The Case That Will Not Die!
by Laura Gasaway
Last month I foolishly titled the column "Tasini: The Final Chapter." Wrong! This case will not die and there will be more actions resulting from it in the near future.
On June 25, 2001, the U.S. Supreme Court decided that including articles from freelance authors in electronic databases without copyright transfers was infringement. The case did not decide the issue of damages.
Immediately following issuance of the decision in favor of freelance writers (see September 2001, Copyright Corner), the New York Times announced that it would delete 115,000 freelance works (from 1980-95) from its own and other databases. Throughout the litigation, the Times and other publishers said that if the writers won the case, databases would have no choice but to delete works of freelancers that were not compensated and did not give a transfer of electronic rights.
The Times used both newspaper ads and a website to tell freelancers that these works would be removed. But the paper also said if the author would agree to waive their rights to compensation by forfeiting all "past, present, and future copyright infringement claims" against the Times, it would restore the freelance works to the database.
On July 3, the Author's Guild responded with a class action suit for the 15,000 writers who alleged that the Times violated the rights of freelance writers as determined in Tasini and asked for damages and injunctive relief. Other suits were filed against Dow Jones, Reuters, LexisNexis, Westlaw, Dialog, and Proquest, accusing them of systematic copyright infringement for failure to compensate freelance writers for articles from 1978-95.
Tasini, of the National Writers Union (which brought the Supreme Court case), estimates that writers will be owed billions of dollars, but attorneys for the databases say that damages will be minimal. In a more conciliatory statement, Tasini also called for negotiations toward a settlement and a licensing system.
The Authors Guild also created a webpage that recommends authors retain their rights to be compensated for unauthorized electronic publication of their contributions to the New York Times, the Boston Globe and 19 regional newspapers.
On July 27, the Authors Guild reached agreement with the Times, halting its threat to remove freelance articles from its database unless writers waived their rights to compensation. The Times agreed to cease its advertising campaign and provide information to freelancers about the class action lawsuit on its webpage and in written materials being mailed. In return, attorneys for the Authors Guild agreed to withhold a motion for a temporary restraining order, which would require the Times to cease its advertising campaign and remove the website. Members of the guild said that this was an important first step to an overall settlement of the claims of freelance authors against database publishers. It also recognized the importance of ensuring that the database remains complete while authors receive fair fees for electronic uses of those articles.
Electronic Books
The Authors Guild has issued a warning to its members concerning a similar case, Random House, Inc. v. Rosetta Books.1 In this case, the U.S. district court denied the publisher's request to enjoin Rosetta from publishing electronic books for which Random House held the print rights. Rosetta had obtained the electronic rights directly from the authors. Random House sought to enjoin Rosetta from approaching the authors of its nearly 21,000 backlist titles and argued that the copyright transfer to the print rights also covered electronic rights. The Authors Guild filed an amicus brief on the side of Rosetta that was joined by the Association of Authors Representatives, which represents literary agents.
Rosetta had published eight books in digital format and offered them for sale. The print rights for these books belong to Random House. Works in question include two books by William Styron, The Confessions of Nat Turner and Sophie's Choice; five by Kurt Vonnegut, including Slaughter-House Five; and a book by Robert B. Parker, Promised Land.
Random House has included the electronic rights in its standard publishing contract since 1994. But before then the copyright transfer agreement was silent about electronic rights. Based on the decision in Tasini, it is clear that all rights not specifically transferred to the publisher remain with the author. The pre-1994 Random House contract had used the phrase "print, publish, and sell the work in book form," so an important issue in the case was whether an electronic book meets the standard definition of the word "book." The court decided that it did not by using the Random House Webster's Unabridged Dictionary for the definition of a book.
A book was defined as "a written or printed work of fiction or nonfiction usually on sheets of paper fastened or bound together within covers" in the dictionary.
The contracts had separate grant language to convey the rights to publish book club editions, reprint editions, abridged forms, and Braille editions. According to the court, this language would not be necessary if the phrase "in book form" encompassed all types of books. Another contractual clause, referred to as the photocopy clause, gave the publisher the right to photocopy or otherwise copy the work in forms now in use or later developed. Random House argued that this clause bolstered its position that "in book form" included digital works, but the court was not persuaded.
The judge found that electronic digital signals sent over the Internet is a separate medium from the original use (i.e., printed on paper) because there are additional features that permit manipulation of the information that a printed work does not. A software program and specific hardware is needed to enable the reader to view the text, which distinguishes it from analog formats.
Random House was disappointed by the ruling, but said it stands "by our view that an e-book is a book and that Random House's backlist contracts give us the rights to publish the works in e-book form." It will review the decision before deciding whether to appeal. But all is not well for publishing contracts with e-books. The Authors Guild has warned its members that Time Warner's new iPublish division may present significant legal risks for its authors. The rights granted to the publisher by the contract include the exclusive rights to any means of delivery now known or later developed. The guild says that the definition of digital rights is so broad that it includes audio book rights and rights to digitally printed books. Another problem is by submitting manuscripts to iPublish, writers agree to the terms of the contract. On top of that, even if Time Warner does not publish the book, it would have an automatic claim on the author's next work!
These cases and the actions of authors' organizations certainly have implications for libraries. The increasing importance of license agreements in libraries is mirrored by the importance of publishing contracts for authors. The interpretation of specific language from these contracts may affect libraries' ability to acquire and use information in digital form. For example, librarians have maintained that digital works are no different from printed works when it comes to copyright. But courts appear to be disagreeing with this position.
For more information, contact Laura Gasaway at laura_gasawa@unc.edu.
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