the complete review Quarterly
Volume II, Issue 3   --   August, 2001


Tasini v. The New York Times
A Note on the Consequences


Introduction
I. The New York Times' Actions and Reactions
II. Consequences for the Book Review Reading Public
III. What Now ?
IV. Our Opinion
Conclusion
Links



Introduction

       On 25 June 2001 the United States Supreme Court issued their ruling in Tasini v. The New York Times. By a vote of 7-2 (Justices Stevens and Breyer dissenting) they affirmed a 1999 Appeals Court ruling (206 F.3d 161) in favour of Tasini et al., freelance authors who had sued The New York Times and others regarding the reproduction of material they had written in electronic databases (such as the archives at nytimes.com or on LEXIS-NEXIS) without compensation. The Appeals Court ruling had reversed an earlier District Court summary judgement upholding the publishers' right to use the material.
       (Both The New York Times site (see for example their timeline) and the National Writers Union site provide useful and fairly complete documentation about the entire series of lawsuits; note, however, that they are parties to the dispute (Mr. Tasini is president of the NWU) and thus perhaps not always entirely objective in the information they provide. There has also been some media coverage about the case; see, for example, this article at The Industry Standard.)

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I. The New York Times' Actions and Reactions

       There were numerous defendants in the original case, but the most prominent and vociferous has been The New York Times. Since 1995 freelance contracts at The New York Times have specifically included electronic rights. Before then they did not. The Supreme Court ruling affirmed that the rights to reproduce in electronic databases articles written by freelancers and published in the newspaper before 1995 were still held by the freelancers. The New York Times can not reproduce such articles in its (and other) databases without obtaining the necessary rights from the right-holders.
       The ruling clearly anticipates that the parties will agree on fair compensation for the right to reproduce this freelance work in electronic databases. The case was remanded to determine remedies and the Court clearly hoped that the parties would reach some sort of agreement regarding proper present and future compensation. But The New York Times came up with its own preemptive remedy: it decided to simply eliminate all the articles in question from its electronic archives. (It is a huge number: The Industry Standard reported that within a month 115,000 articles by 27,000 freelancers had been removed -- apparently all the articles falling under the ruling.)
       While this action insures that The New York Times is no longer violating the law it also means that these articles are no longer accessible, except to those who have access to a hard-copy archive. Which very few people do (ask at your local library: chances are good that they rely on an electronic database and tossed their hard-copies). All of a sudden Nicholson Baker isn't looking quite so nutty with his newspaper-hoarding projects (such as the American Newspaper Repository) .....

       On its page devoted to the Supreme Court decision, The New York Times writes of the decision that: "This will require The Times to eliminate from its electronic archives tens of thousands of freelance articles published between 1980 and 1995." It must be noted that this statement is not factually correct; in fact, it is disingenuous. Nowhere does the Supreme Court decision require such an elimination. Indeed, in the opinion of the Court, written by Justice Ginsburg, it specifically states:
Notwithstanding the dire predictions from some quarters (...) it hardly follows from today’s decision that an injunction against the inclusion of these Articles in the Databases (much less all freelance articles in any databases) must issue. (...) The parties (Authors and Publishers) may enter into an agreement allowing continued electronic reproduction of the Authors’ works; they, and if necessary the courts and Congress, may draw on numerous models for distributing copyrighted works and remunerating authors for their distribution.
       The good folk at The New York Times apparently do want to include the freelancers' articles in the electronic record -- but on their own terms. As they make clear on their convenient Restoration Request Site, freelancers are free to request that their articles be restored to the record. But:
Should you opt to have your work restored, you agree that you will not be compensated and that you will release The Times from any claims relating to your work appearing in electronic archives such as Nexis.
       (This would appear to be a textbook example of chutzpah, as they like to call it in New York. The freelancers probably have a more colourful term for what this is an example of.)
       Among the points that should be noted about this "offer": The New York Times is not only requiring writers to sign away their rights for free, they are also asking to be released from any claims -- i.e. they are asking to be released from the liability of previous mis-use of the freelancers' material, despite the Supreme Court's finding that the freelancers' material was improperly used (and used without compensation). (This is, in fact, not only a morally dubious "offer", but also a legally dubious one, and Jonathan Tasini, president of the National Writers Union, has instituted another suit which is, in part, over this very issue.)
       Note also that The New York Times speaks of "electronic archives such as Nexis", though in fact the central archive of concern (and most important, to them) is the mother of them all, The New York Times' very own electronic archive.

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II. Consequences for the Book Review Reading Public

       This situation is of interest to the complete review for only one reason: it has had a drastic effect on the availability of book review information from The New York Times, specifically at the newspaper's Internet site.
       In a survey conducted by the complete review Quarterly (in May 2000), The New York Times was the highest rated book review site on the Internet. This rating was based largely on its excellent archive of reviews -- some 50,000 of them, from 1980 to the present. In the wake of the Tasini decision, The New York Times has radically cut its archive. As users may have noticed, one can now merely: "Search the books archive for book reviews and news since 1996." Some three-quarters of the archive has been unceremoniously cut -- a tragedy of immense proportions (if one cares about such things).
       The book reviews at The New York Times archive are particularly affected by the Tasini decision (as The New York Times itself emphasizes). While the reviews in The New York Times proper are almost all written by staffers (whose work is not affected by the Tasini decision), practically all from The New York Times Book Review section are by freelancers.
       It remains to be seen whether all, most, a few, or indeed any of these freelancers will sign away their rights as The New York Times is now requesting them to do. (In a neat (though quite offensive) rhetorical inversion, it is actually the authors who must "request" reinstatement from The New York Times in order for their pieces to be made available again -- but there is no question that it is the Times that is doing the begging.)
       The New York Times Book Review's reviewers are generally quite well-known authors, academics, and public figures. It is likely that few of them need the relatively small sums that these electronic rights might ultimately be deemed worth, so perhaps they are willing to sign away their rights for free. On the other hand, there is a matter of principle here, and the reviewers might stand on it.
       Certainly, at least in the near-term, The New York Times Internet site (and other databases that include material from the newspaper, such as LEXIS-NEXIS) will be a much less useful resource -- and will leave much important information inaccessible.

       The complete review has long had mixed feelings about The New York Times' online archive. Content-wise it is (or, rather: was) a marvel. But the site requires users to register, a policy with which we find extremely distasteful (and unconscionable). It is for this reason that the complete review does not link to individual reviews from The New York Times (although technically it is possible to link to individual reviews and avoid the register-page). Given the fact that most of The New York Times' reviews the complete review refers (but does not link) to have now disappeared we are glad to have avoided that mess.
       The New York Times archive of book reviews is still a fairly impressive and useful one -- though it is no longer in a class of its own. Archives such as that of The New York Review of Books, which also goes back to 1996 (and, far more impressively, does not require user registration) are now contenders for the title of most useful among the freely accessible book review sites on the Internet. (Or was, at least for a few days: by early August, 2001 The New York Review of Books had also begun an unsettling revamping of its archive, making even many of the previously accessible post-1996 reviews unavailable and decreasing the value of the archive for casual users immeasurably.)
       Still, compared to other Internet sites, The New York Times' site is in many ways actually fairly generous. It requires that users sell their soul (or at least their privacy) by making them register and then inundating users' computers with cookies, but at least it does it for free. The cost isn't that high: no user, one hopes, gives any accurate information when registering, and the cookies can be turned away once one is inside the site (just turn your cookie-monitor back on).
       Many other newspaper and magazine sites with archives of book reviews demand payment for users to get access to most of these. The best book archive on the Internet is almost completely hidden away at the expensive TLS site. And recently even the venerable New Statesman sold out its users and began demanding money to access archived articles. At least The New York Times has not (yet ?) embraced this bizarre model, which can't bring in much cash (and certainly turns off many users).

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III. What Now ?

       The New York Times' approach -- seeking a solution on an individual level, rather than settling the whole matter in one fell swoop -- will, if actually carried through, surely ensure that the electronic record will never be complete. Among the tens of thousands of freelance authors who are affected there will certainly be some (and, we imagine, in fact quite a number) who will not hand over their rights for no other consideration than the privilege of being part of the electronic record.
       The alternative to The New York Times' current tactic would be to reach an agreement about just and appropriate compensation for the material in question and then make the material available again. Such an arrangement still remains a possibility (and, one hopes, over the long term, a likelihood), but for now The New York Times seems to want to see how much it can get for free.
       On its pages devoted to the case The New York Times appears to be looking for divine (or at least legislative) intervention, claiming that: "Absent congressional intervention, the risk of exposure to claims of willful infringement is too great to allow any other course of action than to remove freelance articles from electronic archives." Meanwhile, the Authors Guild has filed a class action complaint on behalf of all affected freelancers, seeking fair and equitable compensation. As it stands, it does not look like the various issues will be resolved quickly.
       One assumes that The New York Times is acting on advice of counsel in taking the strong steps they have following the Tasini-decision. Perhaps it is sage advice -- though the lawyers sure got it wrong the first time around. (At least one can be fairly certain that the advice they are getting now didn't come from the legal advisers who drew up the pre-1995 freelance contracts -- a group of attorneys that surely even the most generous of employers couldn't think of keeping on after a professional misjudgement of such catastrophic proportions.)
       Apparently The New York Times has not consulted a public relations firm, who might have suggested that such strongarm tactics don't look good or win many friends. But given the limited media attention paid to the ongoing debate (curious, that), The New York Times doesn't seem to be suffering much in the court of public opinion. Of course, there are presumably a lot of irate (or cowed) freelancers out there .....
       No one ever accused the "Old Gray Lady" of being a gentleman, and there is perhaps no reason why it should be. It can certainly do with the material it controls pretty much as it damn well pleases. And it can certainly refuse to provide access to material that the Supreme Court has now determined it does not control, rather than paying up to make that material available. Still, the current situation can't be one that anyone is happy with. It is an amusing irony indeed that the newspaper of record has now altered the record -- and made much of it essentially inaccessible.
       Can The New York Times afford to pay the freelancers ? No doubt. Shareholders may not be thrilled, but the amounts involved would only dent profits. And, one should note, other areas have also dented profits -- perhaps none more so than New York Times Digital, the Internet arm of the company, responsible for The New York Times site, nytimes.com.
       The New York Times' site was and is a popular online destination. It also manages, for now, to lose quite impressive amounts of money. Losses in the first nine months of 2000 at New York Times Digital were reported to be 46.2 million dollars on revenue of 37.2 million dollars.
       One wonders what the effect of the loss of such a huge chunk of the archives will be. While we now no longer have any reason to visit the site we suspect most users don't focus on the archival material. The impact may very well be barely perceptible, at least to the day-to-day users of The New York Times' site.

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IV. Our Opinion

       The complete review isn't really in a position to judge the actions of The New York Times. We admit to considerable irritation at not having the wealth of book reviews at our disposal, and on a personal level we feel the media company is wrong, but who are we to judge ? After all, the cr Quarterly doesn't, at this time, pay any of its contributors. Of course, we don't ask them to sign away all their rights either .....

       Free access to archived material and archival integrity (by including the complete record of The New York Times in all electronic versions) are, of course two different issues. The Tasini decision is concerned with the latter (as well as proper compensation for material included in the archive), while the complete review is more interested in the former (while grudgingly also acknowledging that a complete record, even if we can't afford access to it, is also a worthy and important ambition).
       As greedy and cheap Internet users, the complete review likes information to be free. (Note that besides being greedy and cheap we are also generous, and practice what we preach: we provide all our content at absolutely no cost to our users.) There is no reason why content on the Internet should be free -- and much of it (to our chagrin) isn't. The New York Times should be commended for making its content available for free (though they should also still be pilloried for their ridiculous registration policy).
       Like most things, the Tasini decision is about money -- probably a lot of money, given how aggressively The New York Times has pursued this case. The New York Times stands to make a considerable amount from its electronic archive and from providing the material to other archives. The freelancers want a piece of the pie -- and the Supreme Court has said they have a right to it, basically because, until 1995, The New York Times' freelance contract didn't cover the rights in question. (The New York Times' position is that it thought the contract covered those rights, but that ship has sailed with the Supreme Court decision. And if it was so sure about its legal position one wonders what prompted it to draft a new contract in 1995 .....)
       It is somewhat difficult to have a great deal of sympathy with the mega-media conglomerate, The New York Times Company. Its annual report for 2000 indicates that it had an operating profit of 635,921,000 dollars (11.3 percent higher than 1999), and a net income of 397,536,000 dollars (28.2 percent higher). (To put those figures in some sort of perspective: its net income was more than 397,535,000 dollars more than the combined annual budgets of the complete review and the cr Quarterly.) First quarter results in 2001 were, however, down considerably (net income of 61.3 million, down from 137.8 million in 2000), and times at the Times have certainly gotten a bit tougher in this tough advertising climate. (Note, however, that they are still raking it in hand over fist.)

       Our opinion ? The New York Times should bite the bullet and pay up and restore the archival record -- and then sue its pre-1995 lawyers for their poor counsel (surely verging on malpractice). It can't be that hard to reach an agreement that both sides would find acceptable.
       Of course, it's easy for us to talk: it's not our money and we don't have to answer to the shareholders. But consumers (and the freelancers) shouldn't be made to suffer for contracts badly drafted by lawyers who interpret the Copyright Act differently than the Supreme Court does. And ultimately it is in The New York Times' interest to resolve this quickly and amicably (to the extent still possible). As to trying to coerce freelancers to sign away their rights ... that's just plain wrong.

       (Do we even have to tell freelancers that, in our opinion, they'd be crazy to sign the Times' "restoration request" ? We can't imagine that anyone would even consider doing so; we hope we're right.)

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Conclusion

       The sole concern of the complete review is access to as many book reviews as possible. That's our raison d'être. That's what we do. The Tasini decision has made it more difficult to get access to a large number of book reviews, so we find it terribly annoying.
       The implications of the decision go far beyond The New York Times, as they also apply to other archives of reviews. (One of the reasons The New York Review of Books doesn't provide access to pre-1995 reviews is surely because they also have similar contractual issue with their contributors -- as do many other newspapers and magazines.) Until the question is resolved there will be no bonanza of older reviews readily accessible on the Internet, which we find extremely regrettable.
       Legally, the situation seems clear-cut: the freelancers deserve compensation for their work, as such use was not contractually specified. It is in everyone's interest -- including The New York Times' -- that all material from the print version also be accessible in all electronic versions. The New York Times should stop blaming the freelancers for not signing away their rights (and start blaming the lawyers who didn't see this problem coming -- if anyone is responsible it's them).
       The New York Times unilateral "solution" does protect them from a limited amount of liability (future infringement of the freelancers' rights), but is hardly a satisfactory outcome (nor is it likely to lead to one). It also does not relieve them of liability for past infringements -- unless all the freelancers sign the "restoration request" (and even then its seems doubtful that this "release (...) from any claims" would be held valid, given the consideration offered in return).
       This sounds like a case for arbitration. The New York Times will no doubt have to pay something for the rights (a reasonable but not excessive amount, one hopes), and so they will take a financial hit. Surely, in the long run, this will prove to be a worthwhile sacrifice.

       We hope an agreement is reached soon.

       We miss the large number of book reviews once available, and hope we will be able to freely access them once again in the near future.


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© 2001 the complete review Quarterly
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