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Publishers Lose Database Copyright Appeal
IQ writes "A federal appeals court has unanimously overturned a lower court ruling on the copyright of a freelance published work in an electronic database.
Read more about it in the New York Times " Free login, blah blah. Interesting ruling though - essentially, the database companies have been told that they cannot include the work of freelance contributors without the permission of the freelancers. Seems elementary to me, but a step in the right direction for information rights.
The dumb dunces that filed this lawsuit may have won the battle, but they lost the war. Major newspapers like the Chicago Tribune no longer accept freelance work unless copyright is assigned to the paper. That's right, you have to sign over your work lock, stock, and barrel to them. Expect this to become common practice in the industry before long.
Disclaimer: I am a lawyer, but this is not legal advice. I'm probably not even licensed in your jurisdiction. If you need legal advice, contact an attorney licensed in your jurisdiction.
:) iirc, most of them made far more from this than they made from the original movies . . .
Essentially the same issue came up several years ago with the introduction of VCR's. (After Disney failed to tax tapes.) Disney found that it was required to pay royalties to the voices, since the movies were now being sold in a format not covered--or forseen--by the original license. For some reason, the voices thought that they were just as entitled to the fruits of their own labor of Disney
14.2 You hereby grant MediaOne and ServiceCo. and hereby represent and warrant that You have all necessary rights to so grant, the worldwide, royalty-free, perpetual, irrevocable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, distribute, perform and display all material posted on the public areas of the Road Runner Service via Your account and/or to incorporate the same in other works in any form, media or technology whether now known or hereafter developed.
Is this common with ISPs, or is MediaOne being more greedy?
Not so. Unless the publishing agreement explicitly states otherwise, a freelancer is selling first serial publication rights only. What is true is that a lot of publishers are trying to expand the control they have over an author's work. As a freelance writer, I am of course glad to see the courts exerting control over this. I am puzzled why anyone could not be -- unless you approve of corporations acruing additional rights at the expense of individuals. Of course, as you point out, the coming of electronic media raises some new issues about what exactly constitues "republishing". Copying for personal use, as in your example, is clearly not the same as taking the article and reprinting it in a paper or on-line publication, without so much as crediting the author, let alone paying for the right to publish it. This happens, and I don't like it. By the way, a freelancer isn't in a "work for hire" arrangement; he sells the product of his labour, not the labour itself.
Philosophically speaking, you may be right. Legally speaking, we'll find out. But, practically speaking, I might point out that when you print an article from microfilm, neither the NYT nor the writer makes money off of it. When you print it off of the web, the NYT does and the writer does not.
I'm quite sure that the writer who signs away paper republishing rights to a newspaper or magazine takes that into account when determining what price is acceptable. As a matter of fact, they probably aren't too terribly concerned about it, since republication isn't going to be a terribly profitable business. Putting the same article in a database, however, is legally and pragmatically a different story entirely. Lemmee say that again: publishing an article in an anthology and sticking it in a big database full of other articles are two different things, at least to your average person.
Legally speaking, it's not a work for hire arrangement. Staff writers are on a work for hire arrangement. Freelance writers, IIRC, sell the rights to publish and republish their works, which I believe is what makes them freelancers.
Under current copyright law, selling your rights in one medium doesn't deprive you of your rights in another: just because you let Penguin Paperbacks publish your screenplay doesn't mean they can make a movie out of it without paying you.
The decision that we have to make is whether or not electronic media and paper media are both actually part of a larger 'meta media' that includes visual representations of the written word. As long as we continue to decide that they are not, this ruling does make sense.
PS -- if the NYT was making audio recordings of the articles, and then putting those in the database, would you feel the same way?
-k. ^-^ ^D
The same thing happened with the Lawsuit over the musical RENT - Lynn Thomson didn't actually want to force anyone to stop producing the show, but it's the way the law works --You have to say "Stop taking my work without permission" and sound like you're saying "you can't have it" when the response you really want is "Okay, how do I get permission?"
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From the article:
"Every single data provider now is at risk. We could go into court tomorrow if we wanted and ask to shut down every database." -- Jonathan Tasini, the president of the National Writers' Union and lead plaintiff.
I'm not completely sure where I stand on the overall issue, but people like Mr. Tasini really scare me. I tend to favour the individual authors, whose works were taken, though, in spite of the arrogant comment from their leader.
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"Go Metallica. Die RIAA." -- Linus Torvalds
The whois entries are compiled by lots of people, each with their own respective data gathered contribution. So, if the whois database is covered by this, then it would be legal to give out that whois info for the reason it was gathered (initial "publishing"), but it would be illegal to use that info for any other means ("republishing") without the permission of the individuals who gathered that particular subset of information.
Does this sound like a valid precedent?
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Exigo spamos et dona ferentes
Humorous intention or not, the answer is basically - Yes. But it's already well established that you can sue anybody for anything regardless of your chances for winning. Slashdot would have a very good argument that your submission of the post constituted permission to use and display the post within the context of this discussion, so you'd probably lose. If Slashdot decided to create a separate publication maybe "the most obvious one-liner collection" then this ruling says that they need to get your permission to do use your post. Likewise the ruling seems to indicate that Slashdot can't keep your article forever and it must be expired unless you give them permission to keep and use it forever. That last point is one I imagine people will be sweating over for the next few years or so. Including /.
What is both heartening and disturbing at the same time is that this ruling pretty much puts Usenet searches (Dejanews, etc) against the wall. It's heartening because Dejanews has been taking my posts and slapping ads on them for years now - effectively making money off my work without my consent or permission (I do use x-no-archive now). It's disturbing because as much as I dislike the commercialism of these services, I can hardly dispute how valuable a tool the news archives are. If I ran a Usenet archive I'd be looking for a way to bail out of the business very quickly at this point.
Actually I'm stunned at the scope of the decision. Basically it solidifies my ownership of everything I've ever posted on the Internet that people have decided to keep. That's very good for me. It's also very bad for the people who decided to keep what I wrote. At the same time the ruling is completely contrary to the spirit of sharing that let the Internet become such a useful tool.
I predict a lot of databases will be purged or pruned then a lot of legal transfer of rights contracts will be attached to all these little submit buttons. (By pressing the submit button you grant Andover the right to use and republish, said work...)
I agree with the criticism of the moderation BTW. Far from being flamebait it's both a on topic and funny in a cliché sort of way.
At least the editors have maintained their ethical standards by printing an article where they were named liable in an intellectual property lawsuit.
Quite the contrary to an article I saw in the Chicago Tribune (i think, don't hold me to it, since I couldn't find the article, but the facts are correct) article yesterday describing ABC's decision to pull a story which shed a negative light on Father Disney.
The really odd thing about this case is that the publishers are whining about the double-bladed nature of very laws that they use to protect their industry. Live by the sword, die by the sword.
And what objections to the ruling do their lawyers come up with? "Oh, the poor researchers will be denied access to these materials!" Yeah, well, thos researchers that can't afford to pay Lexis-Nexis's or NYT's exhorbitant fees are also denied access to those materials, and I don't see the learned counsel whining about that. There's big bucks in them thar databases, and the people who help create that value should get a cut.
"This ruling has the the effect of tampering with the historical record." Not really. The articles still exist in private electronic and paper archives. They can be retrieved by anyone with a bit of diligence, and they can be put back online just as soon as the NYT pays up.
Of course, those are just objections they came up with after the fact. What did they say in the trial? That the databases consituted a revision to an anthology of the works? That's just disingenuous. I'd love to read a brief detailing how they justified making that particular connection.
-k. ^-^ ^D
These publications had specifically bought "First North American Serial Rights" (FNASR) from the authors -- this is supposed to mean that if your article appears on Sept. 28, 1999, they will have to pay you again if they want to sell a copy of it again after that date.
Because they had not bought specific rights to republish the articles after the first publication, the newspapers tried to argue that the inclusion in the database was part of the initial publication (even though some of the articles were written years before the databases existed). The ruling is that perpetual publication in a database is not part of FNASR
Under American law, FNASR is the default in the absence of specific terms to the contrary.
Of course, these days the freelance contract does include signing away electronic rights -- the articles in the suit were written 10 years ago.
Another side comment: freelance work is rarely "work for hire" -- in fact they are usually opposites. "Work for hire" means that the product produced is a product of the corporation and not the individual -- a product is "work for hire" by default only if it is part of the job description of a salaried employee. Other cases would require specific contract terms. In freelance journalistic writing, "work for hire" terms are generally considered completely unnacceptable (of course, it's different for writing marketing copy, etc.) If it were "work for hire" the publication would own the copyright and have all rights exlusively.
The National Writer'a Union site has the full text of the ruling.
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Try username: slashdoted
pass: slashdot
When you do freelance work for newspapers or magazines they're pretty straightforward about the fact that they own the nonexclusive right to republish the piece you sell them. This isn't something they hide or sneak into arcane legal language -- you're on a work for hire arrangement.
What happened here is an ongoing debate over whether publishing an article in an electronic form such as a web site is the same as publishing it in other venues. Is an article appearing in the New York Times web site archives in the same status as say an article appearing on their microfilm archives? I go to the library occasionally to use the microfilms of the NYT and the freelance authors don't get compensated for the articles I print out. Should they if I go to the web NYT instead?