The case was one brought by six freelancers, led by a Mr Tasini, against the New York Times and other major publishers who claim that use of their articles in databases, whether on-line or on CD-ROM, without compensation, is in breach of their copyrights. The publishers argue that they are distributing revisions of works they have paid for, which is legal under copyright law.
Much of yesterday’s oral arguments centred on when exactly the alleged infringement took place – a question that the lawyer for the writers, Larry Gold, struggled to answer, according to a report by American Lawyer Media. The lawyer for the New York Times, Larry Tribe, argued that the transmission of a newspaper’s contents to a database was a modern-day successor to reproduction on microfilm, which does not violate copyright. After the hearing, a commentator said, “Larry did a great job for the publishers, no matter which Larry you are talking about.”
The case is continuing; the publishers need a majority of five court justices on their side to win their case.
If the writers win their case, the publishers stand to lose large sums to many more freelance writers. The publishers argue that they would be forced to strip their database archives, which would prejudice future researchers, teachers and the public who will rely on publishers' databases as historical records.
The writers are arguing over rights to articles written between 1990 and 1993. The standard practice today for publishers entering into contracts with freelancers is to require the writer to give the publisher the rights to both print editions and electronic versions of the works.
Last week, in a separate case, a freelance photographer won a similar case in a lower court (a federal appeals court) against the National Geographic Society which published four of his magazine photos in a CD-ROM anthology of the magazine.