Supremes Hear Case of Publisher Piracy

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.

Justice Stevens asks a good question

"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.

The NYT

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.

Publishers vs. Writers

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.

When Byte included my stuff on a CD-ROM...

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.

Missing Some Key Distinctions...

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

Re:get those fingers ready to mod me down.

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.

Fair use!

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.

Don't just read the NY Times version

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.

Having done freelance work, I know both sides

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

Re:The NYT

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.

This Isn't the Same Thing...

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.

Re:The NYT

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.

Re:Justice Stevens asks a good question

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.

The SUPREMES?

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.

Contract provisions

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.

I work for a small publishing company...

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.

Lawyers Arguement doesn't make sense

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?

Re:"Work for Hire"

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.

An Author's Perspective

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

Dear Slashdot,

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

Sincerely
grammar nazi

Ties into the RIAA and MPAA cases...

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?

What About the reverse?

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.

Re:Contract provisions

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.

Re:Don't just read the NY Times version

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...