-Caveat Lector- Click Here: <A HREF="http://www.inside.com/jcs/Story?article_id=24214&pod_id=7">[ I N S I D E ] Ken Burns and Doris Kearns Good…</A> ----- HOME > MEDIA > NEWS Ken Burns and Doris Kearns Goodwin Show Up on Publishers' Side in Dispute With Freelancers A group of seven big-name historians/commentators tell the Supreme Court that if writers prevail against the New York Times and others, the 'integrity of the nation's historical record' would be endangered. by Roger Parloff Friday, February 23 07:56 A.M. In an overlooked development in a much-anticipated U.S. Supreme Court case, documentary filmmaker Ken Burns, omnipresent PBS/MSNBC commentator Doris Kearns Goodwin and five other ''historians, political commentators and authors'' have submitted a friend-of-the-court brief on the side of publishers who are refusing to pay freelance writers royalties for selling their articles to several electronic databases. A ruling in favor of the freelance writers in The New York Times Company v. Jonathan Tasini, which is being argued on March 28, would threaten ''the integrity of this nation's historical record and the public's access to it,'' according to the celebrity historians. The group of seven -- whose ranks also include political commentator Richard N. Goodwin, historian David Kennedy and Pulitzer-winning authors and historians David McCullough, Jack N. Rakove, and Gordon S. Wood -- contends that if the court rules for the freelancers, databases will be forced to ''minimize the risk of liability by prophylactically eviscerating electronic collections'' of freelanced materials, ''irreparably undermining'' the public record. A competing group of academics, however, argue that Burns and Goodwin have been duped by the publishers' arguments. But in two other friend-of-the-court briefs filed last Friday, those claims were sharply contested by a total of 13 less glitzy, but no less eminent, historians, who were joined by the American Library Association and the Association of Research Libraries. These scholars argue, in essence, that the others have been duped by arguments the defendants in the case -- the Times, Newsday, Time Inc., Lexis-Nexis and University Microfilms International -- have been floating since the case was filed in December 1993. (During those seven-plus years -- which have seen the district judge rule for the publishers in 1997, the appeals court unanimously reverse the ruling in 1999 and the Supreme Court take on the case last November -- the plaintiffs have never sought a temporary restraining order or a preliminary injunction to force the deletion of works from existing records.) The group, which includes Stanley N. Katz of Princeton, Leon Litwack of the University of California at Berkeley and Alan Trachtenberg of Yale, argue that any serious researcher obviously draws upon many more sources than electronic databases, which only go back about 20 years anyway. In addition, the historians supporting the freelancers argue that libraries maintain comprehensive hardcopy and microform copies of all the materials in question, so there is no danger of the historical record being lost. In fact, they note, if the worst occurred and items actually were deleted, freelance contributions account for only about 0.0036 percent of the Nexis database, about 100,000 out of 2.8 billion total documents. (Articles by staff writers are not at issue in the case, since they are ''works for hire,'' whose copyrights are owned by the publishers.) Finally, they argue, courts have leeway to devise methods of compensating writers for both past and future contributions without ordering deletions from records that already exist, and have crafted creative solutions in comparable situations in the past. ''If the preservation of these records for posterity was such an important public task,'' the rebuttal historians ask, ''one might expect the (publishers) here to assume a large share of the cost themselves.... That is not the case: the publishers of the periodicals are paid by Lexis-Nexis to provide the articles, Lexis-Nexis is paid by its subscribers for access to the articles, and a payment based on that access is remitted to the original publishers. All the defendants profit from making these records available in electronic form; only the freelance copyright holders are asked to assume responsibility for historical memory.'' Filmmaker Burns was out of the country and unavailable for comment, according to his spokesperson, and Ms. Goodwin did not respond to an e-mail forwarded to her by her booker. An attorney who coauthored their brief, Brett Miller in Washington, D.C., declines to discuss precisely how Burns and Goodwin became involved the case. ''They became aware of the case,'' says Miller, ''and it was our understanding that they potentially had an interest.'' The publishers have placed great weight on public-policy arguments (the loss to humanity if freelancers' copyrights are recognized) in part, it seems, because their position in nitty-gritty legal terms is iffy. Magazines and newspapers are considered ''collective works'' under the copyright laws, because they may comprise many individually copyrighted works. Newspapers and magazine publishers own copyrights to each issue of the collective work because each edition reflects creative editorial choices about how to display and prioritize the numerous articles, photos, graphics and ads contained within it. Freelance contributors to those collections, however, retain their copyrights to their own articles for other uses unless they have signed them away. In 1976, when Congress revamped the copyright laws, it added a provision that specified that publishers of collective works would be presumed to own only the right to use the freelancer's contribution as part of that particular ''collective work'' or a ''revision'' of it. Examples of ''revisions'' that were cited by the law's drafters at the time were the evening edition of a morning newspaper, or a revised edition of an encyclopedia. In this case, however, the publishers are forced to argue that what they sell Lexis-Nexis -- disembodied text without the photos, graphics and ads that make up the collective work -- should really be viewed as just a ''revision'' of that day's paper. To make this Clintonesque argument, the publishers have retained Laurence Tribe of Harvard Law School; interestingly enough, the National Geographic, while not a party to the suit, has hired Kenneth Starr to submit a friend-of-the-court brief in support of the publishers. The freelancers have not yet decided who will make the arguments for their side, though it will most likely be either Emily Bass of New York, who originally filed the case, or Lawrence Gold of Washington, D.C., a former general counsel for the A.F.L.-C.I.O. (The freelancers are members of the National Writers Union and Tasini is its president.) Though the publishers may have the edge in legal firepower, the freelancers got an important surprise Valentine from the U.S. Copyright Office on Feb. 14. Responding to a request from Rep. James McGovern (D-Mass.) to weigh in on the issues, Register of Copyrights Marybeth Peters issued what amounts to a 2000-word brief supporting the freelancers in the broadest possible terms. (The letter was published two days later in the Congressional Record and then appended to the freelancers' Supreme Court brief. And in the Supreme Court, if not the court of public opinion, the words of Marybeth Peters may carry more weight than those of a Doris Kearns Goodwin or a Ken Burns. • Copyright ©2001 Powerful Media Inc. <A HREF="http://www.ctrl.org/">www.ctrl.org</A> DECLARATION & DISCLAIMER ========== CTRL is a discussion & informational exchange list. Proselytizing propagandic screeds are unwelcomed. Substance—not soap-boxing—please! These are sordid matters and 'conspiracy theory'—with its many half-truths, mis- directions and outright frauds—is used politically by different groups with major and minor effects spread throughout the spectrum of time and thought. That being said, CTRLgives no endorsement to the validity of posts, and always suggests to readers; be wary of what you read. CTRL gives no credence to Holocaust denial and nazi's need not apply. Let us please be civil and as always, Caveat Lector. ======================================================================== Archives Available at: http://peach.ease.lsoft.com/archives/ctrl.html <A HREF="http://peach.ease.lsoft.com/archives/ctrl.html">Archives of [EMAIL PROTECTED]</A> http:[EMAIL PROTECTED]/ <A HREF="http:[EMAIL PROTECTED]/">ctrl</A> ======================================================================== To subscribe to Conspiracy Theory Research List[CTRL] send email: SUBSCRIBE CTRL [to:] [EMAIL PROTECTED] To UNsubscribe to Conspiracy Theory Research List[CTRL] send email: SIGNOFF CTRL [to:] [EMAIL PROTECTED] Om
