- The Washington Times - Monday, July 2, 2001

The Supreme Court blasted off into the ambiguous space of digital copyrights, declaring in a 7-2 decision in New York Times vs. Tasini that big media companies did indeed infringe on the rights of freelancers by posting their articles to electronic databases, such as Lexis-Nexis, without acquiring their explicit permission to do so.

Although this was the first digital-copyright ruling issued by the court, the media giants didn't really have much of a case. They argued that postings to electronic databases constituted "revisions" to the authors' work, and as such, entitled publishers to the fees usually required for database access. The publishers also contended that a ruling against them would create huge craters in the electronic record, since such databases can contain decades worth of newspaper text.

Yet the size of the ruling's impact on the electronic public record is uncertain at best. Besides, as Justice Ruth Bader Ginsberg pointed out, speculation about potential catastrophes is no excuse for diverting the course of justice. Nor is the ruling likely to have a significant impact on the current activities of freelancers, since most publishers have insisted on procuring electronic republication rights since the mid-1990's.

Indeed, most freelancers are eager for others to have access to their works, and as such, will hardly hesitate to grant electronic archiving privileges, even if it means foregoing small search fees — after all, a recognized name is often a step on the road to riches. Yet private authors should have the privilege of granting their personal consent to making their works a part of a public electronic record.

Of course, the discovery, and subsequent adjudication or legislation of new "rights", is at best, a precarious business. Yet new technologies occasionally create situations in which old rights must be applied to new settings, and personal property rights are a cornerstone of the Constitutional tradition.

Yet, so are the freedom of speech and the promotion of the marketplace. As it continues to rule on issues related to electronic archiving, the Supreme Court will have to be careful to pick the path between those two divergent guiding stars. With this first step, the court has shown that it can do successfully.

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