With the help of the U.S. Supreme Court, freelance writers have successfully wrestled the New York Times and other publishers to the mat, forcing them either to pay up for past work or to delete it from online archives.
But if freelance writers now have powerful publishers in a literary half-Nelson, it is the unassuming news librarians who are taking a chair to the head. Now that the Constitution has been safeguarded and lofty copyright principles upheld anew, the real work begins. And it is the news librarian--the person way behind the scenes most likely to be in the thick of thousands of research requests--who is the one charged with cleaning up the online archives. News librarians are the backbones of magazines and newspapers; they field myriad research requests from writers seeking to find out everything that's already been written about, say, the electoral college, or Jackie Collins, before writing their stories.
When the U.S. Supreme Court decided late last month that freelance writers, not the publishers of newspapers or magazines, own the copyright to their work, it resolved an issue that had been percolating for years. It was in 1993 that Jonathan Tasini, president of the National Writers Union, filed a copyright suit in New York on behalf of himself and about 7,000 members of the union.
Freelance writers spend almost as much time negotiating assignments and writing as they do wresting their pay from publishers. Pay ranges wildly--from 10 cents a word for alternative press articles up to $3 per word for high-end, high-circulation magazines, according to the National Writers Union. "Studies have shown, however, that the real income of freelancers has not increased since the 1960s," said union spokeswoman Dian Killian.
While it is standard to make a call or two to say, "The check still isn't here," extreme efforts to secure pay are not unheard of. Recently, the New York Observer reported that a freelance writer owed almost $4,000 by Gear Magazine pitched a tent in the magazine's hallway. Wearing a T-shirt that shouted "PAY UP," freelancer Brett Forrest's protest was effective; shortly after pitching the tent, he received a check that was only about $200 short of what he claimed he was owed.
For the past five or six years, many publishers have required freelancers to sign contracts relinquishing ownership of material that ends up in electronic data bases. The Los Angeles Times, for example, has had such agreements since 1995 and is currently assessing what, if any, action needs to be taken. Hardest hit might be magazines, which often are mostly or entirely written by freelance writers. In a statement, President and Chief Executive of the Magazine Publishers of America Nina Link called the Tasini ruling a lose-lose situation. "It seems that everyone loses--publishers, students, researchers, readers and ironically, freelancers. Publishers lose because they will have to spend tremendous time and resources to purge freelance materials from their databases."
Now the news librarian community (yes, there is one) is reacting with varying levels of anxiety. Pruning the electronic archives could mean months of work--or hardly any. As entries on an Internet listserv devoted to library issues show, the Tasini ruling has had some members of what is normally a calm and measured community tearing out their hair.
"I suspect [the ruling means] one or more of us interrupting work ... to glean 10 years of freelance stuff out of the database," writes a Salt Lake City librarian. "I hope it won't be me, but I have a bad feeling
From San Francisco, another asks, "Am I the only news librarian wanting to call the majority's decision in the Tasini case stupid?"
"I may be in the minority," writes a newspaper librarian in Indianapolis, "but I think Tasini is correct. Granted, it has an adverse effect on me because I now need to reload all public versions of my newspaper's archive after painstakingly weeding out stories...."
Of course, publishers could devise a plan to pay freelancers for work sold online, but many have already said they don't plan to do so. After the verdict was announced, Catherine Mathis, a spokeswoman for the New York Times, said the newspaper had no plans to negotiate with the union.
Indeed, at the bottom of its Web page, the New York Times has a link directing freelancers to a contract that gives the newspaper permission to restore freelancers' work that appeared from 1980 to 1995 to electronic archives without compensation. Arguing that the New York Times is strong-arming freelancers into ceding their online rights for nothing, the writers' union filed another suit against the newspaper on Friday.
Exactly how the pruning process is going to proceed is not clear. At some publications, librarians already have begun searching through years of articles, trying to distinguish which ones were not written by staff members.
"I'm almost finished," said Lytton Smith, chief librarian at the Seattle Post-Intelligencer. The newspaper has not decided how to alter its online archives, Smith said, but he has begun to identify freelancers' work.
"I'm doing it by myself and I've been working on it solid for a week," Smith said. "I think our lawyers are still trying to come up with a solution, so we haven't started axing out and whacking stories."
Others are simply waiting. The Supreme Court kicked the case back to the Federal District Court in New York, which will determine what, if any, damages are due to the freelance author plaintiffs.
"I'm concerned about what it's going to mean in terms of research," said Sharon Stewart Reeve, librarian at the San Diego Union-Tribune. "I think we all have mixed emotions; we have some sympathies for the freelancers. We work with them all the time and we know they're not paid tremendous amounts.
"I think that on both sides they're cutting off the nose to spite the face. If publishers opt to take out the stories, the freelancers become invisible. But it also means you don't have your whole publication there online."
So far, the New York Times has asked Nexis-Lexis, an electronic data base that archives the material of about 12,000 sources, including newspapers, magazines and Web publications, to remove about 215,000 articles. The company says it is close to finishing the task. Other publishers are just starting to make deletion requests, said Lexis-Nexis Public Relations Manager Judi Schultz. "But we don't know the scope of the job yet."
"The question is how far do we have to go?" said Michael Jesse, library director at the Indianapolis Star. "Do we have alternatives to flat-out deletion? Some ideas are bubbling up and we're asking our lawyers about them."
As it begins with computers, so may it end, with programs written to find stories with coding that indicates they were written by freelancers and either mask or delete them.
"But remember, we're not really stripping our only copy of a story out of the archive--only the copies that exist in the public arena," Jesse said. Independent researchers, the general reading public and freelancers are likely to be the most affected by the purging of electronic archives. Staff members at publications such as the Los Angeles Times will still have access to complete in-house databases--including anything in the archives generated by freelance writers--but others will have to resort to old-fashioned microfilm, a hit-or-miss prospect.