October 2001

Content Discontent

Continued from page 1

By Seth Shulman

This spring, the Supreme Court by a seven-to-two margin affirmed the unanimous U.S. Court of Appeals verdict that the publishers had acted unlawfully. The writers, it ruled, should retain the rights to control online republication of their work unless they chose to explicitly sign these rights away by contract. Currently, most standard writers' contracts sell only so-called first-serial rights for an article's one-time use.

But most telling is what happened next. The National Writers Union called upon publishers to negotiate a settlement on how to cut writers more fairly into any profits earned from the online dissemination of their work. Instead, the New York Times Company, for one, opted to fight its freelancers over the matter. Litigious throughout, the publisher announced it would remove the disputed works-some 115,000 articles by 27,000 writers-from distribution online. The Times is forcing all current writers to sign away their online rights. And, along with other publishers, Times management is lobbying Congress to amend copyright law to retroactively eradicate any financial liability to compensate authors for past copyright violations.

So now, the writers are forced back into court, this time bringing a class action lawsuit against the Times Company and other publishers to win compensation and to get them to comply with the law. In my view, even if the Times and other publishers do yank the articles in question, they have still already profited illegally from the articles' online dissemination and are thus likely to lose the new legal case against them.

Not only do the writers have the law on their side, the National Writers Union has launched a software system that automatically registers copyrighted works and tracks their resale online, receiving payments from participating publishers and paying writers a share of each transaction. All writers can utilize this Publication Rights Clearinghouse. The effort illustrates that the technology for profit sharing is by no means an insurmountable obstacle, as the Times might like to claim.

Enough. It is time for the New York Times Company and other large publishers to negotiate an equitable solution that recognizes the extent to which they depend on and profit from the work of independent creators of "content." The central question is: when will they and other content distributors get the message?