Faced with the choice of paying sums described as “negligible” by one of their own attorneys for electronic rights, a number of US publishers, including the NYT, decided this week instead to delete over 100,000 articles from electronic databases, after having argued that to do so would be to create a “hole in history”.

Such was the reaction of the NYT, Time Inc.and Newsday afterthe US Supreme Court ruledthat they had infringed the copyright of six freelance contributors who have pursued the publishers since 1993 over the unauthorised redistribution of their work. The authors – led by National Writers Union president Jonathan Tasini – had argued that the the electronic storage and redistribution of their work by a number of databases, most notably Lexis-Nexis, was an unauthorised re-use in what was effectively a new publication. The publishers in turn argued that such storage and redistribution was merely a more advanced version of the printed publication, and as such did not constitute a new product.

The reason the argument took so long is because, this being a legal matter, lawyers were involved, and lawyers charge by the hour. For those who don’t have eight years and an unlimited legal budget to spare, what it boiled down to is this. A group of writers produced some articles for a group of publishers. The publishers then started to do things with the writers’ articles that the writers hadn’t agreed to. Specifically, re-using the work in one of those as-yet uninvented media which publishing contracts are so full of these days. The writers said “Gee whiz, we never agreed to that, but you can do it if we get a cut, because, y’know, we wrote that stuff and it belongs to us.” The publishers said “Screw you, get lost.” The judges agreed with the writers, and passed the case back to a lower court to decide damages against the publishers.

And that’s it. The bottom line on the case of Tasini vs the NYT et al was, inevitably, the bottom line: the NYT, Time Inc and Newsday wanted to use material without paying for it.

Blowing A Hole In History

That just makes the publishers sound cheap, of course, so it wasn’t surprising that they had a rather different take on the result. Anyone listening to them could be forgiven for coming away with the impression that they were simply a charity or public institution dedicated to the preservation of history.

Pronouncing themselves “extremely disappointed” with the result, the Times accused the Supreme Court of “depriving” the public access to tens of thousands of Times articles. Times publisher Arthur Sulzberger, Jr. continued: “The Times will now undertake the difficult and sad process of removing significant portions from its electronic historical archive. That is a loss for freelance writers because their articles will be removed from the historical record. Historians, scholars and the public lose because of the holes in history created by the removal of these articles from electronic issues of newspapers such as The Times.”

Well, darn it all. Here’s the Times trying to provide a bona fide historical record for historians and scholars, and along comes the Supreme Court and a bunch of scribblers to spoil the party.

It hardly needs saying that the Times’ pronouncement is self-serving tosh. It’s only true that the writers’ works will be removed from the historical record if you accept that the New York Times, Time Inc and Newsday provide the only historical record. Ditto the argument that a “hole in history” has suddenly been created. The material can still be made available through sources other than commercial databases, a point picked up on by US libraries, who noted that they already provide public access to the historical record for free.

The real loss is the financial loss to the publishers, who are no longer able to sell the material electronically, whether directly to individuals through their own web-site, or via intermediaries like Lexis-Nexis.

For what none of the publishers wanted to talk about was the fact that they weren’t just keeping history safe: they were selling it. The databases the writers’ work was being republished on, primarily Lexis-Nexis, are anything but free. You can access Times articles on, say, the Tasini case, from Lexis-Nexis, but it will cost you $3 plus tax per story .

The writers were more than happy for their work to be republished so long as they were paid, as was made plain by Tasini after the verdict: “Now it’s time for the media industry to pay creators their fair share and let’s sit down and negotiate over this today.”

“Wholesale Destruction”

Rather than do so, the NYT decided to go on the 21st century equivalent of a book burning spree, preparing to hit the delete key on an estimated 115,000 articles by 27,000 writers. Sulzberger was joined in his grief by John F. Sturm, president of the Newspaper Association of America, who lamented: “What’s sad is that this wholesale destruction of historical records will not lead to any benefit to the writers seeking redress from the court.” Robin Bierstedt, deputy general counsel for Time Inc., chimed in, claiming “We have no choice but to delete the articles.”

This is more tosh, of course. The choice the publishers were faced with was to pay for the material or not use it: pretty much the same choice anyone wanting the read the New York Times faces every day. Next time you visit a newsagents pick up a copy of the Times or any other publication, just stride off, and see how far you get. Better yet, just take a copy of your favourite paper to the photocopy counter, run off a bunch of copies, and replace the paper on the shelf. Then start trying to sell off your photocopies on the street outside – if you make it that far.

The real reason the publishers chose to remove the material rather than pay for it was that to do otherwise would be to undercut their strategy of getting freelance contributors to sign away all rights to the work they produce. It’s hardly coincidental that since the Tasini case began publishers have made a point of producing contracts which force contributors to do just that, and in the days since the Tasini result several US publishers have produced new contracts designed to prevent them winding up in court. Anyone wanting to know where these contracts are headed may want to peruse The Rights Policy From Hell.

In fact, anyone who really wanted to know what the fuss was about needed to look no further than the Time Inc annual report for 1988: “In the media and entertainment business of the future, the winners will own the copyrights to creative products, as well as avenues of distribution.”

So by week’s end the New York Times had put on its’ oldest clothes and gone panhandling, with an advert in both the print and web edition aimed at freelance contributors whose work they were proposing to remove from the databases. The offer? In return for the contributor’s agreement to forgo payment and to release the Times for any claims relating to the work appearing in electronic archives, the Times would restore the material to the database.

Buddy, can you spare a historical record?