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Publishers 1 Freelancers 0: Federal Judge Rules against Freelancers in Narrow Decision in Electronic Copyrights Test Case

Magazine article Editor & Publisher

Publishers 1 Freelancers 0: Federal Judge Rules against Freelancers in Narrow Decision in Electronic Copyrights Test Case

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Federal judge rules against freelancers in narrow decision in electronic copyrights test case

IN A MAJOR setback for freelance writers fighting to control their copyrights in electronic media, a federal judge in New York has ruled that publishers can distribute freelance works on CD-ROMs and commercial databases without obtaining the writer's approval or paying additional fees.

The decision dismisses a federal copyright infringement suit fried four years ago by a group of writers against the New York Times, Newsday, Sports Illustrated, Lexis/Nexis and UMI Co. The writers challenged the publishers' right to purchase freelance articles for print products and then repurpose the work for electronic services without paying the writers additional fees.

In a 56-page decision, U.S. District Judge Sonia Sotomayor held that companies did not infringe the copyrights of freelance writers under the federal Copyright Act. Freelance stories appearing in electronic databases and CD-ROMs of print publications are revisions, not new online products or services, she said.

Because the case was fried just before the Internet emerged as a populist publishing medium, neither the suit nor the ruling specifically addressed electronic publishing rights in cyberspace. The exact implications of the narrow ruling on World Wide Web publishing activities are not clear.

Claire Safran, president of the American Society of Journalists and Authors (ASJA), called the decision "seriously flawed."

"We're astonished that the judge bought the defense argument that database use constitutes only a 'revision' of an issue of a magazine or newspaper," she said. "It doesn't. And we're even more astonished at her statement that 'the electronic databases retain a significant creative element: of the publisher defendants' collective works.' They don't," said Safran.

But Bruce P. Keller, a partner with the New York law firm of Debevoise & Plimpton, who represented media companies, said the decision doesn't change things for publishers.

Since passage of federal copyright law in 1976, "Most publishers correctly assumed that they had the right under the Copyright Act to republish their periodicals in any other medium and to include freelance contributions," said Keller.

Absent any agreement on how to treat freelance work, publishers automatically have the right to republish the material within the scope of the law, he said, adding that the decision was based on a narrow set of facts and publishing rights.

"It is not an all-encompassing decision effecting for all types of electronic publications. It is a decision that is very precise and deals with very specific types of online publications," he said.

Emily Bass, a partner in the New York law firm Gaynor and Bass, who represented six freelance writers in the case, expects an appeal.

"Will the digital age and high-tech world of tomorrow depend on unpaid labor? It could if today's ruling by the U.S. District Court for the Southern District of New York is upheld on appeal," said Bass. …

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