When freelance writer Jonathan Tasini agreed to give The New York Times one-time, print publication rights, he was duly paid for his article to appear in print.
But when he saw his article reappear on Lexis-Nexis and elsewhere on the Web without his permission or any additional compensation, Tasini, with a group of other freelance writers, decided to take his case to court.
Tens of thousands of freelance writers, photographers and illustrators eagerly await the outcome of Tasini et al vs. The New York Times et al, which, after seven years in lower courts, will finally be argued before the Supreme Court next week.
The landmark lawsuit brought by members of the National Writers Union against The New York Times Company, Newsday Inc., Time Inc., Lexis/Nexis, and University Microfilms Inc., charges that these publishers violated freelance contributors' copyrights by republishing their work electronically without permission or further compensation.
After a District Court ruled in favor of the publishers in August 1997, the 2nd U.S. Circuit Court of Appeals reversed the decision in September 1999. The Supreme Court will now decide whether to uphold or overturn the ruling, with millions in royalties at stake.
"In my opinion, what's at stake is the future of culture and freedom of expression," said Tasini, president of the National Writers Union and lead plaintiff in the case.
Like the music industry's fight against Napster, the National Writers Union is fighting to compensate artists for their work, Tasini said. But this time, the players have switched.
"The bottom line is that creators need to be paid fairly," Tasini said. "The difference here is that the thieves are the publishers."
If the Supreme Court rules in favor of the writers, the ruling would force major publishers to settle massive liability claims and stop widespread illegal use of artists' works.
"Writers will have to be paid fairly for past infringements," said Kay Murray, assistant director and general council for the Author's Guild.
The case hinges upon one word in the 1976 Copyright Act: revision.
The publishers claim that they have the right to reproduce and redistribute freelance works, in the absence of a contract, if it is a revision of the first publication.
While that definition might grant publishers the right to reprint an article in a late edition of a newspaper, the writers counter that it does not give publishers the right to redistribute their work in electronic databases.
Some noted historians have sided with the publishers, including documentary-film maker Ken Burns, Pulitzer-prize winning authors Doris Kearns Goodwin and David McCullough, and historian David Kennedy, among others.
These scholars are concerned that if the Supreme Court rules in favor of the writers, publishers may delete any past works that could provoke new lawsuits. Archives of new stories would be incomplete, with holes in every newspaper's database.
"This result will have unexpected, unprecedented and irreversible consequences for the integrity and accessibility of the historical record and the progress of historical scholarship," the historians siding with the publishers argued.
Tasini insists that those scenarios are greatly exaggerated "scare tactics" used by the defense to enlist support.
"We strongly believe that they were not fully apprised to all the solutions to paying for rights, as opposed to taking down the articles," Murray said.
The court could in fact rule that no articles should be deleted and instead order publishers to pay writers fairly, Murray said.
But the potential dissolution of electronic archives has sent tremors throughout the academic community, leading some to believe that a decision for either side could be disastrous.
The Special Libraries Association recently urged both sides to negotiate, insisting that a decision either way "could possibly be a devastating blow to the flow of information globally."
According to the SLA, "a victory by the publishers would produce a chilling effect on the creation of articles by freelance writers, while a finding in favor of the authors would likely mean higher costs and/or reduced access for the most important players in the information game -- the users."
Others believe that publishers would rather seek another solution than delete electronic records.
"It's a real concern," said Miriam Nisbet at the American Library Association. "But it seems to us that (the publishers) also have a strong interest in having complete databases."
Despite the threat of higher costs and decreased access to research material, both the Association of Research Libraries and the American Library Association have sided with the Writers' Union. Both contend that electronic data does not need to be deleted as long as the courts require publishers to pay past and continuing royalties.
The Author's Registry is one way that publishers can pay freelance authors for articles that are reused.
Meanwhile, the Writers Union has proposed its own remedy: Publications Rights Clearinghouse, the first author-run, searchable database to compensate writers for secondary use of their work.
PRC closely resembles the American Society of Composers, Authors and Publishers' solution, which collects performance royalties for songwriters and publishers. Just as songwriters get paid a few cents every time a song is played on the radio, writers who enroll in PRC will get paid royalties every time their article is purchased or photocopied through the service.
Publisher Steven Brill recently agreed to use PRC to assign and pay authors 30 percent royalty for each article sold on Contentville.com.
The outcome of the Tasini case could affect the decision of three pending class action lawsuits brought by freelance writers against publishers.
"We see that as the direct descendent of this Tasini action if the writers win," Murray said.
Regardless of the outcome, writers will still have to struggle with signing publishers' all-rights agreements.
"That's going to be a huge fight," Tasini said.
