March 31, 2005

Do as I say, not as I do?

"When the Supreme Court takes up the issue this week, we hope it considers another party to the dispute: individual creators of music, movies and books, who need to keep getting paid if they are going to keep creating. If their work is suddenly made "free," all of society is likely to suffer....Both the court and Congress should be sensitive to evolving technologies. But they should not let technology evolve in a way that deprives people who create of the ability to be paid for their work." --The New York Times, editorial, March 27.

"The case was born out of battles that began more than a decade ago, pitting freelancers against publishers who had begun drawing revenue from online archives of previously published material. Writers maintained that such archives amounted to re-publication, for which they were owed new pay....

In 1995, The Times responded to the Tasini case by circulating a memo to editors saying that freelancers who wrote for The Times would be required to sign away all future rights, including electronic rights, to their work. Those who refused would be barred from writing for The Times.

'The paperís position on this is unambiguous,' the memo said. '[I]f someone does not sign an agreement, he or she will no longer be published in the newspaper.'" --The New York Observer, March 30

Posted by Daniel Radosh


I know we're supposed to say "Look at the Times being hypocritical." But it's not.

On the one had (in 1995), it was simply protecting itself from future lawsuits by requiring freelancers to sign over the rights to their work. This is a standard work-for-hire contract, updated for the age of Web sites and simplified archiving.

ANY publication is going to require that outside writers give it the rights to the work. And saying "[I]f someone does not sign an agreement, he or she will no longer be published in the newspaper," is completely logical.

Try getting an article published in any publication without signing an agreement.

But the Times has a second and very different point with regard to the Grokster case.

"...individual creators of music, movies and books, who need to keep getting paid if they are going to keep creating."

Again, this makes sense. Of course they need to get paid. And the Times pay its freelancers.

Where's the hypocrisy?

The situations aren't completely analagous, but if the basic rule is that individual creators should always be paid for their work, the Times is violating that when it says ALL the money paid by users of Nexis, etc to read an article should go to the paper and none to the creator. Most established freelancers, in fact, would NEVER sign a work for hire agreement, except under unusual circumstances. The general principle is that writers should own the rights to their works, which they license to the publication. The Times of course has the right to not buy articles unless they can hold all the rights (hence the new contract), but they have don't have the right to claim rights after the fact (hence the lawsuit). Writers also have the right not to sell their work to the Times if they don't like the terms. But if the Times' rule is that failure to pay royalties to creators stymies creativity, why would they WANT to not pay the equavlent of royalties to their writers?

And if musicians should be paid every time someone buys one of their songs, then why shouldn't writers be paid every time someone buys one of their articles? Frankly, I'd rather have people downloading my articles for free than knowing that people are paying, but that I'm not seeing any of the money.

Nicely done.

Arguably, Tasini was about the proper distribution of technological windfalls, whereas Grokster is about balancing technological progress with IP rights, but I think this fairly skewers the integrity of the Times in its claim that one needs to prioritize the compensation of content creators over content intermediaries. They should have put their mouth where they put their money.

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