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Internet age strikes a blow for freelancers.

The U.S. Supreme Court met the Internet Age in a June opinion that defines the rights of freelance authors in electronic versions of their articles.

In the first case squarely addressing e-commerce issues, New York Times Co. v. Tasini, the Court ruled that publishing companies violated the copyrights of freelancers when their articles were sold electronically on databases owned by companies like LEXISNEXIS.

The plaintiffs in the case were several writers--including Mary Kay Blakely, a professor at the University of Missouri--who claimed The New York Times, Newsday, Time Inc. and other defendants violated the federal Copyright Act when the articles were made available on the databases without compensating their authors.

To understand the basis of the ruling you almost have to be a philosophy major, since the opinion talks about the "dualities" of copyrights and how they "subsist" in more than one owner at the same time.

But here goes--the Court emphasizes in its opinion the dual nature of copyright ownership under the federal Copyright Act. In 1976 the act was amended to make clear that a freelance author retains a copyright in an article published in a newspaper, magazine or other "collective work." Previously, the act protected an author's rights only if the article was printed with a copyright notice--which most big publishers refused to do.

Practically, the 1976 amendment means that an author whose article is published in The New York Times can also sell the article to the Washington Post without permission from The Times.

At the same time the act gives the publisher a copyright in the article as it appears in the collective work, and allows the publisher "the privilege of reproducing and distributing the contribution of that particular collective work, any revision of that collective work, and any later collective work in the same series."

So while the act gives rights to both author and publisher, the obvious intent of the act is to give more protection to authors in controlling how the article is subsequently published.

The problem with the LEXISNEXIS database and similar electronic compendiums is that an article is not stored as part of the newspaper in which it originally appears, but is searched for and called up independently, without reference to the other articles that appear in the same edition of the newspaper.

For example, the Court's opinion pointed out that if a LEXISNEXIS user searches for articles written by Mary Kay Blakely, the database would return the following information: the name of the publication (e.g., The New York Times), date (Sept. 23, 1990), section (Magazine), initial page number (26), headline or title ("Remembering Jane"), and author (Mary Kay Blakely). There would be no other reference to the other articles that appeared in the Sept. 23 issue of The New York Times.

As explained by Justice Ruth Bader Ginsburg, each article "appears as a separate, isolated story without any visible link to the other stories published in the same newspaper or magazine edition. NEXIS does not contain pictures or advertisements, and it does not reproduce the original print publication's formatting features such as headline size, page placement (e.g., above or below the fold for newspapers), or location of continuation pages."

As a result, Ginsburg says, it's impossible to swallow the publishers' argument that an online article is simply a "revision" of or a method of "reproducing" the collective work--rights granted to publishers under the act. It's simply a subsequent publication and sale of the individual article without compensation to the author.

She says the fact that "each article bears marks of its origin in a particular periodical ... suggests the article was previously part of that periodical. But the markings do not mean the article is currently reproduced or distributed as part of the periodical. The databases' reproduction and distribution of individual articles simply as individual articles would invade the core of the authors' exclusive rights under" the act.

To make the point more obvious to us mere mortals, Ginsburg draws an analogy with a library that contains hard copies of The New York Times' articles but not complete editions of the old papers. If a patron asked the librarian to retrieve all articles written by Mary Kay Blakely, the "inhumanly speedy librarian would search the storage room and provide copies of the articles" matching the request, but not the whole Sept. 23, 1990, paper in which the Blakely article appeared.

Ginsburg says: "Such a storage and retrieval system effectively overrides the authors' exclusive right to control the individual reproduction and distribution of each article."

And although the Court doesn't quite say this, the issue of fairness permeates the whole opinion: everybody is making money off the freelance article--including the big newspaper companies and the electronic databases--except the author.

The publishers' main defense in the lawsuit was one we often see in cutting-edge cases--life as we know it will end if the court sides with the plaintiffs. Specifically, they argued that "a ruling for the authors ... will punch gaping holes in the electronic record of history" because the publishers would be forced to remove thousands of freelance articles from electronic databases. And their arguments were bolstered by friend of the court briefs filed by the likes of historian Ken Burns.

But Ginsburg pooh-poohed that argument. "Notwithstanding the dire predictions from some quarters ... it hardly follows from todays decision," she said, that the articles must be removed from the databases--the parties can come to an agreement on compensating the freelance authors for electronic versions of their articles. "In any event," she concluded, "speculation about future harms is no basis for this Court to shrink authorial rights Congress established" in the Copyright Act.

We can expect that the Supreme Court will continue to weigh in on issues arising from the Internet revolution, such as privacy rights and liability for defamation via the web. And if this first Internet law case is any indication, the Court will also continue to ignore "dire predictions" and will base its decisions in sound legal reasoning and traditional rules of statutory construction.

Ken Jones is publisher and editor-in-chief of Missouri Lawyers Weekly (
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Author:Jones, Ken
Publication:St. Louis Journalism Review
Article Type:Brief Article
Geographic Code:1USA
Date:Jul 1, 2001
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