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."

From the please-read-the-article dept.

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.

Re:Slashdot's guiding principle

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.

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 /. 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.

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 ;) 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.

Re:Exactly!

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?

-

Re:New vocabulary

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!"

--

I'm a freelance writer.

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.

How exactly is this a 'good move' Hemos?

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.

So, Jon Katz?

When are the people that submitted stories and letters to your "Voices From The Hellmouth" series going to get credit and/or control over their stories posted on this site?

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.

The Easy Way Out

And of course the publishing companies are taking the easy way out (from the Washington Post article [washingtonpost.com]):

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.

---

Mathworld

So does this mean Eric Weisstein's World of Mathematics [wolfram.com] will be back up?

bash-2.04$

New vocabulary

There are no artists anymore.. just ipists.

Linus has,in fact,grown,and explosively-JonKatz

Re:Comments are owned by the Poster?

Blockquoth the poster:

Does this mean that a poster to Slashdot could later demand that it be deleted?

I am very far from being a lawyer, but my instinct is, "No." Posting to slashdot gives permission for slashdot to publish it. (Sort of a duh-huh principle.) This decision revolved around things originally published on paper and then republished on the Web. The question was, is that a valid "archivation" or is it a new publication?

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.

Delivery does matter in this case

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.

It depends on what the meaning of "copy" is...

The real problem with US copyright law is that it is directed toward "tangible expressions" of a created work. (For example, if you tell someone your unwritten screenplay idea, and he writes it down, he (NOT you) has copyright to it. Your speech is "nontangible" but his printout IS tangible.)

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.

Comments are owned by the Poster?

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.

The little guy

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

Not a bad decision

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) [akamaitech.net];

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.

Huh.

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.

Copyright is dead

If Nietzsche were alive today, in place of God, he would have said, "All of us are murderers.... Copyright is dead. Copyright remains dead. And we have killed it [with our righteous notion that 'information wants to be free' just because it costs nothing to reproduce]."

;)

Re:I can't wait for the gnutella sorts to go nuts

History backs me on this.

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.

Re:The Easy Way Out

They are not "taking the easy way out". They're doing what they have to do. They can't just pay royalties; they need permission, which must be negotiated, which takes time. In the meantime, they remove it or face a contempt citation.