March 26, 2001

Letters Editor
The Nation

To the Editor:

While supportive of the Tasini vs. New York Times case on which the U.S. Supreme Court will presently rule, your recent editorial comment thereon, "'Freelance' Doesn't Mean For Free" ("In Fact," April 9, 2001)¹ misstates two key aspects of the case.

First, a ruling by the Supremes in favor of freelance writers won't in any way "force publishers . . . to excise freelance articles from their databases"; it'll simply force them to negotiate appropriate licensing fees for inclusion of those articles in those profit-making databases.

Second, you suggest that the "specter [of that excision] haunts the historians, who bemoan the loss of this material from the historical record." But the whole point of the Tasini case -- a point that the lower courts have so far recognized consistently -- is that these databases are not "the historical record" as represented by original copies of the newspapers or microform photographic reproductions of the printed pages thereof. By separating any given issue's articles from each other, and from the other contextualizing material (illustrations and their captions, advertisements, etc.) in those published periodicals, online databases -- their convenience for researchers notwithstanding -- by choice do not replicate the original sources, but in fact constitute new compilations. The various appeals Courts in this case have repeatedly affirmed that fact, and I expect the Supremes to do so as well.

Thus the only "historical record" that a database such as Lexis-Nexis constitutes is the record of what it itself has posted selectively; it's not an authentic and complete record of the published sources from which it has drawn its electronic sources. Meanwhile, what we have traditionally called "the historical record" for periodicals -- the actual printed copies of their issues, and microform archives thereof -- continues to exist for reference purposes, and is in no way threatened or diminished by this suit.

The only question that's begged so far by the positions of both sides in Tasini vs. Times is this: What -- if anything -- constitutes the digital equivalent of microform? That is, what kind of complete photographic record of its published pages can a print periodical produce or authorize as a repository and research tool without permission from other copyright holders? If the Supremes can elucidate that, in addition to validating the rights of freelancers, they'll make a significant contribution to the debate that goes beyond merely lending their weight to one side or the other.

A. D. Coleman
Staten Island, NY


¹ The Nation, Vol. 272, no. 14 (April 9, 2001), p. 7.

Note: This letter went unpublished. It occurs to me that The Nation may have editorialized as it did -- and may have proved reluctant to print my response -- because they face substantial liabilities in this situation. According to advisories from the Authors Guild, The Nation put their material online via Northern Light since at least as far back as 1995; at Ebsco, another online content aggregator, they've got everything published in The Nation from 01/01/91 to the present.

And of course The Nation is presently running full-page ads house ads in every issue promoting The Nation Digital Archive, a "Complete Digital Archive 1865-Present" website: "Now available to libraries -- 135 years of The Nation, online and fully searchable," with downloads of what I presume are pdf files of images of the articles and pages as published. As of this writing (August 29, 2001), a plan to make this material available to individual subscribers is also under consideration.

My letter, of course, goes directly to the question of whether or not such an enterprise violates the copyright law. That's not an idle question; aside from the Tasini vs. Times decision, the Federal Appeals Court in Atlanta has already ruled that that a 30-disk CD-ROM set that reproduces every page of every issue of National Geographic magazine -- roughly comparable to The Nation's "Digital Archive" -- constitutes a new work rather than a revision, and thus violates the copyright of any content provider who didn't license or sell electronic rights to the magazine.