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On Tuesday, July 24th, at the Half King, mediabistro.com and the New York County Lawyers' Association presented
What Now? Copyrights in the Wake of the Tasini Decision

--( more images below)

The good, the bad, and the ugly in the dramatic post-Tasini freelance climate. We're all in favor of being fairly compensated for our creative work. But, how much will freelancers really benefit from the Tasini decision, now and going forward? If the original idea behind copyrights is to a) protect readers' access to ideas and b) provide incentives for authors to produce them, does the Tasini decision take those rights too far in favor of freelancers? As media outlets remove freelance articles from databases, the public (and particularly journalists) suffer from holes being torn in the historical record. Is there a better way? About 60 freelancers, editors, attorneys and journalists from Penguin Putnam, the Graphic Artists Guild, and the Editorial Freelancers Association, came to learn the ins and outs of this bitter dispute from both sides -- Jonathan Tasini himself and George Freeman, assistant general counsel of the New York Times Company, moderated by Ray Dowd.

Transcript
Audience Questions


Moderator Ray Dowd: Good evening, everybody. This is the second event that the New York County Lawyers Association has co-sponsored with mediabistro.com. This spring we had attorney Ed Hayes meet with a group of attorneys and journalists to talk about the relationship between lawyers and journalists. It was quite a success. I can see from the turnout this evening that tonight's cooperation is also a success, and we hope to be able to do it in the future. I'm chairman of the media law committee at the New York County Lawyers Association. In the handout is a copy of the copyright law provisions that were at issue in the Tasini case.

Joining us tonight are both sides: the adversaries in this case. On my left, and probably not intentionally on the left, is Jonathan Tasini. Jonathan is the head of the National Writers Union. He's got quite a distinguished resume, including winning in the US Supreme Court, most recently, on behalf of freelance writers. On my right is George Freeman, and he is the assistant general counsel of the New York Times Company, and he's been in that position since 1992. He is in charge of litigation for the New York Times Company. The issue in the Tasini case concerns freelance journalists and the New York Times' placing their articles in an electronic database. If you look at the handout materials, there's a Section 106 with the copyrights. And by the way, these photocopies were taken from this book right here. It's from the US government and it's free. Anyone can call the Copyright Office and get a copy. It is the entire copyright law of the United States. It's not much to read, and it's surprisingly easy to read, although not necessarily fascinating.

Let's look at Section 106 that discusses the exclusive rights in copyrighted works. What the Court was focusing on is this: journalists are given exclusive rights to their works. On the following page we have Section 201, and Subsection C. We have a provision which provides for "contributions to collective works." What the Court was doing in the Tasini case was taking that one provision and making an interaction with Section 201. The case had a major discussion of what the word 'provision' means. That's what a lot of it came down to. Now, we're going to proceed, in the beginning, with a sort of friendly chat, where I ask somewhat friendly questions to open up questions for the panelists. And then afterwards we'll let journalists in the audience talk.

Ray: To ask Jonathan first, why are you here tonight?
Jonathan Tasini: The first thing I want to do is thank Laurel Touby, who I've known for a long time. Even since the first ten years when she first started cocktail parties at that lounge on 2nd Avenue…what's it called?
Laurel: Flamingo East.
Jonathan: She deserves a lot of credit for the kind of work she's done in terms of bringing journalists together in a real community, which is really what the union tries to do too. The things we do are really very collaborative. The short answer is, we brought the suit because we didn't think it was right for authors' work to be stolen. Remember how all those newspapers who editorialized about the rule of law back in '82? And everybody stood up and pontificated about how it was important to follow the rule of law? We just thought it was important for writers to be paid and for writers to be asked permission when their work is used. That's the simple answer.

Ray: George, what do you think Jonathan's motives were in bringing the lawsuit?
George Freeman: Well, the problem here is that I don't find the notion that the Times or any of the other publishers stole terribly helpful. It's rhetorical hyperbole, and it really has nothing to do with what's going on. Basically, until the suit was brought in 1993, it was common practice in the industry -- and no one objected, it was just a given, it was understood -- that when one wrote for the Times or any other publication without a contract, the deal was that the publisher could use that article not only in the Times, but in the microfilm of the Times, and in the electronic archive of the Times. Everyone knew that, it was no great surprise. I'm sure many of you were in junior high school then. But those of you who were journalists in the 1980's knew, after all, that there were freelance articles on Lexis-Nexis. It was no great surprise. So, our view is simply that where we are all through the 90's is to ratify the understanding that we can publish freelance articles not only in the current issues of the Times, but also in the microfilm of the Times and the electronic version of the Times. That doesn't mean that we own the freelance articles. It means that the writer has the right, absolutely, to go sell the articles elsewhere, on his own and as his own property. It also meant that we could not use that article out of the context of the Times, that is, if you're a freelancer and you wrote this article about your wonderful trip to Rome, we couldn't pull that article and create a website that has travel articles about Rome and put it on that Web site. All we could do is put that article in November 23rd, 1984 edition of the New York Times whether it be a microfilm or a Web site. And that seemed to be what everyone understood until the suit was brought.

Ray: When you brought the suit and went to the federal district court, what did the judge decide? And how did you feel when you got the decision?
Jonathan: How many writers here understood that their work was going to be used on Lexis-Nexis? Raise your hand if you understood that. (Audience responds) Okay, 4 or 5 people raised their hands, and one person said they didn't know they were making money off of it, which is one issue. With all due respect, I think today the New York Times and other publishers want to put out the explanation,"Oh, that was the understanding that we worked on," in order to justify what -- at best -- was something they did without permission of authors. That's clear. And the fact that they came up with a good rationale for it worked perhaps for legal papers, but it just isn't true.

Ray: So what happened in the federal district court?
Jonathan: In the federal district court, the judge in that lower court (in what we call the "Alice in Wonderland" ruling) found the following: first of all, the most important thing that she found was that we had never actually signed away our rights. That was not shocking, because I'm sure none or most of you here ever signed away your rights to the articles. And she said that, therefore, I do not find that the authors gave the publishers permission to do what they're doing. Then she went to the Section 201c that we talked briefly about, which said, if the authors didn't give away their rights, are the publishers permitted to do this under this so-called provision? She said yes, essentially.

Ray: How did you feel when you got the decision? What was the process that you went through?
Jonathan: I said, okay, let's go to the appeals court, and let's continue to organize. I think it's very important to understand that this was about a legal point, but also to educate and organize writers. And I think no single thing that we've done is as visible as this lawsuit, primarily because it's about telling writers that it's time to stand up for their rights.

Ray: Okay, George, I want to focus on that first district court decision. When it came in, how did you read it and how does the Times feel about that initial decision? George: Well, I've got to say that the judge who we were in front of, Judge Sonya Satomayor, was not a judge who we would have picked. This was a judge whose entire legal history, before she worked as a judge, was supporting the poor and the downtrodden, and working against powerful, strong institutions. She was not the judge we ideally would have wanted. And, indeed, her first take on the case was very adverse to us. So frankly, we were somewhat pleasantly surprised that she decided in our favor. But we thought her analysis was right--that the Times on an electronic database or electronic disk is no different than the Times on microfilm-one's a spool, one's a database. But otherwise they basically are different media versions of the same print product. And that therefore she was right by saying that it was a revision of the Times.

Ray: I would like to go to what happened at the second circuit. Again, let's focus on that decision, what it said and how do you feel about it?
Jonathan: It said that the lower district court was wrong. They reversed the judge's ruling by unanimous decision, and essentially said that we had had our work improperly used. It was a very clear, one-page decision, which you can read on our website. And how did I feel about it? I felt great. (Laughter)

Ray: Okay, George, same question.
George: Well, through the whole argument it was clear that we were going to lose. The court felt that, for example, even though on Lexis-Nexis you can see what page the article appeared on, what the headline was, what the subheadline was -- the fact that you couldn't tell if it was above the fold or below the fold somehow meant that it was not a revision of the original print product, which is why we lost. We thought that that incredible level of detail was not what the copyright acts had in mind when they talked about revision. And indeed, other courts had said that it has to be substantially the same thing, not in every little particular the same thing. We felt, obviously, that the court of appeals was wrong, but it was no surprise, because (it was apparent) within 30 seconds, that they really weren't in a mood to listen to anyone. They knew what they were going to decide. And it was pretty much an open-and-shut case at that point, for them.

Ray: Okay, now we're going up to the Supreme Court. Jonathan, you know, you're not giving me very much of the trials and tribulations and personal terrors that you may have faced going up to the Supreme Court. Were you just dead confident the whole time? And then, when you got up there, what happened?
Jonathan: Well, when I got out there, luckily I didn't have to make the whole argument myself. I had a pretty good lawyer. I don't mean to sound flippant about this, but I didn't have any terrors because I was fairly confident that we would win. And I think we had a very strong argument. And the other point that I made was that, win or lose, this was about a chance to have authors and writers stand up together and organize, and stand up for their rights and understand that as a collective we could work together. We can do better for ourselves to protect our economic rights. So, even if we lost the Supreme Court, we would have gone forward in being organized. Actually, to be honest with you, I was pretty calm. I must say, I was somewhat cynical about institutions of power, but it was quite impressive to be in the Court itself. I had never been there, actually, even as a tourist. And the grand surroundings of that atmosphere were pretty impressive. If you haven't been there, it's worth going, cause it is quite impressive. I did have one funny anecdote to tell: I became--I hate to say this in public--I became slight buddies with Ken Starr. Now not only did I find Justice Scalia and Justice O'Connor to be on our side, which is startling, but Ken Starr and I debated each other on the radio a day or two before, and we went at it a little bit. He represents National Geographic, which has a separate case. And when we ran into each other in the hallway, he wrapped his arm around me like I was an old school buddy and said, "Oh, you know, we really went at it the other day," and he chuckled about it. And I turned around to look at my fellow plaintiffs, and they had these long faces looking at me, thinking, "Okay, he just sold us out, he's hugging Ken Starr."

Ray: George, I know you're bound by attorney/client privilege, but is there anything you can share with us about going up to the Supreme Court? Were there any tension or debates you can comment on? And what was the experience of getting the decision and going through the process like?
George: Well, first of all, I disagree with Jonathan. I was sitting there saying, Geez, I'd want to be arguing this case. Why am I not up there?
Jonathan: Because you're a lawyer.
George: Why is Larry Tribe doing this? I'm not sure I ever figured out the answer to that question except that Larry Tribe is obviously the leading constitutional scholar. But he was on a losing streak. He lost Bush v. Gore. We should have thought about that a little more. On the other hand, my experience with the Supreme Court is that argument -- on the one hand, I certainly agree that it is a fairly magnificent and very elegant surroundings and you feel kind of a certain degree of stature and seriousness with the whole proceeding. On the other hand, it was extremely strange and bizarre, because you had a bunch of justices -- and you know what their ages are as well as me -- trying to decide what is going on in cyberspace when in all likelihood, most of them have no idea how to work a computer. I mean, I don't either, I'm a Luddite. But the notion that this case was going to decide on their interpretation of the New York Times, which is downloaded as the New York Times, then gets disassembled somewhere in cyberspace, before it gets to your home computer where an article can appear without the rest of the articles of that page of the New York Times, kind of makes me scared, because clearly these nine justices had no idea of where cyberspace was, much less what was happening in it. And the notion that that was what they thought was important in terms of resolving the case did not fill me with great confidence.

Then when the decision came down, it wasn't like we had to have Dan Abrams sit on the Supreme Court steps and decide who won or who lost. It was fairly obvious, although we didn't think that the 2 dissenting judges had it exactly right. I mean, their understanding of what went on in cyberspace and indeed of why the articles you could pick up in the Times are no different than what is in the print version--we thought was exactly right. The problem with the decision of the Supreme Court when you really pare it down to its bare essence, is that they decide that it can exist in the context it does because electronic research is so efficient, and is not protected by the publisher. But Justice Ginsberg said that with microfilm, you have to scroll page by page, and all that work is good for you. But if you get those pages too quickly, too simply, too efficiently -- that's bad and we're not going to allow that. And frankly, for a court that seems to be interested in computerization and progress and technology, it seems like a kind of a backwards step because they're saying that the very advantages that the computer gives you are the reasons why we're not going to allow this to be on computer and be retrievable by you the way microfilm is. My response was: well, if I do push-ups while the computer's coming up, maybe that will be okay because maybe then we'll have done some work. To me, there's not much rationale there, but it is what it is.

Ray: Jonathan, since you were victorious at the US Supreme Court, I get to ask you a couple of tough questions. Didn't you really sandbag the New York Times? I mean, their writers are some of the most educated, mostly white men in Manhattan -- (Women dissent in audience) Will all the non-white men please stand up? (More dissent) I promised Laurel a Jerry Springer-type debacle. And didn't you and all these other people sit on your hands while the New York Times very publicly and very notoriously exercised rights that these educated folks had just left on the table? Wasn't it all about just grabbing money out of their pocket?
Jonathan: No, the answer is no. Remember, we use e-mail now so second-hand, we forget that this electronic age is basically a decade old. Certainly in terms of its real use. I mean, in 1990 when I first got the check that tipped us off to this trend, the check that when you turned it over and you signed the back it said that you were signing away your rights to -- and I'm not quoting exactly -- to electronic archives or something like that. Everybody said, what the hell is this all of a sudden? And it was really a new phenomenon. So, we started researching it in 1990 or so, and it took us a little time to understand that what we thought was going on was really widespread, unauthorized use of writers' works, and that's why we sued in '93.

Ray: Justice Ginsberg talked about this metaphysical library in cyberspace. If you look at an electronic database it would be as if there were a super-speedy library in which people could pick out author's articles, and that meant that the database interfered with the author's exclusive rights of control in Section 106 of the copyright statute. But, isn't it right, what George says, that these articles already exist in microfilm. The New York Times has the right to put it in Braille. These articles are used in a number of other forms and the writer's already been paid for it.
Jonathan: Again, no, and I respectfully disagree with George. Not only did I not agree with it, but the appeals court of the United States did not agree with it, and the Supreme Court of the United States didn't agree with it. At some point, the publishers are going to have to say they're wrong. And the fact is, intuitively, if they asked 100 people on the street, "Is what you buy on the newsstand the same thing as plucking out articles from some disaggregated mass up there?," I think they would understand the difference. And although I hear George's point about the Supreme Court justices perhaps not being completely confident in technology, I think that Scalia and some of those other people did understand what was going on pretty intuitively. A law clerk has probably done research on Lexis-Nexis and understands that when you pluck your article out, you're not getting the New York Times as it's produced in the papers. I think Judge Sutter said, "Under your interpretation you're essentially reading the authors' copyright protection right out of the statute." And in plain English that means, if we had not won this case, the notion that we would have any control over our work, or own our work frankly would have been irrelevant.

Ray: At this point I'm gonna hand the mike to George with no restrictions, no questions. I want him to say anything he wants to focus the audience on what he thinks the issues that we should be thinking about are, and any responses to anything that Jonathan may have had to say, after which I am going to open it up to questions from the floor.
George: The first thing I would say is, I think there's a clinching point. Jonathan's greatest ally is Justice Scalia -- you can see the weakness in his position right off the bat. Secondly, the fact of the matter is that I think in the end what the court decided was a lose-lose-lose proposition. We lost the case in the Supreme Court, that's bad. From my point of view the freelancers lost, because the inevitable result, as we have said in advance, was that the freelancers' articles by now have been removed from our electronic database. So, I think the freelancers really end up losing because their visibility and their association with the Times is lost. And finally, really, the biggest loser is society, researchers, historians, etc. because of the consequential holes in history that we have. I think what came out of a difficult situation and confusion on the part of the justices was a result that really does no one any good. And I'm afraid that's where we are right now. Now we're going to try to remedy that as best we can by trying to figure out a solution that works for everyone. Hopefully we can find one. We're going to start those discussions presumably pretty soon. And I hope that something can be worked out. When Jonathan says on his Web site that this is going to be a $600 billion case, I think that doesn't particularly help the cause of trying to resolve it, and it also tends to answer the question that was asked originally as to why the suit was brought. But that's not the kind of solution that I think is feasible or realistic to expect. I think the Court has put us all in a lousy situation. No one's happy about the circumstances we find ourselves in right now. It's up to us to get together and to figure out some solution that works.

Ray: I want to hear a little bit from our audience.
Audience Question: I'm an editor, not a freelancer, but what I would love to do here is figure out how we're all going to get along with each other, how are we going to inter-operate, because my organization relies on freelancers for about a third of its editorial content. And I want to employ freelancers, I want to be fair to freelancers, I need freelancers -- I want to know how to get along.

George: The solution is not going to be easy to come by. But we're going to try to reach one. One question which I asked Jonathan when we last were together which was 2 weeks ago in some TV studio, was that his case was about the past. The case is about the period before 1995, at least vis a vis the New York Times, because since then we've had contracts that have in fact spelled out the rights of the freelancers and the newspaper. And I think that most other publications have similar contracts in place.
Audience: Are you serious about excising your database?
George:
It's been done, I mean, the Supreme Court has given us no choice. (Boos from the audience)
Jonathan: They told you to negotiate, they didn't tell you to remove that database.
Ray: Don't shout people down, the First Amendment guarantees everyone speaks. Please be civil. If people are not civil, we will end this.
George: Let me answer, it's really an easy answer. I mean, I don't have any great difficulty with the answer. Number one, from a pure business point of view, of law, business and the integrity and the future of the company -- and if the company doesn't succeed the newspaper doesn't exist and presumably that's not something anyone wishes -- you really have no choice. If you keep things online in the face of a Supreme Court decision that says you can't, then you're liable for so-called willful infringements. While the case is pending, and the law is unsettled, as it certainly was, that's not the case. But now it is and therefore we felt we had no choice. Now you'll say, as you already have, well why didn't you negotiate? And the answer for that is really much easier than you're making it out to be. We have figured out as best we can, and we might not be exactly right, but we've sent out approximately 27,000 freelancers who wrote for us from 1980 to 1995, when we started putting contracts in place. For us to find those 27,000 people and get permission from each one of them so that we would not be willfully infringing and then subject to much greater penalties, was well-nigh impossible. They were dead, they had moved -- among other things, how could you negotiate because the Supreme Court gave them a carte blanche to say, "Unless you pay me a million dollars I won't allow that article to be up." So the notion that somehow we could have negotiated with Jonathan to say we could pay him -- and he's a great guy, I'd love to send him a check -- but giving him a check does not cover us for the 26, 999 other people who have the same rights that he has. The notion that, "Oh, they should have just paid and then there'd be no problem," is not really an answer. Now the truth of the matter is, the articles have been masked, so if a solution can be driven which everyone feels good about and which resolves the whole matter in a way in which permission is granted by the freelance community, then the articles can go back up.

Ray: Thank you. I just want to remind the audience that we have a really heated debate going on. I understand that there are very strong feelings on both sides. I guaranteed both parties that came here tonight that they would be received with civility and respect. I don't expect any shouting, any incivility, or any obscenities. So, please, those are the ground rules and I will end it if that's not respected. I'm going to pass it to Jonathan Tasini and then I'm going take a question from the floor. Jonathan: I'm going take my time in answering this to give a full answer. First I want to say thank you for being a respectful editor in saying that you want to pay freelancers, because that's what it's about. What George just said is really a load of bull, with all due respect. The fact is -- (Laughter) -- that this is about money. They do not want to pay you. And all this rubbish about taking articles off the database is crap. I want to quote from the Justices of the Supreme Court. They said, "Notwithstanding the dire predictions from some quarters, it hardly follows from today's decision that in the injunction against the inclusions of these articles in the database must issue. The parties may enter into an agreement allowing continued electronic reproduction of the author's work; they, and if necessary the courts and Congress, may draw on numerous models for distributing copyrighted works and remunerating authors for their distribution." The librarians said, when they filed on our behalf, that the publishers have essentially been misrepresenting themselves as a so-called historical record. And they said, "Finally, if the petitioners in civilly situated courts only choose to remove certain work off their online databases, these works will remain available through other avenues." So when the publishers say there will be holes in the historical record, they're lying. For example, say that all 75 of us wrote for the New York Times here, and we represented a class of plaintiffs. There have been class action lawsuits filed, and we could negotiate a settlement and it would cover every single one of those 27,000 authors. Even if you couldn't find them. That's the way class action lawsuits that have sued the asbestos industry and over toxic waste have done it, and it can be done here. The bottom line is, the New York Times does not want to pay you. And what they want to do -- worse than that -- is force you to sign away your rights for your articles.

Ray: So what do you suggest as an alternative?
Jonathan: And, they don't want to pay you in the future. We set up license to exist. It's called the Publication Rights Clearinghouse, which some of you know about. It's the same thing as ASCAP and BMI. Royalties are paid throughout the music industry without any problems at all.We would love to have you use our work; we simply want to be paid fairly.

Audience question: I have, in the past, written for the New York Times. I consider some of my essays timeless, but they were written before the Internet. Now you're telling me that they will be deleted from your database. Now, does that mean it liberates me to resell those articles?
George: Well, the answer is that in absence of a contract, if there was not a contract that we actually signed, then you've always had the right to resell. Sure, it liberates you, but you've always had the right, you've always been liberated. You could have done it in the past and you certainly can do it in the future. Essentially, the period we're talking about is the period from 1980, which is when our articles first went on to Lexis-Nexis, to 1995, when we had contracts in place that took care of this issue. But, for those 15 years, without a contract, that's where the Supreme Court decision made us take new steps. Now, unlike what some of you think, none of us at the New York Times are happy with this, believe me. We did not want to detract from the integrity and the completeness of the database. But, despite what Jonathan says, from a business point of view, you really have no choice. The other thing I would just say is that we have had in the last weeks and months, thousands of people sign either contracts or, on our restoration website that we started after the decision of the Supreme Court, agreements saying that we had permission to keep articles on the website. Now, you'll say, "Well, somehow these folks were duped or they didn't know what they were doing." I don't really believe journalists fool easily. It's very clear to me that what those journalists were saying was that it was important for their articles to stay up. And that was the understanding -- I was a freelance writer, I wrote an article for the New York Times. I got paid, I think, 150 bucks for the article that I wrote for the New York Times, and frankly, my priority was that I thought I had something to say and I wanted it to be out there. I would be happy if it remained on the database without getting a penny. Now some people might feel differently, and they have that option at this point not to agree to stay on the database. But for those who do, and there have been hundreds and thousands who have, I think that shows what their vote is.
Audience: No, that's terrible.

Another audience question:
I don't understand why it keeps getting sort of brushed under the rug that the electronic databases make money. And we're participating in creating a product that you're making money from. The same way that when you pay for renting a video, the actors and everybody involved gets money for that too. (Ray: )Okay, the question is, why does it get brushed under the rug that Lexis-Nexis is a separate product from a newspaper which you pay 75 cents for, and that there's an ongoing revenue stream.
George: Maybe this is too technical, but from a legal point of view, the key thing is the understanding that was in place at the time -- that the Times and the freelancer got the article. What the Times then did with the article is really a different question that shouldn't really bear on the result that you're trying to reach. I understand what you're saying, but I think that's the answer I would give. I don't think anyone ever expected that when we put the articles on microfilm, writers would be getting extra payments for each spool of microfilm that is sold to each library across the country. So I kind of view it as the same thing. I've never understood, frankly, how this is different from microfilm. We made money from the microfilm products all along, okay? And everyone understood that, it was no secret. And no one demanded that they get some share of the money that we were getting from the microfilm company. So I just don't see, theoretically, why this is any different.

Audience question: If you wrote the article for the joy of it, do you practice law for the joy of it?
George: Well, the answer is, I do enjoy what I do for a living, and it's nice to get paid some money for it too. I presume I could make more money, frankly, than the money I'm making now. But that's neither here nor there. The fact of the matter is, my point was -- which maybe was wrongly taken -- that what we're doing now is offering writers a choice. Either you can stay on the database, or you cannot, and that's the situation we find ourselves in. I would say that as a freelance writer in the one instance that I was, I would rather stay on the database, not make any money, and continue like that. I can fully understand that if your only source of income, you're a professional writer, and you don't have another occupation as I do, if you're a writer and this is the way you make income, then you would opt differently, but that's what choices are all about. I mean, I don't see anything wrong with each of us having a choice and each of us deciding differently because we're in different circumstances.

Ray: Okay, I think Jonathan has some comments.
Jonathan: I got pretty worked up about this. I think that George should be commended for coming and speaking to this group. But what they've decided is, it's not that they have gotten permission -- they forced us to sign those contracts. Everybody here knows that if they don't sign those bad contracts, they don't eat. And they don't get money and they can't pay the rent. That's real to people. And the only solution in some way is not these legal fights, because they're always going to re-write contracts, but it is about trying to form a powerful organization like the union that will stand up to these people. The union will give us enough power across the bargaining table to make sure that they cannot do that
Ray: I'd really like to personally commend Mr. Freeman for coming here tonight. He knew it would be a very hostile audience. And, in the best traditions of the First Amendment, I think it's very important that he's here to share a viewpoint that maybe some of you don't agree with. Now, is there anyone in the audience who has a difficult question for Jonathan?

Audience question: What do we do about those kinds of contracts?
Jonathan: I think that we have some leverage now. And the truth is that, putting aside the New York Times, there are publishing companies that realize they have some liabilities out there, and we're hoping to deal with their problem of having this infringement in the past and our problem of not wanting to sign any bad contracts. So, we want to try to negotiate something that's fair to both sides. We want publishers to make money. We want them to use our work, we just want them to get compensated. That's one answer. The second part is, you're right. The Supreme Court decision, strictly speaking, did not prevent those publishers from trying to force us to sign those contracts. I say again, and I mean this seriously, the only way to do that is not through the legal system. What we want is a practical victory. It is only by having a strong union that numbers make the difference. If we have a union that could bargain across the table, and set fair, minimum standards -- enforceable standards, where we represent people -- that will be the road to change. I think we're along that road. We're doing some legislative work, which I don't want to talk about publicly here, that we think will move that along a lot faster so we have collective bargaining rights.

Audience question: Uh, how can you be so sure that freelance is covered by contracts after '95, when a lot of your editors were sabotaging you by not requiring freelancers to sign contracts? Have you searched the database of projects after '95, and what percentage of contracts have you actually found? (Ray:)Uh, the question was: post '95, how can you be so sure that you got all the rights, because there were editors at The New York Times sabotaging the New York Times Company.
George: It's the first I heard of sabotage, but I'll look into that.
Audience member: They were trying to maintain peaceful relationships with their writers because they knew that they wouldn't sign those contracts.
George: I appreciate the nice words. If you say I'm full of bull on the one hand it's nice to say that it's good that I'm here on the other. But it's the same Supreme Court that, after all, did say in the First Amendment that the most important thing was respecting the speech we hated. It's easy to respect the speech that we enjoy and like. But the reason I'm here, other than to engage in a First Amendment exchange, is really because the Times does feel that it's important to reach out to and to be on good terms with all its constituents including the constituency that you belong to, freelance writers. If weren't for that, believe me, I would not be here. It's not so that I could enjoy the day with Mr. Tasini. Unfortunately, I already had one of those. The truth of the matter is that we would like to establish some form of relationship -- moving ahead -- that everyone can live by. And that's really what our goal in the next few months is gonna be. In answer to your question, the answer is: I don't know. I'm not aware that our editors are trying to sabotage us. My understanding is that the vast majority of articles written since 1995 have been under contracts. We have a database that has about 3,000 or more writers who signed such contracts. If there are a few that fell through the cracks -- we're a big organization, it's entirely possible and we're going to look into that. But I don't know any more than that, or that anything like that has happened on a systematic basis.

Ray: Okay, in the great tradition of mediabistro.com, we're going invite you all to grab a beer. Hopefully, the panelists will remain around for a while so everyone can have quiet, civil conversation with them. We'll assume that Jonathan disagrees with absolutely everything that George just said, and have a good time everybody and thank you all for coming.

Click on images for larger view.

Our panelists: Jonathan Tasini, Ray Dowd and George Freeman

Questions from the audience

Read more in our Archives. Send your feedback to Jesse Oxfeld.

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