by Joyce Marcel
American Reporter Correspondent
June 28, 2001
DUMMERSTON, Vt. -- Remember the spoiled kid who whined that he'd take his toys and go home if you didn't play the game his way? That's the way The New York Times has been behaving since June 25, when the U.S. Supreme Court ruled against the paper and in favor of freelancers' rights. It isn't a pretty sight.
The court's 7-2 decision in favor of freelance writers made front page news all over the country, but whether it is a good thing or a bad thing for writers - and the country - is still up for grabs.
The court's decision upheld the 1976 U.S. Copyright Law, under which independent writers own the rights to their work. In the past, when they sold their work to newspapers and magazines, they sold only the first North American print rights.
In the Internet age, where newspapers and magazines put whole issues online and sell individual stories to a database, that becomes a problem.
However, instead of the simple solution - offering to buy additional electronic rights - the Times, along with many other papers and magazines, tried to claim them by eminent domain. We print the stories, they said, so we own all the rights.
The creators of the stories disagreed. At the very least, they argued, pay us additional money for the additional use of the stories. When the papers and magazines refused, things got nasty, and now, eight years later, the Supreme Court has weighed in.
As a member of the National Writers Union (NWU), which brought the suit through its president, Jonathan Tasini, I have a personal stake in this issue. My own copyrighted work - 34 pieces of it - has been stolen by The Boston Globe, which is owned by the Times, and is for sale on a Website in California.
In response to the NWU suit, the Times argued that if it lost, it would have to delete a great number of stories from its database. It coaxed noted historians like Ken Burns and Doris Kearns Goodwin into bemoaning the possible destruction of "the first draft of history."
The Times never considered the second option: fairly paying freelancers for the extra rights. It has spent a thousand times more money on lawyers than it would ever have had to spend on independent writers.
Now that the Times has lost, it has announced that it will actually go ahead and destroy the historical record -- it will be deleting approximately 115,000 articles written by roughly 27,000 freelancers between 1980 and 1995, it announced on Wednesday.
It is also beginning a lobbying campaign in Congress to dismantle the Copyright Act.
There are other options.
"Here is a situation ripe for leadership by example and honest brokering between parties - parties that include the nation's (formerly) venerated news orgs," wrote the Boston Herald's Tom Mashberg Wednesday on Jim Romenesko's Media News site.
"Instead, we have a yellow-bellied, bottom-line-driven hie-for-the-delete-key reaction by the news conglomerates - the equivalent of a hissy fit by publishers not used to not getting their own way with the courts when it comes to their own selfish business interests."
In the court's decision, Justice Ruth Bader Ginsberg wrote, "The Authors and Publishers may enter into an agreement allowing continued electronic reproduction of the Authors works; they, and if necessary the courts and Congress, may draw on numerous models for distributing copyrighted works and remunerating authors for their distribution."
The NWU has already created a Publishers Clearinghouse, analogous to the music world's ASCAP, to negotiate royalty payments for freelance writers' past works, and to arrange additional sales of rights. "Clearinghouses of this kind are not complicated," Mashberg writes. "I have many friends who receive 12-cent checks here and $16 checks there for use of their tv writing, songwriting and so forth. I know we in thenews game are slobs, but arranging this isn't prostate surgery."
Instead, "The newspaper industry is playing brinkmanship with the rough draft of history," Mashberg wrote.
"The idea that American publishers would not throw their bodies in front of the historical record they are entrusted with rather than see it marred in any way is still foreign even to me, a bruised old union rep. But the second some infotech functionary in Times Square or elsewhere hits the delete key, darkness will have fallen for good over this profession."
Joyce Marcel is a freelance journalist who writes aboutculture, politics, economics and travel.