February 2, 2002

HISTORY'S RAW MATERIAL IS DISAPPEARING ONLINE

The U.S. Supreme Court ruled last year in favor of free-lance writers challenging publishers' right to include their work in computer databases. Who's better off? Not the writers, certainly. And probably nobody else either.

The case was The New York Times Company vs. Jonathan Tasini. Tasini, president of the National Writers Union, argued that the computer database was not merely a revision of the print edition of a newspaper or magazine, but a separate collection. Under the 1976 copyright law, he said, that meant writers were entitled to separate compensation.

Of course Congress wasn't thinking about computers when it revised the copyright law in 1976. It was thinking about dividing up authors' rights so that selling a celebrity profile to a newspaper or a short story to a magazine didn't automatically mean giving up their rights to sell the same piece elsewhere, say to a book publisher compiling a short-story anthology. Or to several publishers for different anthologies, for that matter. All those sales were matters for separate negotiation.

In an opinion by Justice Ruth Bader Ginsburg, the high court agreed, 7-2. The majority's conclusion is not the only possible one; Justice John Paul Stevens' dissent is also persuasive, though it attracted only one other vote. However, Stevens' argument focuses more on the likely unfortunate consequences of a decision favoring the writers, while the majority tried to honor legislative intent.

Though the publishers warn that a ruling for writers will have ``devastating'' consequences, Ginsburg wrote, ``speculation about future harms is no basis for this court to shrink authorial rights Congress established.''

As someone deeply suspicious of courts' attempts to make public policy when that should be left to legislatures, I have to agree. But you know what? The critics who predicted dire consequences were right.

Writers, for the most part, are only slightly less well off. When this dispute began to heat up, publishers and other who buy free-lancers' work simply adjusted their contracts so that in future it is unambiguously clear that sale of a work includes the right to put it in a database. Free-lancers, as a group, don't have a lot of leverage; those who don't want to sign the new contracts don't have to, but somebody else eager to be in print will.

In fact, according to The Chronicle of Higher Education, the writers' union has filed another suit against the Times, now claiming that the new contracts are unfair. It brings to mind the old definition of chutzpah -- the man who killed his parents and then threw himself on the mercy of the court because he was an orphan. What did the man expect?

But the worse consequence has been for the people who use those databases -- journalists, historians and researchers in many fields. Faced with the time-consuming and expensive chore of tracking down everybody who might have rights to the articles in their databases, publishers are just taking the articles out.

``Oh God, it's just terrible,'' Princeton history professor Stanley Katz told the Chronicle. ``I'm particularly appalled because I still think my position was the correct one legally and politically, but it never occurred to me that the publishers were going to behave this way.''

Katz, who supports the writers, thinks the Times should have settled the case.

But the Times has the resources to cope with the decision. A Times spokesman told the Chronicle that the paper had taken 100,000 articles out of its online archive. As negotiations with copyright holders are completed, they are put back -- 15,000 of them so far -- but he couldn't say how long the process would take.

Other papers, the Chronicle found, are just deleting files permanently. Dick Cooper of Philadelphia Newspapers said a third of their 2.5 million files were removed. ``We're not going to be renegotiating any past work,'' he said.

Access not only to text but to images is endangered. Photographers are fighting the National Geographic in court over its popular CD-ROM set of the magazine's complete 114-year history.

Complete runs of newspapers are usually available on paper or on microfilm in the cities where they are published. But for a researcher whose project covers the whole country, traveling to every city is prohibitively expensive, and going through years of microfilm page by page, day by day, is impossibly time-consuming and error-prone compared with full-text search online.

``We may wipe out much of the history of the 20th century,'' said Justice Stephen Breyer, who joined Stevens' dissent.

It won't be wiped out. But it is disappearing from cyberspace.

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