The Digital Rights Dilemma

National Writers Union Wins Landmark Decision for Freelancers. Maybe.

But publishers are standing their ground, and understandably so. However conciliatory a tone Tasini strikes in his letter, his statements to the press following the court ruling have been oddly, and unnecessarily, belligerent. "We could go into court tomorrow if we wanted and shut down every database," he told a reporter for the Times. His press release, written in all caps and posted prominently on the NWU Web site, reads like a declaration of war: "We now proceed with . . . relish to the damages phase of our trial." Even lawyers for the plaintiffs expressed dismay at Tasini's sword rattling. The NWU represents roughly 5400 writers, a slim minority of working writers in this country; most of NWU's members do not earn the majority of their income from writing. Writers may be well advised to watch who claims to represent them.

Keller has responded in equally shrill terms. "There's going to be holes in history," he says, echoing the doomsday vision portrayed by Times counsel. "If he's in a position to shut down these databases, then there will be large gaps in the archival record. Freelancers will suffer."

Wow. And all the writers wanted was a slice of the pie. "The argument has never been whether the works should be disseminated," says Alice Haemmerli, a dean of graduate legal studies at Columbia and a consultant for the plaintiffs on the Tasini case. "Indeed, most authors would like to see their work disseminated as broadly as possible. This parade of horribles may well be hyperbolic." One— especially if one is a writer— certainly hopes.

illustration: Limbert Fabian

One would also hope for some voluntary concessions from the publishers. Lest anyone forget, publishers do earn revenue from electronic publishing. And in the future, they're certain to earn much, much more. "One would think that the electronic rights, which exist in perpetuity and extend worldwide, would be compensated at a much greater level than rights for the print edition, which has a shelf life of 24 hours," says Emily Bass, a lawyer for the plaintiffs and architect of the argument that eventually persuaded the Second Circuit Court. It's a wonderful thought, much like world peace, but if anything, the all-rights contract could very likely proliferate even further in the wake of Tasini. As Bass also points out, in this country people are free to waive any rights they want. If writers want just compensation for electronic rights, they'll have to do battle on the contracts as well as the courtrooms.

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