Tasini vs. Times 2: The Supremes in Springtime
by A. D. Coleman

Since you asked, I voted for Ralph Nader. And have no regrets. I found both major-party candidates profoundly repellent, and the prospect of facing the horror vacui of a Gore administration didn't daunt me any more or less than the active struggle against forthright dumbness that the Dubya Years will necessitate. In any case, the total corruption of Jeb Bush's Florida proved itself both triumphant and contagious. By the time you read this, George the Son will have succeeded George the Father and picked up the reins -- which effort, according to all signs and predictions, will include attempting to pack the Supreme Court with more deep-thinking right-wing ideologues like Clarence Thomas and Antonin Scalia, whose clearly partisan illogic threw the election to an intellectually challenged front man for the military-industrial complex and the Christian right.

Getting more radical conservatives onto the Court is hardly a done deal, of course. Maybe the Dems, having caved for years on just about everything principled in their desperation to straddle the fence, will forget the balancing act and reinvent themselves as vertebrates. Maybe those citizens who gave the popular-vote victory to Gore will actually hold their elected representatives' feet to the fire. Who can say? Anyhow, this all leads me to meditate on a case that the Supreme Court has agreed to consider sometime this spring, one in which I have a vested interest. I'm a founding member of the National Writers Union, and a firm supporter of the precedent-setting lawsuit commonly referred to as Tasini vs. Times -- a case supported and largely subsidized by the NWU, a commitment I've also endorsed from the beginning. It's a lawsuit with profound implications for all those involved with the production of intellectual property.

Formally titled Tasini et al v. the New York Times et al, this case within the next few months will enter a new judicial phase: the hearing of the defendants' appeal to the U. S. Supreme Court. That this bizarre judiciary cluster, colloquially referred to as "the Supremes" and (barring any sudden retirements and confirmations) the very same aggregate that decided the Y2K presidential election in favor of Shrub, will rule on a suit that pits writers against publishers might give anyone who favors the content providers' side pause. I happen to think that it bodes well, but more of that anon. Meanwhile, a recap:

Five National Writers Union members -- all of them freelance writers -- first filed Tasini vs. Times in New York City in December of 1993. The original decision, in favor of the defendant-publishers, was handed down by District Court Judge Sonia Sotomayor on August 13, 1997, and was promptly appealed. The writer-plaintiffs' appeal was argued before the Second Circuit in April 1998. That appeal proved successful. On September 24, 1999, a three-judge panel issued a landmark ruling -- an unequivocal decision specifying that it is copyright infringement for a publisher to place any freelancer's work online or otherwise reuse or resell it without explicit written permission.

The defendant-publishers then petitioned the Second Circuit for a full-court review of that panel's verdict. On April 6, 2000, the U.S. Court of Appeals unanimously upheld the lower court's decision on the electronic and other rights of freelance writers.

With a rehearing denied by the Court of Appeals, that decision stood briefly as the law of the land, sending shockwaves through many branches of the publishing industry. In May of 2000, however, shortly after upholding the lower court's decision, the Court of Appeals agreed to stay its own mandate to the lower court to proceed to the penalty phase, in order to allow the defendant-publishers to file for a hearing before the U.S. Supreme Court. That's where the case now stands. (More information on the case and its background, along with periodic updates, appears on the National Writers Union's website.)

Clearly shopping for another opinion, the publishing industry apparently hopes that the Supreme Court, with its present conservative leanings, will favor capital over labor in this contest. This seems unlikely, as the lower court's decision is closely reasoned. As Janice Shields noted in an article for American Writer, the NWU's house organ, "Because the Second Circuit is highly respected in the area of intellectual property, its findings are expected to influence other federal courts." ("Tasini vs. Times: We won! What next?" Winter 2000, downloadable at www.nwu.org/aw/awhome.htm.)

Moreover, protection of copyright is built into the U.S. Constitution itself (Article I, Section 8), and any close reading of the copyright law as it has evolved over the past two centuries offers no justification for the publishing industry's current practices. Indeed, ruling in favor of publishers here would represent exactly the kind of "judge-made law" that the arch-conservative jurist (and rejected Supreme Court nominee) Robert Bork rails against.

Practically speaking, the defendant-publishers' course of action, even if not ultimately successful, has put the situation into a holding pattern. It has required further expenditures of time, labor and funds for the plaintiffs. No less importantly, it has forestalled immediate implementation of efforts to obtain restitution for the countless infringements of copyright that have occurred as a result of the industry practices that this lawsuit was filed to terminate, many of which go back at least a decade. (Though neither the suit nor the Appeals Court's decision restrict themselves to electronic usages, the introduction in the mid-1980s of electronic media -- online databases, websites, CD-ROM compilations, etc. -- appear to have brought this issue to a head.)

The defendants' decision to appeal to the highest court in the land seems predictable and unsurprising. With the abrupt truncation of the heretofore "free" supply of content for countless current and projected publishing ventures suddenly at hand, and millions and possibly billions of dollars' of reparations at stake, not to mention the threat of an anti-trust suit, it was doubtful that the publishing industry would simply let this go with no further fight. (See Thomas Hauser, "An Antitrust Lawsuit Waiting to Happen," ASJA Newsletter, April 2000, published by the American Society of Journalists and Authors, downloadable at www.asja.org/public.php3.) Nonetheless, the necessity of returning to the fray yet again of course proves frustrating.

National Writers Union president Jonathan Tasini, lead plaintiff in the suit, indicated when the final appeal was filed that he did not expect the defendants to find a sympathetic hearing from the U.S. Supreme Court. Nonetheless, he commented, "I don't like this decision, simply because it now delays justice via the case until the Supremes grant a hearing or deny it -- and then, if they do grant a hearing, until they hear the argument and decide. That could take many more months." (Indeed, by the time the Supremes hand down their decision it will have stretched the case out at least an additional year.) In the same vein, upon learning of the April 2000 decision, Martin Garbus, a noted First Amendment lawyer and author, told Reuters, "I don't think the U.S. Supreme Court will take an appeal. I think the New York law will be the law."

So the Supremes' decision to hear the appeal surprised many. Yet, as Tasini suggested, there were always several possible outcomes of this appeal -- the last such appeal of which the defendants can avail themselves before paying the piper if they lose. The Supreme Court could simply have refused to review the case, which would have affirmed the Appeals Court's decision in favor of the rights of writers. They've rejected that option. Having opted to hear the new appeal, they can uphold and amplify the lower court's decision, return it to the lower court for refining, or reverse it.

As we await the outcome, we'd do well to remember that not all content providers are of the liberal-left persuasion. Conservative and/or right-wing content providers presumably would feel no more sympathetic than their left-wing counterparts to the notion that the world was entitled to their work as soon as they created it, or that their clients automatically owned it outright as soon as the commission was completed. And, their politics notwithstanding, content providers are all the proprietors of single-owner or small businesses. So, although a decision supporting the publishers favors big business, a decision siding with content providers here favors neither the left nor the right wing of the content-provision profession.

For those who, like me, believe that the Supreme Court will come down squarely on the side of content providers, this last round, for all its onerous demands, has its silver lining. Having the publishers' case rejected by the Supreme Court in a full hearing would put the final nails in the coffin of the publishing industry's claim to any rights -- not just electronic rights -- as automatically "bundled" with first serial print rights. It would prove even more definitive in that regard than having that case refused a hearing as meritless. That, in turn, would give freelance writers and other independent content providers all the more reason to resist contractual demands to surrender subsidiary rights to publishers without a fight.

Widely hailed by individual authors and other writers' organization such as the International Federation of Journalists and the Authors Guild, the Tasini vs. Times case and the importance of the April 2000 decision have received acknowledgment from much further afield. For example, in the 20th anniversary exhibition held May-June 2000 at the International Center of Photography in Manhattan to celebrate the magazine Photo District News (the bible of professional applied photographers), and in the accompanying special May 2000 issue of that periodical, the Tasini vs. Times case features prominently among the half-dozen key items representing 1999 in a two-decade timeline. The American Society of Media Photographers has praised the NWU for spearheading this battle, as have many other professional organizations. This should surprise no one. After all, content providers in other media -- photographers and other visual artists, for example -- are no less affected by digital media and the Internet than are writers. One of the useful side effects of the Tasini vs. Times case, in fact, has been an increased sense of common cause among professional organizations of content providers throughout the U.S.

Upon learning of the April 6, 2000 decision upholding the plaintiffs' case, NWU president Tasini said, "I am not surprised by the denial because the Appeals Court decision was a one-sided, unshakeable, lucid affirmation of the rights of freelance writers. It is now time for the defendants to stop stalling and using legal maneuvers to deny writers and all creators their fair share," he continued. "While they stall, the enormous liabilities the defendants admitted they face will grow, as do the liabilities for all media companies who have stolen the work of creators. The New York Times and the other defendants would be wise to turn off their perpetual infringement operations, which are continuing to this day. We now proceed with vigor to the damages phase of the trial."

In an NWU press release Tasini further explained, "The April 6th order denying the rehearing would further undermine the publishers' public relations argument to financial investors that they face no liabilities from the landmark ruling. Recently, New York City Comptroller Alan Hevesi, who oversees $100 billion in pension funds, wrote to 36 media companies expressing concern about the 'potential liability of media companies' because of the landmark decision. As Comptroller Hevesi and others have suggested, we urge the industry to accept the NWU's proposed solution -- the Publication Rights Clearinghouse -- to restore financial certainty to their businesses," Tasini went on. "The union has also asked the Securities and Exchange Commission to investigate statements downplaying liability made by The New York Times [Corporation] in official SEC filings," he concluded.

In recent years, the music industry has demonstrated that it's possible to license even "samples" of recorded and published music that last only a few seconds, in ways that benefit the original musicians without notably impeding those who seek to recontextualize that material. The above-mentioned Publication Rights Clearinghouse, though in its infancy compared to such long-established music-licensing enterprises as ASCAP and BMI, serves to indicate that writing -- and, by implication, all content -- can find new uses, new users, new markets, and new audiences without disenfranchising anyone. (Working through the PRC would enable publishers to obtain and pay for permissions for electronic and other subsidiary-rights licenses legally and efficiently.) The Y2K court decisions in the related Napster suit make sense, and will stand the test of time.

I'm betting that, for all their political differences with many writers, the Supremes in spring 2001 will affirm the lower court's decision while amplifying it -- perhaps by addressing the vexing question of what constitutes a digital version of the "public record," the permanent archive of periodical literature that, until now, microform has represented, and which the rulings so far do not effectively address. In any event, this ruling will function as the basic U.S. copyright law of the 21st century; no question that the Supremes will take the challenge seriously.

(More to come.)

This essay first appeared in Photo Metro, Vol. 18, issue 162 (Spring 2001), pp. 52-53.

Copyright © 2001 by A. D. Coleman. All rights reserved. For reprint permissions contact Image/World Syndication Services, POB 040078, Staten Island, NY 10304-0002 USA;T/F (718) 447-3091, imageworld@nearbycafe.com