Serving professional journalism since 1912

Magazine of the Chartered Institute of Journalists

Sometimes you just have to wait

Some time ago – in December 1993 – a group of 11 American freelance writers sued the New York Times, Newsday, Sports Illustrated and other media organisations for copyright infringement.  Among those others was Mead Data Central Corporation which owned and operated the NEXIS electronic database.

This was a massive source with the full texts of articles that appeared in hundreds of newspapers and periodicals over many years. These were provided to Mead through licensing agreements with dozens of publishers.

Subscribers to NEXIS were able to access an almost infinite combination of articles from any of these publications by using the search engine provided. None of this activity enjoyed the writers’ consent.

Four tedious years later, the legal battle known as ‘Tasini v. The New York Times’ finally reached a conclusion; the case was dismissed. The media companies argued that the 1976 Copyright Act enabled publishers of newspapers or magazines, where there may be several contributors, to revise and amend material they had commissioned. Putting the articles on a database, they maintained, was simply ‘revising’. The judge agreed and dismissed the case.

It was appealed and as it was a New York case it went to the US Court of Appeals for the Second Circuit. According to a lawyer at the time, “The Second Circuit, more than any of the other 11, prides itself on leadership in copyright, and doesn’t hesitate to overturn a decision in copyright law. Particularly because it’s a new interpretation of the law, the Second Circuit will feel even freer about changing a ruling.” And so it turned out. 

Infringement

The grant of summary judgment by the lower court was criticised as being inappropriate for such a serious matter. The Appeal Court declared that the unauthorised reproduction and distribution of a copyrighted work generally infringes the copyright unless such use is specifically protected by the Act. Each author owns the copyright in an individual work, emphasised the Court. The publishers’ contention that the electronic databases are revised, digital copies was dismissed. Transferring them as originally written could not be considered revision.

“…there is no feature peculiar to the databases at issue in this appeal that would cause us to view them as ‘revisions’. NEXIS is a database comprising thousands or millions of individually retrievable articles taken from hundreds or thousands of periodicals. It can hardly be deemed a ‘revision’ of each edition of every periodical that it contains.”

It seemed a pretty convincing ruling, but the media organisations had a lot to lose. The New York Times alone expected to make $80 million over the subsequent five years from its electronic archive rights. Alarmed, so it seemed, at the prospect of substantial payments for the years of infringements, they decided it was worth a punt to go to the Supreme Court. Now, the top tribunal for US law picks and chooses the cases it will consider. This was one it decided to look at, and in June 2001 it accepted it.

It took a while for the case to make its way to the top of the pile but eventually it did so in 2005. The US Supreme Court rejected the appeal and ruled that publishers, by making their contents accessible through electronic databases, infringed the copyrights of freelance contributors. The justices vote in the case was seven to two.

Settlement

The decision involved works generated by 27,000 authors, but it did not allocate any bargaining power to them. Further negotiation with the media companies followed with the journalists’ and authors’ side being represented by a Claims Administrator. The Administrator was The Garden City Group, Inc., which provides legal administrative services for class action settlements and similar claims administration on behalf of law firms, corporate legal departments, government and other legal teams. 

There were now 16 media companies involved that were identified as the ‘Defense Group’ in legal documentation. The Defense Group continued to deny all allegations of copyright infringement but to avoid further expense agreed a settlement with the claims administrator reflecting the Supreme Court judgement. The proposed settlement was approved by the original court as fair and satisfactory. 

At this stage, I, along with other Institute members who are signed up to the Authors’ Licensing & Collecting Society (ALCS), received a letter from its Chief Executive, Jane Carr, outlining the outcome in the US. She explained there was as much as $18 million up for grabs. She suggested that any members who had contributed to US newspapers or journals should have a close look at the relevant website. 

I had been contributing regularly to Design News, the leading magazine for design engineers, as European editor. It was published by Reed Elsevier, one of the companies listed as being in the Defense Group. From reading the website it seemed I could join the class action. So I applied and in due course received an application form and instructions on how to proceed.

I was able to identify about two dozen written pieces, of which some were quite short, published during the relevant period. Earnings from all this work was about $7,000. I copied everything and sent it all off to the Claims Administrator as directed. Warned that payment process might take some time, I waited. And waited. Because sadly the settlement wasn’t implemented. 

Appeal

It seems that certain companies had objected and initiated an appeal process. The case got back in front of the US Appeals Court. It made changes after considering the substantial grounds for difference of opinion about the proposed settlement.  But, in January 2014, after revisions were made, it ordered that: “The Agreement is approved as fair, reasonable, and adequate pursuant to Rule 23 of the Federal Rules of Civil Procedure and in the best interest of the Class, and the parties are directed to consummate the Agreement in accordance with its terms.”  

Finally, a Fairness Hearing was heard at 10 a.m. on June 10, 2014 in Courtroom 11A of the US District Court for the Southern District of New York, 500 Pearl Street, New York City.  It approved the revised settlement in favour of  “All persons who, individually or jointly, own a copyright under the United States copyright laws in an English language literary work that has been reproduced, displayed, adapted, licensed, sold and/or distributed in any electronic or digital format, without the person’s express authorisation by a member of the Defense Group or any member’s subsidiaries, affiliates, or licensees (a) at any time on or after August 15, 1997 (regardless of when the work first appeared in an electronic database)…”   

Now the wheels began to move. About 500 writers withdrew from the proposed agreement for their own reasons but it still left over 20,000 people – including me – waiting patiently around the trough.

Not much information filtered through to this side of the Atlantic after 2014. I had really written off the matter. Then, at the end of April 2018, a letter dropped through my letter box. It was quite abrupt.

“Dear Class Member,

Full payment of your claim in Re. Literary Works in Electronic Databases Copyright Litigation. Void after 90 days.”

Attached was a check (cheque) for $1,466.26. The bank cleared it after commission to the value of £1.049.03. It may have been a long wait but it increased my original earnings by over 20%. 

All things come to those who wait.

Norman Bartlett