If thefreelancers win, "tens of thousands of writers will have the ability to becompensated for being ripped off." Still, Tasini said the case goes beyond his quest for some back pay. Itcomes down to content ownership in the digital age, when it's easier andcheaper than ever before to distribute works in electronic form. If hewins, he said, the ruling "will essentially say that media companies do notown all information." The case has attracted the attention of a wide variety of people.Librarians and the U.S. Copyright Office have filed briefs siding withfreelancers. Historians including documentary filmmaker Ken Burns have weighedin on behalf of publishers, fearing a freelance victory would interfere with research. Tasini calls writers who oppose him, such as Burns, "traitors." Already, the case is having repercussions in the publishing world. Manypublishers have rewritten freelance contracts in recent years, demandingthe electronic rights to a piece in addition to print rights. So far, courts mostly have sided with freelancers. Tasini won the mostrecent round at the appeals level. And just last week, a freelancephotographer scored a victory against the National Geographic Society whena federal appeals court ruled that the company had to compensate him formagazine pictures that later turned up in a CD-ROM collection of oldermagazines. In a move that could pose a challenge to publishers trying to defendelectronic collections that include freelance works, the court ruled thatNational Geographic had created a new work because the package containedsearching software and another program that showed a montage of photographs including works by the freelancer who was suing the company. To quell fears about incomplete archives, the judges urged a lower court toconsider ordering National Geographic to pay the photographer for his workrather than pull the images from the package, writing, "we urge the courtto consider alternatives, such as mandatory license fees, in lieu offoreclosing the public's computer-aided access to this educational andentertaining work." Norman Davis, a partner at Miami-based Steel Hector & Davis who representedthe freelancer in his fight against the National Geographic, predicted morecases like his and Tasini's as courts grapple with new technology that blursintellectual property lines. "This is a different time than the creative community has ever known,"Davis said. "Whether it's the Internet, digital storage or DVD, there arepackaging opportunities that never existed before. It's this new packagingopportunity that raises questions that have never been asked before, andthe courts--one by one--are trying to sort them out."
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