Jonathan Tasini didn't waste much time after getting word Wednesday that his copyright suit against The New York Times had been dismissed by a federal judge. On Friday, the free-lance writer got on a train to Washington, DC, for what sounded like an important morning meeting.
Although Tasini wouldn't give details of his session, he was clear about his intention to continue fighting to get writers compensation for magazine and newspaper stories that are reused in cyberspace.
"We have a strong basis for appeal," said Tasini, president of the National Writers Union. As the union debates whether to pursue a legal challenge, Tasini said he is jump-starting lobbying efforts to compel publishers to do what the law doesn't require them to do now: recognize, respect, and pay for online and other digital rights.
"We need to go to Congress and say this is insane," Tasini said.
US District Court Judge Sonia Sotomayor of New York City all but agreed with Tasini's view when she ruled in favor of the defendants - including the Times, Newsday, and Sports Illustrated. Basing her decision on a very precise definition of what constitutes a revision of the original publication according to the Copyright Act of 1976, the judge pointed out that the law simply didn't anticipate the electronic world - and that it's up to Congress to bring the legislation into the modern era.
"If Congress agrees with plaintiffs that, in today's world of pricey electronic information systems, Section 201(c) [of the Copyright Act] no longer serves its intended purposes, Congress is of course free to revise that provision to achieve a more equitable result," Sotomayor concluded.
To date, no bills have been introduced to bring copyright law up to speed, and publishers are benefiting from a legislative vacuum that effectively grants them electronic rights unless writers have contracts that explicitly set out other arrangements.
"It's becoming increasingly clear that there needs to be a new body of legislation to cover the online world," said Stuart Biegel, professor of law at the UCLA Online Institute for Cyberspace Law and Policy.
More is at issue than whether writers own their words after they've made the unmystical transition from print to bit. One powerful school of thought argues that giving publishers free reuse is crucial to keeping online information inexpensive and free-flowing.
"Everyone understands that the publishers have all the power," said Jonathon Rosenoer, attorney and author of Cyberlaw. "But here you have a case where the public interest and the publishers' interest are the same" - making information freely available.
Tasini reacted angrily to Rosenoer's argument.
"No individual author will hold copyrights to their work, because corporations are either taking them, as we claimed in our case, or they are forcing writers to sign away our rights in perpetuity," Tasini said.
He noted that some publishers are taking steps - sometimes absurd-sounding ones - to make sure they don't repeat earlier failures to anticipate new developments that could affect them. Some are tendering contracts that claim rights "in this universe or any universe hereafter discovered."
Most free-lancers are in the position of having to take whatever terms are dictated to them if they want their work publish. And though many are asking for extra payment - usually a small flat fee - to give up electronic rights, Sotomayor's decision weakens what was already a tenuous position.
"What this means is that writers have to start being more savvy about negotiating separately for electronic rights," said Shari Steele, staff attorney for the Electronic Frontier Foundation. "But we have to recognize that the writer is not the powerful party in that particular contract."
