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Electronic copyrights test court's tech skills

By Charles Bierbauer
CNN Washington Bureau

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WASHINGTON (CNN) -- Suppose I was a free-lance writer selling this article to the New York Times. The Times first published my article in its daily editions. Then it entered the story on its Web site. Next it reproduced it in a CD-ROM collection and transferred the article to the Lexis/Nexis electronic database. Would I have a claim for an additional payment?

That is free-lance writer Jonathan Tasini's beef. Tasini and five other members of the National Writers' Union sued the New York Times and other news organizations in a copyright claim for additional compensation when their work is reproduced. (Time Inc. was also sued. AOL Time Warner is CNN's parent company.)

"We want our work out there. We simply want to have our permission asked and to be paid a fair amount," Tasini says.

The case -- New York Times v. Tasini -- reached the U.S. Supreme Court last week where the justices demonstrated some computer savvy as well as some technological bewilderment.

"When can I say, 'Aha, there's an infringement!'" Justice Anthony Kennedy asked Tasini's attorney Laurence Gold.

Gold labored with the question, concluding that "the first act of infringement ... is the putting of the separate article files in the Nexis system."

Nexis is a researcher's gold mine, a vast compendium of articles from hundreds of publications over a span of years.

Laurence Tribe, arguing the case for the publishers, disputed Gold's characterization of Nexis as a bunch of separate articles. "The search inside Nexis is always of the whole edition," Tribe contended.

Why does that matter?

From a copyright standpoint, it matters. If the works are reproduced collectively, the publishers argue, they are "revisions" of the original and no additional payment is required. If the editions are "disaggregated" into individual articles for reproduction, the free-lancers argue, they are new works and the authors believe they deserve additional compensation.

"We're just talking about money?" Chief Justice William Rehnquist asked.

"That's it," Harvard's Professor Tribe answered.

In fact, since the challenge arose, publishers have sought to include the electronic rights in their contracts with free-lancers. That starts to take care of the problem for the present and future.

It is the past that is troublesome. Free-lance works make up only a small portion of the publications, but they have a cumulative impact.

Thousands of writers' works rest in those databases. Lexis/Nexis and the publishers say they could face a deluge of lawsuits claiming copyright violations. Rather than face that uncertainty and a substantial cumulative cost, they would delete free-lance works from the electronic archives. Databases would be dotted with black holes.

"I am concerned about the Chinese Cultural Revolution argument that we knock out the history of the 20th Century," Justice Stephen Breyer said, referring to the Chinese Communist's purge in the 1960s that erased cultural and historical elements that did not comply with party ideology.

Is this a big deal?

It is to historians such as Doris Kearns Goodwin and documentary filmmakers such as Ken Burns.

In a brief supporting the publishers, they say researchers and scholars "rely heavily on ... the availability, reliability, accessibility and comprehensiveness of the nation's electronic repository." Without it, researchers would have to go back to the slower, more tedious inspection of microfilm and microfiche.

Do the free-lancers retain any rights?

They do. Under the 1976 Copyright Act they have ceded -- for a fee -- only the rights to first publication. And, of course, those pesky "revisions."

Is this a sign of the times?

It surely is. The music companies and recording artists sued Napster to block unauthorized copying of copyrighted music via the Internet.

The Writers Guild of America and the Screen Actors Guild are deep in contract negotiations with the movie studios that include disputes over residual payments.

Residuals -- recurring fees for reruns -- are a long-established practice in the movie and TV businesses. The writers and actors want a greater share to account for video and DVD versions of their works.

In the past several terms the justices have increasingly had to wrestle old law and new technology into conformity. Their ruling on this case, likely by July, will be available on the Supreme Court's Web site -- www.supremecourtus.gov. Here no rights or royalties are collected.

By the way, I have reported on this case for CNN's television networks, CNN Radio and, now, for CNN.com. CNN gets three versions for the price of one. But I am not a free-lancer. It is in my contract. I might get a snazzy Radio T-shirt or a trendy dot-com coffee mug, though, from my grateful editors.

Charles Bierbauer, CNN's senior Washington correspondent, covers the U.S. Supreme Court and public policy issues. Send comments to Charles Bierbauer by writing to charles.lawcenter@cnn.com.