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It’s easy for me to take the writer’s side of a writer-publisher dispute. After all, I’m a writer and not a publisher. But a couple of recent court cases centering on contract and copyright disputes have me worried — despite the fact that writers have won in those cases. The bigger of these two cases came in late June. The U.S. Supreme Court held, 7 to 2, that free-lance authors who had not expressly granted to The New York Times the right to include their articles in electronic databases like Lexis Nexis retained those rights. Shortly afterward, a federal judge in the Southern District of New York ruled that Random House Inc. could not stop Rosetta Books from selling “e-book” versions of certain Random House titles — another case based on authors’ retaining rights not expressly granted. As it happens, I, too, won my most recent quarrel with Random House. Earlier this year, after my book “Cyber Rights,” originally published by Random House in 1998, had been out of print for a few months, I contacted the publisher and asked for my rights to revert to me. I figured that at least I could publish a revised paperback myself and sell it on the Internet. Amazon, for example, lets authors who “self-publish” list their books online. But ideally, I’d sell the paperback rights to another publisher. I knew that the book was still being taught in universities and suspected that it would be taught in more, but only if it were available in a cheaper edition. If there had been significant demand for “Cyber Rights,” why’d it go out of print? Here’s what I suspect: In 1998, Random House was acquired by Bertelsmann. And soon all of the editors or people I’d ever had any dealings with were gone. My book, so far as I could tell, was more or less forgotten, so it slid out of print in the last months of 2000. Shortly afterward, a publisher at an academic publishing house approached me about doing another project, and I raised the issue of getting “Cyber Rights” back into print. He said he’d be happy to do it, provided I updated it, which I was eager to do anyway. My next step, of course, was getting a “reversion letter” from Random House. The publisher responded to my request with a letter congratulating me: “Cyber Rights” was to be part of the company’s new print-on-demand program. Print-on-demand is just-in-time book publishing, the printing of 100 copies or 10 copies or just one copy, depending on demand, in paperback. I wasn’t so excited. A publisher would be unlikely to promote a print-on-demand title. Plus, it was unclear whether, if I went along, the rights would ever revert to me. This got me on the phone with Random House editor Stephanie Higgs. She was trying to explain that, although retailers listed my book as out of print, it was in print, after all. I responded with some asperity: “OK, send me a copy of the paperback now.” She responded with a long pause and a halting explanation of print-on-demand. I countered: “This print-on-demand thing was not in our contract, and this is a scam, and I think it would be very entertaining to take our contract to court and let a judge construe it. In fact, I bet a lot of other authors would be interested in joining me in this. And I wonder what the National Writers Union would think. I think you can see where I’m going.” She laughed a little nervously (I thought) and said she caught my drift. By the end of the week I had a reversion letter in my hands, and I had a deal for the paperback edition with my new publisher by the following week. I felt a certain elation at this outcome, but also disappointment. Yes, I’d gotten what I wanted, but I’d also quarreled with my publisher (who, after all, had gambled on me by choosing to publish my book). I was reminded of this ambivalence a couple of months later when the two court decisions came down. I had the slight frisson that comes when the little guys win a legal dispute, but I also found myself wondering whether the cases really do much for authors or for the public interest. In the case involving The Times, the newspaper will likely owe money to those free-lancers for the articles whose reproduction rights they sold to Lexis Nexis. In the other case, Judge Sidney Stein ruled that the original publishing contracts signed by authors long before the commercial development of the Internet did not prevent those authors, including William Styron and Robert Parker, from contracting with Rosetta Books to publish e-book editions of the same works. Jonathan Tasini, the lead plaintiff in the Supreme Court case, is the president of the National Writers Union, whose Web site labels the decision a “victory for creators.” Michael Boni, a partner in Philadelphia’s Kohn, Swift & Graf, who represents Rosetta Books, says that his victory may mean new opportunities for authors to exploit existing works. “The big picture is that both Tasini and Rosetta Books are cases about authors’ rights,” says Neil Glazer, one of Boni’s partners, adding that both cases “involve situations where publishers have just assumed they owned things that were not expressly set forth in the contract.” So is it easy street for authors now that their digital rights have been vindicated? Not exactly. The Times is removing from electronic archives free-lance articles whose authors have not waived their right to receive payment. A lawyer for The Times claims its actions aren’t punitive, but are instead aimed at limiting damages and future litigation. Still, according to some reports, free-lancers are currently being told that in order to write for The Times today, they have to sign waivers of any rights they might still retain to free-lance pieces they did in the past. “This is what is happening in the wake of Tasini,” says New Republic legal affairs editor Jeffrey Rosen, himself an occasional Times free-lancer. What about tomorrow? Will either decision benefit writers in the future? The Tasini case was filed in the early 1990s. Ever since then, both newspaper and book publisher contracts require authors to grant electronic rights to publishers. Maybe authors working under older contracts — like the plaintiffs in the Rosetta Books court fight — or writers like John Grisham and Stephen King have enough bargaining power to insist on retaining electronic rights. But most authors don’t, and they’ll give away their electronic rights when they sign new contracts. The public may not be a winner either. Siva Vaidhyanathan, an assistant professor of information studies at the University of Wisconsin at Madison, notes that “no one’s yet expressed a desire for [e-books].” In short, the Rosetta Books victory may give backlist writers access to a market that doesn’t yet exist and may never materialize. “It’s important that we not make too big a deal out of cases in which little guys beat big guys,” adds Vaidhyanathan, author of the recently published “Copyrights and Copywrongs” (New York University Press). “It’s easy to cheer for the little guys, but one thing we have to keep in mind is that in the long run the big guys almost always win.” Vaidhyanathan likes Justice John Paul Stevens’ reasoning in the Tasini case. “Stevens’ dissent,” he says, “points out that copyright is supposed to ultimately benefit the reading public and the learning public and that it is a central part of democracy.” Adds Vaidhyanathan: “That’s not to say that the majority was wrong — it’s just that [the majority] didn’t seem to care about the public interest.” Rosen, who is also a professor at the George Washington University Law School, agrees. “I wasn’t aggrieved when my pieces were archived in Lexis Nexis; I was pleased,” says Rosen. “Circulating the ideas as widely as possible was the reason I wrote the op-eds in the first place.” That’s the reason I wrote “Cyber Rights,” too. I realized after talking to Rosen that my “victory” over Random House prevents anybody from buying my book today — they’ll have to wait for the new version. Might there have been a better outcome in the Tasini case, the Rosetta Books case, and in my own dispute? Sure, the publishers could have been less presumptuous and grabby about the rights to articles and books. But the plaintiffs in those cases should ask themselves what the point is of pushing a position that serves only to limit authors’ future rights and future readership. Maybe there’s a better fix. What if lawmakers and the courts jiggered contract and copyright law so that publishers — who assume the financial risk on publication — were allowed some implicit rights to exploit new technologies and new media — like databases, e-books, and print-on-demand — when they became available? Call it, say, “a nonexclusive right to exploit new technologies.” Had Random House had such a right under my contract, readers could have continued to buy the original version of “Cyber Rights” — probably without having any significant effect on the demand for the 2002 version. (It might even have enhanced demand for the new version.) Other authors, like Rosen, would have benefited by broadening their readership. We created the copyright system not to enrich authors or publishers, but to enlarge the public sphere. We ought to keep that principle in the foreground whenever we approach contract or copyright disputes between authors and publishers. Whenever the outcome of such disputes takes works out of the public sphere, then — regardless of which party wins — the public loses. Mike Godwin is chief correspondent of IP Worldwide , a sister publication. The paperback edition of his book, “Cyber Rights: Defending Free Speech in the Digital Age,” will be published by MIT Press in 2002. He can be reached at: [email protected]

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