Tasini vs. Times 1: Tasini vs. Times Heads for Supreme Court
by A. D. Coleman

The precedent-setting lawsuit of Tasini vs. Times is entering a new judicial phase: appeal by the defendants to the U. S. Supreme Court.

On April 6, 2000, the U.S. Court of Appeals unanimously upheld a lower court's landmark ruling on electronic rights in the case formally titled Tasini et al v. the New York Times et al, brought by freelance writers and strongly backed by the National Writers Union. The defendant-publishers had petitioned the 2nd Circuit for a full-court review of the three-judge panel's landmark September 24, 1999 ruling in the lawsuit. That panel's unequivocal decision last fall specified 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.

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 this year, however, shortly after upholding the lower court's decision, the Court of Appeals agreed to stay its own mandate in order to allow the defendants to file for a hearing before the U.S. Supreme Court.

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. 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 industry's current practice.

Practically speaking, the defendants' course of action, even if not ultimately successful, puts the situation into a holding pattern. It requires further expenditures of time, labor and funds for the plaintiffs. No less importantly, it forestalls 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 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; this issue can be downloaded at http://www.asja.org/public.php3.) Nonetheless, the necessity of returning to the fray yet again is frustrating.

NWU president Jonathan Tasini, lead plaintiff in the suit, indicated 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."

As Tasini suggests here, there are several possible outcomes of this appeal -- the last such appeal of which the defendants can avail themselves before facing the music. The Supreme Court can simply refuse to re-hear the case, which would affirm the Appeals Court's decision. Or they can opt to hear the new appeal, in which event they will either uphold the Appeals Court decision or reverse it. Upon learning of the April 2000 decision, Martin Garbus, a 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." As Janice Shields noted in an earlier American Writer article ("Tasini vs. Times: We won! What next?" Winter 2000), "Because the Second Circuit is highly respected in the area of intellectual property, its findings are expected to influence other federal courts."

For those who believe that the Supreme Court will come down squarely on the side of content providers, this last round, for all its demands, has its silver lining. Having the industry's case rejected by the Supreme Court in a full hearing, or having it refused a hearing as meritless, 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. 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 importance of the case and the April decision have received acknowledgment from much further afield. For example, in the 20th anniversary exhibition this May and June at the International Center of Photography in Manhattan celebrating the magazine Photo District News (the bible of professional applied photographers), and in the accompanying special May 2000 issue of that periodical, the Tasini case features prominently among the half-dozen key items representing 1999 in a two-decade timeline. The American Society of Media Photographers previously praised the NWU for spearheading this battle.

Content providers in all media -- musicians and 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 content providers throughout the U.S.

Upon learning of the April 6 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 concluded. [Working through the PRC would enable publishers to obtain and pay for permissions for electronic and other subsdiary-rights licenses legally and efficiently.] The union has also asked the Securities and Exchange Commission to investigate statements made by The New York Times [Corporation] in official SEC filings."

Tasini vs. Times was first filed by five NWU members in 1993. The original decision, in favor of the defendant-publishers, was handed down by Judge Sonia Sotomayor in 1997. The plaintiffs' appeal was argued before the Second Circuit in April 1998. More information on the case and its background, along with periodic updates, is available on the Union's website, http://www.nwu.org/tvt/tvthome.htm.

This essay first appeared in American Writer, Vol. 18, no. 3 (Summer 2000), pp. 8-9. American Writer is a publication of the National Writers Union.

Copyright © 2000 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