Posted by Kevin Matthews on April 06, 2001 at 15:02:48:
FYI -- KMM
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Date: Fri, 06 Apr 2001 11:23:02 -0700
From: NWU National Office West
Subject: "A Report From the U.S. Supreme Court"
A Report From the U.S. Supreme Court
By Jonathan Tasini, president of the National Writers Union
On Wednesday, March 28th, the nine Justices of the U.S. Supreme Court filed
into their chambers, took their high-backed leather seats and took up the
case representing the interests of all creators throughout the U.S.: Tasini
v. The New York Times. Here is one view of the hearing (to learn more, go to
the end of this message to link to a few of the stories from the tremendous
press coverage we received).
The courtroom was packed with reporters, lawyers and other observers,
though certainly some people had come to hear arguments in the case
following our case-medical marijuana. One can't help but be impressed by the
scene-the large columns ringing the courtroom, the red drapery and even the
strict marshals who patrol the aisles forbidding conversation or even
jotting down of notes.
Two comments on process, for those unfamiliar with Supreme Court procedure.
First, the entire oral argument is one hour, equally divided between both
sides. The party petitioning the Court (in this case, the publishers) argues
first and may reserve some of its time to rebut the argument made by the
Respondents (in this case, the writers). Second, neither side truly gets to
present its prepared argument-this is really a time when the Justices pepper
the attorneys with questions and arguments; in that sense, the written
briefs submitted prior to the oral argument are the critical parts of the
From the beginning, Laurence Tribe, who was representing the publishers,
was on the defensive trying to convince the Justices of the publishers main
contention: that Lexis-Nexis and other digital media uses were simply
permitted "revisions" of the publishers' print versions under Section 201
(c) of the U.S. Copyright Act. Tribe had barely finished articulating this
position when Justice Antonin Scalia immediately began cross-examining
Tribe, arguing that the end-user does not see an entire issue of a
periodical in a database, and, instead sees an "article as part of the
entire database". Chief Justice William Rehnquist then noted that "on
microfilm, you see the whole page; whereas, in the databases, the articles
are "not all in one piece." Justice Sandra Day O'Connor added that the
articles in a database are "disaggregated"; all you "see is individual
articles," with NEXIS, you "don't see ads" and other pictorial images from
the original periodicals; all you can "pull out is an entire article."
Justice Ruth Bader Ginsburg interrupted, acknowledging that there was an
"inequity of bargaining power" between freelancers and publishers.
Justice O'Connor then concluded by asking what Mr. Tribe had to say about
the position of the Register of Copyrights, Mary Beth Peters, that the
opinion of the Second Circuit was right. Tribe stammered a bit,
acknowledging that Peters had wrote such a letter but lamely tried to
explain that Congress had intended the publishers to be able to do what they
did in this case and that the contracts entered into between writers and
periodicals were not "unconscionable."
Justice David Souter then argued that there was no "coherence" to the
publishers' argument; that what they were doing was "reading the authors'
copyright out of the statute." Souter seemed to be concerned that supporting
the publishers' contention would eviscerate the meaning of the 1976 revision
of the Copyright Act, which sought to strengthen authors' power. Tribe
responded by noting that the "writers' own testimony" established that they
could re-"exploit" their works, despite the existence of their article on
the databases-which did not quite answer Souter's comment.
Tribe then argued that the Second Circuit's opinion was wrong in "treating
the whole [NEXIS] database" as if that was the revision, claiming that the
revision exists in that every article from a periodical issue is available
in NEXIS. To which Justice Scalia retorted sharply that NEXIS is a "big
mass" of articles and saying Tribe was "inventing a revision that has no
real-world existence"; that each periodical "cuts out each article [and]
sends the whole thing, indexed article by article," to NEXIS. Ending with a
somewhat sarcastic, "and you're calling that "a revision"?
When Laurence Gold rose to present the writers' position, he began by
arguing that the statute could not be clearer-a publisher has no copyright
in individual freelance articles that make up a collective work and and that
the collective work copyright "owner cannot exploit [individual] articles as
[individual] articles; NEXIS does exploit articles [article-by-article]."
Justice Anthony Kennedy and Justice John Paul Stevens both wanted to know
when the first act of infringement occurred. Gold responded when the
publishers put "the article files into NEXIS." In retrospect, this line of
questioning was significant because not a single Justice questioned whether
an infringement had occurred, only when it first occurred. Justice Stephen
Breyer said he was very concerned about "the Chinese cultural revolution"
argument and the "destruction of history" theory advanced by the publishers
and their amici (friend of the court briefs). Both Gold's response and the
briefs and amici submitted on behalf of the writers dealt with that issue
fairly easily-the publishers' dark scenarios are not the inevitable result
of a decision in favor of writers because licensing proposed by the National
Writers Union can solve the problem and, as Justice Ginsburg pointed out,
writers want their work seen, not removed from the record. Additionally, the
publishers, as the amicus submitted by the librarians points out,
misrepresent themselves as providing the only historical archive-other
records, including paper, will continue to exist.
You will not get here a prediction of which way each Justice will vote. We
do expect a decision no later than mid- to late June, perhaps earlier. One
observation: those inclined to predict should not use a lazy ideological
lens. Throughout the hearing, Justices Scalia, Rehnquist, O'Connor, Ginsburg
and Souter seemed to have seen through the publishers' argument and,
frankly, smokescreen, about what actually transpires when individual
articles at the periodicals are transmitted to databases, which are then
accessed by end-users. Justice Scalia, who was very active in the argument,
seemed particularly dismissive of the publishers' view that NEXIS is a
"revision" of the periodicals. Justices Breyer, Stevens and Kennedy were
concerned about who would be liable for infringement and what the damage
would be to the publishers if they lost the case.
Perhaps the most pride we felt was hearing the phrase "National Writers
Union" uttered in the chambers of the highest U.S. Court. We all felt that
it was a fitting acknowledgment of the role the union has played, in
defining the issue of writers' rights in the U.S. over the past decade, in
large part thanks to our members and the support of our parent union, United
Press Links (copy and paste in your browers):
The News Hour with Jim Lehrer (video, audio and transcript)
The New York Times:
The Washington Post:
National Public Radio: to hear audio programs, go to www.npr.org and search
NATIONAL WRITERS UNION, UAW Local 1981
113 University Place, 6th Floor
New York, NY 10003-4527
Ph: 212-254-0279 / Fx: 212-254-0673
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