Jonathan Tasini and the Times Continue the Copyright Battle at the Half King

On June 25, Jonathan Tasini won his seven-year case against The New York Times. Tasini, freelance writer and head of the National Writers Union, said that it wasn't right or fair that the Times, for a 15-year period starting in 1980 and ending when the freelance contracts were revised to include electronic republication rights, had been selling freelancers' articles to databases without paying the writers their share.

The Supreme Court agreed. They ignored what the case was really about and stuck to interpreting the law instead: in this instance, the 1976 Copyright Act, which states that a publisher?e.g., the Times?only has copyright over individual freelance articles when they are presented in the context of the collective work. For example, a single newspaper article has to remain with the rest of that day's edition for it to be considered a "revision," and not something else. The Times can sell a daily issue of the paper to microfilm, or send it down to be put into Braille?under the 1976 act, that would constitute a revision. The Times sells its editions to databases as well, most notably to the fabulously expensive Nexis. And although each individual freelance article goes into Nexis with the rest of the issue from whence it came, once it gets there it's mixed in with millions of other articles, from thousands of other papers. The Court said that was no longer a revision, but something else, and it constituted copyright infringement. It was so ordered.

But that's not the point. The case, as it stands, only deals with a relatively small bunch of freelancers who claim they deserve more money for what they wrote a decade ago. The point is money?who gets it, who deserves it. Nexis pays the Times to carry its articles, and users pay Nexis. Who pays the writers?the content providers?is Tasini's real point.

That's what he tells a group of 75 or so of us last Tuesday as we're sitting in the room off the main barroom at Half King, the self-appointed journalist's bar. (Sebastian Junger and his friends set the place up; The New Yorker followed him around when he was looking for fixtures.) We watch Tasini and Times lawyer George Freeman duke it out.

"We're facing an attitude in the publishing world we should be offended by?they've forgotten who creates the content," Tasini tells us. "We're the ones who make sure they make money. It's not Sulzberger who makes the content of the newspapers, it's us, staff writers and the people here, and they've decided, it's not that they've gotten permission, they've forced us to sign those contracts... Because it is much more about a power organization like a union?standing up to these people. And we'll create enough power to make sure we're not sitting here saying you really shouldn't do this, we have enough power to make sure they cannot do that. Naturally that's what this is about... I say it again and I mean it seriously, the only way to do that is not through the legal system?what we want is a tactical victory."

So that was the mood of the evening. A bunch of freelancers who paid their 20 bucks are sipping on their Stellas and munching on their frites, and the waiter's slipping in and out of the closed room, and even though there are ashtrays on every table I can't smoke, I'm told, because it's not a good idea?being schooled by a union leader. A union leader and a Big Baddie, with the requisite booing and hissing from the crowd?"Hey! Hey now!" "Pay us!" "That's terrible!"?our entertainment before cocktails as part of a panel discussion presented by mediabistro.com and the Media Law Committee of the New York County Lawyers' Association.

But another funny thing: the roles were reversed. Tasini was polemical, arch, diffident?he took the loser's position, fought for what was already his in a roomful of people he didn't have to win over. And Freeman was expansive, logical?you liked him. You wanted to hear him speak. You cheered for him and agreed with him even when it went against what you thought you'd thought.

The mediabistro people tell me it took some wrangling to get the Times to agree to this?this deliberate slumming, this boxers-or-briefs stuff at the high-concept Half King?and I suspect that they sent Freeman because he knows how to work a crowd, how to transform the Times into just a bunch of guys, with Sulzberger as the foreman. "It is what it is," Freeman says about the court decision, and here we're told the Times is thinking?well, the court is wrong, but we'll live with it. On the day of the decision Sulzberger said the Times would begin "the difficult and sad process of removing significant portions from its electronic historical archive." And now Freeman's making the Times out to be the underdog. Tasini, et al., won. Freeman was fighting the law, but Tasini was fighting the system. It was really two different arguments.

Freeman asks how to interpret the Copyright Act. Was what the Times did so different in this case, he wanted to know, from when they send out an edition to be made into microfilm? No one ever contested that, so why was it different that the Times sends the daily edition to Nexis?

In Justice Ruth Ginsburg's majority opinion in the case, she claims the Copyright Act's "media neutrality"?but then she compares databases to libraries with "inhumanly speedy librarian[s]" and says that a Times article on Nexis is no more a mere "revision" than "a 400-page novel quoting a sonnet in passing would represent a 'revision' of that poem." Even her comparisons aren't neutral. They're about books, libraries. What Ginsburg and the others have decided is that the act of storing more than a single collective work on a CD-ROM or database is copyright infringement, even though the law recognizes that a collective work can be stored on any medium "now known or later developed."

Justice Stevens, who wrote the dissent, is better with the technology. He talks about ASCII files (what the Times is converted into for Nexis) and compares transmitting a daily edition of the Times to Nexis to selling a floppy disk with that day's edition on it. He writes that "the court therefore appears to back away from principles of media neutrality when it implicitly criticizes ASCII-text files for their inability to reproduce 'Remembering Jane' in the very same position, within a film reproduction of the entire Magazine, in turn within a reproduction of the entire Sept. 23, 1990 edition." And if the court passed the infringement ruling (which it did), and articles were removed from the database, the historical holes would be like the "Chinese cultural revolution," Stevens said in the oral argument?we wouldn't even know what was censored, what we weren't reading.

Tasini was mostly silent on the Copyright Act. For him, the technology's ancillary; for him, the argument is media-neutral. It's as old as they come?who owns what? He's the little guy, and the little guys band together and fight the corporations, the monoliths. The little guys read Times editorials attacking Napster, editorials that say Napster violates copyrights?because Big Baddie wants the little guy's money?and now here are the little guys, pointing out the irony. They want what's theirs?they want some leverage.

So what does the Times do? The paper culls its freelance articles from Nexis, over a hundred thousand of them, rather than paying its contributors or setting up a payment plan like ASCAP does for songwriters and the musicians who perform their songs. This was proof, said Tasini, that the Times didn't want to compromise. They were playing hardball, he said: it was a big fuck-you, a way to make the freelancers look bad. You're journalists, people would say, and you provide the public service of producing and disseminating information, and now look at you?you're hypocrites! You don't care about your audience! You just care about the money! If you were real journalists, you would ask to keep your stories on Nexis?you'd be thrilled to keep your stories on Nexis?because you'd be getting the story out there! That was Freeman's argument.

Tasini attacked him on this, but Freeman made a good point: if the Times were to find every one of those 27,000 freelancers who wrote book reviews, op-eds, travel pieces, etc., from 1980 to 1995, some of whom have moved, some of whom are dead, and pay them all, the process would take months; during all of that time, all of those people they hadn't yet found would be busy filing class-action lawsuits. Tasini's already filed a class-action lawsuit claiming that the Times is threatening its freelancers?if you don't sign this, if you don't cede your rights to us, then you won't work with us in the future. And if you don't like it, we'll find someone who does.

But most freelancers aren't in the position to negotiate. The Times knows this. Vast numbers of freelancers filing away not-good, not-bad, innocuous perfunctory journalism, who'll never be stars, who'll never be famous, who only work enough to get by, don't have a bargaining chip. Tasini thinks that if freelancers band together and refuse to sign, then the Times will change its relationship to all freelancers.

In its June 26 article on the Supreme Court decision, saying that it was being forced to cull articles from its database, the Times posted a toll-free number that freelancers can call to give the Times permission to keep their articles on Nexis. But the Times could have bargained if it wanted to. Tasini's right about that.

What will happen now? More lawsuits, as the law catches up with the technology instead of the other way around. But maybe better journalism too. A journalist can no longer sell the same story to five different regional markets, because anyone can find his story online now. Less per-word journalism, more ideas. This is how the Internet may affect journalism: it will make it better.