ALTERING THE HISTORICAL RECORD FOR FUN AND PROFIT
The writers won. The New York Times was wrong, said the Supreme Court. It made money for years using articles from freelancers in its electronic databases without compensating them for an additional use they never agreed to. The obvious solution: the Times should be a gracious loser and fork over some of their ill-gotten gains. Jonathan Tasini, president of the National Writers' Union, has offered to negotiate.
The Times doesn't want to negotiate, though. According to a story in the Los Angeles Times, [Victory for Freelancers Leaves Librarians at a Loss http://www.latimes.com/features/lifestyle/
la-000056513jul10.story?coll=la%2Dheadlines%2Dliving] its not-so-obvious solution is to threaten to eliminate those freelancers' works from the New York Times database, and pretend they never existed. UNLESS, of course, the writers "voluntarily" sign over their rights to those articles retroactively. As an extra inducement to do so, there is the threat that the Times will not print any future work by those writers unless they do sign over their retroactive rights.
That doesn't sound like much of a victory to me, either for the writers or for libraries.
As both a free-lance writer and a librarian I probably have a unique perspective on this. As a writer, I'm fully aware of the carrot-and-stick power of publishers. Writers do, after all, want to get published, and to be published in the Times, many of us, including me, would sign away not only our electronic rights and reprint rights but our first-born child if need be. (My first-born child is a writer himself; he'd understand.)
But we are also aware of the arrogance of publishers, manifested in the take-it-or-leave-it low prices they offer for our work, and in the hoops writers have to jump through to collect money they're owed. I recently read a writer's account of his battle with the Times when it wanted to reprint an article of his in an anthology. The publishers sent him a permission slip that had no mention of additional payment, and he refused to sign it unless they offered a reasonable amount of money. They didn't, so he didn't. And they included his article in the book anyway. When he sent them a series of letters pointing out that he had never agreed to this, their letters back to him (reprinted in full in this article), reeked of condescension. Why, no, they didn't owe him anything, and he should be pleased and grateful to have his work so honored.
As a writer whose work appears on the internet, I too have noticed that when publishers request the right to reprint, the permission form has no mention of payment. When I mention this, they always say, oh, terribly sorry, that was an inadvertent error. Pardon me for being cynical, but I don't think there was anything inadvertent about it. They were hoping people who give away their work for free on the net would be so grateful to have it published in an actual BOOK that we'd give it to them for free, too.
As a writer, I'm appalled (though not surprised) by the Times' response to the Tasini decision. I believe that great power should be exercised ethically, and I have never cared for bullies.
But as a librarian, I am even more horrified by their response, because what they are willing to do to avoid paying the authors for use of their work -- strip articles out of a database that's supposed to be a complete record of what appeared in the newspaper -- is tampering with history. How can we trust "the newspaper of record" when it doesn't even accurately represent its own record?
Libraries have every reason to believe they leased that complete historical record when they leased the database. Most of us act on that assumption and dispose of the paper copy once the newspaper appears online. If what they sell us no longer includes articles we and our users would reasonably expect to find there, the Times has violated a contract -- the phrase "bait and switch" comes to mind.
A wider point that should give us pause here is the ease with which databases can be altered. This particular case has been done in the glare of publicity generated by a court case, but in other cases, who of us would notice, until our users didn't find something we were sure was supposed to be there, something that we were sure we had paid for?
The Tasini case has been remanded to the federal district court in New York for judgment about damages. Perhaps our professional organizations should submit Friends of the Court briefs about the impact of the Times' approach on libraries and the historical record. And then perhaps we should file suit against the Times for selling an incomplete and inaccurate rendering of history.
See also the story about this in the July 5 Industry Standard (http://www.thestandard.com/article/
0,1902,27702,00.html.
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Check out my article, "Teaching Kids Indirectly," in the summer issue of Library Journal NetConnect. It's about creating pathfinders to prove to them that we can make their lives easier because we DO know more than they do about the web.
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COOL QUOTE
Your pick of the LATimes story citing editorial librarians standing fast -- in a courteous and sensible way -- against senior directives to trash stored freelance stories confirms my longheld belief that librarians remain as they have been for millennia, the real heroes of the information industry.
Through the latter half of the Nineties, many senior, skilled librarians lost their jobs to make way for less-experienced entries who persuaded employers that they knew everything about the Internet, and in the information industry, the Internet was All. Both claims were usually fictional, and the latter once always was.
We now see librarians again standing up for the information industry -- including journalists, both freelance and fully employed -- while rather vindictive senior publishing executives have been running around like chickens with their heads cut off. Chicken Littles.
This suggests that librarians are wiser than senior publishing executives -- no surprise in that -- and reminds us all of how much tougher journalism would be without librarians' expertise. It's kind of embarrassing that the librarians seem to be pretty much alone in resisting the wider excesses of the newspaper trade post-Tasini.
Letter from Paul Kunino Lynch to Jim Romanesko's Media News http://www.poynter.org/medianews/letters.htm
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Ex Libris: an E-Zine for Librarians and Other Information Junkies.
http://marylaine.com/exlibris/
Copyright, Marylaine Block, 2000.
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