- The Washington Times - Tuesday, November 7, 2000

The Supreme Court agreed yesterday to explore an Internet copyright issue involving whether media companies or free-lance writers control rights to post published articles in computer databases.

The 1993 case pits six free-lancers led by Jonathan Tasini, president of the National Writers Union, against the New York Times, Newsday, Sports Illustrated, Lexis/Nexis and University Microfilms.

At issue is the extent to which such electronic reuse can be defined as a "revision" of the original publication, which the U.S. 2nd Circuit Court of Appeals defined as "later editions of a particular issue of a periodical, such as the final edition of a newspaper."

The Copyright Act says that newspapers and magazines require separate permission to republish articles beyond such a "revision."

The appeals court reversed a trial judge's decision for the companies, which argue the order would require destroying decades of articles. Their attorney, Harvard professor Laurence Tribe, said that would be "disastrous for the nation's libraries, academic institutions and publishers."

Should the high court uphold that decision, the publishers say, "some 100,000 articles may have to be permanently deleted at an enormous cost and investment of time" and CD-ROM collections might have to be recalled.

Historians Ken Burns and Doris Kearns Goodwin filed a friend-of-the-court brief supporting the companies.

The court also heard arguments over Missouri's "Scarlet Letter" law, labeling candidates on the ballot who oppose term limits.

Justice David H. Souter suggested such labels "put the thumb on the scale," against a candidate.

"It's doing more than informing. It's saying this person has violated a trust," Justice Souter said of a dispute that is a postscript to the Supreme Court's 1995 decision striking down state laws setting congressional term limits.

Backers say the law is a way to provide more information. Opponents call it an unconstitutional limit on speech.

In 1996, Missouri voters amended their state constitution to require the state's congressional delegation to lobby for a national constitutional amendment setting 12-year terms for senators and six years for House members.

Members of Congress who do not do so find their names on the next ballot labeled "Disregarded Voters' Instruction on Term Limits." Insurgent candidates who do not pledge to support the movement like Donald Gralike, who challenged the law are labeled "Declined to Pledge to Support Term Limits."

Justice Ruth Bader Ginsburg noted bans on electioneering at polling places, and said "yet when the voters get inside they are hit with this."

In an unrelated matter, the court put an end to a retaliatory lawsuit against a federal prosecutor by former Postal Service contractor William G. Moore Jr., who was acquitted of paying kickbacks to U.S. Postal Gov. Peter Voss, who pleaded guilty.

Mr. Moore sued Assistant U.S. Attorney Joseph B. Valder, who led his prosecution on fraud conspiracy charges involving attempts to sell multiline scanners to the Postal Service.

Federal courts said the prosecutor was immune from lawsuits for any conduct that might justify such a lawsuit.

Lower courts dismissed the lawsuit and the high court yesterday refused to reinstate it.

The high court also refused to review a decision that prosecutors may not claim different versions of the same events at the separate criminal trials of six defendants in the same murder.

The 8th Circuit overturned Jon Keith Smith's conviction in the 1983 robbery and killing of an elderly couple, holding that Missouri prosecutors could not have it both ways. In one trial, Smith was portrayed as one of two killers. State prosecutors included Smith as one of six killers at his 1987 trial, which included statements by an admitted accomplice. They later prosecuted another defendant on the theory he was one of only two persons who committed the murder, employing another version of the same witness' conflicting statements.

• This article is based in part on wire service reports.

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