Slashdot Mirror
Copyright Ruling May Create Memory Hole
dublin writes: "C|Net's News.com reports that the recent US Supreme Court decision granting freelance writers stronger control over distribution of their work (a la RIAA) will result in the removal of large chunks of archived internet content from a large number of sites. The article reports that this will eliminate about 8-10% of the content at large publishers' sites. Will this marginalize freelance writers in favor of staff flacks more interested in the company line than the truth, concentrating even more power in the hands of the media moguls? What are the implications of that much content disappearing down the memory hole without a trace?" I bet a lot of lawyers are recasting boilerplate for future contracts about now, too.
But you see the problem is that people *won't* turn away from the conventional media sources. You might not like the pop bands, but the majority of people do.
10 PRINT CHR$(205.5+RND(1)); : GOTO 10
This was argued extensively when DejaNews first surfaced. The resolution was that (1) Usenet posts are 'published for distribution' by intent - you wouldn't have put it into Usenet if you didn't want it distributed in a public manner; (2) Usenet distribution takes a number of forms, some of which are time-delayed (for a while there was Usenet distribution by backup tape to sites that didn't have network connectivity, for one extreme example), DejaNews is just another distribution mechanism; (3) You can exempt yourself with the X-No-Archive header; (4) your copyright still holds, you just gave Usenet permission to distribute.
...phil
...phil
"For a list of the ways which technology has failed to improve our quality of life, press 3."
Posted by polar_bear:
I've been freelancing for about two and a half years now - every contract I see has a clause that covers all media.
This really isn't a big deal except for authors with contracts that are several years old.
As for replacing freelancers with staffers - not bloody likely. It costs a lot more to hire talented staffers than it does to contract articles. You also get less variety by using staffers.
I'm happy about the ruling, but it isn't going to change the way business is being done now - publishers probably changed their contracts as soon as wind of this suit got out in the first place. They'd be foolish to keep doing the same old thing and wait for the court to rule - it's better to protect yourself from the start.
As an author you just have to decide what your work is worth, how likely it is that you'll be able to resell it if you have the rights, and whether you have enough pull to get something better than the standard contract. Just like any other industry - if you don't have much pull, you're probably going to get gouged on a few deals before you have enough clout to say "hey, people really want to read my stuff so you're going to have to bend a little."
No, there's not going to be a memory hole.
First off, the contracts from the about '94 on (or even earlier) included Internet rights. But many organizations with big databases of older articles charge for access, so it's worth money for them to have these articles. Meanwhile, freelance writers always could use more money.
So what will happen now is that the major database holders will negotiate a settlement with the free lancers, and they have an incentive to do so. If you don't make a deal and your competitors do, researchers who pay several dollars per article to track down old stuff will go to your competitors.
The funny thing is that, freelance authors, eager for more money from online distribution of their work, may have just destroyed that very source of income.
:)
Don't be absurd. We generally don't get any more money from Internet distribution contracts.
In my time as a writer I have signed contracts that forbid me to publish my work on Mars (all Earth territories and beyond I think was the phrase): did they pay me extra for my lost Martian readership? Nah...
I haven't got a penny extra, for any variation or extension in an IP contract. Why? I'm not Tom Wolfe, at a guess. I write reviews and features for computer magazines, which is the kind of thing the vast majority of these affected freelances do. It's low paid transient work (although it does have its benefits - working college student hours is one of the more obvious ones)
Beautiful Irony, that.
Just as an aside: Does anyone have any theories as to why the 'gift culture' model doesnt seem to apply at all to the arts world? You'd think freelancers would appreciate the online exposure (it's basically free advertising, which can lead to further work for the print rags, but no one seems to see it that way).
Yeah. It doesn't lead to more work. Danny O'Brien at NTK made a living by parlaying his webzine experience into features and columns for real magazines but he's the only example I can think of, and I know he didn't make as much money as he could have as NTK was so much work. (Plus which, Danny is a good writer and would have probably got that work without NTK).
We spend our copious free time as freelancers ringing people up begging for more work, invoicing and doing accounts. You know, work stuff.
-- need more time?
They gotta recoup their cost.
MSBPodcast.com The opinions expressed here are my own. If you don't like 'em... Think up your own stuff.
yes, you read that subject right. i used to work as a journalist for K. Rupert Murdoch, of News Corp. fame. i've heard many accusations of bias in large corperate media institutions, but never do i hear a theory for how this actually occurs. do editors lean over the shoulders of writers and tell them to bias the news in corperate news organizations? the answer is no. here's the real skinny:
on everyone's desk at the Fox News Channel, the New York Post and other News Corp. properties is a Pilsbury Doughboy-sized replica of Rupert himself that watches your every move. any time you consider writing about things like the WTO protesters, Ralph Nader, or fluffy bunny rabbits, the Rupert replica will cluck his tounge or shake his head dissaprovingly.
this is why i enjoy being a freelance writer now, because i don't have to labor under the Rupert's watchful gaze.
seriously, does anyone think there's a difference between freelance and full-time journalists? the copy gets worked over by the same editors anyway.
Just raise the taxes on crack.
Well, as a programmer I am happy to give away some or even most of what I do -- I still get paid. For a writer it's different. Having worked in the magazine-publishing industry I can tell you that with very few exceptions freelance writers get paid shit, and for the most part have little choice to take what they are offered -- it is a very competitive profession.
At any rate -- I expect this to effect larger companies (like the New York Times) much more than smaller periodicals. Most writers writing for small magazines in fact probably will be happy to give on-line publishing rights for free or for cheap. But frankly I don't have a lot of sympathy for large newspaper companies which are currently enjoying the largest profits ever at the expense of the writers and editors that work for them. If writers can squeeze some money out of these companies (who are much more greedy than the writers are), I say more power to them.
BTW -- there are plenty of artists and writers who do share their work for free. But at some point everyone has to make a living.
-- It only takes 20 minutes for a liberal to become a conservative thanks to our new outpatient surgical procedure!
Oh yeah, those writers -- they're greedy motherfuckers. Here I am working my ass off to pay for my house and my SUV when those motherfuckers just sit back and eat their ramen noodles in luxury and collect royalty checks for stuff they did years ago. I'm sick and tired of those fat cat writers lording it all over me.
Seriously what you say makes no sense. Exactly what source of income did they destroy? Oh the websites that pay them exactly nothing for the use of their work.
The reason why the 'gift culture' model doesn't apply to writers is because writers have to actually make a living from what they would be giving away. And freelancers are still free to give away their work (and many will continue to do so) -- companies like the New York Times just can't do it for them against their will.
-- It only takes 20 minutes for a liberal to become a conservative thanks to our new outpatient surgical procedure!
Unfortunately, this removal could be avoided by simply making the payment to the authors who did the work.
Does removal wipe out their obligations or simply mean that they have a stopped rather than ticking clock in terms of financial obligations.
Tasini was decided by the Second Circuit on identical grounds as affirmed by the Supreme Court in 98. (Everybody knew what the statute said long before that -- Substantive of the District Court opinion and prediction of reversal on appeal came out almost immediately).
The result was really a no-brainer, as the Supreme Court opinion showed. The only surprise to me was that the Supreme Court agreed to grant certiorari in the first place.
The issue wasn't whether the content would be made available, but only who would benefit from its being made available.
In short, the predictions made by the media folk in Tasini (utterly discounted by the high Court) were the same hysterical remarks made previously by the RIAA and the MPAA in their respective cases. Such rants get a jump out of District Court judges, it would appear, but at least one pair of courts seemed to be unimpressed in the face of a clear contract and a clear statute.
Look, I'm a library science student, and if anyone has an interest in ensuring the most complete archives, it's librarians. Just before oral arguments, the American Library Association issued a supporting brief on the side of the writers.
All this ruling says is that archives must get the freelancers' PERMISSION before putting the work into an archive. Authors and authors' estates don't want their work to be forgotten (and might even like the royalties), so are even now joining groups which will negotiate with the archives on their behalf. [Remember, the plaintiff in this case was National Writers' Union .
The reason for the complaint was not that freelancers didn't want to be in the archive at all. The problem was that freelancers were being hurt trying to resell their work (either in book collections or just to other papers/magazines) because of how quickly the work was available by aggregators which may have their own resale agreements with clients. In other words, someone could obtain rights to an article from the aggregator (say, New York Times) without an extra cent going to the original author.
That was just wrong, and that's what the court ruled against.
Um, isn't this a Good Thing? I mean, now freelancers have *more* control over their own work. Why would one suggest that this would "marginalize freelance writers in favor of staff flacks"? Those freelance writers will divert their content to more freelance/independent-friendly publishers/outlets. It's sort of like saying "Giving artists more control might leave the big record labels with only retreaded pre-fabricated pop bands, that's *awful*!" GOOD. It will mean people turn away from the conventional media sources to alternative ones that better reward artists/authors.
It's 10 PM. Do you know if you're un-American?
Suppose an online publisher purges all copies of a article or collection by author(s) they failed to pay or disagree with. How is this different than burning books?
As has been pointed out, electronic media is very volatile, allowing not just access to information but destruction of information on a huge scale.
My $.02
putting the 'B' in LGBTQ+
Although the CNet article seems to treat it as a given ("But at least one federal appeals court panel has tried to fight worries about incomplete archives. In ruling that National Geographic violated a freelance magazine photographer's rights by including his images in a CD-ROM, the panel asked a lower court to order the magazine to pay him rather than pull the photos."), evidently the question of whether electronically-stored versions of entire publications are included or not is still in question ("National Geographic said today that it would soon file an appeal to the Supreme Court from a ruling by the federal appeals court in Atlanta, which said that a 30-disc CD-ROM set that reproduced every page of every issue of the magazine was a new work rather than a revision, even though each article appeared in its original context.")
The tender concern of the publishers for the freelance writers is oh, so precious:
Of course, it is up to the publishers whether to delete the articles or pay for what they took. Apparently the publishers consider themselves to be paternally "assisting" the freelancers to come to the decision that is best for them, the option they already have to notify the publishers that it is all right for them to include their work in such databases if they wish. How considerate of them. Yeah, sure.Out of the 10% of everything that isn't shit, 90% of that 10% is shit compared to the remaining 10%. And so on.
I modestly propose that this extension be called "Sturgeon's law of Relativity".
More seriously, I suspect that the overall financial return follows the same law: 90% of anything is paid shit compared to the remaining 10%, et cetra...
My own experience is that art that is free is generally shit (except in the eyes of the artist). The same applies to government subsidized art, except that in this case, it goes all the way past worthless, and isn't worth shit.
The funny thing is that, freelance authors, eager for more money from online distribution of their work, may have just destroyed that very source of income.
:)
Beautiful Irony, that.
Just as an aside: Does anyone have any theories as to why the 'gift culture' model doesnt seem to apply at all to the arts world? You'd think freelancers would appreciate the online exposure (it's basically free advertising, which can lead to further work for the print rags, but no one seems to see it that way).
:Michael
You are correct in your assumption. Most contracts were updated to include database rights shortly after this became an issue. This ruling will only have major impact on articles written in the 80's.
Of course, and as usual, you can't tell that from the way the opening paragraph is written on slashdot, which makes it sound like civilization is doomed and information database services everywhere will be brought to their knees because they can't archive an article that was written last week...
I want a new quote. One that won't spill. One that don't cost too much. Or come in a pill.
Unfortunately at least our local university library (University of South Florida) has moved to electronic journals with a number of publications. Not only do many of these not allow you to browse them, they also require a computer (and power) to view and often lack crucial graphics and pictures.
In this case, if there is no paper copy of a publication in a library, and the library relied on the electronic database, the worry is real.
This of course also raises the question on whether paying users of these databases can get a refund, since they don't have access to the content they were promised.
If someone were to make it into a law that picking your nose while walking in an office hallway is illegal and punishable by 50$/violation payable to the ceo of the company in question in cash before dawn it certainly wouldn't enable them to make up for the lost ipo-millions by looking at the past security camera tapes..
However any current and future violators would have to pay up or they might choose to cease their illegal practices such as picking ones nose(or publishing copyrighted works without proper compensation). It seems that a lot of them are choosing the latter option..
As an occasional freelance journalist (an index of my writing can be found on my homepage,) I'm a member of this union, and I'm actually quite proud of that.
Do domain names matter?
This made no sense at all. Content creators lose in the long run because of this lawsuit. Now newspapers just make freelancers sign work-for-hire contracts. I went from retaining a significant level of rights to zilch if I want to write for these folks.
Not quite. AFAIK, the statute of limitations doesn't work quite that way. What it says is that if an offense happened long enough ago you can't sue for it. But from the standpoint of copyright infringement the offense happens continuously as long as the copyrighted content is available. So you'd lose your right to sue only if the content was displayed, then removed, and the appropriate time had elapsed since the removal. As long as the copyrighted content is still being displayed, there's still a cause for action. IIRC, if you keep it continuously available that also extends the right to sue for as long as it has been available, even if the statute of limitations would have expired for the time at which it was first available.
There's no point in questioning authority if you aren't going to listen to the answers.
From what I understand, most contracts written today do include terms about collecting work in digital collections and archives. However, this ruling goes back in time and will force publishers to negotiate terms to display freelance work in these mediums. This may or may not force the removal of older work. If I was a writer who had some freelance stuff published years ago, chances are I've moved on and continued to be a freelance hack, or gotten a staff position or something else. If I'm still writing I'd want copies of my previous good work floating around as a way to entice people to read my current stuff. I dunno how many people would see it this way, but for nonfiction work that's four or more years out of date, it'd be hard to justify its relevance to anyone but scholars--lay or academic. And, I'd certainly want to be a help to these people, especially if they cite me. Fiction on the other hand is fairly timeless and I'd most certainly want to compensation for making that permanently and freely available. I hope that freelance journalists and their kin would step up to the larger cause of knowledge and give permission grant permission for their older works to be collected into online archives.
Probably, this will only effect the articles written over 4 years ago (before the internet became a household item).
Fight Spammers!
You are now in a series of twisty little passages.....
Fight Spammers!
If the company must pay for the period that is on-line already, why not keep it further.
Since this issue has been around since 1993, the number of post 1993 contracts w/o internet included will be small.
There may be a statute of limitations question on items written before 1994. If it was posted in 1994, the time may have run. It may a publsher company from now posting their pre-1994 pieces, if they have not done so already. Keep in mind, there is one appeals court that said that a photo could not be taken down, but it had to be paid for -- since it had already been published in violation.
Fight Spammers!
The slashdot 2 minute between postings limit: /.'ers since Spring 2001.
Pissing off coffee drinking
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Presumably we will see similar things to Napster, where people can scan in printed articles and share them without paying for them. That is, assuming metallica fans like to read.
In other nations copying is seen as no more illegal than unlimited video renting which is illegal in other nations without paying %age of each rental to IP holder.
Son May records in Taiwan makes a living selling copied CDs/DVDs/VCDs/etc for cheap, usually minus all the booklets, goodies, etc. They are a legal locally licensed business. They pay taxes. They employ locals. They are doing nothing illegal. And they feel the same about complaints from self proclaimed moralists as EBAY or Yahoo does about French bitching over "illegal sale of Nazi artifacts". Pot. Kettle. Black. BTW, "Taiwan" could not sign treaties anyway since the UN does not recognize Taiwan as a separate nation. That decision is for China to make.
Today, the internet thrusts all nations local laws into one arena. So what happens when some "freelancer" sets up a legal archive of elsewhere copyrighted software is set up on a server in Taipei? Servers in Taiwan access just as easily as servers elsewhere. What will IP advocates do? Firewall an entire nation? That would cause more harm than good.
IP is a dinosaur. Just like people can no longer "own" the rights to drill for oil in their backyard, the idea of "Intellectual Property" will soon be obsolete. Oh, and as for the argument that the death of IP will mean no one creating new content, look at Taiwan's music industry. Plenty of local artists, yes? Some of them are very cool, and living an extravagant lifestyle despite no IP law.
Still to be seen is if people will go to freelancer's websites though.
Employee of Inrupt, Project Release Manager and Community Manager for Solid
Timothy must've put on his JonKatz pants on when he wrote:
Why should we assume that freelance writers are any more interested than the truth than a staff writer?
*Both* are going to be concerned with their careers. The staff writer's career is more tied to the bottom line of the company he works for, but the freelance writer's bottom line is tied to his career, which is dependent not just on truthful and accurate reporting, but also such corrupting factors as sensationalism, bias, and pandering (either to advertising sponsors or to the audience they're trying to reach.)
Don't get me wrong, I do believe that freelance writing tends to be of a somewhat higher quality than staff writing (Why would you buy an article from an outside source if your own staff could do it just as good or better? How could a freelance writer manage to have a career if he could do no better than a staff writer tied to a [sometimes marginally] more stable job?)
But freelancing is not a quick-fix, magic-pill guarantee that reporting/writing will be accurate, free of bias or misleading omissions or disortions. There is nothing that can guarantee that.
You have to actually go in and read each article and judge it for yourself, testing the claims, assertions, judgments, and conclusions.
It takes real work, and there are no non-trivial generalized solutions. Sorry to burst your bubble.
You see? You see? Your stupid minds! Stupid! Stupid!
Say freelancer Joe Shmoe has an article about a bowling alley scandal in Nexis and Nexis purges the article because of the decision. What will happen to the index record? If I do a search for articles on that subject, will Nexis still tell me "Article by Joe Shmoe, NYT 3/9/87 page 23, aritlce not in database" so I can go look for the article in the microfilms at the library? If not, why not? If so, the memory hole problem doesn't seem quite so severe as if the index data vanished.
Unless I'm mistaken, the case was about internet publication of articles written for magazines and the like. Those articles aren't going into a black hole. There is still this thing called the library, and they do still actually keep archives of periodicals.
-S
--- What parts of "shall make no law", "shall not be infringed", and "shall not be violated" don't you understand?
RULING - Online distribution of copyrighted music is illegal.
People - But we thought we owned it since we bought it...
Time Warner - You merely bought the right to use it the way we see fit.
On Journalism:
RULING - Online distribution of copyrighted freelance jounalism is illegal.
Time Warner - But we thought we owned it since we bought it...
People - You merely bought the right to use it the way we see fit.
HAHAHAHAHahahahahahaha............
bm :)-~
US Democracy:The best person for the job (among These pre-selected choices...)
according to the supreme court justices who wrote the opinion. They suggest compulsory licencing similar to what "music publishing" has. Songwriters get paid, don't they?
That being said, there is nothing stopping freelancers from being replaced by "working stiffs" who don't get royalties. They are going to have to "evolve" with more competive content.
Take the cheese to sickbay, the doctor should see it as soon as possible - B'Elanna Torres, "Learning Curve"
Am I the only one amused by the fact that this was the term used in Orwell's 1984 for the incinerator-slots in the Ministry of Truth? Or was that intentional on the part of the article author? =P
Just kind of ironic since I'm actually rereading that at the moment.
-Kasreyn
Kasreyn: Cheerfully playing the part of Devil's Advocate to hairtrigger
Once it is on the web, the author is at a much greater risk of his material be plagiarized and republished without his permission. It may reduce the value of the work through overexposure (many authors and photographers are very careful to limit the exposure of their work).
And what about the author of a popular column that wants to publish his own web site with a compilation of his works? If that same compilation can be had on www.nytimes.com, it certainly reduces the potential value of the author's web site.
This is an example of the typical Slashdot hypocrisy. Many Slashdot readers are quick to spew venom at big companies that rip people off --unless the big companies are ripping people off to make content available on the Internet. Then it's okay.
I wouldn't say that it's "fortunate" that it only affects older articles. Conducting online research is hard enough already, and this won't make it any easier. Many times, you are specifically looking for older material, which has always been hard to find online, and this won't make it any easier.
Our best hope is that the authors of the affected articles will choose to repost them themselves. Actually, this could be a positive development if they decide to post articles that were never made available online in the first place, as with those that publications offered only in their print editions.
That light you see at the end of the tunnel might be from an oncoming train.
Why do Slashdotters find it so hard to believe that there might be journalists out there (freelance or staff) that are in it for the public good, not just to deliver some corporate line? Surely there are unethical journalists and organizations out there, but there are also many that work night and day to do good. Everyone knows there are good programmers and evil programmers, so what makes you think there are only evil journalists and no good journalists?
Time, Inc. spokesman Peter Costiglio said[:] "The publishers lose because they have to delete articles; researchers, readers and historians lose because they won't have access to complete archives; and freelancers lose because their pieces won't appear in the archives."
A good friend of mine works at Time Warner in New York, and says that since the recent takeover by AOL, the staff of Time, Inc.'s corporate library -- a world-renowned resource for scholars -- has been fired in order to save money. The archives are being distributed piecemeal among the various offices of the company's publications.
Sounds like they don't give a damn about the "researchers, readers and historians" who have relied on Time's archives for decades. This ruling really won't have a very big impact, by comparison.
Stimulus: Hey, Mathworld is down! CRC Press is claiming ownership over the internet version of the work!
Response: Greedy corporate bastards! Think they can take away our free content!
Stimulus: Hey, the Supreme Court ruled that freelance authors have rights over the internet versions of their works!
Response: Greedy author bastards! Think they can take away our free content!
Sigh.
Toronto-area transit rider? Rate your ride.
Actually, Nicholson Baker has been raising a cry over this very issue; it seems that, in many cases, the libraries aren't keeping the hard copies. So the loss may be real.
-- MarkusQ
As a freelancer, I believe that the author hypes that freelancers will outprice lower-cost in-house writers for web publishing. Sounds good on the surface, but one has to ask why a publisher goes to freelancers in the first place. There are three primary reasons:
... as these freelancers are performing "works for hire". Nothing new here either.
1. unique works by hard-to-find specialists
2. notable authors
3. fill gaps in their internal staff.
For the first two categories, you get what you pay for. If a publisher wants to produce specialty works in-house, then the publisher must significantly beef up their internal staff. This is nothing new. If you license something, you play by the rules, just like GNU.
For the gap-fillers, the standard contracts are virtually always to the benefit of the publisher
In conclusion, the author of this article is hyping the situation. The ruling only confirms freelancers rights and licensing rights, while not significantly changing works-for-hire or the honest web publishing business models.