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In their May 3 commentary “From the Publishers’ Corner: Another Look at ‘Tasini’ “attorneys Bruce Keller and Michael Potenza portray their representation of the publishers in New York Times Co. v. Tasinias almost a heroic act in the public interest. After all, they say, if the Supreme Court upholds the free-lance writers’ victory in the appellate court, the consequences would be “disastrous for publishers, libraries, scholars, students, and even the six free-lancers” who brought the case. As the lead plaintiff in the case, I’d like to thank Keller and Potenza for their concern for writers. However, as I hope to show here, the only true consequence if the Supreme Court upholds our argument is that publishers will have to stop breaking the law and start paying free-lance writers when they want to use the writers’ articles in electronic databases and other electronic media. On two facts, Keller and Potenza are correct: Our lawsuit was filed in 1993 (the National Writers Union developed the legal theory of this case long before most of the world had even heard of e-mail). And the district court did rule against us on our infringement argument under Section 201(c) of the Copyright Act. Thankfully, Patricia Felch, representing four of the six plaintiffs, persuaded the 2nd U.S. Circuit Court of Appeals in 1999 to see clearly that what the publishers were having uploaded onto electronic databases were completely new works, and not, as the publishers tried to argue, permitted revisions of their collective works — the printed periodicals — within the meaning of Section 201(c). And what is the intent of Section 201(c)? Keller and Potenza argue that their view of the law represents the “appropriate compromise between the interests of free-lancers and publishers.” Not so, says Marybeth Peters, the U.S. register of copyrights. In a letter to Rep. James McGovern, D-Mass., which was placed in the Congressional Recordand cited in Supreme Court briefs, Peters wrote, “Section 201(c) was intended to limit a publisher’s exploitation of freelance authors’ works to ensure that authors retained control over subsequent commercial exploitation of their works.” The publishers’ view of the statute, she wrote, “is beyond the scope of the statutory language and was never intended because, in a digital networked environment, it interferes with authors’ ability to exploit secondary markets. Acceptance of this interpretation would lead to a significant risk that authors will not be fairly compensated as envisioned by the compromises reached in the 1976 Act. The result would be an unintended windfall for publishers of collective works.” Finally, Peters wrote, “The issue in Tasinishould not be whether the publishers should be enjoined from maintaining their databases of articles intact, but whether authors are entitled to compensation for downstream uses of their works.” Of course, Keller and Potenza would surely have preferred that Peters’ views were not made public. Whom would you believe, the official guardian of the U.S. copyright system, who has been an impeccable public servant for decades and has no financial stake in the outcome of the case, or some very powerful corporations, which earn billions of dollars and spend millions on hired legal guns to stiff-arm writers? Keller and Potenza attempt to belittle the “flawed theories” of the 2nd Circuit — and of the 11th Circuit in Greenberg v. National Geographic Society(March 22, 2001) — by suggesting that the judges imagined the copyright infringements at issue. Though I’m not a lawyer (despite my mother’s exhortations), I doubt that then-Chief Judge Ralph Winter, who wrote the unanimous opinion in Tasini, ascended to his position by engaging in hallucinatory thinking. Actually, it’s the district court’s ruling in our case that is bizarre. In Ryan v. Carl Corp.(1998), the U.S. District Court for the Northern District of California took a pro-author view of the meaning of Section 201(c), leading ultimately to a multimillion-dollar class action settlement for authors. Furthermore, in similar cases abroad — in the Netherlands, Belgium, and France — the legal system has sided with authors. CHICKEN LITTLE With a weak legal argument, the publishers’ lawyers, including Harvard Professor Laurence Tribe, have put Chicken Little to shame, racing around and proclaiming the end of the complete historical record as we know it if writers win. They’ve even dredged up a handful of people to shill for their position, among them historian Doris Kearns Goodwin and filmmaker Ken Burns. Yet Keller and Potenza seem perplexed that I continue to maintain that describing such dire consequences is hyperbolic nonsense. Again, let me draw from real experts, this time on the historical record: librarians. In an amicus brief filed on our behalf, the American Library Association (which represents 61,000 librarians) and the Association of Research Libraries (which represents 122 institutions) assert that “affirming the Second Circuit’s judgment need not unleash the dire consequences predicted by Petitioners and their supporting amici.” Later in the brief, they state unequivocally, “Hard copies and microform copies of these works will not cease to exist, and there is no credible suggestion that such copies would need to be pulled from library shelves or microfilm collections and destroyed.” In fact, the librarians effectively say that the publishers have been misleading the courts and the public by exaggerating the publishers’ own role as custodians of the historical record. As the amicus brief states, “Despite the utility and wide availability of commercial electronic databases, they are collections of information designed to meet particular market demands and do not fulfill the traditional roles of libraries and archives.” Finally, and perhaps most telling, the librarians say, “Although they overstate their function as ‘archives’ and ‘libraries,’ Petitioners and their supporting amici understate the extent to which this case is ultimately about money.” The librarians are well aware of the money issue since they pay billions of dollars in licensing fees to publishers every year for access to information. And for that reason, librarians are quite qualified to envision a system where, as their amicus brief states, “commercial electronic database publishers could be required to pay for works on a group basis, such as is done with the voluntary system of blanket performance licenses of musical compositions administered by ASCAP and BMI.” That is precisely what the National Writers Union has proposed. In fact, we have created a licensing system for authors, the Publication Rights Clearinghouse ( www.nwu.org). Keller and Potenza make reference to the Supreme Court oral argument to specifically cite Justice Stephen Breyer’s reaction to their Chicken Little scenario. What they fail to note is that it was clear that many of the justices were quite skeptical of the publishers’ argument that the availability of newspaper articles on electronic databases constituted simply a revision of their collective works. Justice Antonin Scalia said, “You’re inventing a revision that has no real world existence.” Justice Sandra Day O’Connor noted, “[W]hen I’ve used something like [Nexis], I’ve gone to an author’s name or a subject matter and tried to retrieve an individual article, not the whole newspaper.” And Justice David Souter remarked, “If I want an article by Smith, I understand that I can search for an article by Smith, not for the entire New York Timesor Washington Postin which Smith’s article occurred.” IT’S OUR WORK Finally, Keller and Potenza paint the Tasiniplaintiffs as Luddites. No, we’re not. We’re people who believe in respect for the law. We work for a living, and we want to get paid for the fruits of our labor, consistent with the law. Indeed, in my view, the publishers’ position is contrary to the Constitution. Article I, Section 8, reads in part: “The Congress shall have Power … To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The Framers believed that authors and inventors would only thrive if they received the fair return that only comes from controlling their own work. To ensure that writings and discoveries would be placed in the hands of the people, the Framers granted these exclusive rights only for “limited Times.” The publishers’ view is also a direct assault on the First Amendment. The Framers firmly believed that the only way to ensure a free and democratic society was to make sure that no one power or entity could control information — and that goal would be best met by ensuring that individuals had control of their own works. The publishers’ position is this: The only good intellectual property laws are those that protect their property. Our hope is that the Supreme Court will affirm a principle more than 200 years old: Authors deserve their fair share. Jonathan Tasini, president of the National Writers Union, is the lead plaintiff inNew York Times Co. v. Tasini. He was one of four plaintiffs represented in the 2nd Circuit argument by Patricia Felch, now with the Chicago office of Banner & Witcoff.

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