- The Washington Times - Tuesday, June 26, 2001

Free-lance writers and artists yesterday won a Supreme Court battle to be paid for work sold electronically after publication in a magazine or newspaper.
In other action, the justices decided 5-4 to set aside 1996 immigration provisions barring a court hearing on constitutional claims by legal immigrants facing deportation for criminal convictions, and decided not to hear a request to resurrect college admission programs that favor blacks and Hispanics over white applicants.
The free-lancers' 7-2 victory overcame opposition from media giants such as the New York Times, Sports Illustrated and Newsday, whose attorney told the justices in March the claim was worthless and said access to single articles in a massive database simply was a "revision" of the original magazine or paper.
"The massive database no more constitutes a 'revision' of each constituent edition than a 400-page novel quoting a sonnet in passing would constitute a revision of that poem," Justice Ruth Bader Ginsburg said in announcing an opinion joined by Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor, Antonin Scalia, Anthony M. Kennedy, David H. Souter and Clarence Thomas.
Justices John Paul Stevens and Stephen G. Breyer disputed that definition of "revision" and forecast dire consequences for material in databases such as Lexis-Nexis and CD-ROM distributors University Microfilms International and General Periodicals OnDisc.
"We can be fairly certain, however, that it will provide little, if any, benefit to either authors or readers," the dissenters wrote of the decision.
The majority accepted the view of Washington lawyer Laurence Gold, who represented Jonathan Tasini, president of the National Writers Union, and six free-lancers. "The collective work copyright holder cannot exploit an article on a separate article-by-article basis," he argued.
The Software & Information Industry Association, representing more than 1,000 companies dealing with digital information, said yesterday the court decision will undermine the Internet's value.
"The decision leaves publishers little choice but to remove tens of thousands of articles from online databases, or face immense exposure to copyright infringement claims," said Ken Wasch, the trade association's president.
Justice Ginsburg perhaps telegraphed her skepticism toward the publishers' posture during arguments on the case, which could result in payments ranging from $250 to $10,000 for each individual work whose copyright was violated.
"You played their song beyond their permission," Justice Ginsburg told the publishers' attorney, Harvard law school professor Laurence Tribe, who predicted a decision for the plaintiffs would require wholesale deletions of up to 100,000 articles from existing databases.
The affirmative-action issues were raised by the state of Texas, seeking to reinstate a lawsuit aimed at providing special consideration to black and Mexican-American applicants at public colleges. A similar case from Washington state was turned away just a few weeks ago, but justices soon will be asked to review the University of Michigan Law School's affirmative-action policy.
Texas challenged a 5th U.S. Circuit Court of Appeals ruling that the law school policy discriminated against whites. The high court refused in 1996 to hear the same Hopwood case, which since has wended back through the courts.
Education officials said the ruling puts the state at a recruiting disadvantage to other public universities.
"The court's long silence on consideration of race in higher education has left conflict and confusion in the lower courts," Texas attorneys argued.
The immigration decision in two similar cases blocks for now deportations of legal immigrants seeking review of the orders ousting them for committing aggravated felonies.
Both cases involved defendants who pleaded guilty under an old law that provided appellate review but faced deportation under more restrictive legislation passed in 1996.
Attorneys representing immigrants won their contention that Congress may not bar judges from reviewing constitutional claims.
Justice Stevens wrote the opinions for the court, joined by Justices Kennedy, Souter, Ginsburg and Breyer. Dissenting were Chief Justice Rehnquist with Justices O'Connor, Scalia and Thomas.

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