After Tasini: An online bonfire of the vanities?

Publishers and database vendors consider their next steps

This article appeared July 15, 2001, in the Newspaper Association of America’s Digital Edge publication. The original article is below. Here’s the edited version on the NAA site.

By J.D. Lasica

Database vendors have begun pursuing different paths in light of the U.S. Supreme Court’s Tasini v. New York Times ruling June 25, with some purging their databases of unlicensed freelance material at the behest of their newspaper partners and others taking a stance of watchful waiting.

Jonathan Tasini, meanwhile, said newspaper publishers are making a mistake if they rush ahead with plans to delete freelance articles. “I’m sincerely hopeful that reasonable publishers will sit down and negotiate with us,” he said. “From day one our position has been to put out an olive branch to the industry and say, ‘Let’s sit down and cooperate.’ There are two ways to look at this. One way is to wind up in an all-out war of litigation. The second way is to look at the notion of partnership as a reality.”

The court ruled that The New York Times, Newsday, Time Inc., Lexis Nexis and others violated the federal Copyright Act by publishing freelance materials in archival electronic databases without the writers’ permission. The ruling applies to all publishers that failed to obtain clearances from writers for digital rights. Most newspapers began adding such provisions to their standard freelance agreements in the mid-1990s.

Here are the latest soundings from database companies on what they plan to do in response to the ruling:

•   At Lexis Nexis of Dayton, Ohio, requests from publishers to delete articles in the database are “trickling in,” according to Nancy Nash, vice president of law and assistant general counsel. The largest of the publishers to respond, the New York Times, has submitted a list to remove 115,000 articles by 27,000 authors, and Nash said “we’ve made considerable progress” in extracting those articles.

•   Factiva of Princeton, N.J., a partnership of Dow Jones and Reuters, said it is waiting for signals from its content providers. “All the primary publishers need to do some work and go back into their files to see if they’ve infringed anybody’s rights and identify them,” said Patricia Sabosik, vice president of global marketing. “So far nobody has asked us to purge any content.”

•   NewsBank of Naples, Fla., said it is sending out letters this week to its newspaper partners about the Tasini ruling. Several have already contacted NewsBank. “Certain publishers code articles by freelancers in a way that make it easy to identify them, others just know the names of the freelancers and are asking us to purge their stories from our database, others have releases from the writers but they vary by year, while others are still studying the decision,” Deborah Harmer, director of rights and permissions, said in an impromptu conversation. Reflecting the nervousness about Tasini throughout the industry, she called back after checking with her superiors and read an official one-line statement: “We will do whatever is necessary to comply with the law.”

•   ProQuest of Ann Arbor, Mich., which offers content from 350 newspapers in its information services, handles publisher requests to remove or correct materials on a case-by-case basis. “We anticipate that some publishers will request that access to some materials be disabled,” said Tina Creguer, director of communications.

•   Westlaw, an online service of West Group of Eagan, Minn., which itself is a division of the Thomson Corp., contains articles from hundreds of newspapers in its legal and business databases. It has moved aggressively to comply with the Tasini ruling by posting a notice to freelance writers who wish to have their materials removed from its archives. “We’ll promptly delete any materials written by freelancers who request to have their materials removed,” said spokesman Scott Augustine.

•   At Northern Light of Cambridge, Mass., an official wouldn’t speak for attribution but suggested that Tasini would have minimal impact because the company “is an aggregator of aggregators” and obtains its content from database companies such as ProQuest. The Web search service offers 25 million documents and 315 million Web pages from more than 7,100 sources.

•   Dialog of Cary, N.C., which provides data to 20,000 corporate customers under the brands Dialog, DataStar and Profound, declined to comment, under instructions from the Thomson Corp.’s general counsel.

Newspaper industry’s response

So far throughout the newspaper industry, there has been no rush to discard timeworn freelance material in a sort of online bonfire of the vanities, apart from the New York Times’ unflagging urge to purge.

Gary Weitman, vice president for corporate communications for the Tribune Co. — whose Newsday division was a defendant in the case — spoke for many publishers when he said, “We’re clearly disappointed with the decision, but it’s too early to tell what the impact may be. Do we negotiate with the plaintiffs? Might we have to go back and take stuff down? Yes, we might, but we’re still trying to assess what the judgment requires us to do.”

The Wall Street Journal and other Dow Jones Co. properties are also moving cautiously. Dick Tofel, vice president of Dow Jones, observed that the Journal uses less freelance material than most newspapers, which would minimize Tasini’s effects. He estimated the affected articles would number “a great deal fewer than thousands.”

“We’ll be in touch with those writers, and I would not expect compensation” to be a part of any waiver, Tofel said. He said the company was still deciding whether to require signed forms, an online waiver, or other options. Freelancers not waiving their rights will have their stories removed from the Factiva database. Tofel said the mechanics of identifying freelance articles were still being worked out. “It will be handled by the editors who have the relationships with these writers,” he said.

But the process may prove to be more cumbersome than that. A high-placed individual involved in the company’s operation said, “We code and keyword our articles every which way, but we’ve never added a function that flagged in the database what was freelance and what was not. It’s a big process to identify the articles, it’s not inexpensive, and it’ll take some time. Even after the new contracts were instituted in 1995 there were a lot of handshake deals between editors and writers without the rights being spelled out in writing. Frankly, I don’t think we or anyone in the industry expected that this ruling would come down against the publishers.”

The Associated Press said it believes its archives already fully comply with the court’s requirements under Tasini. “We aren’t doing anything specifically in response to the Tasini decision,” said David Tomlin, assistant to the president.

AP’s standard release form has required digital archival rights from freelance photographers and stringers for years, he pointed out. “Virtually all our freelance material is governed one way or another by contract,” he said. “If it’s in our archive, we believe we have the contractual rights to put it there.”

Tomlin considers the court’s ruling a narrow one and said that news organizations can rely on “many other defenses” other than the defendants’ theory that they had merely reproduced the same collective work in a revised edition. “That is not an argument that we’ve ever relied on,” he said.

The Times seeks to avoid “willful infringement”

For its part, The New York Times has stood apart from other publishers by taking a hard-line approach with the National Writers Union, the plaintiffs in the case.

Toby Usnik, a spokesman for the Times, said “we’re still having discussions” about how to proceed, but that the company has no current plans to negotiate with the writers union because the plaintiffs represent only a handful of the 27,000 writers whose works appeared in the paper between 1980 and 1995, when the new contracts came into play.

“We value freelancers. We want to make sure the New York Times remains an attractive place for them to contribute. We believe we fairly compensated the writers at the time they wrote for us,” he said. “The public discussions are still going on, but we felt we had no choice but to comply with the ruling immediately because we did not want to be in a position of willfully infringing the copyrights found to exist by the court.”

The Times has published phone numbers and a Restoration Request page where freelance writers can register to have their works restored to the Lexis Nexis database — if they waive their claims under Tasini. The National Writers Union last week urged writers to phone the Times to voice their disapproval with the Times’ attempt to obtain retroactive releases, and the paper received “a considerable number” of calls, Usnik said.

The Times also devotes several pages on its corporate site to the Tasini ruling and its practical effects. Many of the 115,000 articles that will be excised from Lexis Nexis were from the paper’s Travel section, Book Review and Op-Ed page.

Usnik said the Times’ Web site contains articles dating back to 1996, so he knew of no articles that would be removed from nytimes.com. He also said no Times material would be deleted from ProQuest, whose arrangement with the paper began in the late 1990s, or from Factiva, Dialog or smaller education databases such as Gale, because the Times material on those archives extends back only a few months.

The Times has had the better part of a decade in its herculean task of assembling its list of 115,000 freelance articles. That accomplished, Usnik said, “The technology makes it relatively easy for Lexis Nexis to take them down or to restore them if we receive the proper clearances.”

Nash of Lexis Nexis concurred, saying the Times’ request falls within Lexis Nexis’ normal updating process and has not required additional staff work so far. If costs become onerous because the removal of other publishers’ files relies too heavily on manual rather than automated processes, “we’ll bring that up for discussion with the licensors at the proper time,” she said.

Lexis Nexis sent its content partners a letter last week summarizing the ruling and asking whether any content in its database needed to be modified. The company is removing only those articles specifically requested by its partners and has asked them to provide dates, bylines, titles and other unique identifying information. Lexis Nexis provides more than 3 billion documents from 30,000 sources.

“We’ve always obtained warranties from the publishers that they’ve obtained the proper rights to provide us with materials in our database,” Nash said. “Now, with Tasini, publishers are going to have to go back and look at what they’ve supplied us in the past. Our understanding is most publishers began obtaining explicit electronic rights around 1995.”

Meantime, Lexis Nexis will join publishers in stepping up their lobbying efforts to have the copyright laws amended “to reflect what we believe was Congress’s intent in enacting the Copyright Act,” Nash said.

Tasini invites publishers to negotiate

Tasini and the National Writers Union have made conciliatory overtures to the publishing industry — to little avail so far. “The New York Times’ reaction, unfortunately, has poisoned the water,” Tasini said. Still, his group has extended feelers to other publishers to sit down and talk. “The argument that all these articles need to be deleted immediately is just a red herring and a rash, knee-jerk reaction, and it’s unfortunate that the Times has decided to take that route.”

Tasini pointed out that the court’s 7-2 ruling had found violations of copyright law over the course of several years, and “whether they delete the articles now or not, they cannot erase years of infringement.”

What advice would he give to publishers who were not party to the suit but whose electronic archives may contain freelance material without the proper clearances? “I’d tell them to engage in a conversation with us about this. Let’s arrive at a starting point. What are your concerns and how do you see this? How do you work out the logistics, how do you locate people? We are not emphasizing the money issue. But if you go down the other road and adopt the New York Times’ confrontational stance, you’ll wind up with a painful and harmful approach that will not benefit the industry.”

Tasini dismissed the Times’ public statements that it would have to negotiate separately with 27,000 individual writers. “That’s preposterous,” he said. “That’s why you get the court to certify a class action.”

Other court actions that bear on the issue of freelance rights are now poised to move forward, and on July 3 the Authors Guild filed a copyright infringement suit against the Times that paralleled the case decided by the high court. “I don’t think it benefits the industry to let those class actions go forward when the alternative is a process of negotiation,” Tasini said.

Will Tasini still consider the court ruling a victory if, in the end, freelance writers receive not an extra penny for their archived articles? “Absolutely, because we’ll have control over our own work,” he said. “There may be some inconvenience for those using a commercial service like Lexis, but this is not something the average person uses. People can still go down to the good old public library and look up articles in print or in microfiche.”

Database companies: Caught in the middle

Caught squarely in the middle of all this are the database vendors.

“We’re going to take the lead from our content providers,” said Sabosik of Factiva, a business news provider founded in May 1999 that provides articles from 8,000 sources. “We look to them to secure the appropriate rights. Our agreement is with the content providers, not with the writers.”

Westlaw, which provides attorneys, legal researchers and law librarians with access to 15,000 databases — a third of them news databases — has been an online information provider for 26 years. “Our relationships with both publishers and writers are valuable to West Group, and so we want to ensure that publishers have the proper authorizations to redistribute all the materials they provide us with,” Augustine said. “We’ve had those contractual arrangements in place for years, so this ruling doesn’t change how we do business.”

Harmer of NewsBank said, “If you’re uncertain if you have the electronic rights to any of the content in our database, we ask that you respond asap so we can sort through this. We could be looking at a lot of labor involved.”

That seems to be the one certainty about this case.

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JD Lasica
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