Speakers:
Richard Geiger, Anne Scheck and Harry Youtt
Moderator: Cary Kenney
![]() Although full-page prints and microfilm sales are not affected by the Tasini ruling, this newspaper page illustrates the impact within full-text article databases as thousands of articles have been deleted because archivists could not be absolutely certain of their copyright status. |
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Reported by Michael Jesse
As we met in Los Angeles in June of 2002 almost one year had passed since the U.S. Supreme Court ruled in Tasini vs. The New York Times that news publishers and archive aggregators had violated the copyright of freelance writers by reselling their articles in online archives without the writers' consent.
Yet, even a year later the lower courts had not yet ruled on what financial judgment, if any, will be levied -- with predictions ranging from a token amount to Jonathan Tasini's notorious estimate of $600 billion. And that great unknown cost remained at the crux of the issue as representatives of news libraries, freelance writers and vendors met to discuss the continuing end game of the suit.
Cary Kenney, of the St. Petersburg Times, organized the "Life After Tasini" roundtable for the 2002 conference. Cary was the author of an exhaustive article on this topic. (See "Newspaper Publishers in the Post-Tasini Era," Searcher magazine, March 2002).
On the panel were: Richard Geiger of the San Francisco Chronicle, freelance writer Anne Scheck, and Harry Youtt, the attorney who filed the original 1993 lawsuit lawsuit in which writer Jonathan Tasini was listed as the lead plaintiff. The three panelists each made a brief statement before the discussion went to the floor.
Anne Scheck described how difficult it is to make a living as a freelance writer and how upsetting it is to a writer to discover his or her article on some online source which acquired it without having to compensate or even inform the writer.
Youtt described his role in crafting the lawsuit and his belief that -- despite the havoc caused in the short term -- the eventual result would be a more just compensation system for freelancers.
Geiger described the impact of Tasini from an archivist's perspective. Many news librarians have had to delete thousands of articles from their public archives -- not necessarily because the articles were written by freelancers, but often because the copyright status could not be definitively determined under the new rules. Geiger said the great damage done to the historical record is far out of proportion compared to the relatively small amount of royalty in contention.
Although there were no vendor representatives on the panel, a vendor in the audience spoke at length. He disputed claims of "greed" on vendors' part and said aggregators' software systems track the sale of every article and could be used to prove how little money had actually been made from the resale of freelanced articles. In response to a question, the vendor said he thought it was unlikely that content aggregators (who are the principal defendants in the case) would in turn sue the newspaper publishers who provided the content. He said aggregators generally have no content of their own and could not stay in business without a good relationship with publishers.
Several news librarians spoke about what they described as the "pillaging" of their public archives. Freelancers may be right that they deserve compensation when articles are re-sold online, but they may also be under a misapprehension about how just much money they might have made from online sales. Actual losses by freelancers amount to "nickels" one veteran news librarian said. Yet each copyright violation could result in a punitive damage vastly greater than the actual loss -- which is why some estimates of possible damages are so high.
A common statement, by both news librarians and the vendor in the audience, was that the suit brought devastation to both writers and libraries. Instead of getting better contracts with publishers, freelancers now have to sign away their copyrights in rigid "work for hire" agreements. Public archives, now purged of any articles not deemed "Tasini-proof" by publishers' lawyers, likely will never be restored to their previous completeness.
Had the financial risk been limited to actual damages, one librarian said, the purges would not have been so sweeping and may not have occurred at all. The vendor in the audience also made this point, challenging Youtt to settle for actual losses only. Youtt, however, said he is no longer part of the legal team handling the case and he did not respond to suggestions that he advocate for an actual-losses judgment.