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One Hour to Midnight: Tasini Oral Arguments at the Supreme Court
by
Posted On March 30, 2001
Silence in the court. As the last red light flickered on the dais, the long legal debate over the rights of publishers to distribute content created by freelance writers in electronic form came to an end at 11:04 a.m. EST on Wednesday, March 28. Now the nine justices of the United States Supreme Court will conduct the only meaningful discussions of the topic, while the publishing and online information world wait, perhaps until as late as the end of June or even July, to hear how it all turned out.

Oral arguments by lawyers representing publishers (the plaintiff) and defendants (Jonathan Tasini of the National Writers Union, et al.) took only 1 hour. But then, with very rare exceptions, all oral arguments take only 1 hour—or less—before the U.S. Supreme Court (http://www.supremecourtus.gov), which runs a very tight and briskly efficient ship when it comes to listening to attorneys. (The justices even specify the color of folders for briefs presented to them.) Besides, copyright was not the only matter on the court's calendar that day. It also had to hear arguments for and against the medical therapeutic services of the Oakland Cannabis Buyers' Cooperative.

For a complete background of the case and all the players, read Carole Ebbinghouse's Sidebar column from the January 2001 issue of Searcher magazine, "Final Hours: Tasini Goes to the Supreme Court" (http://www.infotoday.com/searcher/jan01/ebbinghouse.htm). For NewsBreaks summarizing the case, including the impact it has already had on the online information industry, see Paula J. Hane's "Supreme Court Agrees to Hear Tasini Case" (http://newsbreaks.infotoday.com/nbreader.asp?ArticleID=17709), or "Freelance Authors Turn Up the Heat with More Lawsuits; Major Database Providers Under Siege" (http://newsbreaks.infotoday.com/nbreader.asp?ArticleID=17765).

In the end, however, it all boiled down to one question for the Supreme Court to decide: "Are reproduction and distribution of a periodical in electronic form, as well as in print, privileged under Section 201(c) of the Copyright Act, or does electronically publishing the same contents infringe upon the copyrights held by contributing freelance authors?"

Representing the plaintiffs (publishers) was Laurence Henry Tribe, a Harvard law professor, while Lawrence Gold of Washington, DC, represented the authors. Tribe represented the New York Times Co.; the Tribune Co.; Newsday; AOL/Time Warner's Time Magazine, Inc.; Reed Elsevier's Lexis-Nexis; and Bell & Howell Information and Learning. Transcripts of the oral arguments, available from Alderson Reporting Co. (http://www.aldersonreporting.com) or by mid-April on the Supreme Court's own Web site, do not indicate which justice is speaking, but sometimes the attorneys will respond to a justice by name. As usual in oral arguments, the justices barely let each attorney get one paragraph out of their mouths before the questions came rolling in.

Justices Scalia, Ginsberg, and O'Connor grilled Tribe about why contracts and cash couldn't handle the problem. Tribe countered by pointing out the technical difficulties and, when challenged on the draconian removal of masses of articles, pointed out that the damages under the law could run from $250 to $10,000—or even $30,000—per infringement and that infringements might be considered to occur whenever an article was downloaded, voiding the 3-year statute of limitations written into the law. (One wondered whether Tribe might regret making this damage analysis should his clients lose the case.) Justice Breyer questioned the technical process of creating a digital version of, in his example, The Washington Post. Tribe seemed to grow a little testy as the lengthy question ate up his time. Justice Souter worried that Nexis was basically a reprint production service and that authors would not have enough protection even if the language of the law appeared to grant the rights to publishers.

On that happy note, Gold rose to expound on the authors' rights. However, Justices Kennedy and Stevens wanted to know why an electronic database of The New York Times, for example, would differ essentially from a library with a microfilm collection and good indexes or even a large multivolume re-compilation in print form of 10 years of the newspaper, but with wonderful tabs and good indexing. The key questions that Gold faced from his questioners involved defining who, when, and how infringements occurred. Clearly, Gold wanted the infringement to start with the publisher arranging for disaggregation of articles, but Justice Stevens questioned that the infringement would only occur when an individual picked out an article and rejected the opportunity to select the entire work.

Reflecting on concerns stated by Tribe in commenting on the massive deletions of data a favorable ruling to authors would engender (a reflection whose length and tone clearly irritated Gold), Justice Breyer said:

"I am disturbed very much by what I call, by way of parody, their Chinese Cultural Revolution argument. That is, we wipe out the history of the 20th century … [T]hat's an overstatement, but it's not such an overstatement when you think that most schoolchildren today will be looking for information on machines—and if it isn't in the database library, D.H. Lawrence, John P. Marguand, or lesser figures will simply disappear because it's too expensive for them to locate each heir and to get the copyright permission to put the article on the machine. All right, I've got it all out now, I'd like your response."

Gold: Do I get one sentence or two?

Breyer: I'd like you to take as long as you'd like and I won't interrupt further.

Overall, most observers felt that Tribe made a much better presentation than Gold. One observer made an exaggerated estimate that Gold said "um" 97,000 times. He clearly did not respond effectively to the repeated questions on infringement. In an article on Law.com ("Freelance Writers, Major Publishers Battle Before Supreme Court," March 29, 2001), Tony Mauro of American Lawyer Media reported that the decision to use DC-based Gold instead of Emily Bass, a New York lawyer who had worked on the case for years, stemmed from a coin toss.

I spoke with James Heller, director of the Law Library and professor of law at the College of William and Mary's Marshall-Wythe Law Library. Heller also serves as chair of the American Association of Law Libraries' Copyright Committee. Heller considered this one too close to call ("There will be no unanimous decision in this one, but whether it's five to four or six to three, I couldn't guess.") Overall, he felt the justices were struggling with two issues around which the discussion flowed. "First comes the policy issues, the consequences if information in the databases now disappears," stated Heller. "Second is the legal technicality. What does section 201(c) [of the Copyright Act] really mean?" Based on his reading of the legislative history behind the act, Heller said the language would seem to favor Tasini's side. However, as usual with oral arguments before the High Court, Heller could not predict which justices would vote which way.

Dramatic as oral arguments may seem, if only from watching high-paid legal talent sweating the questions of impervious justices on the highest court in the land, most of the decisions will be made based on written briefs and legal analysis. Even if the justices who asked questions all voted as their questions might indicate, which no one expects them to, Chief Justice Rehnquist and Justice Thomas asked no questions. Besides the briefs from law teams for each side, the court also received a number of "Amicus Curiae" ("friend of the court") briefs. The American Library Association; the Association of Research Libraries; Marybeth Peters; the U.S. Registrar of Copyrights, the Authors Guild; and writers Jacques Barzun, Tracy Kidder, and Nicholas Lemann, all submitted briefs on behalf of the freelance authors. Doris Kearns Goodwin, Ken Burns, and David McCullough filed briefs in support of the publishers.

Even if freelance authors win the Tasini case, they will still remain in court. Several have already initiated a class-action suit against The Boston Globe, a newspaper owned by the New York Times Co., accusing the publisher of unfair and deceptive trade practices. Assuming that authors gain copyright to their material with a favorable Tasini ruling, they don't want the language of contracts to steal the fruits of their victory. So they are already in court to debate restrictive contract language. Since the Tasini case began in the early 1990s, most publishers have included "all rights" clauses in their contracts that cover electronic rights.

One side point, the technical misconceptions flowing around the Tasini case, including those voiced by lawyers for each side who have worked the case for years, can seem almost surreal to experienced searchers. National Public Radio conducted a lengthy discussion of issues in its "Talk of the Town" program on Monday, March 26, with participation by Bruce Keller for the publishers and Patricia Felch for the freelancers. Keller declared at one point that Lexis-Nexis could not reimburse a publisher for a single article's usage. Felch said that if publishers could identify freelance articles for their threatened mass deletions, then they would have no trouble determining royalties at the article level. Fortunately, it appears that the justices of the Supreme Court were only occasionally interested in purely technical issues. If technical factors come to dominate their discussions, let us hope they call you or me, dear reader, or a good law librarian for a reality check.
 
 


Barbara Quint is senior editor of Online Searcher, co-editor of The Information Advisor’s Guide to Internet Research, and a columnist for Information Today.

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