Path: portal.gmu.edu!news From: wmcclatc@gmu.edu (Bill McClatchie) Newsgroups: gmu.course.lrng572 Subject: Re: Cyberspace Gold Rush and Copyright Date: Thu, 16 Mar 1995 19:58:43 -0500 (EST) Organization: Hell (Dell's Beta test site) Lines: 276 NNTP-Posting-Host: osf1.gmu.edu Mime-Version: 1.0 X-Newsreader: Forte Free Agent v0.38 From alt.cyberspace nwu@netcom.com (National Writers Union) wrote: FROM THE SAN FRANCISCO EXAMINER MARCH 9, 1995 (distributed with the permission of the author and the National Writers Union) How the Cyberspace Gold Rush Affects Intellectual Property Rights By Irvin Muchnick Information, entertainment and data are rapidly becoming our greatest export. But by treating creators and their work as mere commodities, we risk losing our primacy in this area, as we have in so many others. A nation that forgets how to make shoes, it is said, will eventually go shoeless. Similarly, a culture that lumps a painting with a patent and a trope with a trademark is destined to go color-blind and tone-deaf. As officials of 11 industrialized nations gather in San Francisco this week to discuss harmonizing international copyright law in the age of digital media, there seems to be renewed respect for the concept of "intellectual property." We have the Chinese trade war to thank for this development. Infobahn hype has tended to deride the prissy notion of creators' rights as a relic of the Gutenberg press. But there's nothing like foreign bogeymen to turn deregulators into re-regulators. Where appeals to fair use fail, bootleg versions of Microsoft Word can be counted on to succeed. Even Wired magazine, bible of the cyberspace gold rush, is backpedaling gingerly on World Wide Webbed feet. An article in the February issue, "The Emperor's Clothes Still Fit Just Fine," by Lance Rose, argues that copyright has a place on the Internet. New York Times Magazine columnist Max Frankel quotes lyricist Hal David as fearing "creators" will become road kill on the information superhighway. Frankel calls for an ethic of "no pay, no say" in the brave new digital world. At the National Writers Union, we appreciate Frankel's support. The newspaper of which he was once executive editor, and its online partner Mead Data Central Corp., are being sued in federal court by NWU president Jonathan Tasini and 10 other members. They want to stop the distribution of their works, without permission or compensation, via computer access to commercial databases. A victory by the free-lancers in this landmark lawsuit could mean for the corporations of the information age what asbestos litigation once meant to factory owners: An upload of liability claims. That's why lawyers at media companies are rewriting contract language to make sure they can henceforth take through the front door what used to get slipped onto the freight elevator. The Los Angeles Times (whose parent company is another defendant in the Tasini suit) is even trying to force free-lance writers into blessing this practice retroactively. And therein lies the problem with the sudden fashion of intellectual property: It's IP for me but not for thee. This is the same impulse that led Bruce Lehman, the Clinton administration's National Information Infrastructure point person, to suggest the takeover of the federal Copyright Office by the Patent and Trademark Office, of which Lehman is the commissioner. With Lehman running the show, it's not surprising that a real voice for creators' rights is not included in the American delegation at the closed-door international copyright negotiations this week at the Presidio. European countries have a strong tradition of "moral rights" to prevent works of art -- including writing -- from getting bowdlerized or mangled against the will of the copyright holders. The U.S. position on global copyright, by contrast, is rapidly being reduced to dollars and cents -- and thus impoverished. So before the captains of computerdom turn organizations representing the workers of the 21st century into trade associations united against pirates across the ether, let's pause to observe that there is piracy, and there is piracy. Piracy in the first degree -- blatant unauthorized duplication for profit of Bon Jovi CD's and spreadsheet software -- is bad. It's wrong. Piracy in the second degree refers to the attempt by communications conglomerates in the West to procure -- without negotiation -- all subsidiary rights in new technologies. Piracy in the third degree refers to way these same conglomerates have leveraged their power, along with the antiquated state of labor and antitrust law, against creators who have tried to retain their historic rights in those markets. Publishers that pay writers the same money for everything under the sun that they used to pay for first publication rights -- and then turn around and charge end users exorbitant electronic access fees -- are abusing their contributors and gouging the public. In today's temp-driven, no-benefits economy, few writers (or photographers, graphic artists, videographers and musicians) can afford to walk away from the onerous deals now being foisted on them by ever-larger and ever-fewer employers. But the Constitution mandates a copyright system to promote "the progress of science and useful arts." Such a system needs a shelf life longer than that of a floppy disk. The good news is that the logistical headaches of journalists' electronic rights -- does every publication have to cut a 37-cent check every time a free-lancer's article is downloaded from a database? -- have a technological solution modeled after the music industry's system for members of ASCAP -- the American Society of Composers, Authors and Publishers. Following publication last fall of an influential New York Times essay by Nicholson Baker (a Berkeley-based, bestselling author and NWU member), the CARL Corp. of Denver, operator of the popular UnCover database of magazine and journal articles, opened negotiations with the NWU for the establishment of the first-ever, transaction- based, writers' royalty system in cyberspace. Now there's an idea worth spreading across the globe. _______________ Berkeley-based free-lance writer Irvin Muchnick is assistant director of the National Writers Union (United Auto Workers Local 1981), which recently opened a West Coast office in Oakland. *************** THE NATIONAL WRITERS UNION AND 'OPERATION MAGAZINE INDEX' If you've written for a magazine in recent years -- a publication as small as Poetry or as large as People -- there's a good chance your works are being marketed online, without your permission and without your being compensated, via full-text electronic databases. The National Writers Union, which represents 4,000 writers in all genres, is a leading advocate of electronic rights for journalists through a unique campaign called "Operation Magazine Index." In December 1993, NWU president Jonathan Tasini and ten other members filed a lawsuit alleging copyright violations from the electronic resale of articles by a group of major publishers and database operators that includes the New York Times Company and Mead Data Central Corp. (the operator of Nexis). That case is pending in federal court in New York. Operation Magazine Index takes the issue of the Tasini suit into the organizing arena. OMI began with a collective complaint by approximately 50 writers -- led by Nicholson Baker, Alice Walker, Isabel Allende, and Jessica Mitford -- to Information Access Company, a giant database operator in Foster City, California, that supplies fee- based online delivery of magazine articles for, among others, CompuServe, Dialog, and Dow Jones News Retrieval. In October 1994, Nicholson Baker put OMI on the map with an influential op-ed page essay in The New York Times headlined "Infohighwaymen." Shortly thereafter, another database company, the CARL Corporation of Denver -- the operator of UnCover, a fax delivery service for reprints of articles from thousands of popular magazines and academic journals -- initiated discussions with the NWU for a creators' royalty system. Negotiations between CARL president Rebecca Lenzini and NWU executive director Maria Pallante are in progress, and both parties hope the resulting methods of transaction-based accounting spread throughout cyberspace. (CARL was recently listed at No. 129 on Inc. magazine's list of the country's fastest-growing companies between 1989 and 1993.) To date, Information Access Company has not been as responsive. Executives of IAC (which was sold for $465 million late last year by Ziff Communications to the Thomson Corporation of Canada) have refused to meet with NWU officials. IAC claims to have licensing agreements with the magazine publishers whose articles are listed on its full-text databases. The NWU's view, however, is that such licensing agreements are illegitimate, since freelancers routinely retain copyright and grant only First North American Print Rights to their original publishers. In its last communication, IAC did acknowledge that, like CARL, it has the technology to generate transaction-based data -- though IAC offered to supply this information only to publishers, not directly to writers. Our list of OMI complainants has now grown to more than 100 writers. Prominent writers who have recently joined the NWU through OMI include Molly Ivins, the syndicated columnist and bestselling author, and Michael Gross and Edwin Diamond of New York magazine. More background on Operation Magazine Index can be obtained by sending an e-mail message to Irvin Muchnick, assistant director of the National Writers Union . In the message, please state where you heard about OMI and which of the following documents you would like to receive. The names of all persons who make inquiries will be checked for "hits" on IAC full-text databases; if you have hits, the logs will be sent to you and you will be invited to join the NWU and its OMI campaign. For general information about the NWU, including an online application form, you can also send an e-mail message (no subject line or text necessary) to . These are the current OMI documents: * "Infohighwaymen" by Nicholson Baker, The New York Times, October 18, 1994 (distributed with the permission of the author) * OMI update by Lonny Shavelson (distributed with the permission of the author and American Writer, the quarterly magazine of the National Writers Union) * February 9, 1995 news release * "Electronic Copyright," letter to the editor in The New York Times, February 18, 1995, by NWU assistant director Irvin Muchnick * "Writers' Union Seeks Justice in Cyberspace," letter to the editor in The Wall Street Journal, February 21, 1995, by NWU executive director Maria Pallante * "How the Cyberspace Gold Rush Affects Intellectual Property Rights," San Francisco Examiner, March 9, 1995, by NWU assistant director Irvin Muchnick March 9, 1995 Irvin Muchnick irvmuch@netcom.com -- National Writers Union 873 Broadway #203 "Freedom is not something anyone UAW Local 1981 AFL-CIO New York NY 10003 can be given. Freedom is something nwu-info@netcom.com 212/254-0279 people take. . . ." -James Baldwin ftp://ftp.netcom.com/pub/nw/nwu -- Bill McClatchie wmcclatc@gmu.edu