So What Happens Now? Fallout from the Tasini Supreme Court Decision

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Depending on whom you consult, the Supreme Court's June 25, 2001, 7-2 decision in favor of freelance writers, photographers, and artists in the New York Times Co., Inc., et al. v. Tasini, et al. case was either a major victory for the writing classes or a major blow to researchers everywhere. The truth lies somewhere in the middle.

The Court stated, "We conclude that the Electronic Publishers infringed the Authors' copyrights by reproducing and distributing the Articles in a manner not authorized by the Authors." In its ruling, the Court rebuffed the publishers' contention that an electronic version of a newspaper or magazine was part of a "revision of that collective work," and noted that searchers retrieve•and pay for•individual articles rather than the entire work. One part of the dissent, however, compared online databases to microforms, stating that someone might extract only one article from a publication on microform, but the entire microform is a collective work. The opinion was written by Justice Ruth Bader Ginsberg; the dissent by Justice John Paul Stevens, with Justice Stephen Breyer also dissenting (http://supct.law.cornell.edu/supct/html/00-201).

The Court threw the case back to the District Court for the remedy phase, which will determine how much publishers will owe freelancers for past infringement. Publishers are not commenting on monetary damages; they are pulling material from online files. Probably the most immediate reaction was from Arthur Sulzberger, Jr., chairman of the New York Times Company. Hours after the decision was announced, he said his company would "undertake the difficult and sad process of removing significant portions from its electronic historical archive." The Times intends to take down 115,000 articles written by 27,000 authors between 1980 and 1995. Those not wanting their articles removed can request that they remain (www.nytimes.com/freelance). Although exact numbers of freelancers who have opted in are not available, a Times spokesman told EContent, "There has been a good flow on a daily basis."

LexisNexis general counsel Michael Jacobs noted that articles written by Tasini and his five fellow litigants were removed from the system years ago. It's a simple matter for LexisNexis to eliminate the remaining items once they receive the list from the Times. But the Times is no longer exclusive to LexisNexis as it was when Tasini, et al. originally sued in 1993. Until a few months ago, non-North American subscribers to Dialog had access to the New York Times back to 1981. Now it goes back only to 1997, a draconian removal. The full file, back to 1980, is available outside North America on Factiva.

Aggregator Gale Group, producer of several newspaper and magazine databases, throws the copyright issue straight back to the publishers. "Our contracts are with individual publishers," commented Gale's CEO Allen Paschal, "and those indemnify us. If publishers ask us to remove articles, we will. This is an unfortunate situation where everyone is a loser." ProQuest's President and CEO, Joe Reynolds, noting that his company manufactured two CD-ROMs containing disputed articles, but stopped selling them after the Second Circuit of Appeals ruled for the freelancers, said "We are disappointed by the Court's ruling with respect to electronic databases, but are pleased by the Court's discussions regarding the non-infringing nature of microform editions of periodicals." So he should be, since microform remains a core element of ProQuest's business model. ProQuest plans to continue its digitization project for historical newspapers, which predate the 1976 Copyright Act and are, therefore, immune from fallout from the Supreme Court's decision in this specific case.

Newspaper librarians are gearing up for major surgery. Many have philosophical issues with the Tasini decision. Since it only talks about distribution through third-party online hosts, the actual newspaper•both the physical issue and microform editions•are untouched. It appears that newspapers would not have to excise articles from internal databases, either, although they are probably constrained from selling articles unless their contracts with authors permits such re-sale. How about the archives mounted on the Internet by individual newspapers? Again, this is likely to be decided on a case-by-case basis, depending upon contract language.

At issue is the integrity of the paper. Should content be one thing in print and another in electronic format? Are publishers misleading researchers if they state that their newspapers are available full text on LexisNexis, Factiva, Dialog, or the Internet if, in fact, it's only a partial paper? Purists will note that it's always been partial because there are no advertisements, few photographs or other illustrative materials, and most newspapers don't send every story to the commercial services anyway. Commonly excluded are wire stories and syndicated columns.

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