Vol. 10 No. 3 — March 2002 
Newspaper Publishers in the Post-Tasini Era
by Cary Kenney
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Newspaper archivists and executives are beginning to come to grips with the reality of the recent Supreme Court ruling regarding The New York Times Company, Inc., et al., Petitioners v. Jonathan Tasini, et al. Freelance writers anticipate an entirely new economy with the Tasini decision making it illegal for the publishers that purchase their work to re-use it in different formats without permission and compensation. Many news publishers delight in the idea that the decision protects the "complete work," giving them a bridge to new publishing formats and a future for their content protected by law.

Researchers in all fields should know that now, more than ever before, online news archives do not contain the full work of any newspaper. Who knew that for all these years searchers of the Washington Post have never, ever accessed a freelance article written for that paper, because the Post has never made freelancer material available online?

Faced with one of the most demanding production schedules of almost any industry in the world, newspapers must cope with dour projections by industry analysts for the economic future of their traditional product, while facing a future migration at some indeterminate time to an electronic product, which at present has proven almost universally unprofitable. Recent events force them to look straight at typical freelancer rhetoric such as this, found in a quote from the National Writers Union profile of one of the original Tasini litigants, David Whitford: "It bugged me to know how much foraging in KI [Knowledge Index] was costing me, and yet somebody else was getting paid for my work. I felt robbed."

In an effort to show good faith, newspapers are trying to clean up their archives, but find themselves in the process simultaneously accused of trampling on freelancers' rights and "deleting the historical record." Having their past practices found legally in error, newspapers are now being asked — often, pleaded with — to leave everything just like it was. Some online vendors report receiving requests from freelance writers asking them not to remove the writer's articles from their products.

Lawyers do not predict a speedy recovery. Speculation about the damage phase of Tasini, at which point the trial court finally decides the case on the grounds the Supreme Court has set, varies widely from assurances that the damages to be determined will be miniscule, to concern by corporate copyright attorneys that class-action lawsuits following the conclusion of the original case will try to plumb the depths of financial resources of the big newspaper chains. The famed "First Tier" of prestigious newspapers — The New York Times, Christian Science Monitor, Washington Post, Wall Street Journal, Chicago Tribune, and Los Angeles Times — face the brunt of the financial challenge.

Just like commercial online sources, newspapers are an aggregated product. Although some have more original content than others, all publish some content that has been bought or been freely submitted, e.g., Letters to the Editor. Every hometown newspaper has guest editorials written by people in the community, advice columns like "Dear Abby" and "Ann Landers" purchased from big syndicates, and articles bought from the Associated Press or other wire sources that cover national and international news. It would be difficult for any newspaper to cover wide-ranging, diverse subjects every day using only its own in-house staff of reporters. So a huge portion of the content of many daily papers does not belong to them. It takes editorial skill to put newspapers together every 24 hours with content that doesn't contradict itself, provides an interesting read, fits on the page in an allotted space, offers the best possible update on current news, and has appealing headlines and blurbs.

Newspapers began the first step of moving to an electronic product with the recycling of content for sale in the online market. This process started during more than a decade of instability, when electronic distribution began to move faster and more efficiently, but not more profitably, than print. Almost all newspapers have a Web presence, though publishers recognize that Web offerings are not yet financially profitable. It was revealed last spring that even The Wall Street Journal's electronic product [], which many believed to be solvent because it has always charged an annual subscription fee, has rarely been out of the red.

That's why news managers continue to focus on the print product, to the dismay of many who promote a better integration between print and online news products. Tom Johnson, of Boston University's Institute for Analytic Journalism, says, "My main point is not about the time and dollar costs of purging, or even the 'loss of the historical record' argument. It's that the newspaper industry still can't see beyond the concept of 'today's artifact' — be it an individual story, which has various rights of ownership, or to the physical newspaper that gets plopped on the driveway. To see beyond those to the idea that our product is ideas and content...."

So what was it like "back in the day" 15 to 20 years ago when newspapers started selling articles online? New electronic library systems were being installed, but there was no resale profit motive in these early automation efforts. In fact, newspapers at first rejected the idea of reselling content — what if the competition began accessing stories? What use might people make of newspaper stories bought online?

Newspapers just wanted access to their own content in some faster, more dependable way than unfolding clippings filed in manila envelopes. A typical news library file would be stuffed with clippings out of chronological order, missing staples and tape connections to continuations that may or may not have been clipped originally. Corrections would not get appended to all copies of a story. Clippings often got put back in the wrong file folder. Files would slip down behind reporters' desks, or worse, simply disappear and have to be re-created. Some news libraries kept separate files of individual writer's bylined work. Some even kept work written by freelancers who were frequent contributors.

Professional libraries began to emerge out of the old newspaper "morgue." To them fell the responsibility of compiling the newspaper's digital replica every day for the company's electronic library system. As enterprising vendors contracted to receive spin-off copies of these daily library submissions and aggregate them into news file offerings in online reference systems, the newspaper library was dramatically transformed.

In an epic change, the new online archives for news publications made articles available for the first time to an entirely new constituency of readers. Online distribution of daily news content in the late 1980s and early 1990s gave participating news organizations and their writers wide national and international exposure. Editors could check out reporters' work before interviewing them and reporters could become known outside their communities. Researchers for the TV networks could go online and find just the right journalist from around the country to interview on early morning news shows.

But in the mid- to late 1980s, electronic file storage wasn't cheap. Almost all archives had lists of what was saved digitally. There were strict rules about what would and would not be saved in the electronic library. A lot of thought and justification went into putting those lists together. The criteria at the time was, "How often will we need to retrieve this?" Many papers perform a public service by providing articles and research to the public and these needs were also considered. "Keep the stamps and coins column? Astrology? Questions and Answers for Condominium Owners? Gardening?" Small papers with tight archiving budgets often decided not to save any national or international news that could be retrieved from other sources. Some saved "B Section" (local news) stories only.

Early incarnations of archiving software capable of storing and retrieving files as large as those of a daily newspaper, such as the Canadian product, QL, selected by Knight Ridder newspapers in the U.S. in the early 1980s, did not offer a wide choice of separate fields for data. There were no options in the software for a field that would filter out tagged stories the publisher might want to delete from the main digital file sent to vendors, which even the most rudimentary content management systems do today.

No one used the Internet. Files were transmitted with communications software over telephone lines and no one had a URL. Research in online systems was done with proprietary software using phone connections. There was no e-mail or Internet access in most newsrooms until the mid-1990s.

The news library became a profit center for the first time. Instead of just maintaining clipping and photo collections in some beat-up file cabinets, professional news librarians and researchers began to be able to offset a part of the high costs of running the library in a news operation with royalties from online sales. They became voracious consumers of online information sources, as well as providers of content, a perspective that has served them well in negotiating content license agreements for the library's use, as well as in negotiating content sales to vendors. Online research provided by the library staff gave amazing depth and credibility to news reporting and editing.

One transition that newspapers did not make as a result of online distribution was full awareness at all levels of the organization that a watershed was taking place. It may seem surprising to researchers who use online files every day, but news organizations, with their intense focus on preparing the next day's publication, were for many years mostly unaware, and to some extent unimpressed, by the implications of online distribution. Even after daily news began being shoveled up onto Web sites, newsroom editors continued to order hundreds of extra print copies of special stories or award-winning articles, in expectation of requests from outside journalists.

Freelance Writers
Why didn't newspapers look more carefully at their freelancer arrangements from the beginning? Because these newspapers figured if they paid for the article, they had the right to use it. According to president and CEO of the Newspaper Association of American, John F. Sturm, quoted in a June 2001 NAA press release issued after the Tasini decision, "There's a line in our amicus brief — which we joined in with several news companies and trade associations — that, I think, sums it up well: 'Today's New York Times is today's New York Times regardless of whether it is the early edition, the late edition or an electronic edition. Unfortunately, a majority of the Court did not agree.'"

Online distribution was cumbersome and not the universal entity that it is today. There was a lot of activity in the late 1980s to aggregate papers online — LexisNexis, Vu-Text, and DataTimes, with both of the latter now gone — but no one really knew where it was all headed. Vendors began to ask for Internet distribution rights. News publishers, not fully understanding the potential significance, signed agreements that said, "Sure!"

Content from news syndicates such as the Associated Press, Universal Press Syndicate, Scripps-Howard, and others was usually, though not always, restricted from redistribution to online vendors. News organizations receive a steady flow of material, like a TV news feed, from these sources. Purchase was made through annual contracts with the distributors. Automated since the early 1980s, the news feed is available all the time on any newsroom desktop. Newspapers run articles from syndicates all the time, paying annually for a package designed especially for their use — a certain group of columns, a column plus comics, a news feed only, news feed plus other regular feature stories, etc.

Syndicated columnists such as Ellen Goodman and George Will, who appear on or near most editorial pages, were not routinely redistributed, but in the mid-1990s, when Universal Press Syndicate asked various online vendors to search for the syndicate's columnists among the content supplied to them by newspapers, thousands of columns came up. According to Michael Jesse, library director of the Indianapolis Star Library, quoted on the news librarians' Listserv, Newslib, "Our industry has been pretty sloppy for the past decade or so that we've had electronic archives. Many newspapers sent their entire feeds to Nexis, etc., without even blocking out the wire and syndicated stories."

Freelance articles, on the other hand, were piecemeal purchases. While it is not unusual for the top-tier newspapers to receive freelance submissions from prestigious writers, the average newspaper buys most of its freelance content for its Travel and Sports sections, along with Entertainment, Food, and Lifestyle. Some have networks of writers who function as correspondents in particular areas of coverage, such as international news, e.g., writers on the scene in certain locations, or perhaps a local pediatrician writing a weekly column about child health issues.

Hearing freelancers make their accusations about misuses of their content is unnerving, not so much because newspapers didn't fully realize what was being done, which most of the time was the case, as because the freelancers seem to attribute the alleged misuse to some calculated profit motive lurking behind the practice. This has never been the case. Newspapers have a pile of digital copy to be organized each day, a pile that so overwhelms those whose job it is to deal with it, picking up each piece and asking, "Hmm, shall we keep this one for posterity?," is not even remotely possible. From the perspective of one who works with the grinding reality of archiving news stories each day, it is not hard to see how easily the situation got out of hand. It has prompted some to say, "Hey, how come no one spoke up sooner?" Freelance writers did from time to time come across articles in commercial online databases that they had originally sold to newspapers and magazines. These discoveries got them to wondering if anyone else was making any money off said articles, leading the authors to call the original publisher. The original Tasini case was filed in late 1993 by 11 writers who had this precise experience. (Five later dropped out of the suit.)

For years now, most news publications have filtered the content being recycled commercially. After mulling over the Tasini filing 1994, those publishers who had not already taken measures to protect their content stopped sending anything outside the company for which redistribution rights were not owned. Throughout 1994, awareness began to seep through the industry that it needed to pay more attention to freelance articles. The Associated Press, a syndicate of news content supported by member papers, began to tell publishers it would charge for content that got passed on and re-sold to online vendors. This jump-started a number of newspaper publishers into taking a closer look at their sources.

By 1998, most papers had freelancer agreements in place. These agreements usually give a freelance writer the opportunity to stipulate whether the piece they've sold is for one-time use only in the print publication, for use in the print publication and on the newspaper's Web site, or for the previous two options AND as part of the paper's daily transmission to its commercial vendors. Some agreements provide an across-the-board option for all electronic distribution.

News archivists now keep lists of which authors consent to redistribution and which don't and restrict articles from flowing on to vendors for re-sale as needed. If a freelance writer doesn't want his or her material redistributed, it isn't. Some newspapers began to pay a slightly higher rate for electronic distribution; others crafted wording that said if the freelancer did not agree to give the publication redistribution rights, the publication would not buy future articles from them.

It's no secret that the "disconnect" between the parties to the lawsuit(s) stems from dissenting views about value.

What defines the value hierarchy to news executives? Fresh, breaking news — often called "hard news" — especially if it is something no one knows about yet. Next come investigative pieces that have required considerable time, money, and skill to uncover and execute. Beyond those, it all depends. Newspapers owned by large corporations have the added advantage of drawing on reports from writers in Washington, D.C., and New York and foreign correspondents covering news in all the major cities of the world, as well as writers and photographers at the Olympics and every other great worldwide event. Some of these papers could, with the exception of home-baked local news, publish an entire paper with the content available to them through their internal networks.

Understanding the betrayal that freelancers have felt is more real to many newspapers executives than they may want to admit. The agreements signed early on that let online vendors experiment with entrepreneurial Internet activity have come back to haunt newspaper executives. Vendors, on a high from new marketing opportunity on the Internet with the Web, began to sell aggregated files at a profit to other online distributors. Some were also online vendors working along the same model as conventional vendors. Others were intermediaries that sold news content to other information vendors. Newspapers began to lose control of their content just the way the freelancers had. Suddenly their articles would surface in new for-fee Web products, with no money ever having changed hands. Even though the situation has again changed in favor of the publishers, who have begun restricting re-sale of their content to "third party vendors" in their license agreements, the Web still presents a constant challenge to publishers to make sure no site has picked up any of their articles illegally.

Only two or three newspapers can claim that articles are never redistributed without author permission. In addition to the Washington Post, a few papers, such as the Providence, Rhode Island, Journal-Bulletin, re-thought distribution plans and, at the advice of their lawyers, went back early on and deleted freelancer material. So the most expedient course of action for the others appears to be identifying the material that should not have been sold in the first place, showing good faith by permanently removing the material from the databases. After identifying certain "early year" blocks of electronic databases containing material in violation of copyright law, a number of news library directors have decided to take those years out of online circulation altogether.

The Urge to Purge
The idea that a valuable historical record will be lost if newspapers delete content from their files is tenuous. On the other hand, when a state as large as California loses major coverage of one of its major metropolitan areas, as when the San Diego Union-Tribune pulled 15 years of its entire archive (freelance and internally produced), leaving no history of that area prior to January 2000, this could be viewed as an information crisis of sorts. At this point, a disconnect exists for publishers trying to do the right thing by freelancers as well as for consumers of the electronic product

For most publishers, freelance content is generally peripheral. No Travel section editor wants to lose freelance submissions from writers who may have become trusted friends, and Sports sections do depend on freelance articles about covering local events that would otherwise stretch staff resources.. But perhaps the time to stop being polite has come. The most valued pieces of daily news content are rarely purchased from a freelancer. Deleting a travel section story from a regional newspaper and taking out an article some luminary wrote for The New York Times do not equate the same value.

Routine database content maintenance in the majority of newspapers includes examining what will stay and what will go. In a recent survey of selected news librarians, 95 percent said they now filter out freelance content.

Some librarians are considering "the citation solution." This would involve keeping a bibliographic reference to a freelance piece where the full text has been removed from a database, but still giving the essential locator information of headline, author, date, and page. Some have considered adding a short summary of the article. Legally, this idea has been rejected by most on the grounds that it is not only positive admission that a copyright violation took place, but it perpetuates that violation by continuing to make reference to it.

Newspapers have vast amounts of content. Typically, more than 6,000 stories go to database vendors every month from a medium-sized newspaper; that's 150 to 200 stories per day. The enormity of the file blurs the importance of any specific piece. What kind of article would news database managers go back and retrieve if it were missing? The ones perceived as having the most value are local news, blockbuster staff-written stories, and investigative pieces. Often these articles are checked by lawyers before going in the paper. If any mistake is made in the wording and it goes to the online vendor, a publisher will contact the vendor, the old article will be deleted, and a corrected one put in its place.

The Newspaper Association of America (NAA) asked international legal firm Debevoise & Plimpton, business law experts who have worked on the Tasini case to offer advice to publishers. They counsel:

Deletion of articles is a painful step. Absent a retroactive grant of rights from freelancers, however, deleting their contributions is the only way to cap liability for infringement. Deletion is no panacea: freelancers may attempt to obtain damages for infringements prior to the filing of their lawsuits and up until the time of removal from electronic databases. The longer a contribution is available in an electronic format, however, the greater the damages that may be claimed. Moreover, failure to delete freelancer contributions after the holding in Tasini may allow freelancers to argue that publishers are knowingly disregarding the law and are liable for enhanced damages for willful infringement (up to $150,000 or $300,000 per article, depending on when an article was published and registered).

The completeness of searching news has been a concern for news researchers and librarians since the Internet became the world's most ubiquitous source of information. Where, how often, and when is content archived, indexed, and redistributed? As news publications migrate to an electronic product, is there a way to preserve every incarnation of a Web site news report that is constantly changing? MSNBC made the decision a number of years ago to archive once a day. This is typical of most Web sites and the situation for the immediate future generally follows the model of print news archiving.

Just the way online vendors have figured how to aggregate content from different sources and resell it as a single product, the profit for newspapers also lies in the aggregated product — either selling a group of newspapers or all the content in one product — never in the individual document. ProQuest (formerly Bell & Howell Information and Learning, formerly UMI) aggregates over a hundred newspaper files every day. ProQuest pays back a percentage to the individual publications, but the real value for the purchaser — which would be an online distributor if the newspaper allows that kind of resale — lies in receiving all that news content in one format, ready to load onto their online system. The buyer, another online system such as Factiva, doesn't have to deal with going to each newspaper, waiting for them to send their content, and having to reformat it

Out of the average 200 stories a day a newspaper generates, most articles can stay or go. With such high volume, it makes very little difference to many publishers. Some news database editors insert a note describing where on the microfilm an article can be found if it is not available digitally in time to start processing the next day's "paper." Some publishers type in missing articles manually.

Once referred to by the former head of Dialog Corporation, Patrick Tierney, as a "loss leader," news content has taken on new value in the immediate information flow of the Web. Newspapers have vast amounts of fresh, daily news content to offer. Even as current economic prospects present a bleak marketing challenge for online news, current negotiating trends guarantee minimums and higher royalty percentages than news suppliers have ever seen. The largest urban papers have unique national and international coverage to sell. Regional papers have valuable reporting on local issues from major sports teams to construction projects.

Years ago when Dialog decided for a brief time that it would not load full newspapers anymore, but just the front pages of the B Section local news, the annual Special Libraries Association Conference had an airing of the issue. A researcher from First Boston stood up and said her job was finding online news for investors about planning and zoning, construction projects, sewer upgrades, and other local infrastructure issues from every regional paper in the country.

As some newspapers that have not already done so begin to filter out all but staff-written pieces from their commercial database transmissions, concern rises about loss of revenue from a reduced story count. This has played out as a big issue for newspaper content sales. The license agreements with online publishers do not typically specify how much content will change hands. At issue are specifics such as the timing of the content's arrival and its currency. Automatic searches run by the big online systems typically go through new content early in the morning to fulfill automatic searches for corporate intranets and researchers.

Although it is now widely known that freelancers have a only a small piece of the action, here is how it works:

When you get down to the revenue value of any particular newspaper article, it's small, once the reseller or aggregator takes its cut. Again, the newspaper can make a buck because it has an aggregated file of each day's articles to sell. But there is no stipulation in most agreements with online vendors about the quantity of articles to be shipped. Coming from a newspaper, it goes without saying it will be a lot — thousands more articles —than most monthly publications. The royalty percentages each company gets from vendors are protected under nondisclosure clauses in their license agreements, along with the other specifics of the contract.

Let's just say, hypothetically, that the newspaper gets 30 percent of the 80 percent of the sale of its content, minus expenses, that the vendor has agreed to share. Say the paper's combined vendor revenue is $20,000 a month in royalties, a reasonable mid-range figure for newspapers on the whole. That would equal approximately $3.23 per story. Some of the variables for the overall monthly royalty are news publication name recognition, geographic location combined with recognizable name, currency of the material, and the kinds of events that may be unfolding in the community at any given time.

Unlike freelancers' pieces, the pay newspapers receive for an article hinges on the use online of a particular article. Eighty percent of articles transmitted in a month might never again see the light of day. There are other royalty factors, such as inclusion in special vendor search groups or products.

The publisher has expenses too. It pays a staff of professional copy editors, it lays the article out on a page, prints, and distributes it. The paper also has expenses attached to compiling its digital edition. It pays a staff of people to handle this. For most, the compiling is still labor-intensive, though content management systems, also an investment, take some of the load off the human processing. Many papers have from two to six full-time staff working on the digital edition only.

Say the newspaper follows the same model as the vendor, even though it has paid the freelancer upfront by the line, word, or flat rate for the entire article. Depending upon need and kind of article, newspapers can pay anywhere from $20 to $300 per article. At 30 percent based on 80 percent of its own profits, freelancers could expect to get around 60 cents extra per article on top of what they have already been paid. It is obvious the value for the freelancer lies in his or her initial negotiation, not in a percentage of online sales through news outlets.

Compared to articles from other kinds of publications, news articles are cheap. When sold to consumers through the newspapers' own Web archives or through other low-end online sources, each article may range in price from $1.50 to $1.95. A few news Web archives are free.

Now, in the final phases of what is known in the industry as the "Tasini decision" or simply, "Tasini," most vendors are hearing from publishers about what the publishers plan to do. Some are sending requests for the deletion of specific blocks of data. The big aggregators can do that. A few vendors can delete but retain the record, away from public access, in case the publisher's decision changes over time. That is presented as an option. In a recent survey of news librarians, 40 percent said they are purging their files of any content for which their publication does not have redistribution rights; 35 percent said they are waiting to see what happens with the Appeals.

Somehow the Tasini decision has resulted in an oversimplification of newspapers' current and future roles. It is not as clear and easy a question as, "Should we take material out of our databases?" Newspapers have internal search services, some set up purely for public service to supply an article or two free to requesters and subscribers who remember seeing it and can't find it now. Many have for-fee research services available to the public and to businesses. How can it be explained that a portion of the material that appeared in the paper belongs to them, but a lot of it doesn't?

And to come full circle, almost all newspapers have internal electronic library systems, from which this whole issue started in the first place. No one has deleted published material from those systems.

What will be the final effect of Tasini and related decisions on electronic access to newspaper content? No one knows yet but everyone is worrying.


Before 1976 — Under U.S. Copyright Law a publication owned all its content, freelance work included. Copyright has to be published and registered. Rights could expire if renewal fees were not paid.

1976 — A new Copyright law is enacted. In it, freelance writers retain all rights to their work. Publishers have the right to reformat their full editions for print and non-print media. Automatic protection is given to copyrights held in a creator's name for his or her lifetime plus a period of time.

1979 — A few newspapers begin to archive their "clippings" electronically, making use of electronic library systems for in-house access. Early online vendors such as LexisNexis, SDC's Orbit, and others begin to license online files of daily news content and offer them to paying customers.

December 1993 — Jonathan Tasini, president of the National Writer's Union (NWU), and a group of 11 writers sue a group of newspaper and magazine publishers and information aggregators, including UMI. A group of 11 freelance writers from the Nation Writers Union, including Jonathan Tasini, file suit against The New York Times

1994 — Newspapers begin to seek written permission from freelance writers before redistributing their articles with the content they send to online vendors every day.

June 25, 2001 — The Supreme Court rules that publications cannot resell freelancer stories without the author's permission and the time frame is retrospective. Many newspapers begin immediately to either remove their content from public access, or delete from their publicly accessible archives any content for which redistribution rights do not exist. The Court sends the case back to the 2nd District Court of Appeals to determine damages in the case.

November 12, 2001 — The NWU and Primedia Inc. begin to work on an agreement for sale and marketing of writers' copyrighted materials.

November 15, 2001 — Mediation begins on the Amended and Consolidated Class Action Complaint, which was granted a stay until after the Tasini decision. The combined complaints consist of three lawsuits against various database vendor defendants by plaintiffs representing freelancer interests before a private mediator, Kenneth R. Feinberg, who was appointed by the Judge in the Complaint.

Sources: J. Stephen Bolhafner, St. Louis Post-Dispatch; New York Times, "Tasini v. New York Times: Timeline"; Marydee Ojala, EContent Magazine, Sept., 2001.


This survey was conducted on Newslib, the news librarians' listserv, over a 3-week period from August 17 to September 7, 2001. The response was low, 22 total respondents. There are approximately 550 news libraries in the U.S. including an array of magazines, TV stations, and very small papers. I believe the small response may have stemmed from the number of news librarians unaffected because arrangements are being handled by corporate attorneys. Also, I feel certain many were asked not to discuss this case publicly in any way.

To conduct the survey and tabulate survey results, I used the Zoomerang survey utility at

What do you think is the best way to respond to the Tasini ruling as you see it?

a. Sit tight, wait to see what happens with the Appeals 35 percent

b. Purge files of any content for which my publicationmay not have redistribution rights 40 percent

c. Don't have to take action. We anticipated this from Day One. Our files are sparkling clean 15 percent

d. Make an effort to contact freelancers individually and reach a settlement 05 percent

Is your news publication or parent company named in a lawsuit so far?

Yes — 18 percent

No — 82 percent

Are you currently doing a mass filtering of articles out of your archives that your publication doesn't have distribution rights for?

Yes — 35 percent

No — 65 percent

If you are filtering articles out of older electronic archive files, are you also taking them out of your in-house electronic library system?

Yes — 00 percent

No — 100 percent

Have you been routinely filtering out non- staff-written material and other material for which you don't have redistribution rights from the daily transmission of news stories to your online vendors?

Yes — 95 percent

No — 05 percent

Is the daily file of news content that goes into your internal electronic library database of articles different from the most complete file sold daily outside the company?

Yes — 88 percent

No — 12 percent

Approximately how many online vendor/distributors buy your content?

1 — 06 percent

2 — 25 percent

3 — 31 percent

4 — 13 percent

5 or more — 25 percent

If you are looking at having to remove freelance and other material for which your publication may not have redistribution right from your electronic library files, what do you thing is a realistic estimate of the percentage that could effectively be removed from your files?

Less than 5 percent — 18 percent

5 percent-10 percent — 18 percent

10 percent-20 percent — 00 percent

20 percent-30 percent — 18 percent

30 percent-40 percent — 00 percent

40 percent-50 percent — 09 percent

50 percent-75 percent — 00 percent

Over 75 percent — 36 percent

100/ percent — 00 percent

Does your publication have freelancers sign some kind of yea or nay redistribution agreement?

Yes — 94 percent

No — 06 percent

Has the amount your publication pays freelancers for content that will publish in more than one medium increased, or has freelancer pay increased in general?

Yes — 13 percent

No — 20 percent

Don't know — 67 percent

Have you been consulted by your management about how your news publication might proceed in response to the Supreme Court ruling?

Yes — 81 percent

No — 19 percent

Are you now or are you likely to be involved in formulating a plan for how to respond to the Tasini ruling?

Yes — 83 percent

No — 17 percent

So far the Supreme Court ruling protects the "collected work" — the image of the newspaper page with all its contents. National Geographic is being challenged in court over their CD-ROM product — whether or not it IS truly a "collected work." Do you think that kind of challenge will spread to newspapers' microfilm digitization projects?

Yes — 63 percent

No — 38 percent


"Dear Colleagues, " the October 25, 2001, e-mail letter from Robyn Tolle of LexisNexis to news librarians reads. "Due to the Supreme Court's Tasini decision, LexisNexis wishes to inform you that publishers may require distributors to remove their materials from distributor databases for a brief period of time.... The following Gannett titles will be temporarily taken down from LexisNexis services and products ... Arizona Republic, Arizona Business Gazette, Asbury Park Press, Asheville Citizen Times, Cincinnati Enquirer, Courier-Journal (Louisville, KY), Des Moines Register, Detroit News, Idaho Statesman, Indianapolis Star, Montgomery Advertiser, The Tennessean."

Some newspapers, such as the San Diego Union-Tribune and most newspapers owned by the Gannett Co., Inc., have restricted all public access to their archives. These archives are not available through the online vendors that made them available before the Tasini ruling and cannot be searched on their own publications' Web sites. Other newspapers are providing online vendors with lists of freelancer material for deletion from online files, and vendors are removing content as requested. And yet another group of newspapers is maintaining business as usual by adopting a "wait-and-see" approach.

Why are newspapers reacting so inconsistently? All standard agreements between newspapers and online redistributors have indemnity clauses which state that the paper guarantees the ownership of its copyright free and clear on the content it provides, and, if irregularities occur, the database vendor is not financially liable for any legal defense or damages. So far, although database vendors, newspapers, and magazines have all been named in the freelancer lawsuits, the provider of the original content, not the seller, is ultimately liable.

In addition to dealing with the existing indemnity, which could involve five or six separate database vendors already named in Tasini-related lawsuits, newspapers are at risk for exposure to direct legal action by individual freelance writers.

If you need to know which news publications have departed a commercial database collection, check the company's source list. Here are some examples. It is fairly safe to assume that content restricted from one vendor's files will not show up in another's. Finding out how many articles a source no longer carries is more difficult. Caveat, searcher!

Here are the best sources for finding out which publications are available at any given moment are the Web sites for the major online vendors researchers use most often:


Factiva's Web site has a "Content Watch: Tasini Adjustments" link on the home page. Drill down and find the precise date any publication was removed from Factiva's content list.


LexisNexis' source list. Check to see if the publication you seek is available commercially online.


Dialog has always grouped documentation on its collection of full-text newspapers into the OneSearch category listing of "Papers." The Dialog Database Catalog, available as both an HTML and PDF document on its Web site, carries more detailed information on each paper than the printed Bluesheets. However, the Catalog is an annual publication and could carry outdated information. But it is a place to start.

Still not satisfied? Go to individual newspaper Web sites and look for archives access, either through a site map, if there is one, or a search of visible links from the home page.


The Atlantic Monthly (no longer a part of pending action)
Dialog Corporation
Dow Jones Reuters Business Interactive
The Gale Group, Inc.
EBSCO Industries
Knight Ridder Inc.
Mediastream, Inc.
National Geographic
New York Times Company
Newsday Inc., Time Inc.
Northern Light Technology Corporation
Proquest Company (formerly Bell & Howell Information and Learning Company)
Reed Elsevier, Inc. (LexisNexis) (formerly Mead Data Central)
Thomson Business Information
Thomson Corporation
Time Inc.
The Union-Tribune Publishing Company
University Microfilms Inc.
The West Publishing Corporation

Individual plaintiffs in Tasini and/or class-action lawsuits:

Derek Bell
Barbara Belejack (original litigant, no longer a part of pending action)
Mary Kay Blakely
Lynn Brenner
Michael Castleman
E. L. Doctorow
Tom Dunkel
Andrea Dworkin
Jay Feldman
H. Bruce Franklin (original litigant, no longer a part of pending action)
Barbara Garson
James Gleick
Ronald Hayman
Sonia Jaffe
Robert Lacey
Ruth Laney
Daniel Lazare (original litigant, no longer part of pending action)
Paula McDonald
Margot Mifflin
Jessica Mitford (Estate of)
Joan Oleck (original litigant, no longer part of pending action)
P/K Associates, Inc.
Letty Cottin Pogrebin
Gerald Posner
Miriam Raftery
Sonia Jaffe Robbins
Ronald M. Schwartz
Mary Sherman
Donald Spoto
Jonathan Tasini
Robert E. Treuhaft (on behalf of Mitford Trust)
Lindsy Van Gelder (no longer part of pending action)
Robin Vaughan
David S. Whitford
Robley Wilson
Marie Winn

Associational plaintiffs in Tasini and/or class-action lawsuits:

American Society of Journalists and Authors (ASJA)
The Authors Guild, Inc.
The Authors Registry
National Writers Union

Cary Kenney is Resource Manager in Web Publications for the St. Petersburg Times. She a former news library director and news researcher. Her e-mail address is
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