Slashdot Mirror
Supreme Court Sides With Freelancers On Net Copyright
pgpckt writes: "The Supreme Court has ruled in a 7-2 decision that freelance writers retain control over whether or not their writing gets distributed on the Internet.. This decision gives writers more control as to what mediums their art gets distributed in, and helps to ensure royalties for publication in multiple forums."
As usual, the Slashdot posting is misleading and the ensuing comments are from people who'd rather be misled by the posting than go through the trouble of reading the article.
As the article mentions:
The case largely affects articles, photographs and illustrations produced a decade or so ago -- before free-lance contracts provided for the material's electronic use.
It just means that if your contract from several years ago didn't include anything about electronic publishing, then the publisher can't go and publish it electronically as if it's just a revision. But contracts nowadays do take electronic publishing into account, so the court's decision is irrelevant to them.
What the SCOTUS seems to be saying is basically that putting something in a database over the internet is different from putting something in a library or electronic database accessable only when physically in person at a terminal, and requires additional permission from the copyright holder. This seems like it could work against attempts some libraries have been musing to make material available over the internet - this ruling means that to do so they'd have to pay an additional fee to the copyright holder, which is probably beyond their means and would thus lead to the dropping of any such plans.
10 PRINT CHR$(205.5+RND(1)); : GOTO 10
While it doesn't actually say it, I assume that, by posting to slashdot, you agree to allow slashdot to distribute your comment on the web, and probably assert that you actually hold the copyright on what you're posting.
I'm not entirely sure if slashdot is supposed to actually put this agreement in legalese somewhere, or if the actual behavior of the site is sufficient. For example, newspapers generally print letters to the editor, even if the letter doesn't explicitly give them the right to print it, because that's how letter to the editor just work normally.
The issue is actually about cases where someone has agreed to have their work used in a particular way (printed in the newspaper) for pay. The agreement didn't involve other media, so the newspaper doesn't have the right to put it on the web without negotiating a new contract. Everything is explicit in that case, and they were writing it for print.
Probably what this means is that, in the future, news sites will probably just put web distribution in their freelance contracts.
The Supreme Court's slip opinions in New York Times v Tasini are available in pdf format
I think it's more of a situation where /. generally favors the "little guy" who, more often than not, is being taken advantage of by large monied corporate interests.
/. seems to be that paying *the artist who made the music* is the right thing to do - paying a huge megalomaniacal corporation $20 for a CD, of which the artist only gets a few pennies is fundamentally wrong somehow.
;) The point is that /. readers *seem* to favor the little guy, regardless of his situation -- it's a bit shortsighted, in that these rulings could be used *against* the little guy by corporations in the future -- but it's the way it seems.It's a good thing that any rights not explicitly granted to a *corporation* are reserved by an *individual* - but what if the corps flip it around? Use this as a defense as to why you can't copy that CD/DVD, or why you have to purchase ANOTHER copy of a certain piece of software... Use it, along with UCITA, to guarantee that those terms that you "agreed to" in their click-through license are binding in a way that ONLY benefits them... That's where it gets scary.
In this case, it's freelance writers who want to keep control of their works and not be taken advantage of by large publishing houses, who want to sell more ads and thus make more money, by using the freelance writer's work without their permission (note that these are *not* mainly for current freelancers, whose contracts most probably include permissions for digital distribution - they're mainly for older publications whose contracts didn't forsee, and thus didn't include, rights for digital distribution)
In the case of Napster et al. - it's a case of the consumer *and* the artist getting monetarily raped by the music industry. The general consensus on
There's also a bit of "well, the cat is out of the bag" syndrome there too, with the Napster thing - the music is already out there, available, for free - no ammount of legislation or watermarking or whatever is going to take those mp3s away from people who have them, whether they own the CD or not.
But that's beside the point
Just a note to Malda and gang. Should any further
posts by me receive a moderation of 2 or higher, and/or the rating of "insightful". I shall expect
a payment of $5 for every site visitor that
accesses my post.
Should my post ever rate a 5, I will expect a one
time payment of $40 dollars, and or %20 percent
of advertisement revenue for that day...whichever
is greater.
Payment information will be sent at a later date.
couldn't resist:-D
Awesome!
This could work out to the favor of the original authors if the on-line versions of papers, magazines, etc were actually making substantial profits.
It could, in the cases where that's true.
But the next time you find yourself wanting to buy a CD of old issues of your favorite computer magazines, and they're no longer available because of this ruling, ask yourself how much you're willing to for them to go back and pay all those freelancers a second time for work they'd already paid for.
As a community, we really need to make up our minds; how come we want music to have to be able to be distributed free once the artist has been paid for his work, but we don't want the New York Times to put it's entire back issue archive into digital form?
-
The only substantial content this affects is the stuff ten years old or so. From back when people hadn't even heard of electronic publishing, so it wasn't included in their contracts.
Ever since that time, most of the smart publishers have already included electronic media clauses in their contracts--with the writers being justly compensated, or else going into it knowing full well that e-rights are included in their payment.
As an aspiring writer myself, I'm very concerned about writers' rights. This case was an important one, because it helps put control back in the hands of the writers, where they belong--which is something everyone seems to be (or pretends to be) so gung-ho about in the Napster arena for musicians.
Another important case to watch would be this one, as Random House sues a small e-book publisher over rights not assigned to them in their contracts.
This is certainly news to those books' authors, who had not stipulated e-books in their contracts with Random House, and were fully behind Rosetta's e-publishing them!As to whether articles get pulled from archives...I don't think it will happen as much as people fear. Most writers are reasonable people, and typically wouldn't insist on bank-breaking terms. As long as the publishers are willing to negotiate, and don't just want to cut off their noses to spite their faces, I think things will work out just fine.
--
Editor Emeritus and Senior Writer, TeleRead.org
Furthermore you can expect that future contracts with authors will contain clauses to build digitial distribution in at no increased price. So in the long run, I suspect most authors won't really get much out of this. A few might get an initial windfall for retroactively licensed content that is particularly valuable but most of it will get chucked.
---
This sig has been temporarily disconnected or is no longer in service
ipist noun;eye-PISSED: 1. Adult contributor to society, with the social mentality of a 3 year-old. Easily recognized by their tendency to run around screaming, "MINE!!! MINE!!! MINE!!! Pay me AGAIN!! MINE!!! Gimme! Gimme!"
--
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"Outlook not so good." That magic 8-ball knows everything! I'll ask about Exchange Server next.
Just to offer my perspective:
I write for both the online and print versions of a publication. when i am assigned an article, i am told that it will be for the online site or the print magazine. i am paid different fees based on where the piece is to be published. i write based on the medium i'm writing for: the online site covers more up-to-the-day stuff ("breaking" news) whereas the print version is a little more "let's take a step back" material, since it takes about two months for my copy to actually appear in print (magazines have LONG turnaround times).
last week i noticed something that i was assigned to write for the print magazine showing up online. it had been editied differently to suit the fact that it was published on the site.
to me, these facts lend creedence to the idea that the Web is a lot more than just an archive of the print material: "instant" turnaround, different content, different pay rate. i was a little miffed that i hadn't been asked about the second publication, especially since the article was different.
just my two cents.
Just raise the taxes on crack.
To me, this looks the same as the RIAA requiring radio stations to pay royalties again for content that is webcast. It caused a good many stations to pull their audio streams and hurt consumers.
The publications here are going to do the same. They will pull content from the web instead of paying the second royalties because the web content doesn't make any aditional money. What people need to realize is that the delivery doesn't matter. If you have a license to use something, you should be able to use it in different media.
I just don't understand how this is good, when the RIAA wanting us to pay twice for the same song on CD and MP3 is wrong. Please someone enlighten me.
There was no enforced copyright in Shakespeare's time. Hence, by abolishing copyright we will immediately find many more Shakespeares. Silly? Yes - just as your argument is. Oh, and the whole anticommunist thing doesn't play so well outside the USA.
People have been scanning in and posting and trading copywrited material (books, software, music) for long before Napster and Gnutella, and they'll still be doing it long after the easy-to-use corporate front ends have all been hounded out of business. Take a look at the alt.binaries.e-book* newsgroups, or certain IRC channels, or Hotline, and so on and so on.
-- Help Digitise the Public Domain at DP.
it's called "copyright" but it really should be called "copyproperty". It establishes not an inalienable right but a saleable piece of IP. In this case, strengthening copyright may have temporary, minor edge effects in the individual authors vs. megacorps battle, but in the long run it makes no difference here. In the long run, this matters more in the (intellectual) producers vs. consumers terrain, which IMHO is already skewed way towards producers to the point where the public interest is all on the consumer side.
Preferential Voting: easy as 1-2-3
--
Seriously, this does raise a valid issue.
Nah. Tasini is a highly technical case based solely upon a construction of a most obscure passage of the Copyright Act. The Supreme Court affirmed the (clearly correct) Second Circuit opinion, which simply read the statute to mean what it says. The media giants, simply couldn't believe that the Courts wouldn't give them what they wanted, notwithstanding the Act, just because they asked for it.
At the end of the day, the question is simply whether a right to the compilation copyright owned by a publisher gives any implied right to reprint and republish the underlying works that were compiled. The answer -- duh -- NO!
When we post on Slashdot, who owns the copyright on the posting?
What if you post text that is already covered by copyright (code, essay, etc).
Copyright in a work of authorship is owned by the author of the work, unless it is a work made for hire. Ownership in a copyright cannot be assigned without a writing. If you owned it when you wrote it, you own it now. There may be some implied licenses you have granted to readers -- much depends upon the facts and circumstances o f the publication.
What if you post text that is already covered by copyright (code, essay, etc).
If you do so, then you either engage in de minimus appropriation, fair use or copyright infringement.
Won't somebody think of the children!
Seriously, this does raise a valid issue. When we post on Slashdot, who owns the copyright on the posting? What if you post text that is already covered by copyright (code, essay, etc).
Maybe we all just need to put a copyright notice at the bottom of our posting.
No boom today. Boom tomorrow. There's always a boom tomorrow. - Cmdr. Susan Ivanova
The following comments are owned by whoever posted them. Slashdot is not responsible for what they say
Best Slashdot Co
Otherwise, you'd be arguing that community rights override individual rights, which would grate on america's strong sense of individualism.
--
In the real world, "tangible" means something like "written down".
On the internet, everything is "written down", so ones first instinct would be to say that everything on the 'net is tangible. But tangible really means something like "written down, and saved", especially in the light of things like IRC. Still, logs abound, so things on the internet are much more likely to be tangible than in real life.
--
I think we should try to steer clear of legalized content control for both corporate and private content producers.
Ñ'
All this decision does is enforce the notion that 'content on the internet' is subject to different laws than content that isn't on the internet.
I can see how the writers have a problem with the publisher profiting from their work independently from them, but surely a standard licensing agreement with a clause that states republishing on any medium other than those expicitly agreed to by the writer/publisher is not acceptable.
This ruling is just giving ammunition to the RIAA/MPAA etc, who argue that because a recording is in digital form, it is suddenly exempt from fair use requirements etc.
'It's different when its on the internet'
I'd like to think this was the courts standing up for the little guy, and preventing big media from ripping them off, but to me it sounds more like the RIAA/MPAA just bought a whole lotta justice.
I gots ta ding a ding dang my dang a long ling long
Whether or not this decision was right, it's NOT good news for web users.
Perhaps, though I don't see how the Court could have found otherwise. Consider that they did decide that the freelancer's property could be confiscated without payment - what ugly precent could this have established?
Faced with that alternative, I'd have to believe that recognizing their property as such, and allowing them to rightfully negotiate the reuse of that property via contract with the publisher was the correct resolution. Which leads me to ask, per the cnn article:
Justices Stephen Breyer and John Paul Stevens dissented.
What on earth were they thinking? I've been noticing these two dissenting on nearly everything associated with individual liberty, free speech, property rights, etc. I'll have to read the minority opinion to figure that out.
In fact the only surprise here is that Souter (worst appointee in the 20th century) isn't in the mix of dissenters. What did he find right with the majority?
*scoove*
Publishers say the decision means they now must begin removing hundreds of thousands of articles, photos and drawings from their digital archives.
Yeah, or actually pay royalties to the freelancers. So it looks as if the net effect of this decision is going to be the removal of lots of valuable content from digital archives and not, in fact, increased revenue for freelance authors.
Crap.
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This is disgusting that /. is behind these pigs who want to exploit you and charge filthy lucar for information that they've already made a killing on somewhere else. The publishers are just trying to make the information available to the free man, the common sod, the regular Joe.
Someone you trust is one of us.
a poster to Slashdot could later demand it be deleted?
This case is different from Slashdot in two ways:
This is akin to saying that a game developer who sells his idea to a CDROM publisher does not automatically forfeit the web publishing rights, nor any movie rights, nor any future medium such as on-site virtual reality theme park rights, and so on.
[
So does this mean Eric Weisstein's World of Mathematics will be back up?
bash-2.04$
bash-2.04$
bash-2.04$yes "Don't you hate dialup connections?"| write USERNAME
There are no artists anymore.. just ipists.
Linus has,in fact,grown,and explosively-JonKatz
Well, the writers had allowed publication within a particular context, that is a particular newspaper. The database owners destroyed that context, and therefore it was not a publication as permitted by the author.
However, this is exactly the kind of context change that happens when you make "deep links" rather than linking to the main home page. Was the Supreme Court thinking of the deep linking issue? (remember the Ticketmaster v. Microsoft case)
Probably not a genuine worry, but only the paranoid survive, right?
I suspect that the record companies started including any type of medium since the advent of 8-track tape. Until recently newspapers and magazines only distributed in paper form (I know fiche, but that don't count :) as opposed to record companies that had casette, 8-track, video, and radio long before the internet became popular.
Fight Spammers!
If I was /. I'd ask someone to post a link in a post and that would ensure that any site I didn't like would get /.'ed
---
This
After all, isn't what censoship (as of late) has been all about? I don't make enough money selling 5,000,000 of my albums, I need more money and I think Napster is the reason I didn't sell 5,000,001.
Not that I don't think people have a right to what they want with the stuff they create, I just find it hard to believe that so many people are such pricks about it. I'm sure that Napster also had a little larger effect on the Music industry than that, but you get my point.
Let's take the freelance writer, for example. This is how he makes his money. Writing stuff to see if he can get a newspaper/magazine/tabloid to publish it. If he is successful, he doesn't want it on the net because that should mean more royalties for him. After all, it means more royalties for the publisher through advertising and what have you.
In my opinion, if I purchased the right to use your writing, then I should be able to publish it how I see fit. If that's in newspaper print or HTML should make no difference to me.
My point? Probaly never had one, but it does seem that what is behind this facet of censorship is greed. Money - we all have it, but we all want more.
Of course, that's just my opinion, I could be wrong.
Although I regret that we might lose a lot of content, I think the Supremes got this one right: Puiblication on the Web is a distribution in a new form, not just an archive. How does it work with, say, books-on-tape? I would assume authors must consent to that before a publishing house can release it.
The Mongrel Dogs Who Teach
Now, having said that, would you like to take a moment to calm down and cite some sources for your accusations?
__
This decision is a NOOP. Smart publishers have been securing digital rights to "works for hire" for years now. As a magazine editor, my contracts always state that the article is a "work for hire", and the magazine buys all rights explicitly stated, or implicitly implied. It's true that I pay more per article than others, but it's worth it.
They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.
"Mediums" is a word, but (to borrow a phrase) I don't think it means what you think it means.
On the other hand, we could just start using the word "mediums" incorrectly to annoy spelling nazis, sort of like what many of us do with fake words like "virii" and "boxen".
If you didn't rush to defend your incorrect use, you might have convinced us that that's what you were up to. :)
Information wants to be anthropomorphized.
I'm sorry, but delivery does matter in this case.
Publishers can seek any number of different publication rights when they offer to do business with a writer. By far, the most commonly-sought publication rights by U.S. publishers are FNASR, or First North American Serial Rights. That means that the publisher has purchased the rights to publish a previously upublished written work in a periodical for the first time in the U.S. or Canada.
FNASR is basically an exclusive, one-time "use right". After the work is published, the rights revert to the author who may sell the work again if he or she so chooses (although he may not again offer FNASR on the piece).
With the advent of the digital age, several publishers will negotiate for electronic rights, which can mean archiving in a database or to a CDRom; writers should be careful to specify any "exclusivity" clauses or "first time Internet rights," etc. to avoid accidental loss of use rights. It's all part of the contract negotiation.
What publishers have been saying, however, is that they automatically have the rights to publish the work in every new medium as it is invented, without needing to compensate the author or negotiate for rights--as it continues to derive new income from those works.
I think a point that many folks are missing here is that the authors aren't pursuing fans who've knowingly or unknowingly violated copyrights-- the villain in this piece is the fat corporate cats like AOL Time Warner who cry for protection of IP while trying to deny the same rights to authors.
Because cyberspace has distinctly non-tangible dimensions, enforcers of copyright law are finding it to be a hard retrofit. Many of the higher court and Supreme Court justices do not even know how to use a computer (that kind of scutwork is reserved for their clerks), so they are struggling when cases like this come before them.
No. This has nothing to do with musicians. Record companies already distribute musical recordings in a digital form. Furthermore, I can't imagine them not including "online distribution rights" within the contract that the musicians must sign when signing with a record label. Finally, no one has questioned whether or not the record companies are in control of the electronic distribution rights of songs. Instead, the two main issues have been whether private users have a valid fair use exception to allow P2P file sharing and whether the RIAA has the right to directly sue Napster for the actions of people using their system (especially since the file gets sent directly from one client to another).
In this case, it's talking about organizations that have specifically paid a freelancer in the past for the right to use that person's work. At the time, electronic distribution was not considered in the contract. It's not that the news agencies were attempting to distribute content that they weren't allowed to distribute. Rather, they were trying to distribute it via a new medium. (As opposed to the musician issue, where even before Napster, I couldn't sit on a street corner and give out illegal copies of a commercially-produced tape to every car that drove by.)
Does this mean that a poster to Slashdot could later demand that it be deleted? This could be bad for community sites, or in fact any that depend on submissions by others.
sulli
RTFJ.
Well, your post seems intent on getting people mad rather than constructive discussion. You can tell because you stereotype the 'gnutella sorts' as ruthless unprincipled pirates who don't have any justification for their opinions about copyright. This is unfair and tarnishes your otherwise well-made point.
Still, although I don't believe intellectual property is a good thing, I have a hard time getting upset about this decision. Why? It protects the little guy, the individual authour. Giving copyrights to individual authors in general works against what most of us who oppose intellectual property thinks is the most dangerous aspect of ip: namely, the ownership of ideas by corporations. Of course it would be better if there was no ownership (although I don't have time to engage the French case with you now), but any move that restores copyright to authors rather than corporations is a chip from the wall, not a new set of bricks.
Bryguy
microsoftword.mp3 - it doesn't care that they're not words...
now everything i post on slashdot is my own copyright (goatse.cx) cool now i own that website (microsoft.com) (time.com) ...
[this is a stupid pointless not-funny joke that i felt putting up here because i've maxed out my karma and need to get back down to zero]
thank you
The justices draw upon a specific clause in the 1976 copyright act (201(c)) designed to prevent frelancers from losing all their rights to a work. From the decision here (pdf);
JUSTICE GINSBURG delivered the opinion of the Court.
This copyright case concerns the rights of freelance
authors and a presumptive privilege of their publishers.
The litigation was initiated by six freelance authors and
relates to articles they contributed to three print periodicals
(two newspapers and one magazine). Under agreements
with the periodicals' publishers, but without the
freelancers' consent, two computer database companies
placed copies of the freelancers' articles-- along with all
other articles from the periodicals in which the freelancers'
work appeared-- into three databases. Whether written
by a freelancer or staff member, each article is presented
to, and retrievable by, the user in isolation, clear of
the context the original print publication presented.
The freelance authors' complaint alleged that their
copyrights had been infringed by the inclusion of their
articles in the databases. The publishers, in response,
relied on the privilege of reproduction and distribution
accorded them by 201(c) of the Copyright Act, which
provides:
"Copyright in each separate contribution to a collec-
tive work is distinct from copyright in the collective
work as a whole, and vests initially in the author of
the contribution. In the absence of an express transfer
of the copyright or of any rights under it, the
owner of copyright in the collective work is presumed
to have acquired only the privilege of reproducing and
distributing the contribution as part of that particular
collective work, any revision of that collective work,
and any later collective work in the same series." 17
U. S. C. 201(c).
Specifically, the publishers maintained that, as copyright
owners of collective works, i.e., the original print publications,
they had merely exercised "the privilege" 201(c)
accords them to "reproduc[e] and distribut[e]" the author's
discretely copyrighted contribution.
In agreement with the Second Circuit, we hold that
201(c) does not authorize the copying at issue here. The
publishers are not sheltered by 201(c), we conclude,
because the databases reproduce and distribute articles
standing alone and not in context, not "as part of that
particular collective work" to which the author contributed,
"as part of . . . any revision" thereof, or "as part of . . .
any later collective work in the same series." Both the
print publishers and the electronic publishers, we rule,
have infringed the copyrights of the freelance authors.
If the publishers were to distibute a "pdf" doucument (which would be like a microfilm-the opinion specifically mentions that) of their original publication, I don't think the freelancers could do anything about that though (IANAL).
Another very interesting thing is that the decision cites the original congressional record when the 1976 copyright law was being drafted to help determine its intennt.
Take the cheese to sickbay, the doctor should see it as soon as possible - B'Elanna Torres, "Learning Curve"
Well, if you would read the fucking story, apparently THESE freelance writers (you know - the ones who brought the lawsuit this story is about?) DID step up against the "big boys" (you know - NY Times, Time, Newsday - all the "losers" of the lawsuit - the one brought by freelance writers?) in court - that would be the Supreme Court - and won. Jesus you people are stupid sometimes.
It Is the Nature of Information to Transgress Artificial Boundaries
Funny...when a similar claim to rights was made by the Voice Actor's Guild for the voices of commercial actors over internet radio, it was lauded as the death of the medium. Seems paradoxial in a way, to expect one set of rights to apply to content and another to advertisement. After all, how can one monetize something as transverse as money gained from a website? In the case of some websites -- notably those which don't utilize any advertisement or subscription online, but instead rely on their web experience as cursory entities driving extra-web media -- no "real" money exchanges hand over web content, though the web experience may heighten and therefore expand the product. An example of this is a news program which may add transcripts of its editorials on their websites. Surely, some of these may be written by freelancers, and therefore come under the realm of this ruling. Should a freelance writer be allowed the ability to immediately naysay this service (providing as it does an essential link to the extra-web media and additional utility for the consumer who might not have videotaped it) simply because the news service can't provide additional cash to the writer?
Of course, what this probably means is nothing more than an addendum to freelance contracts giving the rights to utilization of content in additional media to the media owner -- meaning a few extra lines of small print, and no real additional cash in the pocket of John Q. Freelance. Writers are a bit more savvy that other artists when it comes to not getting screwed out of their rights, but not much so...and the question remains as to whether this makes it possible for freelancers to fully sign over their work accidentally under the guise of "medium transferrance."
More murky legislation...I applaud the effort as a writer, but would prefer a more definite "content rights can never be bought or sold in any way without explicit and particular consent of the author" legislation. You know -- something to protect everybody artful, so Prince can keep his name if he moves labels and Corey Feldman can get a little say in the upcoming Goonies DVD.
I guess reading salon a lot has caused me to ask the question: why do we keep treating the arts, an almost exclusively romantic pursuit, the same was as classic pursuits such as law and economics? Artists don't understand numbers and calculators don't understand art, which means that "content creators" are getting screwed by people who don't even realise the impact of the money they're making. This is how the media can be controlled by incredibly rich companies and we still get shitty programming -- anybody savvy enough to climb the ranks no longer as enough taste left to make a quality decision, and anybody with the taste is loathe to discuss anything as vulgar as money and ratings.
If you give artists total say in what happens to their work and total rights based on money made (with an exception granted for non-profits), you end up with a situation similar to that of pre-mass media times: people make something beautiful or appealing and when it is exploited they are at the very least paid.
Hey freaks: now you're ju
What is
"Just hope it doesn't become a problem..." ???
I seem to remember that historically, the situation used to be much worse for writers as well. Was it that they organized what let them retain these rights? Maybe programmers should do the same.
Power to the Peaceful
It would if you got your dates right. The French Revolution happened in 1798. Hugo was born in 1802 and Verne wasn't born until 1828.