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Supremes Hear Case of Publisher Piracy 152

Posted by michael
from the shoe-on-other-foot dept.
tuiterwyk writes "According to this article on CNN.com, the US Supreme court is considering whether print publishers who have paid a free-lance writer for an article or story are able to include that work in their on-line or CD versions without the permission of the original author or without being required to pay additional compensation. The impact on on-line searches and newspaper sites could be dramatic." See the New York Times story as well. Publishers such as AOL/Time Warner have no problem pirating the work of freelance writers to sell for a profit - when it's their profit. Note: I have not been able to find any article by any major publisher that describes what the publishers are doing (distributing copyrighted works without permission, for money) as "piracy", please post a comment with a link if you know of one.
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Supremes Hear Case of Publisher Piracy

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  • I may have posted this too late for anyone to see it but...

    As some of you may be aware, in Hollywood there is an impending strike [nytimes.com] between screenwriters, represented by the Writers Guild of America, west [wga.org] (WGAw) and the film companies, represented by the Alliance of Motion Pictures and Television Producers [amptp.com] (AMPTP) curiously made up of the same companies you'll find in such organizations as the MPAA.

    One of the issues the writers are disputing with the megacorporations is over the Internet. Let me quote the WGA's report [wga.org] on the negotiations:

    The AMPTP... have also proposed that for the reuse of motion pictures and television programming on the Internet they would pay nothing for any product produced before May of 2001. They expect to get them for free.

    That's right. The film companies want sell movies on the Internet. They want to profit from it. But they're intending to compensate the writers of the movie....NOTHING. Sound familiar?

  • by Anonymous Coward on Thursday March 29, 2001 @09:29AM (#329867)
    "Justice John Paul Stevens asked Laurence Gold, the lawyer representing the free-lance authors, why the databases were different from putting a newspaper on microfiche and making it available at a public library."

    Why should the matter of storage make a difference? Whether it's delivered on a paper, viewed on microfiche, or viewed over a network shouldn't make a different.

  • Win the battle, lose the war. Only now winning the battle is all free lancers have left. The publishing industry has learned its lesson and is moving away from free lance style article licensing big time. Instead, authors have to sign over _all_ rights to their creations as works for hire and assign copyright to the people publishing it. Ultimately, I think you'll find they lose more than they gain out of this, no matter what happens.
  • Not if you actually read the instructions, that started with the phrase "in vi...."
  • If you don't like the contract, don't sign it. Take your work somewhere else. Bus tables to satisfy your addiction to food and shelter until you can get a better deal...

    ...and think about forming a union. "United we stand, divided we fall" and all that. If an entire class of people is getting shafted, that's one possible way to fight back.
  • Given that the work was done for a course that students *paid* to attend, is he allowed to simply take our work and walk away with it?

    Have you talked to your parents (assuming they're footing the bill?) If I was such a parent and heard about this, I'd be going to talk to a lawyer.
  • If it were such a simple matter as them trying to rip us off before we rip them off, it wouldn't be such an issue... But we've kinda got this hate triangle thing goin. Publishers are trying to rip off both artists and customers, and I've never heard of an artist trying to rip off the publisher, and customer theft of published materials is (in some markets "was") nominal.
  • It seems to me that there's the beginnings of a revolt here... singers/songwriters can stand up to the RIAA without shooting themselves in the head because they can now publish on the internet. Writers standing up to publishers because they now have other forums and means to publish their work. This could be beginning of the end for the media oligopolies. Or they could win the legal battle to retain their stranglehold on the american public and artists.
  • And don't forget about the radio station that got in trouble recently for broadcasting over the Internet without paying additional royalties. Same material, different distribution mechanism, additional royalty payment.

  • So, Michael, tell us how you really feel.

    I know, from years of experience, that Slashdot has always wobbled on either side of the line between news source and bully pulpit. But this is going way too far.

    Could we please save the acid-dripping rhetoric for a "Read More..." block, instead of the headline? If a issue is worth debating, it will stand on its own merit. We don't need the flamebait.

    We're not scare-mongering/This is really happening - Radiohead
  • by Uruk (4907) on Thursday March 29, 2001 @09:33AM (#329876)
    There was an interesting piece on Marketplace last night (radio show on NPR) where they were talking about just this.

    It seems that the New York Times has an interesting position here - while they have regularly posted rants in the editorial column against napster and what they refer to as the "looting" of other people's intellectual property, they're firmly in favor of being able to use freelance material without paying for it again. The New York Times has a high percentage of freelance stuff in its pages, and it would be quite a financial blow if they were to have to pay writers for the second go around.

    The point is moot in some cases, since many freelance writers sign contracts before they turn their stuff over that says that the company can do whatever they want with it in perpetuity. Of course that's a shit deal, but if you're starving and you've got something to sell (like a freelance article) you take whatever terms will put money in your pocket.

    Whether or not that's a fair application of the law is of course an entirely different debate.

  • John, you are very naive. Why the hell don't you just sell first serial rights? If the publisher presents you with an all rights contract, you don't have to sign it. Renegogiate! Why shouldn't the publisher give you a cut every time they use an opportunity to make some more money out of your article? Your attitude is rather like being in a regular job, getting paid a salary for (say) 40 hours a week, and putting in an extra 10 or 20 hours unpaid -- oh, wait, there are people who do that...
  • Whoa! That's not at all what the cited document says. It is clear:

    "What is a work made for hire? Although the general rule is that the person who creates the work is its author, there is an exception to that principle; the exception is a work made for hire, which is a work prepared by an employee within the scope of his or her employment; or a work specially ordered or commissioned in certain specified circumstances. When a work qualifies as a work made for hire, the employer or commissioning party is considered to be the author. See Circular 9."
  • by mattkime (8466) on Thursday March 29, 2001 @10:23AM (#329879)
    Publishers have a history of being rather unconcerned with compensating writers. This is most obvious on college campuses. When professors put together a course packet for students to buy at the local copy store, the copy store is legally obligated to pay the publisher of the works. (Some copy stores may simply ignore this, but it isn't uncommon for pubishers to threaten copy stores with lawsuits.) However, the publisher does necessarily own the work! Even if the copyright is held by the author, the writer will never see a dime.

    One of my professors organised the photocopying of a large course packet so her students could avoid the $80 fee. Whenever she includes her own work, she must battle the copy stores to NOT send money to the publishers of her own work.

    Who will win? Publishers have lots of lawyers. Authors have few.
  • by crovira (10242) on Thursday March 29, 2001 @09:48AM (#329880) Homepage
    I had to sign something.

    I didn't get paid but at least I knew about it.

    If I hadn't signed, they would have had to run the CD with only a stub of my article. (They would have had to write an abstract which would then have been their own to print.)

    This stuff on reprints and "collections" gets tough.

    If the publisher paid for an article, it depends on the contract between publisher and author as to whether the contract was restrictive to a single medium and it was specified.
  • by danmil (11416) <danmil&aya,yale,edu> on Thursday March 29, 2001 @10:02AM (#329881) Journal

    Now, I'm all in favor of applying the inflammatory "privacy" epithet to this case (way to go, Michael!), but there are a few things which you should clear up:

    Assume a paper (call it "Paper"), has purchased a story from a freelancer.

    The Paper obtains right to publish it as part of an issue of the paper. They also obtain the right to include the work in online or CD versions of the paper. There is absolutely no debate about this. These are considered alternate versions of the paper (akin to a morning and evening edition).

    The current case does not test that at all.

    What is in dispute is the Paper's ability to sell that article to an online database (read: Lexis/Nexis), where it will be collated with thousands of other articles, and become searchable by author, by subject, etc.

    The freelancers claim that this is not simply an "alternate version" of the original newspaper issue, but is in fact an entirely new product.

    I believe they make a reasonable argument.

    BTW, the publishers are trying to scare the court into denying the freelancer's their copyrights by claiming that, if the decision goes against the publishers, they will be forced to remove huge amounts of material from the online archives, which will cause grave damages to scholarship. This seems like absolute hooey to me -- if there is a market for those articles, a means will be found to sell them, and for the profits to go to the authors.

    -Dan

  • When I buy a DVD or a music CD, I'm not buying all rights--I'm just buying the right to play the content on the DVD or CD. The media companies could (yeah, right) offer "any media" versions of the same content at a different price. Then if you wanted to convert the content to MPEG or some other format you could.

    I don't know where you're buying CDs and DVDs, but at the local stores around here we don't have to sign any sort of contract or license to buy them, which means the customer retains the full rights of Fair Use and First Sale. I have the right to do anything with my new DVD, whether it's playing it on a DVD player, ripping it off and watching it as an MPEG, or using it as an expensive coaster. I haven't bought rights to redistribute copies of it, of course, but everything else is fair game.

  • When I used to write for ComputorEdge Magazine [computoredge.com], we had an agreement that my payment was for first publication rights. Any additional publication, no matter what the medium, required both my permission and an additional payment. And they scrupulously adhered to that agreement. They are the good guys.

    I actually didn't negotiate the deal...it was their standard policy, but it seems to me that as a freelance writer, it's not too terribly unseemly to consider including that kind of language in the contract.

    Oh yeah...contract. You ought to have something in writing. If you can't negotiate what you want, at least make sure that you understand what they are offering.

    -h-

  • I know this is a huge place to rail on big business, but look at what the topic for this would be if it was in a publisher's trade magazine:

    "Freelance Authors Ask Court to Invalidate Contracts"

    This is not a case of publishers trying to screw writers. The freelance authors signed the rights to the content away to the publishers. The only thing that the freelance authors have to stand on is that placing the media into a different media is a "revision".

    OK, so by that same argument is moving a song from a CD to an MP3 a revision, so you should have to pay for it again, because it's a different version of the song.

    You can't have it both ways. The freelance writers are competent adults who signed contracts that gave the rights to the work to the publisher. If you take the stand that making that work electronic constitutes a revision of the work, you're opening the door wide open for everyone to charge you money every time you move something from paper to electronic media.

    Oh, if they scan it, is that a revision or not? How about if they scan it and OCR it? How about if they hire a few dozen data entry clerks to type it in, is that a revision? How about if it's audio on a CD and you rip it to a WAV file and put it into an MP3. By the arguments of the freelancers, that's a revision.

    rocketscientist.

  • by Todd Knarr (15451) on Thursday March 29, 2001 @01:14PM (#329885) Homepage

    Use. When I dub a CD onto a cassette to play in the car, it's for my use only. The publishers aren't converting the articles for their own use, they're converting them to make and sell copies in a format not covered by the original contract. They weren't given the right under those contracts to sell copies in electronic form, so they've no more right to do it than I have to distribute copies of their CD.

  • Now let us move on to the NYT. They buy a piece of work from a free lance writer for use in their publication. They publish it according to the contract and pay the writer for the right to do so, the have in fact purchased certain distribution rights from the original writer. Now, the NYT wants to take this article that they have purchased and move it to another format for distribution that they will again make a profit on.

    No one is making money on web content these days. Web publishing, in most cases, is a great big black hole sucking in cash.

    Since they purchased these rights, I would assume that it would again come down to which distribution rights were purchased. If the NYT purchased the right to distribute the works in this digital format, then they are OK. However, if they didn't, then they owe the writers some money... as they made money off of selling their work again in a differnt format than originally agreed upon.

    The legal issue here is whether the web version of the Times is a revision of the dead tree edition. SCOTUS is also concerned with the Lexis clipping service which lawyers and judges use frequently in their work. If these web publishing rights are not included when the Times purchases free-lance work, then this source of information dries up as well.
  • I mean, people here will bitch and moan about not being allowed to convert their music to any format they wish, why can the publishers not do the same? Is it because they make money off of it? Is that *really* enough of a difference?
  • I post this in hopes that folks with more knowledge and experience than mine will reply to some of the issues brought up here:

    Having not done feature articles, I don't know what the standard, legal practice is. Maybe the writer shouldn't get paid again as part of a compilation/web site, etc., maybe they should. I do know that if I were approached to do a feature article, I would make damn sure that the re-publishing rights were spelled out explicitly in the contract.

    That said, I am more concerned with how this case has been/will be scoped by the courts because of the potential spillover effects. Normally when a writer's work has been out of print for a specific period of time, the rights to their work revert to him/her. Two current technologically based scenarios threaten this reversion process: publishing on demand (by which a company can print and sell just one book within the specified period, thereby retaining the rights), and the web, which in essence can be used to keep something "published" for years, merely by keeping an active link to it available to the outside world.

    Then if someone does a CD-compilation from the web site, the work was never out of print, so the author is essentially still tied to whatever contract they negotiated up front. My guess is that 9 out of 10 times (if not 99 out of 100) the entity that is probably going to get screwed in such a scenario is the author.

    On the other hand, a decision favoring the author(s) too much isn't necessarily good, because of the hated Sonny Bono extensions to the original and renewable copyright periods, potential tie ups via the DCMA (put encoding on the CD-ROM, there goes fair use...)

    Please, feel free to take both or either sides of the discussion, because I for one really need to learn what the best possible decisions in this case would look like.

  • I wanna hear what the Pips have to say about it.
  • Thank you, thank you, I will be here all week.
  • Superb, after all the vanity and hubris of "artistic control" and the dog-in-manger whinging about someone else making money off their efforts, and honest workman in the creative area.

    Ditch diggers and road builders don't get paid per use of what their muscles build, what is so special about writing or other mental creative effort that deludes those who choose it into thinking they deserve a "slice of the pie" or a "cut of the action" and a life long, or life plus 75 years of payment for their endeavours?

    I also agree with this poster that the hypocrisy is in the "pay once/charge often" approach of publishers.

    It simply seems an intellectual snobbery to suggest that "work for hire" like the rest of us grunts, is beneath the dignity of "creatives."

    It would be nice if people like that could get over themselves and stop being so perfectly precious.
  • Thanks for the reference. I stand corrected.

    *pads off to spank certain peoples with the 'paddle of correction'*
  • Okay, I'm going to correct my correction.

    My information that commission work automatically becomes 'work for hire' did not come directly from the 'Copyright law definition' above, but second hand from a copyright lawyers. It appears that there is so much case law in favour of the publishers (or those commissioning work) that the 'work for hire' clause in the 'Copyright law definition' is next to useless.

    At this point. I just give up. If one can't read legislature to determine what is and isn't allowed on this planet, and instead have to read through the lengthy annals of overpaid, pompous arrogants, then what's the point? :)
  • It really depends on the context. If a publisher has explicitely paid for a writer to write a particular document, then that is considered "Work for Hire", and the publisher retains all rights on that work. Ie, they can do what they want with it, and the original author can do nothing.

    If the author wants to restrict what the publisher can do with the works, then that needs to be written into the contract. If there's no contract, then the "Work for Hire" rule becomes the default.

    Really, there's nothing evil or subversive about this. Standard practise. Authors (and other artists) just need to know the rules :)
  • Just to let people understand the basic terminology, grok the EFF review [eff.org] of multimedia IP. Basically, there are 2 issues here, copyright and performance rights. The basic premise is that if a shop replaces a live band with a jukebox, then effectively that depresses the entire market for bands (with side effect of concentrating wealth into a smaller number of higher promoted groups). Thus if a publishing company suddenly uses material in a database or searchable distribution, should some of the additional revenue flow back to the authors? This is a complicated issue as all the profits are concentrated into whatever defines the value-add. If the value is in the database searching, then corporations have an interest in pushing the price of the contributing works down as far as possible. On the other hand, if it is a mere compilation/aggregation, then the authors naturally want to be compensated for their efforts being distributed via another channel. They'd naturally prefer new material (their creative talents) rather than rehash of old (prepaid works which are corporate assets).

    Thus the debate is whether restructuring data is a "performance" and the stages of intermediate production. For example, in music, there is mechanical rights (access to raw material), synchronisation license (in conjunction with other media), public performance, excerption (embedding in other works). Abstract text data (and given XML, ultimately all data/schema can be represented in text)can be massaged in even more complication ways ranging from abstracts, quotations, reordered, structured, citations, mining, etc.

    So who's right? Given the fact that Hollywood writers are striking (maybe the quality will go up when they import some Indian scriptwriters :-)), it shows that the issues are complicated and the power is on the side with the longest memory and biggest lawyers. Given that there's probably a backlog of (OK crappy but when did that stop Hollywood) scripts, it comes down who can blink first or is willing to eat. The traditional forms of dispute resolution (e.g. strikes) are less effectual in the case of mental activities as there are many substitutes.

    The issue is a real conundrum. Publications gravitate towards the "star" system as the prospect of a few highly paid stars encourages a wide pool of low-level submissions creating a broad base but very narrow peak, effectively a trickle up effect as the interns are brow-beaten and compete among themselves (depressing their short-term value/cost) to subsidise the celebrities at the top. On the other hand studios hate the star system as they are dependent on limited resources (if they retire, switch employors, throw tantrum and quit) which is probably one reason why Disney views cartoons characters as inherently less risky (provide they can get their copyright control legally extended infinitely). This is one stituation where market forces are limited as despite logic, people can't resist the equivalent of a career lottery. If you accept that the media is driven by fads with a narrow window of earning opportunities (a la sport heros), then the loss of future revenue royalties is a significant factor. Think of the equivalent of contract professional programmer with highly specialised skills. If a company can distribute your ideas ad-infinum, then you are likely to be a very short-lived professional.

    While the observation that corporations want to reduce contracts to employees and employees to slaves is probably unwarrented, ultimately increasing profits (which is what CEOs are promising Wall Street) have to come out of somewhere. If there is a fixed market (and it is defined by the total spare time people have for absorbing/reading material ... (witness the moaning about pop-up ads while browsing) then the only source is to embrace, extend, then extinguish the source (ie promise great career, work them to death for creative sweat, then drop them before the real profits start coming in from mass market penetration and merchandising). Note that CEOs don't exactly offer to sacrifice their salaries when the market rejects the recycled sequels they foster. Alternatively dilute the offerings with only including a small gem among the general dross (Pokemon, single track/album) as they don't want to risk a "bad" selection (and you wonder why people are flocking to Napster).

    In summary, the issues are complicated and it will take the wisdom of Solomon, the patience of Job and some serious head-knocking before people are happy. If you really want to make money, don't invest in the sharemarket but buy legal firms.

    LL

    Objoke ... definition of lawyer ... imagine cartoon with one person pulling on the head and another the tail ... and the lawyer underneath milking the udder.

  • (Unfortunately my copy is at home, so I'm not certain about the wording of the title.)

    This book (which is a collection of advisory articles by Canadian writers) advises the writer to be careful about what rights they sign away. For example, you can sell 'first printing rights only' - which means that after the purchaser publishes your article/book/whatever, you then have the right to sell it again. You can also stipulate "English" rights only. (In Canada, that means you can sell it then to the French market for another fee.)

    Now, the publisher may not want those terms, in which case you have to negotiate. But the point is, don't just sign the contract the publisher offers you. Of course he will draw the terms as widely as possible. And if you are willing to sign it, then there they go.

    The ability of a writer to resell his work to another market is an important aspect of the writing business. The problem here as another poster said is really only the question of how much negotiating muscle you have. And how much you value your words.

  • It won't be described as piracy, because it isn't : Piracy is robbery with violence at sea.

    The odd thing is not that you won't see copyright infringement (of print) described as piracy, but that you regularly see copyright infringement (of software) described that way. I understand the nature of the propaganda battle these guys won, but I still don't understand how they did it.
  • Fundamentally, the arguements in this come down to: does a different media require a different contract or fee? Selling the screenplay version of a popular book, apart from the print rights is one side. An encylopedia article, which appears in the print version, on CD and even on the website would represent the other side.
  • by Wah (30840)
    it'll be just like the artists suing the labels after the labels come up with their own payed Napster service. My biggest curiousity is the distinction drawn between this type of database and one at the public library. For those of you that like to watch movies for free, the library is a great place for it. Now we just need to get them to digitize their movie and music libraries and make them available to say, people with an internet connection but unable for whatever reason to visit the physical library. Hmmm...
    --
  • Close, but no cigar. The distinction between personal enjoyment and use and public distribution and broadcast is one of the main tenets of intellectual property law since the invention of mechanical reproduction.

    Filmmakers have to get permission and pay to use "Happy Birthday" in a film, but no one can stop you from singing it at home.

    Read your post again; the issue is not whether the NYTimes can store the articles in an internal database, make backup copies, or write it on paper napkins and give them to partygoers. The issue is whether they can charge for a new form of distrubution without seeking additional permission from (read: pay additional money to) copyright holders. I don't see any way that they have purchased the articles in multiple formats, and it doesn't appear that they've secured the rights to distribute the articles in all formats.

    A better analogy would be the MP3.com case, where they were (theoretically) making money off redistributing the music on the CDs by some semi-magical transferrence of powers. MP3.com made basically the same argument as the NYTimes; we have some rights to this material, the end user has some right to access, hence we have the right to provide access in a novel way. The courts did not agree with MP3.com, and if the Times wins this, MP3.com should get their money back.

    Which makes me wonder what the Times has had to say about MP3.com. Their editorials could be cited in court against them, and the plaintiffs lawyers would be crazy if they hadn't tried to use that against the Times.

    Boss of nothin. Big deal.
    Son, go get daddy's hard plastic eyes.

  • In that light it sounds like the Napster user's defense; "I have the right to make a copy, therefore I have the right to give anyone access to the copy." He's right as far as internal databases are concerned. It's collecting money from third parties for access to the database that is the theft.

    Boss of nothin. Big deal.
    Son, go get daddy's hard plastic eyes.
  • ignoring that this thread is dumb you dont really need a comma if one is using modern block style that what i learned in school but hey gammar has to be the most objective thing i know about

    In addition to not teaching grammar, it would appear that the schools aren't teaching spelling nowadays. What is this "modern block style" BS, anyway? It looks more like incoherent rambling with no beginning and no end.

    If I ever end up raising kids, it looks more and more like I'll have to keep them out of the public schools. If this rot is what they're "teaching," I wouldn't want the mental midgets exponding these concepts anywhere near them.

  • Man, that's gotta suck. How do you take a CD image under linux? Or a floppy one (which I, personally, use quite often)?
  • Why should the matter of storage make a difference? Whether it's delivered on a paper, viewed on microfiche, or viewed over a network shouldn't make a different.

    Wasn't someone writing a book (Katz?) and wanted to quote /. messages, but the authors of some messages said no? I believe there is a story or three about that in the archives (too lazy to look).

    Answering your question: I would imagine the two main differences are

    (1) Size of audience: More people will read something put in TV Guide than on Slashdot.

    (2) Permanence: Something published in a book will be around for a hundred years, something posted on the 'net could disapear with the next Service Pack.

    TSR republished 250 back issues of thier "Dragon" magazine on a set of CDs, articles, ads, artwork and all. Some of the writers/artists were not happy about this, I wonder if the decision will re-open that wound. Oh well, I still have my set in any case.

    (And no, I don't think I ripped anyone off, since I had already bought 95% of the issues on the CDs. I figure if I paid the cover price once, that covers the IP charges on other forms.)
  • I listen to Marketplace every day, it's a great program. But it's on PRI, Public Radio International [pri.org], not NPR.

  • by mjh (57755) <mark@@@hornclan...com> on Thursday March 29, 2001 @09:52AM (#329906) Homepage Journal
    Oh please, oh please, oh please, let the claim that it's fair use. Please, I just wanna see AOL Time Warner claiming that this is fair use of something that they already paid for. PLEASE have them open up that pandora's box.
  • by MrAtoz (58719) on Thursday March 29, 2001 @09:47AM (#329907)
    Ironic that this story includes a link to the NY Times' coverage, since they are the ones being sued in the first place. I myself would not turn to them for information on this subject ...

    For balance, here's the link [nwu.org] to the National Writers Union's page about the Supreme Court appeal, including background, the actual briefs filed, etc. (did you know that Ken Burns submitted an amicus brief on the side of the publishers? or that the American Library Association and the US Copyright Office sided with the writers?)

    There's also a nice piece on "The Hypocrisy of the NY Times" that explains how the Times (and other publishers) have been trying since 1995 to make their theft legal through "all rights" or "work-for-hire" contracts (which were not the norm before). Here's an excerpt:

    Until now, I only mentioned The Times' outright thievery. But, even before it was caught (you wonder what it really knew), the Times' did what every legal miscreant does-unleash its lawyers. In 1995, The Times issued a "work-for-hire" agreement, which decreed that all articles written by its freelancers would be "'works made for hire' and that, as such, The New York Times shall own all rights, including copyright, in your articles. As works made for hire, your articles may be reused by The New York Times with no extra payment made to you."

    The Times wasn't alone. In the past five years, there has been a growing movement by media companies to demand from writers an ever-expanding menu of rights for no additional compensation. Virtually all contracts now demand a broad license to use a first-time print publication work in a wide array of electronic formats. The most onerous of the new contracts have been "all-rights" and "work-for-hire" contracts. There is a subtle legal distinction between those two versions: an "all-rights" contract implicitly argues that the writer owned the copyright when the work was created and is now licensing its entire use away, while under "work-for hire," the employer, from a legal standpoint, is considered the original creator of the work.

    However, from an economic standpoint, the difference is effectively irrelevant. All-rights and work-for-hire contracts take away our right to decide how our work will be used, our right to make approve editorial changes and make sure our work remains as intact as it was when we typed the last period and, yes, the right to a fair return for what we create. Indeed, while the 1976 Copyright Act, in theory, protects individual authors, it is being obliterated by the sacrosanct written contract.
  • Your university ought to have very specific guidelines regarding intellectual property rights, although you may have to visit its graduate homepage in order to find them. My university lists its guidlines here [utoronto.ca], if you'd like to get a feel for the kind of rights you generally have (although it is based on Canadian law).

    Student work is generally the property of the student, and work produced in group projects is the joint property of the group members. The professor would therefore need to get your approval for any subsequent publication.

    Note that this is not the case if students do not own their own work. Seeing as you are not an employee, however, the university could not claim ownership of your work without your consent, so I do not see how student work would not be the property of the student.

    Note also that declaring his intent to appropriate student work at the beginning of the semester does not constitute a formal contract, even if he explicitly stated that continuing with the course constituted acceptance of his right. Moreover, your university likely has policies regarding the appropriateness of such a request in the first place. In any case, any attempt to get you to sign such a contract before your grades have been reported would likely constitute duress; such an attempt would probably also violate stated university policy. Both the university and any potential publisher would likely want to know this before publication, and as a concerned party with partial ownership rights, it would not be inappropriate for you to bring it to their attention.

    Intellectual property rights are actually quite neat and specific in academia; it is their application that can get messy. But not in this case.

  • What in the world does the singing group of yesteryear have to do with online rights? Have I missed something? Are they suing Napster too? :)

    jason
  • Round about '96 - '97 Cigar Aficianado magazine decided to put the content of their back issues up on their website [cigaraficianado.com].

    A while prior my father, Joe Harkins, had written an article for them on the history of pool. He noticed they put his article online and got a bit bent out of shape as he'd never agreed they could publish the article online. He sent them a few nastygrams and, I believe, got in touch with a lawyer.

    CA backed down and removed the article so he let it drop. This sounds pretty similar to what's happened here.

    If you want to contact him for more details, hit his website at travelthe.net [travelthe.net] for an e-mail address, I don't remember it offhand. Oh, and beware- he's pretty cantankerous.

  • by aidoneus (74503) on Thursday March 29, 2001 @09:40AM (#329911) Journal
    Unrelated comment first - You're looking for comments from a major publisher where they admit to pirating the works of freelancers? That would be like getting Shawn Fanning to admit that Napster exists primarily to pirate copyrighted music. Not going to happen...

    Anyway, I've done some freelance writing in the past few years, and most of the time the contract I've worked from has been a flat, per page payment. If I write 4 pages of publicity material, I get $400. Pretty simple stuff. However, one thing I've seen often is as part of the payment agreement, I've had to agree to surrender my right to future payment for republication in other media. In other words, they pay me the money as a flat, one time deal. After that, I still get credited as the author, but I don't recieve any future payment. It's not something that (at least in my experience) is snuck past the author by a sneaky publisher, it's a part of the deal, and if you don't like it, don't sell them the work.

    OTOH, I do get a little annoyed whenever I see something I've written reused, and I never was told. It is an artistic creation of ine, and when it is republished, sometimes resulting in thousands of dollars for the company I feel shafted that I only got a few hundred dollars for my work. But hey, next time I write for them, I bring that up in the price negotiation and usually I get better paid the second time around.

    Bottom line, pay attention to what you're signing away in the contract, just like any other legal document (be it an employment contract, and waier, etc.).

    -Jason
  • I think it would depend on what kind of rights the author originally agreed to.

    If the author specified that (s)he retained copyright and granted only one time print use, then putting it online is wrong.

    If the publisher managed to actually get the copyright transferred to the publisher, then the author would be SOL.
  • Isn't it possible, even likely, that the people cracking the game copy protection and distributing the games referred to themselves as pirates before the Industry did?
    -----
  • That rule has been deprecated. Whoever invented it was a moron.
    --
    Lord Nimon
  • As I read somewhere yesterday, this is basically a squabble about if electronic publication rights were implicit or not in freelance contracts, for a short period where they were not explicitly mentioned.

    So no, you're not going to find publishers calling it piracy, because they do believe they have every right to be doing this.

  • I recall reading an article about this in the Boston Globe [globe.com]. Check their archives if you can (you may need to be a subscriber). The article may have come by way of the NY Times, but I really don't recall.

    I'd go for a search, but I'm feeling lazy. The interesting news will be what the Supremes decide to do about it.

  • The problem is that the public's rights have been infringed.

    The idea here is relatively simple: check out Article I, Section 8 of the US Constitution [cornell.edu].

    To promote progress, writers must be given incentives to write. That not only means a way to make a living, but an incentive to continue creating new works. If, after a reasonable time, the profit stops coming from old work, that's a pretty powerful incentive to create something to restore the income!

    BTW, you need not wait for 50 years after an author's death: it's up to 70 years now! Or, for corporate works, over 95 years from publication or 120 years from inception, whichever comes first. Oh, and there's no guarantee that you can obtain a legitimate copy at any point during the term of the copyright, either. No responsibility at all comes with that copy "right"...

    How's that for being completely unreasonable?

    The Library of Congress has a great FAQ [loc.gov] on copyright issues. See Question 46 for length of copyright, for example.

  • That covers some types of writing, but from what I understand of freelance writing is that the publisher buys a specific set of publishing rights from the author, such as first publishing, reprinting, and the like. Unless all rights are explicitly sold, this lets the writer then shop the article around other places. The authors in this suit are saying that internet publishing rights were not explicitly purchased.

    I have to say that I am hoping for the authors on this. If the tables were turned and they published their stories online, the newpapers would propbably be sueing them.
  • IANAL either, but I would have to say that no matter what the legal boilerplate on the the forum says, the fact remains that companies are not legally able to profit off of volunteer labor. AOL and Everquest are going through this right now. I doubt that the legal fees would make it worthwhile to go after the coffee mug, but the law would be on the side of the writer, I think.
  • If they were using the web to gather information, that is one thing. If they were directly reprinting information, then I think that would be questionable.
    br.I agree that it probably wouldn't be worth the fight, but I would still reserve the right to be angry about it and say nasty things aout them on Slashdot :)
  • It isn't a matter of what the media is - it's the distribution. If the newspaper decided to sell the stories it covers to some other format, like toilet paper so people had something to read in there, they would be getting more money for the same content. Money that does not go back to the writer. And this use of the article would presumably not be covered in the original purchase agreement. The new distribution method AND the money that comes from that distribution is what the writers are complaining about.

    I have no idea what the rights the different publishing companies buy when they buy the aricle, but from what I understand they usually get first publishing and limited republishing in set format rights from the author. I'm sure all current purchases specify internet publishing, but going back a decade or more ago, I doubt that was part of the deal.
  • by GreyyGuy (91753) on Thursday March 29, 2001 @09:56AM (#329922)
    No, the NYT didn't explicitly buy the rights to republish in a different format. And they make money off the republishing. They are reselling the articles in the different format. They currently require the internet republishing rights but they didn't always.

    And I doubt too many people on /. were selling the MP3s they copied, so I think a little moral outrage is allowed.
  • what a nice apples-to-oranges comparison you make!


    You can only sell a ditch or a road once, and then it isn't yours anymore. These corps force crappy signing terms for authors and then sell that article over and over and over and over...


  • BTW, the publishers are trying to scare the court into denying the freelancer's their copyrights by claiming that, if the decision goes against the publishers, they will be forced to remove huge amounts of material from the online archives, which will cause grave damages to scholarship. This seems like absolute hooey to me -- if there is a market for those articles, a means will be found to sell them, and for the profits to go to the authors.
    You're right. Searchable databases are the real issue here. However, I think the authors are dead wrong. A searchable database loses a great deal if utility it is no longer complete. Whether it's Lexis/Nexis, another third party, or the paper's own online archive, it's absolutely vital that every word that appears in the paper is available as part of the archive. For a researcher 10 years hence, the absence of a story about a certain subject might be just as important as the presence of a story.

    Newspapers are not just ephemera--they're part of the historical record. This isn't a new phenomenon. I don't think any author can claim that the existence of article collections, newspaper morgues, or electronic databases took them by surprise.

    I agree completely that a ruling in favour of the authors as purported copyright holders will be disastrous for future researchers. But I see the big picture differently than both of you seem to. I think that a ruling for the authors will cause real permanent harm to scholarship, but I don't see this as something that is isolated to this special class of goods, "newspapers", and that because of this the newspapers should (perhaps by 5KVGhost's reasoning?) be given special rights to break copyright law for the good of society.

    Instead, I think that it's time to wake people in general up to the notion that clinging to 2nd-millennium thinking about copyrights is going to cause a great deal of harm to academic research, and to society in general. The point should be made that this is just one of many possible examples of how our current copyright laws will stifle what seems like laudable, socially positive action, and cause older works to be inaccessible to future citizens to the benefit of no one.

    I'm sure that the people who keep archives of ancient video games, as one particular example, would agree with me whole-heartedly. Those who are furious that, even today, many old films moulder into ruin when they could be processed and saved likely feel the same way.

    I pledge allegiance, to the very existence, of the Great Corporations Of America, and to the stockholders for which they stand, no tolerance, under Gates, uncircumventable, with invoices and subpoenas for all. And don't even get me started on patents. - Slashdot:kennyj449
  • by John Murdoch (102085) on Thursday March 29, 2001 @10:01AM (#329925) Homepage Journal

    Hi!

    I've been a freelance writer for years--and I'm surprised that the Supreme Court regards this case as being worth the trouble to even review. Every publisher I've ever dealt with has paid me for "all rights" to an article--whether in the next issue of the magazine, in a reprint they sell to a vendor, or if (fat chance) they turn my article into a movie script. I've had articles reprinted in other languages, reprinted on CD-ROM, and published on websites. All I ever got paid for was the initial article.

    Did I get ripped off? No--because that was the bargain. I write 3000 words on a given topic, I get paid a few bucks, and that's that. If the magazine publisher can figure out a way to distribute the article in a different form, and they can make a few extra bucks, that only gives them that much more incentive to ask me to write the next article.

    Is this hypocrisy by the big media companies?
    For the most part, I don't think so. When I sell an article I'm selling all rights to it--so the publisher can reproduce that content "in any form or by any means" (quote from actual contract) without paying me any additional compensation.

    So what's the big deal? Frankly, I'd be positively floored if any publisher didn't essentially have the same contract--they buy all rights. I've written for half a dozen programming magazines, for "popular" magazines, and for a major children's magazine--every single one of them bought all rights. If my name were John Grisham or Stephen King my agent might be able to negotiate a better deal--but I'd be really, really surprised if better than 1% of freelance articles are bought on anything other than "all rights" terms.

    Is this hypocrisy?
    No--this isn't. When I buy a DVD or a music CD, I'm not buying all rights--I'm just buying the right to play the content on the DVD or CD. The media companies could (yeah, right) offer "any media" versions of the same content at a different price. Then if you wanted to convert the content to MPEG or some other format you could.

    On the other hand...
    What is blatantly hypocritical is the coming fight in Hollywood over residuals. Every time a TV episode, or a movie, or a commercial airs, the writers and the performers get paid a fee. For many actors residuals become a lifelong source of income--minor players in the 1970s mega-hit "M*A*S*H" continue to earn substantial income from reruns. The studios cry poor--they want to end residuals and pay on an "all rights" or "work-for-hire" basis. In other words, they want to buy creative content on an "all rights" basis; they want to sell that same creative content on a per-use basis. (They will not, for instance, sell "all rights" to, say, ER to your local TV station.) That's hypocrisy.

  • "You do not have permission to publish this comment on your website."

    Hrm, do I have permission to quote your comment in my post?
  • What about if there is this huge message before you went into the forum that basically reads... "We are using this forum for the sole purpose of gathering material for an article that we will be publishing in ; if you do not wish your opinion to be published in this magazine, then do not post here... there will be no compensation for your writing other than that warm feeling of having some of your words published in the magazine"?

    Personally, i would think that would suffice enough that you would get no compensation for something that you wrote in that forum. I guess, i would look at that and go, its not worth the fight, but I suppose someone might go in and do that just for the principal of the matter.

    Though, looking at that... I guess it would come down to the spirit of the law rather than the letter of the law. If you didn't want your opinions published, you should simply not post there (this is again assuming that they put up that disclaimer).

  • I see my online article as a contribution to the community. If they turned around and printed it, they are making a tangible profit off my work and I'd want a piece of that action. Would I be legally entitled to anything? Probably not. But I think they would be morally responsible to repay me for my contribution.

    First off, IANAL...

    This all depends on how they put this forum up for use. Do they say somewhere when you are using it, that any and all comments may be used in the publication that sponsors the site? If they did, then they can use your comments with or without the coffee mug (however, you might get a coffee mug out of it, since they valued your opinion and might actually want more). If they didn't put that up there, then I really have no idea what the legal ramifications would be. You could view it as a donation to the community, but I'm not sure that would do much to protect you. As I have no idea where to go with this I'll just leave it.

    It really all depends on the purpose of the web page... if the company is using it to get more stuff to print in their dead-tree form, then they could use their stuff. However, without that, I'm pretty sure you are perfectly legal in asking for your coffee mug (and maybe even some coffee to fill it with).

  • by Lucretius (110272) on Thursday March 29, 2001 @10:23AM (#329929)
    It seems that the New York Times has an interesting position here - while they have regularly posted rants in the editorial column against napster and what they refer to as the "looting" of other people's intellectual property, they're firmly in favor of being able to use freelance material without paying for it again. The New York Times has a high percentage of freelance stuff in its pages, and it would be quite a financial blow if they were to have to pay writers for the second go around.

    IANAL...

    This is an interesting position, but if you look at it, they are two rather different positions. On one hand you have the average Napster user who buys a CD and converts it into mp3 format. That person has paid for the music in one form, and by rights of the fair use doctrine, is able to convert it to other forms for his/her own personal use. This means that the mp3's on his computer are completely in the realm of "fair use". However, when he/she posts those songs that were taken from the CD onto Napster, that person is sharing them with other people (though not for profit), these songs are no longer really covered under fair use since fair use is not extended to other people besides the person who bought the piece of music. The only thing thats sort of saving them (or at least was) is that no profit was being made by sharing this music.

    Now let us move on to the NYT. They buy a piece of work from a free lance writer for use in their publication. They publish it according to the contract and pay the writer for the right to do so, the have in fact purchased certain distribution rights from the original writer. Now, the NYT wants to take this article that they have purchased and move it to another format for distribution that they will again make a profit on. Since they purchased these rights, I would assume that it would again come down to which distribution rights were purchased. If the NYT purchased the right to distribute the works in this digital format, then they are OK. However, if they didn't, then they owe the writers some money... as they made money off of selling their work again in a differnt format than originally agreed upon.

    Looking at it this way, it seems like a fairly cut and dry case (at least to me), as the NYT is all about buying rights to distribution and Napster is about the fair use doctrine (meaning they come out very different). However, there are still some really bumpy areas in this debate.

    I think what this case is coming down to is how this is being distributed by the NYT. Does the NYT change the article itself into the digital format and sell it to Nexis/Lexis, or does the NYT change the paper into digital format and sell it to Lexis/Nexis? If they change the article and sell it, then in my opinion they have to pay the writers because they're distributing it in a way that they didn't pay for (at least methinks... depending on their contract). However, if they give the entire paper to lexis/nexis then they are in effect selling their own product (which they have created by buying that piece of writing from the author), and thus really don't owe the writers anything.

    Now, looking at this, I would say that if I were a freelance writer, from now on I would want a little piece of the pie every time that the NYT gets money off my article in anyway and thus would try to have it in my contract. Since I'm not, and I have no idea what the market is like for writers of this type, I'll just keep my mouth shut and let someone else who has a better idea of what is going on take a stab at it.

  • by DeepDarkSky (111382) on Thursday March 29, 2001 @11:13AM (#329930)
    The article was recounting the differentiation between getting the articles to the alternative media in one shot or broken down into articles.

    Basically, the argument is whether the articles are being used in a new work, and therefore should required additional permission from the original author to publish. Putting newspaper on microfiche is certainly different, but it is merely a copy of the original newspaper. If articles are being put into a searchable database, that's quite different - newspapers aren't searchable. Neither are microfiche(s?). In that sense, newspapers and their microfiche representations are similar, whereas putting the work in electronic/digital format is quite different. That doesn't answer the question about the copyright infringement, though.

  • ...they zip the file, hex it, and convert it to a prime number first.

    Information wants to be free! (Unless it's mine, then it wants to be appropriately compensated for.)

    --SC

  • "Here's an excerpt:"

    Was the author of the article you quoted adequately compensated for re-publishing his/her work in an online forum?

    (Or is it ok, since everything is "free as in speech/beer" here on /.?)

    --SC

  • I don't think so.. If you do work without any contract you own it 100 % (AFIK, IANAL). This has been discussed on many a mailing list (about web consulting)...

    I belive that if you don't do something where the work is defined as a work for hire, you own it lock stock and barrel

  • by Gregoyle (122532) on Thursday March 29, 2001 @10:13AM (#329934)
    The Supremes are hearing this case? Dear me, what is our nation coming to when MoTown legends start making legal decisions. Soon they'll be interviewing Jennifer Lopez and Puff Daddy to get their opinions on DeCSS.
  • by demaria (122790) on Thursday March 29, 2001 @09:36AM (#329935) Homepage
    Many publication freelancer contracts, like the one I signed for my work, state that the publisher has the right to reproduce the article in full online, on CD-ROM, or on any future medium not yet invented or discovered.

    This case won't affect all freelance work, especially recent work in the tech industry.
  • by stilwebm (129567) on Thursday March 29, 2001 @09:37AM (#329937)
    I work for a small publishing company, and we specialize in custom publishing. For most of our long-term clients, we have online versions of the custom publications. Most of the writing is done by freelance writers. The editors will usually specify up-front that they may put the writing online for the online version of the publication. For the most part, the witers agree, since it gets them more publicity. There are a few who charge a token amount, much less than the fee for the original piece, to have their work posted online. It works similarly for the free-lance photography we use to accompany the stories. Most photographers have a clause in their contract to allow for unlimited online use for a small fee, and a few allow it free. Occaisionally a photographer will try to charge twice the original amount if we ask for the rights to use their work online, and we usually refuse and find a substition.
  • But, the republishing prevents the author from controlling the access method to the copywritten materials.

    OOOOOpppppssss...this isn't an MPAA/DeCSS article?

    It now has the publisher on the otherside of the DMCA, doesn't it.

  • Unrelated comment first - You're looking for comments from a major publisher where they admit to pirating the works of freelancers? That would be like getting Shawn Fanning to admit that Napster exists primarily to pirate copyrighted music. Not going to happen...

    That's not unrelated at all. It's the whole reason it's going to be next to impossible to find decent coverage on this issue. Media outlets, like any other business, will do what they must to remain in business. In this age of giant conglomerates, they'll do what they must to keep their parent companies and their parent companies' other companies in business.

    By way of example, notice how the definition of the word "stealing" has suddenly been changed by the mainstream media? Since when is making an unauthorized copy stealing? It's piracy, sure, but when I copy something, I'm not taking anything from the original owner. There's the specious argument, "you would have GIVEN them something otherwise", but of course that's generally false-- people who pirate hundreds of games or CDs weren't planning on buying all of them. But once major media started tossing the word "stealing" into their reports on Napster et. al., it went by almost unnoticed, until it had seeped its way into the standard discourse. Napster isn't stealing. It's piracy.

    More blatantly obvious is this article [adbusters.org], about a major case where Fox was sued by its reporters when they were fired for refusing to distort a story. The reporters were awarded $425,000. Sound familiar? Probably not, because few people reported on it. But it sure was a big story to me. But perhaps this quote from Fox's defense team will shed some light on the subject: "There is no law, rule or regulation against slanting the news."

    They tell you what they want you to hear, and they just ignore what they'd rather you didn't know. As long as you keep that in mind, you can usually dig through all the bullshit and find out the real story.
  • by eaddict (148006) on Thursday March 29, 2001 @09:47AM (#329947)
    The lawyer for TimeWarnerAOL said:
    "He said electronic databases were simply revised versions of the original publications and additional payments were not required for including an article in a database."

    Interesting that users have to pay for a media change. Want a CD on your MP3 player? Another CD? On a harddrive?

  • "
    Napster isn't stealing. It's piracy.
    "

    Napster is unauthorised copyright infringement.

    Piracy is committed in tidal waters and is one of the few offences still punishable by death in the UK [along with high treason].

    I happen to know because my elder brother is a police officer who was called to arrest someone who'd stolen a dingy at the beach. He arrested the guy for piracy and informed him it was punishable by death. He then let him off but the look on the guys face was priceless.

  • I'd like to know what the constitutional issue is that is allowing this to be brought before the Supreme Court. I'm guessing it's the Patent/Copyright clause, but I'm not sure.
  • This is actually a very narrow case.

    If the writer signs a contract with the publisher, then the contract controls what the publisher can and cannot do with the writer's work. If the writer doesn't sign a contract, then a particular clause in the federal copyright statute controls.

    This clause was written over ten years ago for the specfic purpose of settling disputes like the one before the court. However, it predates the web, and it isn't quite clear how it should be applied to works that are republished online. Since the lower courts don't agree, the Supreme Court gets to decide.

    The significance of this going forward is minimal. Once the court decides how to interpret the law, then writers and publishers will know what they are agreeing to when they do business without a contract; if they don't like those terms, then they will write contracts with terms that they do like.

    BTW

    Much as I'd like to see the big publishers get their wings clipped, I wouldn't call their behavior piracy. When a question of law is close enough to get to the Supreme Court, I think both sides are entitled to a presumption of good faith.

  • If the Supreme Court ruled in the publishers' favor on "fair use" grounds (or ruled against them based on the DMCA). Since content owners of all stripes have been trying to destroy fair use using the DMCA I'd like to see their own sword turned on them (one way or another).
  • by mizhi (186984)
    Would this tie in with mathworld [wolfram.com]? The site had to be shut down because a clause in the contract somehow gave CRC press rights to the website and not just a current snapshot of the site. More information is available on the site, especially in the faq [wolfram.com].
  • It seems that the New York Times has an interesting position here - while they have regularly posted rants in the editorial column against napster and what they refer to as the "looting" of other people's intellectual property, they're firmly in favor of being able to use freelance material without paying for it again.

    But isn't that the right that everyone here is asserting with respect to mp3s? When we purchase a creative work, everybody here fights tooth and nail to be able to copy it, transform it and utilize it in whatever way they see fit. As they are perfectly justified in doing (insofar as it's personal use).

    Isn't the NY Times justified in "publishing" a work they have purchased in multiple formats? Isn't that the whole point of everyone's venom against RIAA and MPAA? It doesn't seem at all obvious to me that they wouldn't be, or that it would automatically be piracy.

    If they're ripping off artists, then so are you when you rip your CDs. I don't think either is the case.

    /bluesninja

  • I'm not certain I get which part of what I said was "not at all what the cited document says". It's possible for contractors, consultants, freelancers, and the like to retain control of their creative work unless a contract states otherwise-- but this is a massive grey area according to Circular 9 which states "sicne there is no precise standard for determining whether or not a work is made for hire under the first part of the definition, consultation with an attorney for legal advice may be advisable". Only a fool wouldn't write out a very specific contract in this matter, given how convoluted the copyright law is on these matters. The rights and expectations of freelancers seem to vary quite a bit depending on which creative industry is involved. Better to have it in writing and understood by all parties involved.
  • by ichimunki (194887) on Thursday March 29, 2001 @10:29AM (#329973)
    I think you may have this a little mixed up. Without a contract, the author of a "work for hire" retains ownership of the rights to that work. Unless the creater of a work is an employee of a company performing his or her duties of employement, a contract is normally required to deprive the creative party from their ownership over the creation. An example we often see in our lives is the professional portrait photographer, whose work we are not able to have copied without a release from the photographer-- even though it is a picture of ourselves. (Of course the photographer probably can't use the photo for much else than selling you copies either, unless you signed a model release form-- but that's a privacy issue, not a copyright issue). For more information see, US Copyright Office FAQ [loc.gov] especially #35. There is a link in the FAQ to a PDF called "Circular 9" which goes in depth about work for hire.
  • How often in history have we heard:

    We have to have some practical way to allow X, even if this does trample some (people's) rights.

    Replace X with many things -- the theft of land from indigenous peoples, or the killing of union workers, or the bombing of civilian populations, or whatever -- and you'll see what it means in reality.

    In the view you espouse, you have no problem taking away someone else's rights, so long as you benefit in some way. You want to preserve old SF stories, so you are willing to "trample some of the authors (sic) rights?"

    Ah, what a slippery slope you find yourself on -- for someday, someone is going to take away your rights, because doing so is good for them.


    --
    Scott Robert Ladd
    Master of Complexity
    Destroyer of Order and Chaos

  • I suggest that you read the Berne Copyright Convention, among other applicable laws, to understand that, indeed, authors do have property rights to their works.


    --
    Scott Robert Ladd
    Master of Complexity
    Destroyer of Order and Chaos

  • by ChaoticCoyote (195677) on Thursday March 29, 2001 @11:32AM (#329976) Homepage

    First, my personal take on the Supreme Court case:

    I spent 12 years as a full-time writer, and I can't count the ways in which publishers ripped me off. Yes, I've had my work published on CD-ROM by publications who couldn't care less about the contracts they signed with me; no, it wasn't worth fighting about. Of course, the publishing industry has many problems, so I quit writing programming books and found other venues for my coding talents.

    The U.S. legal system is managed by corporate-financed politicians for the benefit of (surprise, surprise!) the corporations. The problem isn't copyrights, or the DMCA, or any of these other laws and concepts that Slashdot readers focus on -- what's wrong with intellectual property is the way Corporations use it to rape the artists/writers and the public.

    Hell, I'm a dyed-in-the-wool Capitalist -- but that means I believe people should be compensated for what they do, not what they can steal. In today's environment, Corporations grow bigger (AOL-Time-Warner, anyone?), controlling more aspects of our lives, using their media to manipulate public opinion and their financial power to crush any opposition. An author like me can't afford to sue an international conglomerate over a violation of a contract or copyright -- and so the Corporation wins by default.

    Copyright is not a "bad" thing; just like patents and other forms of intellectual property, the underlying principle is sound. The implementation of IP, however, has been seriously perverted. See, it isn't the writers, or the artists, or the musicians who are the problem with IP -- the evil lies in a culture of greedy megacorporations, who control content by stealing from both creators and consumers.

    Publishing online would work fine and dandy if consumers actually *paid* for what they download -- but I know many an author who's traveled the "web publishing" road, only to end up broke at the end. Beyond the rare moral individual, most people will take what they can, while they can -- and then those same people moan and whine when corporations exhibit the same lack of ethics! Folks, what comes around goes around -- stealing an MP3 is no better than a Corporation stealing a writer's article. It's all part of the same stinky kettle of fish...

    To end the corporate domination of media and knowledge, you need to support people who take an independent path. You get what you pay for, quite literally.


    --
    Scott Robert Ladd
    Master of Complexity
    Destroyer of Order and Chaos

  • by grammar nazi (197303) on Thursday March 29, 2001 @09:28AM (#329977) Journal
    You do not have permission to publish this comment on your website.

    Sincerely
    grammar nazi

  • In one of my classes, the class was divided up into groups. Each group is reponsible for taking a week's worth of notes and writing them up in a manner similar to a chapter of a book. The professor teaching the class intends to edit the submissions and string them together into a textbook. This textbook will be submitted to publishers for possible publication.

    Now, no formal contract was signed between the professor and the students. As far as I know, no student will receive proceeds from the book, although the professor will. He does intend to credit all the original writers on a credits page.

    Given that the work was done for a course that students *paid* to attend, is he allowed to simply take our work and walk away with it? There is no rights assignment policy at our University that I am aware of.

  • the difference is that writers sign contracts with the people who are *distributing* their work - first american rights, first international rights, etc. freelance writers aren't going after the people who copy articles and post them on their (smaller) websites. my understanding is that they're going after publishers who have violated the letter of their original contract with them. it's not analogous to the end reader copying it - it is the equivalent of musicians suing their labels because they violated whatever contract they signed.
  • by linuxrunner (225041) on Thursday March 29, 2001 @09:53AM (#329988) Homepage
    The free-lance writers only want more money for republishing their works, no matter what the content. Who can blame them? They see the RIAA complaining about mp3's and hearing about new CD's that don't allow copying. If you want another copy of that song you need to pay up!

    The MPAA is harassing people over the DeCSS case, just because someone wanted to watch a DVD on their linux box. They don't want Europe to get a hold of a DVD before it is released now do they. Need to control those dollars!

    Even the Book Publishers are screaming at Barnes and Noble [bn.com] and Amazon.com [amazon.com] for selling used books. Why? Their not getting any extra royalties.

    So why wouldn't the freelance writers be next?
    Wouldn't you be a little upset? I would. The freelance writers aren't complaining about making a backup of the info (much like making a copy of your DVD or CD), That's not the issue here. The issue is having the freelance writer bullied into signing their life away. Simply put their being told to either sign this contract that is retroactive to all of your work or you can not work for us ever again. Oh, and by the way, we're going to reproduce your work for profit. That's right more profit that the freelance writer is not benefiting from. This isn't making a copy for the library or for personal use. This is a big bullying company trying to make more profit off of the individual.

    Just because I get the paper at home doesn't mean I'm entitled to automatically get the online version too. I've got to pay for that also. Why shouldn't the freelancers get paid twice also?

  • Artists are finally catching on. Pay to play is the future. Hollywood screenwriters are going on strike because they want to get paid for every DVD sold or any time a movie is played on cable. Now journalists are getting in on the action. Soon artists will start charging a per viewing fee to see their paintings. I wonder what will happen in 10 years when 100Mbps or higher speed lines in the home will be the norm?
  • by Fatal0E (230910) on Thursday March 29, 2001 @09:42AM (#329991)
    I wrote a story for an online video-game web page and it got a lot of positive feedback. This same web page is loosely affiliated with a quite-large dead-tree video game review rag. The story I wrote for them I did as a volunteer but I told the editor that if my story ever sees action on a printing press I wanted something in return. I only asked for a coffee mug but the priniciple remains. I see my online article as a contribution to the community. If they turned around and printed it, they are making a tangible profit off my work and I'd want a piece of that action. Would I be legally entitled to anything? Probably not. But I think they would be morally responsible to repay me for my contribution.
  • Note: I have not been able to find any article by any major publisher that describes what the publishers are doing (distributing copyrighted works without permission, for money) as "piracy", please post a comment with a link if you know of one.

    EVERYone knows consumers are the pirates, thieving from the honest, hardworking company presidents that need to put bread in their hungry children's mouths.

    On a more serious note, I really doubt this to happen. Publishers, recording industry or no, seem to have gotten this notion that their customers are "the enemy", or out to despoil them or rip them off, so obviously they have to rip the customers off FIRST... to protect their profits. I will be quite surprised if any publishing group, no matter HOW small, describes themselves or for that matter any other publishing group as pirates. They seem to be presenting a unified front on this one.

    -Kasreyn
  • Maybe what the recording industries and publishing industries fear so much is that the technology of the internet has made them obsolete. File sharing and cheap digital recording and publishing tools, like mod makers and players, means everyone can be his own musician, and there can be a true democracy of art appreciation - vote with your dollars, and the best artists will make the most money. This is probably scaring the marketing and advertising guys shitless.

    We no longer need middlemen. So why should they still be in jobs? They're fighting for their survival here. Now that I think of it, if they do what the /. crowd wants them to and "go with the flow" of modern technology, their jobs will vanish like smoke.

    -Kasreyn
  • Why are Diana Ross et al involved?
  • More blatantly obvious is this article, about a major case where Fox was sued by its reporters when they were fired for refusing to distort a story. The reporters were awarded $425,000. Sound familiar? Probably not, because few people reported on it. But it sure was a big story to me. But perhaps this quote from Fox's defense team will shed some light on the subject: "There is no law, rule or regulation against slanting the news."

    As well there shouldn't be. Any piece of writing by humans has a bias/slant. Even source code has a bias, which manifests itself in the way a data structure or algorithim is used or in the type of algorithim used.

    Explain to me why, say, http://www.indymedia.org is any less biased than Fox. The NYTimes and NYPost are equally biased. Slashdot and ZDNet are equally biased. Sun and Microsoft are equally biased. In all these cases the best course of action is to identify the bias used by one source, find a source that has an opposite bias, and the truth sould lie somewhere in between those.

    To outlaw bias is to outlaw all expression.

  • Magazines and newspapers are different in that generally their contracts gave them reprint rights without royalties owed to the authors (although the authors retained copyright), while with books there is a per-copy royalty. And it sounds like your standard contracts specify what you owe the authors for certain derivative works; the periodicals' contracts didn't cover anything they'd have to pay for later. (This is about freelancers who retain their copyright, not staff writers who generally came under "work for hire" rules and so never owned the copyrights.) As a book publisher, you have to keep track of authors or their agents and heirs as long as there is any chance of selling one more book -- you've got to know where to send the money. The periodicals probably deal with many more authors, pay them at time of publication, and have no reason to keep track of those who are no longer sending in publishable work. So if putting a periodical into an electronic database requires a new contract with all the authors, it's probably not going to happen -- they can't find all the authors, and probably couldn't afford the royalties demanded if they did find them.
  • Besides that, the publishers did NOT buy the articles originally. They just bought the right to print them, and to re-print without revisions. The authors still own the basic copyrights. The issue is, for contracts written before the publishers were aware of the possibilities on the internet, that the contracts don't define whether putting it on-line is "re-printing" or not.
  • by markmoss (301064) on Thursday March 29, 2001 @10:20AM (#330007)
    In the past the standard freelance contract would give the publisher rights to reprint the article. This meant, for instance, that a magazine could publish back issues in bound books and microfilm for the convenience of libraries needing to store the magazines for researchers, but they didn't get movie rights. I'm not sure, but I think a "best of Life magazine" book would have been enough of a change in format from the original format to require getting author's permissions. But the old contracts didn't cover the internet or other electronic formats, leaving it an arguable area.

    Newer articles are covered by contracts which do specify electronic forms, so this is just about the older articles. On the one hand, if it is required that someone putting old publications on the net for researchers obtain permission from every freelance writer and photographer, then we're going to lose a lot of our history until copyrights expire. (I've ranted and raved about how stupid and unconstitutional the present life + 75 year copyright term is elsewhere.) On the other hand, there are people building databases by assembling works from many sources, and charging access to them, without payment to the original authors and copyright holders, and that's not right either.

    My opinion (and I'm not a lawyer) is that just posting the whole original publication on the net, with or without a good search function, is just reprinting. Same for CD's of course. (I really like my 100 years of National Geographic on CD.) But picking the publications apart into separate articles and building a database is something else.
  • by markmoss (301064) on Thursday March 29, 2001 @11:08AM (#330008)
    If you don't like the contract, don't sign it. Take your work somewhere else. Bus tables to satisfy your addiction to food and shelter until you can get a better deal...

    If you're wondering if that is sarcasm, I'm not too sure myself. It is a good point in theory, not so good in practice, when all the buyers of a particular product and service somehow coincidentally start demanding the same yellow-dog contract. And most people have far less negotiating room than writers. Maybe we need more anti-trust enforcement...
  • Let's give another example...Analog Science Fiction/Science Fact has been published since the 1930's and was the leading SF magazine in the Golden years of SF. Something I would really like is a CD series of Analog, much like National Geographic CD's, with copies of every issue from the thirties on.

    This was asked for some time back on their web site and the publisher replied that it was almost impossible to do this. Every writer and illustrator would have to be contacted; after 20 -30 -70 years many are dead or impossible to find any more. Even if you could find them the cost and time of arranging all the rights and paying them and arguing with their agents and so one is too high.

    And then I suppose there would be gaps where the writer refused to let his article be published again.

    And then what would you pay for this CD collection? Like National Geographic, probably no more than $100.

    You see the problem?? If we are fair to the writers and their estates then things become so tangled in a mass of rights and payments and documentation that I will never see my CD of Analog.

    And if I have to wait until 50 years after they are all dead - for copyright to expire - does this mean that you have to track the age of every writer or wait for 150 years after publication to be sure they are dead?

    How long will all these Analogs - decaying swiftly on old sulphite pulp - survive? Is the legacy of copyright that it is too complicated to preserve the past, that we must let everything rot away and be forgotten?

    We have to have some practical way to allow magazine articles to be displayed on the internet, even if this does trample some of the authors rights.

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