Who Wins in Tasini?
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Historians and other freelance authors who contribute to public discussions by submitting their writings to commercial newspapers and magazines have much at stake in a case that is currently before the United States Supreme Court. So do all historians who use newspapers in their research. The case is The New York Times Company, et al. v. Jonathan Tasini, et al. It involves the right of freelance authors under the 1976 copyright act to be compensated for commercial reproduction of their work in electronic form. The case was initiated by the National Writers' Union, whose membership includes many freelance writers. It argued that under the 1976 law authors retained control over subsequent commercial exploitation of their work after its initial publication by a newspaper or magazine. The question at law was whether reproduction of the articles in LEXIS/NEXIS and other electronic databases represented a new use of the article or (as the publishing companies argued) merely reproduction of the original newspaper or magazine in which it had appeared, and consequently requiring no additional consent or compensation. When the Second Court of Appeals ruled unanimously in favor of the National Writers' Union, the New York Times, Newsday, LEXIS/NEXIS, and University Microfilms International appealed to the Supreme Court. Those publishers evidently thought the stakes were high for them, because they hired Laurence H. Tribe and Kenneth Starr to represent them before the Supreme Court and solicited two amicus briefs. One was endorsed by some fifty publishing and database companies. The other amicus brief was signed by filmmaker Ken Burns, speech writer Richard N. Goodwin, political scientist Jack N. Rakove, and four historians: David M. Kennedy, David McCullough, Doris Kearns Goodwin, and Gordon S. Wood. It has received considerable attention in journals covering the academic world, as well as in the New York Times. The brief argued, first, that electronic publication has become an indispensable research tool which is "increasingly replacing, rather than supplementing, traditional methods of recording and accessing the nation's historical record" (1). Its second and more famous argument was that the "threat of a tidal wave of lawsuits brought by freelance writers" would force publishers to delete hundreds of thousands of articles from electronic publications, thus "irreparably undermining the integrity of the nation's electronic archives and the progress of historical research and scholarship" (2). I consider those arguments specious, as do twelve other historians with whom I have joined in submitting an amicus brief in support of the appeals court ruling, arguing that nothing will be "lost to history" by upholding the copyright entitlements of freelance writers. The other participants in the brief on behalf of authors' rights are Stanley N. Katz, Leon F. Litwack, William R. Taylor, Ellen Schrecker, Blanche Wiesen Cook, Pete Daniel, Linda Gordon, Marilyn B. Young, Alan Trachtenberg, Peter Rachleff, Lawrence S. Wittner, and David L. Shalk. We have argued that, although NEXIS and other commercial electronic databases are extremely useful tools for historical research, no serious historian would imagine that the full historical record can be found there. What is there represents at best a convenient starting point for historical investigation. Even newspapers are reproduced there in highly fragmented form, leaving the reader unable to see the context in which articles or what letters or articles supporting or opposing the author's point of view appeared. Nor can the electronic researcher scrutinize the advertisements, which social historians have found revealing. NEXIS republication, in other words, is very different from a simple recreation of the original work. Moreover, journals with only local circulation, representing sharply different political or religious viewpoints and interests, or published in languages other than English will not be found there at all. If censorship or distortion is involved in digital reproduction, it has already taken place before the researcher turns on the computer. In short, NEXIS does not simply reproduce yesterday's journalism, but rather publishes separate articles from selected newspapers. The ominous predictions made by Ken Burns and his associates rely heavily on a survey of the Yale library, which argued that books, serials, and microfilm publications are decaying at a dangerous pace, prompting libraries to transform themselves from places for reading and research into theaters of information management and retrieval (3). There is no doubt that our libraries and archives face major problems in preserving their collections and are often woefully underfunded. Much the same problem, however, exists with electronic preservation. As a special committee examining the future of the Library of Congress observed: "Digital materials are especially vulnerable to loss and destruction because they are stored on fragile magnetic and optical media . . . [and they] become unreadable and inaccessible if the playback devices necessary to retrieve information from the media become obsolete or if the software that translates digital information from machine- to human-readable form is no longer available" (4). The exaggerated nature of the claims for digital forms of storage and research made by the Burns amicus brief helps explain why the American Library Association and the Association of Research Libraries after extensive discussion decided to file their own amicus brief in support of the freelance writers. The librarians argued that most research can be and still is done through books, archives, and microform. More important, they added that rather than forcing libraries to pull CD-ROMs off their shelves or negotiating each article individually, the courts could require electronic publishers to set up a fund from which freelance writers would be paid each time their work was reproduced (5). That proposal was seconded by Marybeth Peters, the Register of Copyrights, who said bluntly: "I believe that the Supreme Court should affirm the decision of the court of appeals." She noted that the case involved primarily the NEXIS database, to which the Times and other publications sell articles, so that NEXIS can in turn make them available to its subscribers. Section 201(c) of the copyright law, adopted in 1976, "was intended," Peters wrote, "to ensure that authors retained control over subsequent commercial exploitation of their work," so that if the Times argument were upheld, the result would be not only a violation of the purpose of the law, but also "an unintended windfall for publishers of collective works" (6). The National Writers' Union, the Writers' Guild of America (East), PEN Center West, and several other writers' organizations have for almost a decade participated in the Publication Rights Clearinghouse, through which writings of authors can be licensed to database companies, somewhat in the manner ASCAP has done for the music industry since 1910. It is not my purpose here, however, to advocate any specific mechanism for acknowledgment of copyright entitlements, but simply to indicate that there is absolutely no good technical or legal reason for freelance articles to be pulled from the copy sold by publishers to NEXIS, much less to fear "a tidal wave," or even a dribble, of lawsuits. The OAH Newsletter has often encouraged historians to contribute their expertise to public discussions of history and of current affairs. Those who do so by submitting articles to newspapers and commercial magazines should not be deprived of the rights and entitlements guaranteed by the 1976 copyright act. Nor should users of electronic databases be deprived of those historians' contributions. Endnotes 1. Supreme Court of the United States, New York Times Company, et al. v. Jonathan Tasini, et al., Brief Amici Curiae of Ken Burns, et al. (Washington, D.C., 2001), 9, 3. Guy Walker, Jane Greenfield, John Fox, and Jeffrey S. Simonoff, "The Yale Survey: A Large-Scale Study of Book Deterioration in the Yale University Library," College and Research Libraries, March 1985; Richard C. Rockwell, "Gateway Library: A View from the Periphery," in Lawrence Dowler, ed., Gateways to Knowledge (Cambridge, MA, 1997), 109. 4. Quoted in Supreme Court of the United States, New York Times Company v. Tasini, Brief Amici Curiae of Ellen Schrecker, et al. (Washington, D.C., 2001), 24. 5. Chronicle of Higher Education, 9 March 2001, A41. 6. Marybeth Peters to Congressman McGovern, "Statement to Congress, U.S. Copyright Office," <http://www.nwu.org/tvt/sc-copy.htm>. David Montgomery is Farnam Professor of History Emeritus at Yale University and is past president of the Organization of American Historians. |
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For Further For full-text editions of the briefs filed in this Supreme Court case (#00-201, 28 March 2001), point your web browser to the findlaw.com website at: <http://supreme. |