POLITICS JULY 9, 2001
I may be a winner! The Supreme Court held this week that The New York Times violated my rights when it published four freelance op-ed pieces of mine between 1986 and 1995 and then sent them to Lexis-Nexis, the electronic database, without my permission. (After 1995 the Times accepted freelance articles only after the author explicitly surrendered all rights.) According to the website of the National Writers Union--whose president, Jonathan Tasini, brought the suit on behalf of freelancers without asking our permission--"the publishing industry's potential liability for the unauthorized electronic reproduction of freelance work ranges from a low of $2.5 billion ... to a high of $600 billion" over ten years. As if those lavish, two-figure freelance fees weren't enough.
But, despite Tasini's gloating, neither freelancers nor the public will benefit from the Court's decision. As a freelancer, I wasn't aggrieved when my pieces were archived in Lexis-Nexis; I was pleased. Circulating the ideas as widely as possible was the reason I wrote the op-eds in the first place. Although the Tasini decision represents a temporary victory for a few authors, many of us won't get any money, having waived our rights retroactively after 1995 as a condition for subsequent publication. Moreover, the decision is part of a disturbing pattern: the expansion of intellectual property rights in ways that limit access to electronic information. It will create troubling gaps in the historical record and encourage the building of electronic gates in spaces that should be open to the public.
Before 1976 an author who published an article without formally reserving the copyright effectively transferred it to the publisher. But in 1976 Congress amended the copyright law to create the opposite incentive, declaring that the publisher acquires from the author only "the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series." The idea was that publishers could include a newspaper or encyclopedia article in a later, revised edition but not in an entirely new anthology or in a different magazine. The question before the Supreme Court was whether the Times' decision to store and distribute freelance articles in Lexis-Nexis and on cd-rom qualified as a permissible "revision" of the original edition of The New York Times or as an entirely new collection.
This, of course, was a question Congress couldn't have anticipated in 1976, since electronic databases weren't yet widely in use. But a useful opinion would have attempted to translate the original purposes of the copyright act for the electronic age. The Court gave us a creative example of just this kind of translation a few weeks ago in the Kyllo case, in which Justice Antonin Scalia held that the police couldn't use cutting-edge electronic surveillance without a search warrant, so as to preserve the same degree of privacy in the twenty-first century that Americans took for granted in the eighteenth.
But Justice Ruth Bader Ginsburg's 7-2 opinion for the Court doesn't do any translating at all. Ginsburg says that the microfilm version of the Times qualifies as a "revision" of the print edition; but that Lexis-Nexis and the cd-rom don't because the articles they contain are disaggregated and "appear disconnected from their original context." In fact, on the cd-rom, readers view an exact copy of the paper edition of the Times, much as they do on microfilm; but Ginsburg objects that they can view only one page at a time, rather than scrolling through the surrounding pages. It's hard to see why anything should turn on this technical difference in the search function between the microfilm and cd-rom versions of the Times. Both can plausibly be considered revised editions--since the Times is defined by its editorial judgments rather than by the medium in which the articles appear.
The copyright act prohibits publishers from taking articles out of context in only one, specific sense: If I publish an op-ed in The New York Times, the Times isn't allowed to embarrass me by reprinting my op-ed in an entirely different publication, such as Penthouse. That's because Penthouse isn't the Times--but a cd-rom of the Times is, regardless of whether all the articles appear in the same order. And so is Lexis-Nexis: As Justice John Paul Stevens pointed out in his powerful dissent, the Times sends the entire print edition to Lexis-Nexis in electronic files, and you can search the entire edition by typing "date(is 6/25/01)" in the New York Times database. Readers of my op-eds in Lexis-Nexis know that they appeared in the Times on a particular page and column under a headline written by Times editors. The only thing that has changed is the physical arrangement of the article in relation to other articles, which is why it qualifies as a revision rather than a new collection.
But debating exactly what does or doesn't constitute a "revision" masks a more important point: As Justice Stephen Breyer, who joined Justice Stevens's dissent, knows better than anyone on the Court, overly expansive protection of the rights of authors and publishers is dangerous. As an assistant professor at Harvard Law School in 1970, Breyer wrote an article about the two goals of copyright law: protecting readers' access to ideas and providing incentives for authors to produce them. By granting windfalls to authors far beyond the incentives necessary to encourage them to write in the first place, Breyer argued, copyright can choke off public access to ideas. And a series of laws and court decisions in the 1990s have vindicated Breyer's fears.
For example, the Digital Millennium Copyright Act of 1998 takes the power to regulate copying away from writers, librarians, and readers and puts it in the hands of engineers and content providers. It prohibits tampering with electronic locks that regulate access to copyrighted materials, even though the locks--unlike the copyrights--may never expire. Another blow came that same year with the passage of the Sonny Bono Copyright Term Extension Act. When the United States was founded, traditional copyrights protected an author's exclusive rights for 14 years, with the possibility of one 14-year renewal. But these limited terms were dramatically extended by the Bono act, which was designed as a windfall for the heirs of Walt Disney and now protects copyrighted material for the life of the author plus 70 years. (This arguably violates the copyright clause of the Constitution, which authorizes Congress to protect the rights of authors "for limited Times.") And now Congress is considering a draconian database-protection law, which would allow corporate monopolies to limit access to electronic databases even if they contain information in the public domain.
Since the beginning of the twentieth century, "courts and corporations have exploited public concern for rewarding established authors by steadily limiting the rights of readers, consumers, and emerging artists," writes Siva Vaidhyanathan in his forthcoming book, Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity. "All along, the author was deployed as a straw man in the debate." In this sense, the Tasini decision is the latest in a troubling trend. During the brief heyday of Napster, we faced the possibility of a music library with all the songs in the world accessible for public use. After a court held that Napster had violated the rights of music publishers, individual songs were extinguished like sputtering lights. Now media outlets will be encouraged to begin a similar process of extraction, removing freelance articles from databases like Lexis-Nexis unless the authors specifically request otherwise and creating holes in the historical record. The formerly complete archive of the newspaper of record will be transformed into Swiss cheese. It's not clear whom the Court thinks this unfortunate decision will help. But it isn't you, and it isn't me.