by Joyce Marcel
American Reporter Correspondent
March 1, 2001
DUMMERSTON, Vt. -- Dear Ken Burns, Doris Kearns Goodwin, and other big-name, beloved and well-paid members of the liberal history Establishment: Please - and I say this in the spirit of friendly bipartisanship so prevalent everywhere - go to hell. Love, Joyce.
Oral arguments in the U.S. Supreme Court case The New York Timeset. al. (Time Magane, the Lexis/Nexis database, and a microfilm company)v. Jonathan Tasini are set for March 28, and the lines are being drawn.
On one side are freelance writers like my= self, as well ashistorians of the caliber of Jacques Barzan and respected non-fictionwriters such as Tracy Kidder, James Glieck, and Nicholas Lemann. On the other side, for reasons that can only be considered obtuse,stand Burns, Goodwin and a few Pulitzer Prize winners.
The struggle goes back to 1995, when the media entered the Internetage.
In accordance with U.S. copyright law, when newspapers and magazine buy a freelancer's work, they are buying only the first North American serial rights - in other words, the one-time-only print rights. Then the rights revert to us, the creators, to be resold or reshaped.
Once the Internet entered the picture, however, the words "printrights" became an obstacle.
The New York Times led the way in designing a freelance contractthat took away all a creator's rights - Web rights, print rights, plus rights to media that didn't even exist yet ("media throughout the universe" became a popular contractual phrase) - and offered no money in return.
It was as if you had asked a plumber to come to your home and fix aleaky faucet, then required him to install a shower for no extra charge ifhe wanted to keep your business.
I was on the sticking end of one of those contracts when= I was amusic critic for the Springfield (MA) Union-News and Sunday Republican. I asked to be paid for the additional rights. The paper refused. I left, because I do not believe that schoolyard bullies should be encouraged.
Fighting back, Tasini, the president of the National W= riters Union (of which I am a member), took the Times to court. He lost the first round, but won on appeal. Now the case is in the hands of the Supremes.
In the meantime, I began freelancing for The Boston Globe, which isowned by The New York Times. Soon another contract came down the pike.
The Globe wanted to put my stories on line, both the ones I wouldwrite and all the ones I had already written. They also wanted the power to revise, add to, and create new work out of my work. However, in an end-run around Tasini, they offered to share - not money, of course, but mycopyright. With me. Who already owns it. Then I learned that the Globe has been selling individual pieces of mine on-line, without my permission, my knowledge, or any legal right, for years. That accounted for the retroactive clause in the contract.
If I signed, I would be validating their theft of my work. Again,I could not. My income took a nose-dive.
Although many Globe freelancers signed the contract in order to support their families, some of us organized and took the paper to court.
One of the saddest days of my life came when Suffolk Superior Court Judge Ralph Gants heard the Globe's motion to dismiss our suit.
"We are bargaining from a position of superior strength, and it is within our ability to ask for more rights," the Globe's lawyer said. "(The freelancers) have the right to find other publishers."
Like it or lump it, he was saying; it was that cold.
Because I treasure newspapers and believe in their mission to "comfort the afflicted and afflict the comfortable," I was shocked to see such an unjust power grab coming from an institution for which I had so much respect.
In the end, Gants ruled in our favor.
He said, "... this Court finds that ... the modification of acontract may be in bad faith when it is procured through an ultimatum inwhich a company threatens an independent contractor, even an independentcontractor who is terminable at will, with termination."
The case proceeds; we are now in the discovery phase.
In the meantime, a federal Court of Appeals heard the Napster case,which is remarkably similar to ours, and ruled in favor of intellectual property rights on the Internet.
When Napster lost, the Times editorial page on Feb. 14 called the decision a major victory "for all creators of original material," and said that the Internet should not become "a duty-free zone where people can plunder the intellectual property of others without paying for it."
Tasini immediately responded with an article entitled, The Hypocrisy of The New York Times.
Arguments both for and against the freelancers have now been f= iledwith the Supreme Court. (See them at tp://www.nwu.org/tvt/sc.htm). The Times argues that if it loses, it will be forced to delete freelancers' work before it puts its paper online, thus defacing the historical record.
Burns, Goodwin, Pulitzer Prize-winner David McCullough, David Kennedy and others, in a friend-of-the-court brief, are buying into this specious argument, this threat. They are caving in to the bully. They choose to believe that the Times will delete Op-Ed pieces,letters, features, etc.
And that will threaten, they say, "the completeness and integrity of the nation's electronic archives."
They are not arguing that the Times would never do such a thing. Or that it should pay freelancers for the work it is merrily stealing. Or that it can well afford to pay. They do not question the immorality of theTimes' actions.
I imagine that people like Burns and the Goodwins have lawyers, agents, editors and publishers ready to strike down in a New York minute anyone who threatens to make money off their copyrighted work. So why are they so freely asking freelancers like myself to give upour rights?
On our side, the historians and writers argue: "It is extremely important for authors to control the use and deposition of their works and for them to share in the economic benefits derived from the use of their works."
They also argue for the original Copyright Act's "careful balance between encouraging the dissemination of knowledge and granting the market incentives needed to maintain a healthy store of knowledge." Even the Copyright Office agrees with us.
Marybeth Peters, the Register of Copyrights, entered a statement into the Congressional Record that said, in part, "The freelance authors assert that they have a legal right to be paid for their work. I agree... .And I reject the publishers' protests that recognizing the authors' rights would mean that publishers would have to remove the affected articles fromtheir databases.
"The issue in Tasini should not be whether the publishers should beenjoined from maintaining their databases of articles intact, but whether authors are entitled to compensation for downstream uses of their works."
Many publications are beginning to recognize the truth of thisstatement and work with their freelancers. Brill's Content, Harpers, theAtlantic Monthly, and even the Wall Street Journal now pay for extra rights.
And the NWU has created a clearing house to serve as a negotiatorfor all freelancers, so the newspapers and magazines are not faced with the frightening and time-consuming prospect of dealing with each freelancer on an individual basis.
It is always possible that Burns and Goodwins, et aliido not understand the real issues here. Have our major intellectuals allowed themselves to be duped by the newspaper of record?
I do not know. But in the famous words of Samu= el Johnson, "No manbut a blockhead ever wrote, except for money."
So shame on you, Burns and Goodwin, et al. Freelance writers have amoral and legal right to profit from their work, and I can only hope theSupreme Court sees the justice of this cause.
Joyce Marcel is a freelance journalist who writes about culture,politics, economics and travel.