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June 26, 2001

Freelancers Win in Case of Work Kept in Databases

By LINDA GREENHOUSE

WASHINGTON, June 25 — The Supreme Court ruled today that a group of
newspaper and magazine publishers infringed the copyrights of freelance
contributors by making their articles accessible without permission in
electronic databases after publication.

As a result, the publishers, including The New York Times, face the
prospect of paying substantial damages to the six freelancers who brought
the lawsuit in 1993 and perhaps to thousands of others who have joined in
three class-action lawsuits against providers of electronic databases,
which the court also found liable for copyright infringement today.

The court did not rule today on a remedy for the violation that it found in
a 7-to-2 majority opinion by Justice Ruth Bader Ginsburg. The case now
returns to Federal District Court in Manhattan. In a 1999 ruling against
the publishers, the United States Court of Appeals for the Second Circuit
did not address the remedy issue. There are a number of unresolved
questions that were not part of the Supreme Court case and that may take
months or years to resolve, lawyers involved in the case said today.

The Times and the other publishers, Time Inc. and Newsday, had warned the
Supreme Court that a finding of liability would lead them to remove
freelance contributions from the databases, a threat that the court
appeared to have found something of an irritant. 

"Speculation about future harms is no basis for this court to shrink
authorial rights," Justice Ginsburg said. Referring to the licensing
arrangements that are commonly used to apportion royalties in the music
industry, she said the parties to the case "may draw on numerous models for
distributing copyrighted words and remunerating authors for their
distribution."

Arthur Sulzberger Jr., chairman of The New York Times Company and publisher
of The Times, said today that the company "will now undertake the difficult
and sad process of removing significant portions from its electronic
historical archive." He added, "Unfortunately, today's decision means that
everyone loses."

The Times Company said in a statement that freelance writers who wanted
their articles to remain in the electronic archives should notify the company.

Since the mid-1990's, The Times and most other publishers that use
freelance work have required authors to waive their electronic
republication rights.

For that reason, the decision today has little prospective importance in
terms of changing current industry practice. But liability for past
infringement could be considerable, depending in part on how the lower
courts deal with complex statute of limitations issues. It is not clear,
for example, whether there has been a new infringement each time a
freelance article has been made available for viewing on a user's computer
screen.

Jonathan Tasini, president of the National Writers Union and the lead
plaintiff in the lawsuit, said in a statement, "Now it's time for the media
industry to pay creators their fair share and let's sit down and negotiate
over this today." 

In 1993, the union, which has 7,000 members, set up a "publication rights
clearinghouse" through which writers can register their work and publishers
can track copyright ownership and payment obligations.

The case, New York Times Company v. Tasini, No. 00-201, dealt only with
freelance work; publishers own the copyright on articles produced by staff
members. 

The three publishers in the case license their contents to Lexis/Nexis, an
electronic database by which individual articles are retrieved in a
text-only format. The Times has a separate arrangement with another
defendant in the case, University Microfilms International, which
reproduces Times material in other electronic formats that also result in
the display of individual articles.

It was this feature — that what the electronic user retrieves, views or
downloads is an individual article, divorced from its original context —
that was most significant for the court's legal analysis.

The case called on the court to interpret a section of the Copyright Act of
1976 that gives newspapers and magazines, which hold a collective copyright
in the entirety of each issue, the right also to publish "any revision of
that collective work."

The question for the court was whether the electronic version was a
revision or something else, in which case the copyright on individual
articles would revert to any freelance contributors who had not agreed to
give up that right.

The publishers argued that the electronic versions were simply a
technologically more sophisticated version of the printed issues that
should be seen as a mere "revision" under the "media-neutral" approach of
the Copyright Act.

In a dissenting opinion, Justice John Paul Stevens, who was joined by
Justice Stephen G. Breyer, said there was nothing more to the case than that. 

"Neither the conversion of the print publishers' collective works from
printed to electronic form, nor the transmission of those electronic
versions of the collective works to the electronic databases, nor even the
actions of the electronic databases once they receive those electronic
versions does anything to deprive those electronic versions of their status
as mere `revisions' of the original collective works," Justice Stevens said.

But Justice Ginsburg's majority opinion said the publishers' "encompassing
construction" of their republication privilege was "unacceptable." She said
the massive database, encompassing many published issues, "no more
constitutes a `revision' of each constituent edition than a 400-page novel
quoting a sonnet in passing would represent a `revision' of that poem."

The electronic databases are not simply modern versions of old-fashioned
microfilm, Justice Ginsburg said. 

Even though a microfilm roll combines multiple editions, "the user first
encounters the article in context," she said, in contrast to someone
calling up an article on their computer, where individual articles appear
"disconnected from their original context."

She said the principle of media neutrality "should protect the authors'
rights in the individual articles to the extent those articles are now
presented individually, outside the collective work context, within the
databases' new media."

The court may soon have a chance to expand on the role of context that
Justice Ginsburg emphasized. 

National Geographic said today that it would soon file an appeal to the
Supreme Court from a ruling by the federal appeals court in Atlanta, which
said that a 30-disc CD-ROM set that reproduced every page of every issue of
the magazine was a new work rather than a revision, even though each
article appeared in its original context.