Shakedown on 43rd Street
As a newspaper, The New York Times has all the power and glory of a national monument. But when it comes to doing business, the Times Company has shown itself to be monumentally arrogant. Last month, after the Supreme Court ruled that the Times and other publishers had violated freelancers' copyrights by selling their articles to electronic databases without permission, the Times threatened to destroy a huge chunk of its archives. It's a bizarre denouement to a long struggle, and an ending that could, as the Times reported, "diminish the writers' pleasure in their David and Goliath victory."
Schadenfreude is not the only psychological defense that this Goliath has adopted since it was found liable for copyright infringement. Try anger, denial, evasion. Times publisher Arthur Sulzberger claims that his company has a legal obligation to blast a hole in the historical recordbut the Supremes are not holding a gun to his head. Indeed, the destruction the Times is calling a mandate is merely a business maneuver that erases the evidence of infringement and reduces the risk of lawsuits down the line.
There are other remedies available, such as adopting the licensing system set up by the National Writers Union, which brought the case against the Times. Compensating writers for their retroactive rights is the fair and honest solution, and that's what the Supreme Court and the U.S. Copyright Office have said the publishers should do.
The biggest advocate of a negotiated settlement is National Writers Union president Jonathan Tasini, who has invited the Times to approach the bargaining table in good faith. But instead of acknowledging that it lost the case, the Times is proceeding as if it had won, by asking freelancers to give up the very rights the court has just guaranteed them. Through its Web site and a series of house ads, the Times is reaching out to 27,000 freelance writers, offering to preserve their articles on the Nexis databaseas long as they agree they shouldn't get paid for the privilege. It will be interesting to see how many freelancers take the bait.
One freelancer who will never surrender his rights is Tasini, who says he is "surprised and disappointed" by the Times' refusal to negotiate, adding, "We offered an olive branch, and they came down like an 800-pound gorilla." Undaunted by the resistance, Tasini sued the Times again on July 9, calling its freelance agreement "unlawful and unenforceable." According to Tasini lawyer Lowell Peterson, Times editors have already told a few freelancers that if they do not release the company from all legal claims based on past articles, they will never write for the paper again. Peterson claims that one editor threatened to pull five stories by the same writer that had already been accepted for publication. Tasini calls that "unethical, immoral, and beyond the pale." A Times spokesperson declined to comment.
"People should not sign away their rights," says Tasini, and not just because they may be able to collect damages after multiple class-action suits proceed through the courts. More important, he says, "They shouldn't sign away their rights because what the publishers are doing is wrong. We tried to be low-key about the victory, but now they are prodding us into saying the truth: They were caught breaking the law, and when you break the law you have to pay for it." Instead of observing the rule of law, Tasini says the Times is creating a blacklist of writers whom it deems undesirable.
The Times has an interesting argument that inclusion in its databases is a service to journalists, according to Ray Dowd, a copyright and trademark lawyer and chair of the Media Law Committee of the New York County Lawyers Association. But on the other hand, he says, "Many writers don't have the slightest clue as to what their rights are. When the head of a union gets up there and whacks a major publisher over the head very publicly," he says, "it should cause writers to take note." Musicians and actors have established their rights; why can't wordsmiths do the same?
Dowd cautions that the opportunity to develop bargaining power will be lost if too many freelancers choose the status of writing for publications like the Times over the mission of establishing collective rights. "If there's not a sense of solidarity that quality writers won't object to copyright infringement or sign away important rights without compensation," he says, "then the publishers will always get away with it."
Asked to comment on Tasini's new suit, Times spokesperson Catherine Mathis issued the following statement: "We will continue to talk with counsel for the freelancers in an attempt to reach an agreement which would allow us to restore all of the material to our archival database." By e-mail, Mathis called the offer to preserve freelance articles on the database "entirely voluntary" and in no way coercive. She denied that the Times' contracts ask writers to sign away retroactive rights as a condition of future employment, and said the company is "not aware" of any freelancers being threatened with nonpublication if they did not sign.
Asked point-blank if the Times would guarantee freelancers the opportunity to work in the future, even if they don't sign over their rights today, Mathis dodged the question. Instead, she said that more than 2000 writers have already stepped up to release their electronic rights, adding, "It really hasn't been an issue for most freelance writers until now."
In recent years, it's become common for publishers to ask freelancers to sign away all their rightspast, present, and futurefor no extra pay. (The Voice contract asks freelancers for the nonexclusive right to archive their work in any medium.) But just because it's an industrywide practice to demand the release of these rights doesn't change the fact that it's now illegal for publishers to take them without permission.
Unfortunately, the Tasini case has blown a hole in the Times' credibility. One by one, the company's arguments have turned out to be specious, from its contention that the electronic reprints are merely a "revision" of the original newspaper, to its argument that freelancers will gain something of value by giving up their rights. Says Tasini, "It's a sad day when a paper that prides itself on accuracy cannot be trusted for what it says."
Most disingenuous of all is the company's claim that it has no choice but to destroy the historical recordan argument that recalls the Taliban's defacing of two Buddhist statues this spring. Like the Taliban, who are dead set on eliminating the practice of Buddhism, the Times seems intent on stamping out a dangerous subculturein this case, freelancers who think they deserve to be adequately compensated for their work.
But as the Times' own Tina Rosenberg wrote about the Taliban, attempts to destroy the property of an undesirable culture are not rational, but rather the product of "fanaticism, isolation and fury at the outside world." Mobs threaten their cultural enemies, Rosenberg wrote, out of a mistaken belief that by purifying the past they will succeed in purifying the future. The Times should think twice before engaging in its own version of ethnic cleansing.
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