Digital rights case could set crucial precedent

The New York Times vs Tasini could shape the debate over copyright and written content in the electronic age

A showdown before the US Supreme Court on Wednesday could lay the ground rules for who owns the electronic rights to stories that have previously appeared in print newspapers and magazines.

Legal experts say the case, The New York Times vs Tasini, could shape the debate over copyright and written content in the electronic age in the same way the Napster file-swapping lawsuit is moulding the digital music scene.

"It's about e-rights in cyberspace," said Orrie Dinstein, an intellectual property lawyer at King & Spalding, who has discussed strategy in sessions with freelancer Jonathan Tasini, but was never retained as counsel. "If the Supreme Court affirms, it will send an important message about how courts are willing to apply copyright laws to digital material."

On one side are the freelance writers, who say they should get additional money if a publication repackages their work in forms such as CD-ROMs or Lexis-Nexis archives. On the other side are the publishers, who argue that they are simply distributing revisions of work they've already paid for -- a practice that's legal under copyright law.

A victory for the freelancers could mean millions in back pay for articles that have appeared on the Web or in other electronic forms. Publishers, meanwhile, argue they would have to strip their archives of freelance pieces, leaving holes in historical documents that would harm educators, researchers and the public at large.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 that publications including The New York Times, Time magazine and several others didn't have the rights to publish their articles in various electronic forms. A district court sided with the publishers, but an appeals court reversed that decision in September 1999 and ruled in favour of the freelancers.

The publishers then appealed to the Supreme Court, which agreed to take the case. It will hear oral arguments Wednesday and render a decision sometime after that.

Both the publishers and the freelancers say their arguments will have sweeping consequences for electronic content of all types. Chuck Sims, a partner 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 travel, book review and food sections, which often rely heavily on freelance copy.

"Every newspaper in the country, and magazine as well, will immediately do whatever they can to pull off freelance articles," Sims said, adding that many 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 War has been pulled out of an archive. "If the publishers lose this case, one of 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 scare tactics. "There's a simple solution: pay the writers," he said. If the freelancers win, "tens of thousands of writers will have the ability to be compensated for being ripped off."

Still, Tasini said the case goes beyond his quest for some back pay. It comes down to content ownership in the digital age, when it's easier and cheaper than ever before to distribute works in electronic form. If he wins, he said, the ruling "will essentially say that media companies do not own all information".

The case has attracted the attention of a wide variety of people. Librarians and the US Copyright Office have filed briefs siding with freelancers. Historians including documentary filmmaker Ken Burns have weighed in 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. Many publishers have rewritten freelance contracts in recent years, demanding the electronic rights to a piece in addition to print rights.

So far, courts mostly have sided with freelancers. Tasini won the most recent round at the appeals level. And just last week, a freelance photographer scored a victory against the National Geographic Society when a federal appeals court ruled that the company had to compensate him for magazine pictures that later turned up in a CD-ROM collection of older magazines.

In a move that could pose a challenge to publishers trying to defend electronic collections that include freelance works, the court ruled that National Geographic had created a new work because the package contained searching 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 to consider ordering National Geographic to pay the photographer for his work rather than pull the images from the package, writing, "we urge the court to consider alternatives, such as mandatory licence fees, in lieu of foreclosing the public's computer-aided access to this educational and entertaining work."

Norman Davis, a partner at Miami-based Steel Hector & Davis who represented the freelancer in his fight against the National Geographic, predicted more cases like his and Tasini's as courts grapple with new technology that blurs intellectual 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 are packaging opportunities that never existed before. It's this new packaging opportunity that raises questions that have never been asked before, and the courts -- one by one -- are trying to sort them out."

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