Profits in Cyberspace: Should Newspaper and Magazine Publishers Pay Freelance Writers for Digital Content?

It is remarkable how fast recent trends have driven an increasing number of publishers of magazines, newspapers, and other similar works to port the print version of their works to digital and electronic format in the form of online computer databases and multimedia CDROM technologies. Online computer databases and CD-ROM media can be exceptionally profitable ventures for publishers who convert a preexisting print work into a digital product. However, publishers\u27 profits from digital media may be impaired if there is a question as to whether the publisher has satisfactorily secured the copyright to the material making up the digital media. Often, copyright issues in the context of new technologies present parties with novel questions that have uncertain answers. This is due to the development of new technologies outpacing the ability of copyright law to formulate coherent doctrines on important issues such as what is copyrightable, what constitutes copyright infringement, and who owns the copyright in what has been developed. This is particularly troublesome in Cyberspace, where digital transmission of media content has the potential to both evade enforcement efforts relating to copyright interests and undermine the very principles upon which copyright laws are based. Copyright law affects relations between producers of content and the writers, artists, computer programmers, and others who actually create the content or works upon which entertainment products, computer databases and web sites are based. This has been made evident by a recent Federal district court decision in New York: Tasini v. New York Times. The Tasini decision is actually limited to a narrow range of facts, but the issues that arise from Tasini are as broad as Cyberspace. Tasini, if upheld, would have the detrimental effect of curtailing development of content on web sites, which rely upon articles, graphic images, photos, and other creative works developed by freelancers offline who would have no incentive to cooperatively permit the publication of their works online or in Cyberspace; in fact, Tasini has already caused significant opposition to such. More important, print publications such as traditional newspapers and magazines who unwittingly rely upon Tasini to force freelance writers into unfavorable contracts risk pushing an increasing number of valuable talent into the computer--distributed news business--a business which not only exalts utilitarian journalism over traditional news stories, but which also is predicted to take advantage of the cultural shift being created by digital media by amassing complete control over news delivery and dislocating most revenue streams for print newspapers and news weeklies. Tasini was wrongly decided. Tasini made implicit assumptions about the nature of Lexis-Nexis computer databases and CD-ROM products that were not warranted or supported by the court\u27s findings. The contents of a CD-ROM product or an online database must be accessed by use of program code. Yet, the court never addressed why the fact that these works contained presumably hundreds, if not thousands, of lines of code which do not appear in the printed version of the collective work is insignificant to the determination that the digital products are only revisions of their printed precursors. This fundamental flaw in the court\u27s analysis should render the decision of little application to similar questions in Cyberspace. In addition, the court\u27s reliance on selection and arrangement factors, commonly used to analyze the copyright status of factual compilations, was ill-chosen for a case where, as in Tasini, the compilation is claimed to be a revised collective work and the compilation exists in a format that renders its selection or arrangement insignificant to the user of the work. More important, the principles supported by the decision are wrong-headed and, if adopted by other courts, could have a devastating impact upon the future development of digital content