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The Fight Over Rights

Freelance writer Jonathan Tasini and attorney Bruce Keller examine the content rights case that is bound for the Supreme Court.

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  • TERENCE SMITH:

    Tomorrow, the high court will hear a financially significant and historically important argument between freelancers and major media companies, like the New York Times, Time, Inc. Newsday, and the database firm, Lexus- Nexus. The question: Who owns the rights to material that is published, and then archived on the Internet, the freelance authors or the publishers?

    Joining us to preview the argument are Jonathan Tasini, the president of the National Writers' Union, who originally brought the case to court in 1993, and Bruce Keller, an attorney for the New York Times and other media companies, seeking reversal of the 1999 appeals court decision that supported the freelancers.

    Gentlemen, welcome to you both. Jonathan Tasini, this suit began over an article, among others, that you wrote for the New York Times Magazine. Tell us what happened.

  • JONATHAN TASINI:

    Actually, we first came about this and looked at this when I got a check from Newsday, which is also part of the suit, turned the check over, and on the back of it was this strange endorsement. It said when I sign the back of this check, I was signing over my electronic archives. We though this was very strange, we began looking into it, and we realized that there was widespread theft going, and we sued in December of '93.

  • TERENCE SMITH:

    And your assertion, basically, is?

  • JONATHAN TASINI:

    That when you take my work and you use it in other media, like Lexus-Nexus and CD-ROMs, and other media, you must ask my permission, or you're violating the law by using it. And it's not just my assertion, but the second circuit, and now the 11th circuit, has also ruled in a National Geographic case that's somewhat similar to ours. So, all the law is really siding with us so far.

  • TERENCE SMITH:

    Bruce Keller, the publishers maintain, do they, that they have the right to transfer this into electronic form without payment or permission?

  • BRUCE KELLER:

    The publishers' position is that Jonathan Tasini and his co- respondents have already been paid for the work that they submitted, and they submitted it several years ago. And that all that's going on here is an effort to be paid twice for work that's already been done. It's unfair for them to come back years after the fact and say, wait a second, we're now surprised to find out you republished, The New York Times, for example on microfilm, also on CD-ROMs and, also, we publish it in the Nexus database, where sits with the rest of the articles that comprise any given day's newspapers.

  • TERENCE SMITH:

    Are you arguing, Jonathan Tasini, that you should be paid, you and writers and creators like you, should be paid every time someone logs on to and reads or uses your work on database?

  • JONATHAN TASINI:

    The model that's used to pay people could be different. It doesn't have to be necessarily every time someone logs on, although we have a deal with contentville.com which, in fact, pays writers 30 percent every time an article is downloaded. It could be an up-front fee. The point– and it's consistent with the Constitution of the United States, Article One, Section Eight– authors are supposed to benefit from copyright. And we believe that, in order to protect authors' rights, make sure culture flowers and arts and sciences progresses– and this is a real public interest issue– if the Supreme Court does not affirm our case, it essentially means freelance creators, writers, photographers, illustrators will not be able to make a living in the digital age.

  • TERENCE SMITH:

    How many are you talking about? How many such creators and how much money are you talking about?

  • JONATHAN TASINI:

    Well, you know, the beauty of being a freelance creator is you don't have to have a degree, whether you're a writer or an illustrator, so it's hard to get a particular number. But there's probably a couple or 300,000 creators who make a living from writing, photography. What we want to do is sit down with the publisher and negotiate a fair settlement to this at some point, and we've created a licensing system, similar to ASCAP, to make sure it can be resolved. We want to be paid fairly, what the specific number is will be a process of negotiation.

  • TERENCE SMITH:

    Bruce Keller, what do you think the number is?

  • BRUCE KELLER:

    Well, no one knows exactly what the number of freelance articles that has been republished on these electronic copies is, but the problem is that, whatever the number, if the Supreme Court does not reverse the second circuit's decision, all of those articles are going to have to be deleted.

  • TERENCE SMITH:

    Why?

  • BRUCE KELLER:

    Because the publishers cannot risk on a going forward basis the types of copyright infringement claims that Jonathan has brought and that now are being brought on a class action basis. There are two issues here: One is, what happens on a going forward basis? The publishers recognize that good quality writing is the lifeblood of their agency. A Jonathan Tasini, or some other freelancer, will always have an opportunity on a going forward basis to submit articles and to be paid for them, and now that we know we have a difference of opinion as to whether we can republish in an electronic form, that issue will get worked out by contract. But the real problem here is what happened in the intervening fifteen to twenty years when an entire infrastructure was created, based on an assumption that the copyright act specifically permits a newspaper to be published in print, on microfilm, and in any other medium now known or hereafter developed. That's language that sits right into the statute; that's what the publishers rely on.

  • TERENCE SMITH:

    But you're seriously saying that the publishers will go back into the records, so to speak, and expunge this material?

  • BRUCE KELLER:

    The publishers… Yes, I am serious about it and here's why. They don't have any choice. Jonathan Tasini and his NWU, the National Writers' Union, has fomented class action litigation against a whole range of publishers and their electronic copy licensees. If the Supreme Court does not reverse, there will be an argument made by the freelancers that what we are doing is not just copyright infringement, but willful copyright infringement. The consequences of being held liable for willful copyright infringement can be quite significant. No one knows exactly how significant, but if you take the 300,000 number that Jonathan tossed out earlier, it's obviously a pretty big number.

  • TERENCE SMITH:

    That sounds, Jonathan Tasini, like a pretty drastic consequence to a victory by your side.

  • JONATHAN TASINI:

    Well, what you heard here is one version of blaming the victim, which is to blame us for the problem they created, which is taking our work without asking our permission, and what Ross Perot used to call "gorilla dust." That is not going to happen. We created a licensing system that, in fact, can resolve this, as I mentioned the Publication Rights Clearinghouse, you can go to our Web site nwu.org and see how it works. We have a million article database where people can license their work. The class action hasn't been filed on our behalf and there's no question we want to go forward with that, but, in fact, the class action is a neat way of tidying those issues up going past. What Bruce mentioned going forward that the publishers are willing to deal with the future, that's a little misleading. What the publishers are now doing is going forward, they're forcing writers and all creators to sign away their rights in perpetuity without further compensation. So what they couldn't get by stealing from us, they are now demanding by contract. Either you sign away this or you don't work. So we're getting beaten, both in the past, beaten over the head in the past and also going forward in the future.

  • TERENCE SMITH:

    Bruce Keller, are you stealing?

  • BRUCE KELLER:

    Well, it seems to me Jonathan wants to have it both ways. Putting aside rhetorical flourishes like stealing or "gorilla dust" or whatever the phrase was, and focusing just on however the real world operates — it makes perfect sense, now that we know that we have a difference of view as to what the copyright act says, that we ought to settle upon an agreed- upon view and spell it out in a contract. Mr. Tasini is a freelancer. By definition, he doesn't have to work for anyone. He can either agree to submit his piece to the New York Times and agree to their terms, including the price and whether we can republish on microfilm and on CD-ROMs, or he can refuse and go elsewhere. He is the classic free agent. So it's a little unfair of him to say, "oh, well, I'm going to sue you for all these reproductions that you've made in the past, and going forward, I don't want to you fix the problem by contract."

  • TERENCE SMITH:

    Is this clearinghouse idea that the National Writers Union has come up with, is that a solution?

  • BRUCE KELLER:

    It isn't a solution, and even his own supporters at the Supreme Court acknowledged that's not a solution, because of the incredibly high transaction costs of going back into decades of prior publications and trying to figure out…

  • JONATHAN TASINI:

    That's incorrect. There's no serious transaction cost that prevent us from sitting down and doing this. In fact, we just now signed a contract with contentville.com just several months ago to do that very issue.

  • TERENCE SMITH:

    All right. Finish.

  • BRUCE KELLER:

    Well, Jonathan and I obviously disagree on many issues, but this much is clear.

  • JONATHAN TASINI:

    Respectfully.

  • BRUCE KELLER:

    But this much is clear, that it is a major problem, because you are talking about decades worth of authors who submitted over a long period of time to a number of periodicals, and whether the transaction costs are as high as we think it is or somewhat lower, it's going to be significant barrier to cleaning up these rights on a retroactive basis.

  • TERENCE SMITH:

    Let me ask you this your client, the New York Times has been outspoken, editorially, in defense of copyright rules involving music. The Napster case, they wrote, in fact, that those copyright rights are vital to the health of a free and creative society. How is this different?

  • BRUCE KELLER:

    Well, what we're missing here in the discussion to date is the fact that the New York Times in fact is an author. It creates a major newspaper every day of the week. And it has copyrights of its own. And all we're talking about here is the "Times'" right to exploit that copyright in its newspaper, in any and all media.

  • JONATHAN TASINI:

    I think you hit on the very hypocrisy of… it's not fair to just to point at the New York Times but it's true about a lot of publishers, who stand up and say Napster is wrong, we shouldn't be stealing copyright, and then they turn around and don't respect the copyrights of the very freelance creators who fill the newspapers and magazines around the country.

  • TERENCE SMITH:

    What do you think will be the consequence if in fact… I guess we can look at it the other way. What will be the consequence if the publishers win this argument before the Supreme Court?

  • BRUCE KELLER:

    It will be the status quo. In other words, publishers will continue to publish in paper, on microfilm, on CD-ROM and contribute to the larger database that's known as Nexus, and freelancers like Mr. Tasini will continue to contribute to them and get paid whatever they can command in the marketplace.

  • TERENCE SMITH:

    Jonathan Tasini?

  • JONATHAN TASINI:

    Article One, Section Eight gives the Congress the power to secure for limited times to authors and inventors the exclusive right to their respected writing and discoveries…

  • TERENCE SMITH:

    Do you carry it around with you?

  • JONATHAN TASINI:

    Laminated now. If the Supreme Court does not affirm us, it means the end of the constitutional protection for authors.

  • TERENCE SMITH:

    Bruce Keller?

  • BRUCE KELLER:

    That's an overstatement by such an enormous degree that I don't know that I have a cogent response to it. It's ludicrous to suggest that this is somehow a constitutional violation. Mr. Tasini keeps talking about the United States Constitution and quotes the copyright clause. He ignores that there is, in fact, a copyright act that was passed and became effective in 1978, and the publishers since 1978 have operated referring to a specific provision in the act that they thought allowed them to do this. If we are wrong, we will fix the problem on a going forward basis by contract. The real issue, however, will be with respect to all of the articles that are in the database.

  • TERENCE SMITH:

    Okay, gentlemen, that's it I think for tonight. We'll have to leave the rest to the Supreme Court. Thanks very much.

  • BRUCE KELLER:

    Thank you.

  • JONATHAN TASINI:

    Thank you.

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