Tasini Oral Arguments Heard at the Supreme Court

Article excerpt

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 waits, perhaps until as late as the end of June or even July, to hear how it all turns 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 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://www.infotoday.com/newsbreaks/nb0011131.htm), or "Freelance Authors Turn Up the Heat with More Lawsuits; Major Database Providers Under Siege" (http://www.infotoday.com/newsbreaks/nb000821.1.htm).

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 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 mentioning 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. …