Features – The Tasini Decision: A Victory for No One

Richard Wiggins is an author and speaker specializing in Internet topics. Wiggins has written for IEEE Computer, Searcher, Library Journal, New Media, Internet World, and other publications. He serves on the editorial board of First Monday, a peer reviewed e-journal about the Internet. He is co-author of a forthcoming book on home networking (O’Reilly). He has presented at numerous conferences nationally and internationally. Wiggins currently serves as a senior information technologist in the Computer Laboratory at Michigan State University. His web site is www.richardwiggins.com.

The National Writers Union and its supporters enjoyed a brief period of euphoria after the Supreme Court ruled in the case of New York Times Co. v. Tasini. Tasini et al hoped that through litigation they could win retrospective payments for freelancers who had written for the Times and various other publishers. But the euphoria was fleeting: the Times, having learned that their use of freelancers’ works in online databases such as LexisNexis violated the copyright of the authors, ordered databases to remove the freelancers’ works from the archives.

We now know that this Supreme Court decision (landmark or otherwise) hurts not only the litigants but everyone:

· Past freelancers have not gained a single penny in compensation for their past contributions. It is not clear how long it will take for a settlement – or a judgment in new litigation – to be reached.

· Nothing has been accomplished to assist any future freelancers . The decision provides relief for those freelancers who had not transferred or assigned future republication rights. Thus the decision provides no benefit to any freelancer whose contract assigns future republication or repurposing rights to the publisher – and in 1995 most publishers changed the terms of their freelance contracts to provide for the transfer of copyright for any digital repurposing. Even if a settlement or judgment is reached, the affected class is relatively small – and it will never grow.

· Libraries and the public – and in particular scholars and students have lost access to complete archives of major newspapers, magazines, and other publications that accept contributions from freelancers. No longer can a researcher be confident, for instance, that she has exhaustively searched for a relevant article in the Nexis collection of major newspapers.

· Publishers such as the Times certainly didn’t win. Besides losing an important case argued by Lawrence Tribe in front of the Supreme Court, the Times will at some point have to pay the freelancers. We’ll discuss the monetary aspects later. But the Times also has seen its status as the national newspaper of record diminished; if there are holes in the digital archives that most people rely on these days, the Times becomes something like the 92% newspaper of record. Publishers who rely on third party aggregators may even lose access to complete archives of their own past issues.

The sad part of the story is that this debacle was entirely foreseeable – and in fact was explicitly predicted by the publishers and their attorneys. The Times had stated publicly and in court that should Tasini et al prevail, the paper would be forced to remove freelancers’ works from archives. After all, once the Supreme Court ruled that the Times’ use of freelancers’ work infringed their copyright, any further such use could be ruled a willful infringement, opening the Times to potential sanctions of thousands of dollars per infringement.

In short, the National Writers Union fought a quixotic battle and won a pyrrhic victory.

But Tasini is not through litigating. Only July 6, the NWU sued again, this time to try to force the Times into a monetary settlement with the freelancers. Tasini and the NWU have struck a rather bizarre pose – claiming on the one hand that publishers may owe freelancers billions (sic!) of dollars in retrospective royalties, while claiming on the other hand that the publishers need not have removed the works in question from archives for fear of greater infringement penalties

The NWU doesn’t seem to allow for the possibility that many freelancers may never have expected future compensation after their articles’ first runs, and that many freelancers may feel that the benefit of having their works in the digital archives for posterity outweighs any potential for further remuneration. I am such a freelancer. Although I have not written for the Times, throughout the 1990s I wrote a number of articles for new publications such as Internet World and New Media. In fact, in the case of New Media, I helped persuade the editor and publisher that they ought to start a Web site with open archives of past issues. I never dreamed of asking them to pay me again for the right to repurpose my articles on the Web; they had compensated me well in the first place.

Today, Internet World is in a different format with a different editor, and New Media has ceased print publication. Both have removed their archives of past issues. The result is I get e-mail from college professors who still want to use my 1996 article on “How the Internet Works.” The publisher has done a disservice to this latent audience – the community of readers who seek an article for historical reasons or because it has some enduring relevance. Even though Internet World doesn’t seem to care about archives of its own past issues, I think the Internet is a much poorer place without the complete collection of reportage covering its years of explosive growth.

The fact is that neither publishers nor freelancers fully appreciated the value of digital archives. The NWU portrays The New York Times as ruthlessly exploiting the rights of freelancers for further economic gain. In fact, after an abortive attempt at building a business out of online archives in the 1970s, the Times signed away the electronic rights to its own content to Nexis. Only when LexisNexis changed ownership was the Times able to renegotiate.

Similarly, I’m willing to bet that many freelancers who contributed to the Times in, say, 1991, were thrilled to be published in the Times to begin with, and never expected another nickel of compensation. The NWU railed against the Times for advertising a mechanism on the Web for such authors to opt back into electronic archives with no further compensation. It will be very interesting to see how many freelancers accept the Times’ offer.

Other freelancers may feel differently. To be sure, the NWU raises a valid issue of fairness. If publishers discover new ways to repackage and repurpose old works to make new profits, it is only fair for freelancers to participate in those profits. Indeed, one can argue that staff authors, as a matter of fairness, ought to participate as well. Under work-for-hire rules, they presumably do not. (I am not privy to the employment contracts of Maureen Dowd, William Safire, John Markoff, or Thomas Friedman, but I do not worry about their economic well-being.)

Ultimately the question comes down to economic value. How much is a given freelancer’s work worth to the issue of the Times in which it first appears, and how much is it worth for all future potential users of the archives? Can this value be fairly represented by a single payment for both initial and all future uses, in effect giving the author the net future value of all such potential uses in a lump sum?

Or is the obvious answer to pay freelancers by the sip? In other words, every time a new reader pulls down a past article, another nickel rings up on the author’s electronic tote board? One digital archive vendor, the Gale Group, explicitly states its support for a system of metered compensation to authors:

Our hope is the contributions of freelance writers and authors will not be deleted from the information pools we aggregate into our online services. We would prefer to see a settlement between publishers and freelancers that will enable freelance work to remain accessible though our databases. To that end, we have a tested system in place to track usage of our databases at the article level, making it simple for publishers to track royalties generated on Gale Group products for specific writers.

These issues of who imparts what value to whom, and how to compensate contributors for the value they provide, form the real core of the dispute between publishers and the NWU.

Digital archives change the equation. The “back file” of a publication such as the Times is aggregated with content from other publications by vendors such as LexisNexis. The entire back file is licensed to institutions such as research libraries, public libraries, and large corporations. Those licenses typically allow every patron, student, professor, or employee unlimited access to all articles in the corpus. The institution pays the vendor a hefty flat annual fee.

For a newspaper such as the Times, most freelance articles are likely to impart relatively little value to the back file. After all, major stories and breaking news will be assigned to reporters on staff most of the time. Freelance pieces may cover more obscure news, slice-of-life stories, and the like. In other publications, freelance contributions may be significantly more important. Occasionally, a single article might take on timeless status with new citations and new readers into the indefinite future. An example is Vannevar Bush’s seminal article “As We May Think,” published by The Atlantic in 1945.

Sorting out how to fairly compensate freelancers will not be easy. Historically, the book publishing industry pays royalties based on sales, and newspapers and periodicals do not. Instead, an editor negotiates with an author based on the publication’s circulation, its revenues, and a rough guess as to what value the freelancer’s contribution brings to the publication. If an article proves wildly popular beyond expectations, the author may be in a better negotiating position for the next assignment, but generally does not participate in the windfall. Gale’s statement indicates that it is at least theoretically possible to offer metered payments based on an article’s future popularity.

Thus, metered compensation presents real financial challenges. With the exception of Northern Light, most aggregators agree to contracts with libraries and corporations that provide unmetered use to a defined audience on an annual basis. This means that neither Nexis nor the Times sees additional revenue when each article is retrieved from the archive; there is no marginal dime from which to pay the freelancer a nickel. (One can imagine a starving freelancer visiting the local research library and ringing up royalty payments one nickel at a time.)

In negotiating the complex question of value, the NWU would do well to stop overstating the potential value of their contributions. The Times states that it made only $16 million from aggregators in all of 2000, and that 8% of its material is freelance. The value of freelance work to the back file is probably even less than the 8% share. Thus the whole pool of money to argue about is a fraction of 8% of $16 million for one year of the Times. For some publications, such as The New Yorker or Vanity Fair, the freelance contributions may be significantly more important.

Any single article in a digital archive is, in general and on average, of minimal value. Some articles may hold a great deal of latent or potential value, but this value is unknown until the flow of history and intellectual discussion causes future searchers to retrieve and use the article. Even retrieval itself is a poor index of value to the future researcher. An article might form the core of a future PhD dissertation, or it may be retrieved by a writer merely trying to determine who first used the word “digerati” (and whether the spelling ought to be “digirati”).

Any single freelance contribution is also, on average, of minimal value. Paradoxically, even though freelance articles taken alone or collectively may contribute relatively little economic value, their absence represents an incalculable loss to the archives. Let us call this the Paradox of Archive Value. All freelance articles together are of small value compared to the whole. Yet the total archive is extremely valuable to researchers trying to exhaustively study a particular subject. A historian trying to write about Watergate is going to feel a lot less confident if he is told that Nexis has 92% of the articles on the subject, not 100%.

Sadly, some of the official representatives of the library community seem to have lost sight of this vital fact. The American Library Association and the Association of Research Libraries filed an amicus curiae brief in support of Tasini, and issued a press release lauding the Supreme Court verdict. (By contrast, the Special Libraries Association officially took a neutral stance, urging the parties to negotiate rather than litigate. In a February 2001 press statement, SLA warned that a court victory for publishers could have a chilling effect on future freelancers, and a victory for authors could “could set in motion several responses by the publishing community, including price increases to offset increased fees for use of freelance articles, or the removal of a substantial portion of archived articles.”)

In a joint ALA/ARL press release, Prudence Adler, Associate Executive Director of ARL said “… the Court’s ruling recognizes that certain archival media, such as microfilm and microfiche, do not infringe freelance authors’ copyrights. Thus the historical record will continue to be available to researchers and the public–a matter of utmost importance to librarians.”

Adler’s statement is astonishing in its ignorance and breathtaking in its lack of realism. In the year 2001, for an organization that represents research libraries to expect online researchers who work from their offices or homes to revert to the bricks-and-mortar library in order to feed fuzzy microfilm reels into aging readers with dusty lenses – this is simply beyond belief. It is hard enough educating new scholars to rely on high-quality full-text databases. To expect them to search and browse among the 92% while coming to the library for old-fashioned, slow access to 8% is naïve beyond belief. Only the most dedicated scholars will do this. The future of research is the digital library, whose goal is to democratize access and improve the quality of everyone’s research. By supporting Tasini before and after the verdict, ARL and ALA have helped rip a hole in digital archives, and have set back the progress of digital libraries immeasurably.

ARL is supposed to represent the interests of leading research libraries, and ALA is supposed to represent the library profession. The 123 member libraries of ARL and the 61,000 members of ALA should demand an explanation as to why their executives have followed this path. If ARL and ALA really had cared about the plight of freelancers, they should’ve suggested to their members for years that they ought to sign contracts with aggregators only if freelance writers were fairly compensated. Where were these organizations during the last two decades as libraries licensed aggregated content? It cost ARL and ALA nothing to support Tasini late in the litigation; it cost their members and their patrons an incalculable amount.

But the damage has been done. Now, research and other libraries should negotiate hard with the aggregators. Nexis simply isn’t worth anywhere near as much if it isn’t complete. Barbara Quint, editor of Searcher, has implored aggregators at a minimum to preserve the bibliographic and abstract parts of their databases, so that at least the dedicated researcher can find a path to the microform article. (An irony: I cannot find all of the articles written by Jonathan Tasini online, in order to read his arguments and appraise his writing. I do not know what pieces may have been stricken.)

The courts, of course, had to wrestle with the dispute that was before them – the facts and the law – and not what is fair or what is practical. Indeed, the Supreme Court struggled to determine whether online archives were a “revision” under the copyright law; the crux of the case was whether the publishers, in creating archives, were merely “revising” an existing work, in which case there would be no copyright issue. This led to tortuous discussion of whether the Times ships its daily issues to Nexis as a single file or multiple files. Of course, the mechanics of how the archives are built are wholly immaterial to what the archives are. Justice Ginsburg’s opinion focused instead on the very different ways archives are used by readers. I think anyone who both reads a daily newspaper and who searches electronic archives understands that Nexis is not merely a revision of the Times – or any of the other publications in the corpus.

So I will concede that the NWU may well have had the better legal argument in the case at hand, and that the Supreme Court decision may have been correct given the particular facts and the law. But the decision based on the particular facts and law at issue still leaves us in a situation where everyone loses. The problem is that no great labor movement was able to bootstrap itself exclusively through litigation. The union has to build a moral case with the public, and it has to build solidarity in its ranks. Neither of these will be easy with freelance writers. No matter how much freelancers claim poverty, the public will never see their plight in the same light as, say, migrant workers or coal miners.

Nor will it ever be easy to organize freelancer writers, who by definition are an amorphous, mobile, and elusive lot. Despite Tasini’s attempt to use this litigation for union building, it is unlikely we will ever see raucous monthly local chapter meetings populated by large numbers of freelance writers. Even if freelancers could be organized, is hard to imagine how a strike of freelance writers would bring publishers to the table.

And this is the flaw in Tasini’s litigation strategy. In a 1997 message to NWU members, Tasini wrote bitterly of a “worldwide war between haves and have-nots.” He declared, “The media barons will only reverse all-rights contracts if we continue to show them we can cause them financial pain. We have that power. We must and will use it.” But this is not like a conventional strike, where planes stop flying or UPS trucks stop delivering packages. The only economic harm to the Times et al is the one-time cost of settling with past freelancers. The “all-rights” provisions of publishers’ contracts aren’t changed at all. Meanwhile, the Tasini Chasm may become a permanent feature of the digital landscape.

No wonder the NWU resorts to the courts. They represent a cause few can sympathize with on behalf of workers who can never be organized. But even with a Supreme Court verdict in their pocket, the NWU isn’t negotiating for a settlement – they’re back in court.

Despite the uphill nature of the struggle, I believe that, rather than litigating endlessly, the NWU ought to be pressing the moral case. The issues of repurposing of content didn’t begin in the digital age. Television writers and actors long ago negotiated with TV networks and producers a system of “residuals” that compensate the writers when shows go into syndication, into international distribution, or onto video. The recording industry, through ASCAP and BMI, ensures that royalties are captured even when a hit record is played on a jukebox in a dive bar. (Not surprisingly, NWU has generously offered to become the clearinghouse for freelance writer royalties.)

Of course, in the Internet era, the issues surrounding royalties management become infinitely more complex. Metallica didn’t get any royalties when its music traded on Napster. The day Princess Diana died, hundreds of memorial Web sites sprang up, displaying copyrighted photographs lifted from major publications; the publishers and the photographers didn’t see any royalties. Writers aren’t immune; go to Google Groups and do a search on “Paula Poundstone.” You’ll find numerous Associated Press bylined articles cavalierly pasted in full text. Neither the AP, nor its member news organizations, nor AP authors, see any royalties from this repurposing.

These are tough issues. But these are the issues that the NWU should be wrestling with. Instead of coming to grips with the digital present and the Internet future, the NWU chose to waste resources fighting for a limited group of authors under rules that are no longer in effect. Even if the NWU eventually wins for that narrow class, it has done nothing for present and future freelancers, and it has wrought great harm to digital archives.

Instead of asking the courts to solve its problems, why doesn’t the NWU try to build a prototype of how a fairer compensation system might work? Why doesn’t the NWU try to find one publication that will experiment with a new payment model that compensates authors fairly? Many newspapers and periodicals now provide a “search for free, pay for articles out of the archives” model. Why not find one publication willing to experiment with a metered compensation model for those by-the-sip sales? A publication might find such payments a useful incentive for authors to write more appealing articles in the first place. In effect, the author is trying to please not only an editor and current readers, but potential future readers.

In short, Jonathan Tasini has a choice. Will his name go down in history as someone who sued and sued, tilting at windmills in publishing, while never winning a meaningful compensation model for his workers? Will he pursue an unexpected one-time bonus for a small group of workers? Or will he in fact negotiate new industry models for fairly compensating all freelance writers when their work is repurposed? Tasini should bear in mind that Walter Reuther and Cesar Chave z didn’t earn their places in history by suing people.

Posted in: Features, Intellectual Property, Publishing & Publishers (Legal)