One solution might be to include citations, ideally with a staff-written abstract and indexing terms, to the freelance articles with a notation that the publisher does not own the rights and cannot supply full text. This would alert people not only to the fact that things are missing, but also why they're missing. It begs the question of how these articles can be obtained. As one special librarian sneered, "It must be nice to be able to so leisurely search through paper archives to rapidly locate needed knowledge."
Newspaper databases that are not full text have existed for years. The New York Times Abstracts contains citation to six Tasini-written articles between 1988 and 1991. Gale Group's National Newspaper Index lists 19 Tasini articles from 1983 to 1996, published in the Los Angeles Times, New York Times, Wall Street Journal, and Washington Post. The full text of the Los Angeles Times contains two Tasini articles, one published in 1993 and one in 1995, while the Washington Post has three articles, two from 1995 and one from 1996.
So Sue Me; What'll You Do Me
As publishers race to hit their collective delete buttons, the National Writers Union pins its hopes on the lower court to determine actual monetary damages. Urging members not to sign contracts that force them to waive all rights, including retroactive rights, the Union also professed itself deeply disturbed by publishers' response to the Supreme Court decision. The NWU specifically charges the Times' Sulzberger with intimidating freelance writers to "take away their right to compensation from the illegal use of their articles…unless they sign away all their rights, past and future." A second lawsuit against the New York Times is threatened by the Union. The Union is also calling for negotiations with publishers for a solution other than removing articles from archives.
From the publishers' camp, three sentiments prevail: disappointment in the Court's decision, relief that the copyright issues have been clarified, and frustration at the lose-lose implications of the decision. In redefining copyright for the electronic era, the Court has given the practice of repurposing information a whole new dimension. Econtent, it is now understood, follows different rules than print content. Turning print into electronic content destroys that content as a collective work and transforms it to a shopping basket of individual items. The convenience that researchers enjoy in taking from a database only those articles that meet their search criteria is diminished. Only those articles complying with copyright are available. For the others, researchers are back in the library stacks or peering at a microform screen.