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The Media Your Rights Online

Publishers Lose Database Copyright Appeal 61

Posted by Hemos from the must-say-please dept.
IQ writes "A federal appeals court has unanimously overturned a lower court ruling on the copyright of a freelance published work in an electronic database. Read more about it in the New York Times " Free login, blah blah. Interesting ruling though - essentially, the database companies have been told that they cannot include the work of freelance contributors without the permission of the freelancers. Seems elementary to me, but a step in the right direction for information rights.
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Publishers Lose Database Copyright Appeal More

Publishers Lose Database Copyright Appeal

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  • Free lancers often would sell the same piece - such as a travel feature - to several papers. If they no longer own the rights, they won't be able to do this.
  • I think the good people at NYT have yanked the
    cypherpunks login. Ugh.
  • The same reason the freelancers don't get paid for everytime you see their work in the NYT via Microfiche(tm), via their website, etc., is because they've already been reimbursed for it, and their contract with the NYT does not provide for this kind of "royalty" payment. But hey, it works that way for music as well. Do you pay your favorite artists every time you listen to their album in your car? No.

    And that's OK. I would say that since NYT's website is advertising-driven, that it is no different than the newspaper. If freelancers want to try and negotiate "eyeball" deals for their works that might get published on the NYT website, then that's for them to try and do. But for them to try and claim a "right" to the eyeball effect for the web and NOT for the newspaper (because only the media are different, really), when it's not in their contract currently, they need to renegotiate for the future rather than sue for the past...
  • Exactly... Would this mean that the archives are illegal ? Or that Rob couldn't go out and make a book titled "Slashdot's greatest threads" without written consent of every poster in each thread ?

    How can it be illegal for the Slashdot "archives" (now define "archive". Is it just today's messages? Last week's? Last month's?), when by posting you are implicitly accepting Slashdot's terms?



    I think the fact that we retain the copyright on our messages means that WE can then take what we post individually and still do with it what we want in other media without Slashdot's permission (but I would have to ask YOU to do the same with your messages), not the other way around, as our posting our content to Slashdot is an implicit permission for Slashdot to do with our copyrighted works as it sees fit.



    Now, if I have already made something and I'm peddaling it for publication somewhere, if it's a choice between a company that lets me retain the copyright to my work, but it can publish it further without paying me for it after the initial payment for the initial purpose, vs. one where I essentially grant ownership to my work to the company, I'd try and stick with the first one. Again, I've already made the work (so it's mine) but I'm looking to get it published. Which is different than if I'm contracted to write something for a company. Big difference.

    Who owns the copyrights for Quake? Id Software, or Activision?

  • Not so. Unless the publishing agreement explicitly states otherwise, a freelancer is selling first serial publication rights only. What is true is that a lot of publishers are trying to expand the control they have over an author's work. As a freelance writer, I am of course glad to see the courts exerting control over this. I am puzzled why anyone could not be -- unless you approve of corporations acruing additional rights at the expense of individuals. Of course, as you point out, the coming of electronic media raises some new issues about what exactly constitues "republishing". Copying for personal use, as in your example, is clearly not the same as taking the article and reprinting it in a paper or on-line publication, without so much as crediting the author, let alone paying for the right to publish it. This happens, and I don't like it. By the way, a freelancer isn't in a "work for hire" arrangement; he sells the product of his labour, not the labour itself. Note for moderator(s): this comment isn't "insightful"; it's wrong.
  • These are two separate issues, which should not be conflated. An article for a newspaper is not "data". Any writing which an author sells to a publisher is protected by copyright; to my knowledge, information collected about me by a marketing firm is not so protected -- or, at least, I don't hold the copyright on the portion of the database that applies to me. Arguably, such information is "public domain"; but whether it is or not doesn't affect the status of published writing.
  • Whoops! Sorry about that! Only the last sentence *should* have been posted -- damn Lynx remembers too much...
  • "what is in effect public domain stuff". But that's just the point -- a writer's work isn't public domain. My writing, for example, belongs to me, I own the copyright on it. All that those newspapers have paid for is limited publishing rights. They want more publishing rights (in order to make more money, remember -- they're not in this for their health), then they pay more. Simple.
  • It certainly seems like this could put some thistles into the shorts of the people over at CDDB. I've never thought it was particularly honest of them to take what was initially a free project put together by people who (it can be assumed) expected that the information they were entering would stay free, and decide they should claim exclusive rights to it all and declare all those insane restrictions and requiring people to practically give them ad space on people's desktops. With any luck the further rulings will sort this out, probably not for the better of CDDB, but I'm sure they'll certainly act like this is the worst thing since Eve's apple, no matter what happens in court.
  • The only problem now is that the exorbitant costs of these databases will go up even further, as there are more people to pay.


    OR, if one of the sources in the article is correct, the publisher will just negiotiate away the writer's rights beforehand, leaving them nothing.


    Either way, I don't see much good coming out of this decision...

  • So, does that mean that CDDB has no rights to their music database, since all the data was user-submitted? Or was there always some disclaimer when submitting info, remitting your rights to the data to CDDB? Or have they even contended that the data is theirs?
  • idunno, i'm a sysadmin for bib databases at a large research library consortium, and i gotta say, we pay a bunch of bucks for medline & core biomedical abstracts & wilson & current contents & ntis & lexis-nexis & etc.

    maybe you're not getting yours, but somebody, somewhere, is getting theirs.
  • a) my last post came off as a bit harsh. sorry, it was unintentional.

    b) library databases are among the immediately affected parties in this case, but they aren't the only ones affected. the precedent set will probably have broader scope than that, for better or worse.

    c) that should been 'core biomedical *collection*'

    d) if lexis-nexis is stealing my stuff and selling it on the street, then i'm not going to be very impressed if they get caught and claim that they should be allowed to steal from me because there would not otherwise be stolen goods for sale on the street.

    e) the decline and fall of big bib, article, and full text databases hasn't been completely written yet.

    of course demand for these services has fallen with the the rise of the web: in many cases, the web provides an equivalent service for free! why would i want to pay anybody for it?

    now, one could very correctly argue that these databases provide services for writers, doctors, researchers, and scientists that the web can never provide. in fact, the argument is so stock and in in many ways so true that i'm not going to repeat it here.

    i would argue, however, that these services will continue to be provided as long as there is demand for them, i.e. the forseeable future. the only difference is that this service will not be effectively subsidized by those with less rigorous informational needs.

    if i want to be authoritatively kept up to date on research involving human papilloma virus or the current editorial mood regarding cannabis legalization, then i still need to pay for that. but if i want to find all the gossip about what Gong Li is doing nowadays, or satisfy my personal curiosity about current psychological opinion regarding Julian Jaynes' bicameral mind hypothesis, then i no longer need to pay for it, and i don't see why, as a society, we should.

    i find rather interesting the parallels between this issue and that of traditional vs. online news sources.

    just my $2,148,263.
  • well, if you look at it that way, then we might as well get rid of taxes -- hey, companies just pass them on to consumers, right? ditto environmental regulations and, in fact, litigation.


  • You've confused who owns what here -- the freelancers shouldn't have to renegotiate, the NYT does. They're the ones who want to use it for a purpose that was never covered in the previous legal agreement, therefore THEY have to pay again.

    The freelancers own the copyright to the work, they sell only what is explicit in the contract. This isn't rocket science, but not many freelancers have the financial ability to take the NYT to court over it...
  • The copyright of a collection is just that -- a copyright over that particular arrangement of work, in that format. You can own a database of public information because YOU are the one who put the information into a format that made it usable and informative.

    Similarly, you can own a copyright on an anthology without having the copyright of the individual works -- publishers do this all the time. the individual work may be owned by 12 different companies/people, but they contract for the right to republish in an anthology format, and that particular arrangement and format is protected as a separate work (note they have to have permission for the individual works whenever they publish the anthology). It's like a nested copyright.

    This, quite frankly, isn't news to the NYT. they just want more rights without having to pay for them (as do all publishers)...
  • Dumb dunces? How are they stupid for protecting their rights? As the situation was before, writers got paid nothing more for reuse. Now, as you point out, many places will simply change the contract, and they'll still get nothing more for reuse. How have the freelancers "lost" in any way? At most they've at least made a situation where they *may* be able to profit off of re-use, and at the very least they'll get paid for the work that was already published illegally...
  • If I understand things correctly, this pertained explicitly to databases of compiled common knowledge.

    I was just looking at the copyright applications the other day, and there are provisions for registering databases (said this explicitly)

    What's it mean? That weather.com (for example) can't claim exclusive rights to publish the temperatures for Arizona for the month of August....

    Am I right?

  • So, does that mean that CDDB has no rights to their music database, since all the data was user-submitted

    Yes. AFAIK, CDDB started of as a non-profit thingy and most users were not compensated for submitting the information.

    But this does not mean you can take CDDB database and publish it as though it is public domain. It still belongs to users who submitted it. IOW, if you want to make your own database, you still need to start from scratch.

    Hasdi
  • Exactly... Would this mean that the archives are illegal ? Or that Rob couldn't go out and make a book titled "Slashdot's greatest threads" without written consent of every poster in each thread ?

  • What does this imply for slashdot ? Do we need to give Rob explicit permission to keep our postings in the archives ?

  • Quote:
    Funny a week ago(ish) there was an article about databases and freedom. Most people's sentiment was that you have the right to republish info in the public domain

    But this isn't "in the public domain." The publishers said "we'll pay you $X to print your article in Tueady's paper and if we want to publish it again we'll pay you again" and then later decided that "Tuesday's paper" included selling electronic copies in perpetuity (at a buck an article for the NYTimes!).

    +_+_+_+_+_+

    "I am not trying to prove that I am right,

    I am only trying to find out whether."
  • I guess so. Most places do have a note in their "terms of use" that you are granting them rights to use your words in perpetuity in any medium but Slashdot seems to be saying specifically the opposite. (Note that this would seem to be a deliberate choice) Though you are, of course granting the right to post your words on the web without any apparent limit.

    +_+_+_+_+_+

    "I am not trying to prove that I am right,

    I am only trying to find out whether."
  • You already do give Rob explicit permission, and the disclaimer on each page says that you own the copyright to your comments.

    +_+_+_+_+_+

    "I am not trying to prove that I am right,

    I am only trying to find out whether."
  • Funny a week ago(ish) there was an article about databases and freedom. Most people's sentiment was that you have the right to republish info in the public domain. Now people are of the opposite thinking. Seems people are happy that the newspapers no longer can republish what is in effect public domain stuff.
    This (by my understanding) means that I can't put forth a compilation of the NYT articles without permission (ok but it was probably illegal before this). Now I have to ask the NYT and the article writter. Seems like this is a reduction in the publishing rights of some people. This actually seems to _favor_ IP rights something this crowd is usually strongly opposed to.
    Just find the change in opinion surprising.
    -cpd
  • It works almost like stock photography. You can use it to your hearts desire, but you cannot claim that the photograph is truely yours.

    I see this as a big win for writters and publishers. It forces formal agreements to be made on the ownership of text.

  • Pushed to the limit, all electronic compilations of copywrited works are at risk. Slashdot is probably OK since we posters are actually loading the database ourselves.

    -- Robert
  • I prefer the old Internet where anarchy ruled. If you wanted to post something, you just posted it instead of all these rules designed to protect someone's words. USENET was a free-ranging anything-goes town where people respected free speech more than they bowed to the New York Times' silly rules. Now, it is the land of oppressive censorship where everyone is expected to have their own lawyer.

    Oh well, put us old anarchist gray beards out to pasture before some millionaire sues us not limiting his story to 231 words and linking to his "$5 an article" archive.
  • I disagree -- Dejanews is extraordinarily vulnerable because of this ruling.

    This ruling says that Dejanews has to obtain permission to use each and every post it archives. Before it was opt-out by the author -- if the author didn't opt out Dejanews assumed it had permission (regardless of whether the author even knew about Dejanews). They did this by rationalizing that they were just continuing to propagate Usenet (indefinitely) . This argument might actually hold weight, except that somewhere along the line that rationalization (and economics) led them to altering posts by displaying them with commercial advertisements.

    Simply put I could find all my old Usenet posts then take Dejanews to court for copyright infringement (now a felony remember) and I would probably win. If I had registered the post with the US copyright office I could probably get punitive damages.

    Basically Dejanews is a very, very tall house of cards just waiting to explode into a horrendous, awe-inspiring, copyright infringement suit to end all copyright infringement suits. The only reason this hasn't happened before is because it really is a useful service and the fact that most people do not register Usenet posts with the US copyright office (which is a prerequisite for large cash judgements).

  • dkm: Thanks. I've been looking for a replacement for cyperpunk.
  • I've been around the Internet a long time, and I know that your "good old days" of USENET never existed.

    For example: up until about '92 or so, rabid anti-commercial zealots held reign over USENET. If you posted anything from a .com address, or heaven forbid mentioned a commercial product you were hounded out of the ng for 'mis-using' the Net (which was technically supposed to only be used for research and academic purposes -- this was prior to ARPA basically handing off the Net to the public domain).

    USENET was never an anarchy. And it was the only mass publishing mechanism on the Net until Gopher and later the Web came about.
  • This is like ASCAP and the music unions. I'll bet we're going to see the freelancers form a union and require that to put their article in a database you have to pay the union. The union will then distribute the funds to the writers after taking a little off the top for "expenses". That would end up with the freelancers making a little less money, but they'd have a lot more power.
    Then again, I could be way off.
  • If someone replies to (and includes) your post without the X-Archive-yes:no (or whatever that blasted header is) enabled then it still gets archived in a way, does it not? I think I found this perusing a discussion on deja.com...

    MCRAndello

  • Look up a few posts, our fellow posters are enabling you not only to log in, but also giving you a way to stick it to 'da man' by not playing their rules. Or something like that.

    The only thing that bothered me was when I went in one day to find that the AP newsfeed had been replaced by reuters, and there were like 3 articles total in the newsfeed section. Now I get all my news here ;P

    McRAndelLo

  • DejaNews is probably ok. There is a specific mechanism to have your posts excluded from archives. If you're too ignorant to learn about the medium you're using and have things archived that you don't want archived tough. Though I suppose it can always go to court.
  • ...as someone who has done time as an abstractor/indexer for big library databases I have to laugh at the sentence "There's big money in them thar databases." The truth is that the library database industry is getting killed by the Web, salaries are horrendously low, resources are slim -- this precedent could sound the death knell for these valuable resources. And that's a shame. And all because a few anal retentive a**hole Snopes-esque money grubbers had to get what was theirs. Maybe once finding their work becomes ten times more difficult they'll realize the true dividend of their greed.
  • The dumb dunces that filed this lawsuit may have won the battle, but they lost the war. Major newspapers like the Chicago Tribune no longer accept freelance work unless copyright is assigned to the paper. That's right, you have to sign over your work lock, stock, and barrel to them. Expect this to become common practice in the industry before long.
  • Disclaimer: I am a lawyer, but this is not legal advice. I'm probably not even licensed in your jurisdiction. If you need legal advice, contact an attorney licensed in your jurisdiction.

    Essentially the same issue came up several years ago with the introduction of VCR's. (After Disney failed to tax tapes.) Disney found that it was required to pay royalties to the voices, since the movies were now being sold in a format not covered--or forseen--by the original license. For some reason, the voices thought that they were just as entitled to the fruits of their own labor of Disney :) iirc, most of them made far more from this than they made from the original movies . . .
  • Here's an excerpt from the MediaOne Road Runner subscription agreement [mediaonerr.com]:

    14.2 You hereby grant MediaOne and ServiceCo. and hereby represent and warrant that You have all necessary rights to so grant, the worldwide, royalty-free, perpetual, irrevocable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, distribute, perform and display all material posted on the public areas of the Road Runner Service via Your account and/or to incorporate the same in other works in any form, media or technology whether now known or hereafter developed.

    Is this common with ISPs, or is MediaOne being more greedy?

  • Not so. Unless the publishing agreement explicitly states otherwise, a freelancer is selling first serial publication rights only. What is true is that a lot of publishers are trying to expand the control they have over an author's work. As a freelance writer, I am of course glad to see the courts exerting control over this. I am puzzled why anyone could not be -- unless you approve of corporations acruing additional rights at the expense of individuals. Of course, as you point out, the coming of electronic media raises some new issues about what exactly constitues "republishing". Copying for personal use, as in your example, is clearly not the same as taking the article and reprinting it in a paper or on-line publication, without so much as crediting the author, let alone paying for the right to publish it. This happens, and I don't like it. By the way, a freelancer isn't in a "work for hire" arrangement; he sells the product of his labour, not the labour itself.
  • Philosophically speaking, you may be right. Legally speaking, we'll find out. But, practically speaking, I might point out that when you print an article from microfilm, neither the NYT nor the writer makes money off of it. When you print it off of the web, the NYT does and the writer does not.

    I'm quite sure that the writer who signs away paper republishing rights to a newspaper or magazine takes that into account when determining what price is acceptable. As a matter of fact, they probably aren't too terribly concerned about it, since republication isn't going to be a terribly profitable business. Putting the same article in a database, however, is legally and pragmatically a different story entirely. Lemmee say that again: publishing an article in an anthology and sticking it in a big database full of other articles are two different things, at least to your average person.

    Legally speaking, it's not a work for hire arrangement. Staff writers are on a work for hire arrangement. Freelance writers, IIRC, sell the rights to publish and republish their works, which I believe is what makes them freelancers.

    Under current copyright law, selling your rights in one medium doesn't deprive you of your rights in another: just because you let Penguin Paperbacks publish your screenplay doesn't mean they can make a movie out of it without paying you.

    The decision that we have to make is whether or not electronic media and paper media are both actually part of a larger 'meta media' that includes visual representations of the written word. As long as we continue to decide that they are not, this ruling does make sense.

    PS -- if the NYT was making audio recordings of the articles, and then putting those in the database, would you feel the same way?

  • But if Lexis-Nexis isn't afraid of being shut down, they won't be paying anyone. This is how copyright lawsuits work. You threaten to throw someone in jail for their theft and then they decide to pay for what they took.

    The same thing happened with the Lawsuit over the musical RENT [dramaturgy.net] - Lynn Thomson didn't actually want to force anyone to stop producing the show, but it's the way the law works --You have to say "Stop taking my work without permission" and sound like you're saying "you can't have it" when the response you really want is "Okay, how do I get permission?"

    +_+_+_+_+_+

    "I am not trying to prove that I am right,

    I am only trying to find out whether."
  • From the article:

    "Every single data provider now is at risk. We could go into court tomorrow if we wanted and ask to shut down every database." -- Jonathan Tasini, the president of the National Writers' Union and lead plaintiff.

    I'm not completely sure where I stand on the overall issue, but people like Mr. Tasini really scare me. I tend to favour the individual authors, whose works were taken, though, in spite of the arrogant comment from their leader.
  • The whois entries are compiled by lots of people, each with their own respective data gathered contribution. So, if the whois database is covered by this, then it would be legal to give out that whois info for the reason it was gathered (initial "publishing"), but it would be illegal to use that info for any other means ("republishing") without the permission of the individuals who gathered that particular subset of information.

    Does this sound like a valid precedent?
    --
  • Humorous intention or not, the answer is basically - Yes. But it's already well established that you can sue anybody for anything regardless of your chances for winning. Slashdot would have a very good argument that your submission of the post constituted permission to use and display the post within the context of this discussion, so you'd probably lose. If Slashdot decided to create a separate publication maybe "the most obvious one-liner collection" then this ruling says that they need to get your permission to do use your post. Likewise the ruling seems to indicate that Slashdot can't keep your article forever and it must be expired unless you give them permission to keep and use it forever. That last point is one I imagine people will be sweating over for the next few years or so. Including /.

    What is both heartening and disturbing at the same time is that this ruling pretty much puts Usenet searches (Dejanews, etc) against the wall. It's heartening because Dejanews has been taking my posts and slapping ads on them for years now - effectively making money off my work without my consent or permission (I do use x-no-archive now). It's disturbing because as much as I dislike the commercialism of these services, I can hardly dispute how valuable a tool the news archives are. If I ran a Usenet archive I'd be looking for a way to bail out of the business very quickly at this point.

    Actually I'm stunned at the scope of the decision. Basically it solidifies my ownership of everything I've ever posted on the Internet that people have decided to keep. That's very good for me. It's also very bad for the people who decided to keep what I wrote. At the same time the ruling is completely contrary to the spirit of sharing that let the Internet become such a useful tool.

    I predict a lot of databases will be purged or pruned then a lot of legal transfer of rights contracts will be attached to all these little submit buttons. (By pressing the submit button you grant Andover the right to use and republish, said work...)

    I agree with the criticism of the moderation BTW. Far from being flamebait it's both a on topic and funny in a cliché sort of way.

  • At least the editors have maintained their ethical standards by printing an article where they were named liable in an intellectual property lawsuit.

    Quite the contrary to an article I saw in the Chicago Tribune (i think, don't hold me to it, since I couldn't find the article, but the facts are correct) article yesterday describing ABC's decision to pull a story which shed a negative light on Father Disney.

  • Well, isn't this a bit of a conundrum... (Score:3)

    by miscellaneous ( 14183 ) on Tuesday September 28, 1999 @05:02AM (#1653955) Homepage
    The really odd thing about this case is that the publishers are whining about the double-bladed nature of very laws that they use to protect their industry. Live by the sword, die by the sword.

    And what objections to the ruling do their lawyers come up with? "Oh, the poor researchers will be denied access to these materials!" Yeah, well, thos researchers that can't afford to pay Lexis-Nexis's or NYT's exhorbitant fees are also denied access to those materials, and I don't see the learned counsel whining about that. There's big bucks in them thar databases, and the people who help create that value should get a cut.

    "This ruling has the the effect of tampering with the historical record." Not really. The articles still exist in private electronic and paper archives. They can be retrieved by anyone with a bit of diligence, and they can be put back online just as soon as the NYT pays up.

    Of course, those are just objections they came up with after the fact. What did they say in the trial? That the databases consituted a revision to an anthology of the works? That's just disingenuous. I'd love to read a brief detailing how they justified making that particular connection.
  • I don't think it's the norm that the publication has rights to republish. But regardless of that, they didn't in this case.

    These publications had specifically bought "First North American Serial Rights" (FNASR) from the authors -- this is supposed to mean that if your article appears on Sept. 28, 1999, they will have to pay you again if they want to sell a copy of it again after that date.

    Because they had not bought specific rights to republish the articles after the first publication, the newspapers tried to argue that the inclusion in the database was part of the initial publication (even though some of the articles were written years before the databases existed). The ruling is that perpetual publication in a database is not part of FNASR

    Under American law, FNASR is the default in the absence of specific terms to the contrary.

    Of course, these days the freelance contract does include signing away electronic rights -- the articles in the suit were written 10 years ago.

    Another side comment: freelance work is rarely "work for hire" -- in fact they are usually opposites. "Work for hire" means that the product produced is a product of the corporation and not the individual -- a product is "work for hire" by default only if it is part of the job description of a salaried employee. Other cases would require specific contract terms. In freelance journalistic writing, "work for hire" terms are generally considered completely unnacceptable (of course, it's different for writing marketing copy, etc.) If it were "work for hire" the publication would own the copyright and have all rights exlusively.

    The National Writer'a Union [nwu.org] site has the full text of the ruling.

    +_+_+_+_+_+

    "I am not trying to prove that I am right,

    I am only trying to find out whether."

  • Re:NY Times (Score:3)

    by dkm ( 42942 ) on Tuesday September 28, 1999 @04:54AM (#1653957)
    Try username: slashdoted
    pass: slashdot

  • Ruling doesn't make a lot of sense (Score:3)

    by briancarnell ( 94247 ) on Tuesday September 28, 1999 @04:53AM (#1653958) Homepage
    When you do freelance work for newspapers or magazines they're pretty straightforward about the fact that they own the nonexclusive right to republish the piece you sell them. This isn't something they hide or sneak into arcane legal language -- you're on a work for hire arrangement.

    What happened here is an ongoing debate over whether publishing an article in an electronic form such as a web site is the same as publishing it in other venues. Is an article appearing in the New York Times web site archives in the same status as say an article appearing on their microfilm archives? I go to the library occasionally to use the microfilms of the NYT and the freelance authors don't get compensated for the articles I print out. Should they if I go to the web NYT instead?

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