The Supreme Court handed a victory to freelance writers this week when it ruled that publishers must compensate authors when they republish their work electronically without permission.
But some writers are concerned that while the ruling is nice, it won't pay the rent.
"A major problem for writers is that many publishers, anticipating a loss in the Tasini case, have begun demanding that freelancers sign away all rights to their articles, including electronic rights, for no additional payment," said freelance writer Miriam Raftery in an e-mail.
"This sign-or-else mentality forces freelancers to choose between short-term survival and long-term stability."
Raftery is just one of the tens of thousands of freelance writers who are likely to be affected by the recent Supreme Court decision in Tasini et al. vs. the New York Times et al.
She is waiting to see if the Court's decision will decide the fate of hundreds of articles she wrote as a freelance columnist for the San Diego Union-Tribune that were republished electronically without permission or payment and now sit precariously in the newspaper's archives.
"The next hurdle is to persuade publishers to pay not only for past infringement, but future use of writers' articles on the Internet," Raftery said.
Raftery is one of the named plaintiffs in a separate class-action suit brought by freelance writers against the Union-Tribune and several electronic databases. The suit is one of three class-action suits put on hold until after the Tasini case. The issues involved in those suits embody the next struggle for writers in the electronic age: all-rights agreements.
Since the mid-1990s, most publishers have included all distribution mediums, including the Internet, in their contracts.
While the Supreme Court's decision applies mainly to contracts that are several years or even decades old, authors are already feeling its impact.
Many writers who refuse to sign away their rights have been denied work. Those who do sign can no longer resell their own works to other markets – a practice that has long been a major source of income for many freelancers, Raftery said.
Boston Globe
freelancers who refused to sign a contract that demanded they hand over all rights to past, present and future columns to be reprinted or sold by the Globe in all mediums, were told they could no longer work for the newspaper.
Freelancers who wrote for the Boston Globe filed a class-action lawsuit against the paper, which was stayed pending the Tasini decision.
When it comes to control over e-rights, publishers may still be the ones wielding the axe.
"The economic reality for most freelancers is that if you want to have work, you're going to have to enter into these agreements," said intellectual property attorney David Opderbeck.
Some of the defendants in the Tasini case, including the New York Times and Time magazine, are already striking articles from their online archives in an effort to avoid massive liability claims.
The New York Times Company has set up a website for New York Times freelancers who want to keep their works available on Lexis-Nexis.
Freelancers who wish to have their articles restored in the New York Times archives must agree that they will not receive any further compensation and that they will release the Times from any claims relating to their work appearing in electronic archives such as Nexis.
In response to the Times' efforts to get freelance authors to restore their work in the newspaper's online databases, the National Writers Union issued an e-mail alert to ask writers everywhere to flood the Times with phone calls on Wednesday.
"In the wake of the Supreme Court victory for freelancers, the New York Times is attempting to mitigate their financial liabilities by seizing rights from freelancers," the e-mail said.
"Do not sign any contract the Times is offering –- either in print or on the Web. You will be giving up your rights and potential financial compensation stemming from the Supreme Court victory."
The publishers' drastic attempts to delete articles from archives has led some to wonder whether freelancers will also suffer from their victory in court.
"The funny thing is that freelance authors, eager for more money from online distribution of their work, may have just destroyed that very source of income," remarked one poster on Slashdot.
Other freelancers said even though the Court's decision will impact archival articles, it won't have a big effect on their current contracts.
"I'm happy about the ruling, but it isn't going to change the way business is being done now," said another freelancer on Slashdot.
"Publishers probably changed their contracts as soon as wind of this suit got out in the first place. They'd be foolish to keep doing the same old thing and wait for the court to rule – it's better to protect yourself from the start."
Many view the Tasini case as a call to action for both sides to negotiate.
"Now is the time for publishers to sit down at the table with representatives of major writers' organizations to hammer out a two-pronged agreement: first, how to fairly compensate writers for past infringement, and secondly, how to assure that writers will receive compensation for future usage of our works online," Raftery said.
Major writers' organizations would likely concede a portion of the monetary damages owed members whose works were infringed in the past if in exchange publishers would treat writers with respect and offer modest payments for e-rights in the future, she said.
Publishers should try and negotiate for fair e-rights agreements "instead of trying to grab up broad rights for no additional payment in order to create sweatshops in cyberspace."
