Supremes Hear Case of Publisher Piracy

tuiterwyk writes "According to this article on CNN.com, the US Supreme court is considering whether print publishers who have paid a free-lance writer for an article or story are able to include that work in their on-line or CD versions without the permission of the original author or without being required to pay additional compensation. The impact on on-line searches and newspaper sites could be dramatic." See the New York Times story as well. Publishers such as AOL/Time Warner have no problem pirating the work of freelance writers to sell for a profit - when it's their profit. Note: I have not been able to find any article by any major publisher that describes what the publishers are doing (distributing copyrighted works without permission, for money) as "piracy", please post a comment with a link if you know of one.

Comments

Don't just read the NY Times version

[MrAtoz]

Ironic that this story includes a link to the NY Times' coverage, since they are the ones being sued in the first place. I myself would not turn to them for information on this subject ...

For balance, here's the link to the National Writers Union's page about the Supreme Court appeal, including background, the actual briefs filed, etc. (did you know that Ken Burns submitted an amicus brief on the side of the publishers? or that the American Library Association and the US Copyright Office sided with the writers?)

There's also a nice piece on "The Hypocrisy of the NY Times" that explains how the Times (and other publishers) have been trying since 1995 to make their theft legal through "all rights" or "work-for-hire" contracts (which were not the norm before). Here's an excerpt:

Until now, I only mentioned The Times' outright thievery. But, even before it was caught (you wonder what it really knew), the Times' did what every legal miscreant does-unleash its lawyers. In 1995, The Times issued a "work-for-hire" agreement, which decreed that all articles written by its freelancers would be "'works made for hire' and that, as such, The New York Times shall own all rights, including copyright, in your articles. As works made for hire, your articles may be reused by The New York Times with no extra payment made to you."

The Times wasn't alone. In the past five years, there has been a growing movement by media companies to demand from writers an ever-expanding menu of rights for no additional compensation. Virtually all contracts now demand a broad license to use a first-time print publication work in a wide array of electronic formats. The most onerous of the new contracts have been "all-rights" and "work-for-hire" contracts. There is a subtle legal distinction between those two versions: an "all-rights" contract implicitly argues that the writer owned the copyright when the work was created and is now licensing its entire use away, while under "work-for hire," the employer, from a legal standpoint, is considered the original creator of the work.

However, from an economic standpoint, the difference is effectively irrelevant. All-rights and work-for-hire contracts take away our right to decide how our work will be used, our right to make approve editorial changes and make sure our work remains as intact as it was when we typed the last period and, yes, the right to a fair return for what we create. Indeed, while the 1976 Copyright Act, in theory, protects individual authors, it is being obliterated by the sacrosanct written contract.

This Isn't the Same Thing...

[John Murdoch]

Hi!

I've been a freelance writer for years--and I'm surprised that the Supreme Court regards this case as being worth the trouble to even review. Every publisher I've ever dealt with has paid me for "all rights" to an article--whether in the next issue of the magazine, in a reprint they sell to a vendor, or if (fat chance) they turn my article into a movie script. I've had articles reprinted in other languages, reprinted on CD-ROM, and published on websites. All I ever got paid for was the initial article.

Did I get ripped off? No--because that was the bargain. I write 3000 words on a given topic, I get paid a few bucks, and that's that. If the magazine publisher can figure out a way to distribute the article in a different form, and they can make a few extra bucks, that only gives them that much more incentive to ask me to write the next article.

Is this hypocrisy by the big media companies?
For the most part, I don't think so. When I sell an article I'm selling all rights to it--so the publisher can reproduce that content "in any form or by any means" (quote from actual contract) without paying me any additional compensation.

So what's the big deal? Frankly, I'd be positively floored if any publisher didn't essentially have the same contract--they buy all rights. I've written for half a dozen programming magazines, for "popular" magazines, and for a major children's magazine--every single one of them bought all rights. If my name were John Grisham or Stephen King my agent might be able to negotiate a better deal--but I'd be really, really surprised if better than 1% of freelance articles are bought on anything other than "all rights" terms.

Is this hypocrisy?
No--this isn't. When I buy a DVD or a music CD, I'm not buying all rights--I'm just buying the right to play the content on the DVD or CD. The media companies could (yeah, right) offer "any media" versions of the same content at a different price. Then if you wanted to convert the content to MPEG or some other format you could.

On the other hand...
What is blatantly hypocritical is the coming fight in Hollywood over residuals. Every time a TV episode, or a movie, or a commercial airs, the writers and the performers get paid a fee. For many actors residuals become a lifelong source of income--minor players in the 1970s mega-hit "M*A*S*H" continue to earn substantial income from reruns. The studios cry poor--they want to end residuals and pay on an "all rights" or "work-for-hire" basis. In other words, they want to buy creative content on an "all rights" basis; they want to sell that same creative content on a per-use basis. (They will not, for instance, sell "all rights" to, say, ER to your local TV station.) That's hypocrisy.

Dear Slashdot,

[grammar nazi]

You do not have permission to publish this comment on your website.

Sincerely
grammar nazi