Court Considers Digital Copyrights

March 28, 2001 -- Jonathan Tasini isn't exactly Metallica's drummer, but he's leading a rebellion similar to Lars Ulrich's attack on Internet music distributor Napster.

The president of the National Writer's Union is taking on several powerful publishing companies, accusing them of violating copyrights by republishing freelancers' work electronically without permission or additional compensation.

Like Metallica's assault on Napster's online vault of free music, Tasini and a host of other freelancers say they are fighting for their rights as the World Wide Web creates new ways of disseminating their work.

Today, the U.S. Supreme Court heard arguments in Tasini's case, seven years after it was first launched. Across the nation, thousands of freelance writers, artists, photographers and illustrators are watching closely how it all unfolds.

The case is the court's first real foray into the muddy terrain of who owns what in the online world.

Appellate Court Sides With Authors

At issue is the 1976 Copyright Act, which has no provisions addressing intellectual property on the Internet.

The authors claim the law protects the publishers' inclusion of copyrighted works in a "revision" of an initial publication, such as in the late edition of a newspaper, but does not permit the works to be printed in electronic databases. Further, the publishers' privilege to print the works is not "transferrable" and so, may not be invoked by the databases, they say.

But the publishers — including The New York Times Co., Newsday Inc., Time Inc., Lexis/Nexis and University Microfilms Inc. — claim that their right to reprint freelance work also gives them the right to distribute it to electronic publishers unless a contract prohibits it.

A federal district court ruled in favor of the publishers in 1997, but the 2nd Circuit Court of Appeals reversed the decision in September of 1999. Last week, the 11th Circuit Court of Appeals ruled against National Geographic in a similar case.

A high court ruling is expected this summer.

If the Supreme Court sides with the authors, the publishing companies would face massive liability claims and would be forced to stop using writers' materials in violation of copyright law.

A Hole in History?

A ruling against them, the publishing companies argue, would force them to suspend licensing all or most of their publications. Further, they say, the public interest would be at risk because past articles will be deleted from databases for fear of liability claims.

"When you go to Nexis or similar databases and try to find what the reaction in the papers was to the shooting of Ronald Reagan or the war in Afghanistan, various articles will be missing," said Charles Sims, an attorney representing publishers. That would leave a "hole in history," he said.

But the freelancers also see high stakes. The publishers' practices are a threat to the freedom of expression and the rights of artists and writers everywhere, they say.

A ruling in the writers' behalf would hopefully force publishing companies to respect freelancers and pay them what they are worth, said their lawyer.

"Freelancers will continue to provide the most valuable content and publishers will have to start valuing their contributions," said Patricia Felch, the lawyer representing Tasini and several other freelancers.

An All-Star Cast

The case has attracted a high-wattage assemblage of writers, historians and lawyers.

Among the plaintiffs is author Mary Kay Blakely, who wrote a book that is the subject of an upcoming Walt Disney movie. Another, Barbara Garson, has received a Guggenheim award and a National Endowment for the Arts fellowship.

Laurence H. Tribe of Harvard University, who argued former Vice President Al Gore's case in the Florida recount, represented the publishers at the high court. Kenneth Starr, who investigated former President Clinton in the Whitewater and Monica Lewinsky matters, filed a brief in support of the publishers on behalf of his client, National Geographic.

Some of the nation's most recognizable historians have also sided with the publishers, including Doris Kearns Goodwin, Ken Burns, David M. Kennedy and David McCullough.

The case is the The New York Times Co., et al. vs. Jonathan Tasini, et al.