By the numbers it was a big win for the little guy. In a 7‑to‑2 vote, the Supreme Court came down strongly on the side of the freelance writers of the National Writers Union on June 25, ruling that publishers cannot simply take articles written for their print publications and place them, for free, on the Web. Copyright, the court’s majority held, belongs to the creator, not the person who pays the creator for the right to use it; only those rights expressly transferred by the writer to the publisher belong to the publisher.
The case, brought by the NWU against the New York Times Co., Newsday Inc. and Time Inc., has been watched closely by writers, other creative workers and the broader media industry, as it had become a landmark case in defining copyright in the Internet age. (Full disclosure: In These Times maintains a contract with the NWU.) At first glance, it would appear that the creative folks have won. The intent of Congress in developing copyright legislation was to encourage creativity, and this decision would seem to enshrine the notion that copyright belongs to a work’s creator. The problem is that those same creative people are also permitted to sell their rights, and at that point, the marketplace takes over.
Traditionally, publishers only sought what were called “first North American rights” to a work. After all, once an article was published, the world moved on, and that was the end of a work’s value to the publisher. Of course there was microfilm, but as this was just a precise and complete copy of a publication, it was held by the courts – and by most writers who even thought about the matter – that this was just another version of the same thing.
Then along came the Internet. Suddenly publishers began to think of the past written efforts of scribes as “content.” At the New York Times, which has long billed itself rather grandly as the nation’s “newspaper of record,” they got the idea that people might pay to retrieve old articles in the paper’s archives and via Lexis-Nexis. Other publishers got the same idea, and soon dotcom companies like Northern Light sprang up, offering Web searchers access to published articles from thousands of publications – for a fee. The problem was, nobody wanted to pay any part of those new fees to writers, though the authors had no intention of selling their stories for distribution on the Internet when they initially sold their work.
The Times and its co-defendants argued that the publication of articles on Web databases was simply a permissible “revision” of existing articles already sold to them, but this notion was roundly rejected by the court majority. Justice Ruth Bader Ginsburg wrote that the use of massive Internet databases by publishing houses “no more constitutes a ‘revision’ of each constituent edition than a 400-page novel quoting a sonnet in passing would represent a ‘revision’ of that poem.”
With that forceful opinion, the way has been paved for the next step in the battle: getting writers paid for years of copyright infringement by most of the nation’s major publishing enterprises. NWU President Jonathan Tasini has estimated that the bill for copyright violations could run more than $5 billion.
While that kind of money has hacks salivating, the likelihood that the money will eventually change hands is a good deal less. For one thing, the publishing industry is threatening to pull disputed articles from Web sites, and for many writers, the threat of loss of exposure and posterity for their works will be enough to get them to cave. The New York Times already has announced a toll-free number with a recording offering writers a chance to keep their articles on their Web site if they will sign a waiver of any damages resulting from the Supreme Court decision.