Why I Agree With Tasini

In New York Times v. Tasini, freelance writer Jonathan Tasini sued because the NY Times published an article of his online without his permission. I agree with the Supreme Court and with Anupam Chander’s article on the issue, in which Chander states that the case may have an impact for Napster.

In all of the talk about Napster, it has seemed like musicians are pretty powerless in the music industry. That is true, because musicians sign away their copyrights when they sign up with a major label. However, writers are a different story. They often retain their copyrights and just give a license to a publisher for a specific use.

As I understand it, that is the case in Tasini. Tasini had given the NY Times permission to publish the article in their paper before the Internet had become well-known. Since Tasini owns the copyright on the article, the NY Times is only allowed to do whatever he specifically said they could do. This makes some sense, because if the NY Times takes in additional revenue (through advertising or online subscription fees) due to their online archive of articles, writers like Tasini would never receive any of that money.
Authors of books are facing similar issues now that some publishers are trying to produce ebooks. Since these writers also retain their copyrights, unless the right to produce an ebook was in the contract, it doesn’t seem fair for a traditional publisher to assume that they have ebook rights. What if the author thinks that another ebook company will do a better job with the ebook? It’s that author’s right to decide.
Of course, in the music business the artists don’t generally retain the rights to the music and, therefore, can’t make a similar argument to choose how their works go online. Ironically, Metallica, one of Napster’s most vocal foes, does own their copyrights and may be able to have some control over online distribution.
Chander made a very interesting leap from Tasini to Napster. In Tasini, the Supreme Court ruled that it is important for articles like Tasini’s to be available in archives, and said that the lower court or Congress can arbitrate a compulsory license to ensure that those articles are available online and that the writers are compensated. If Napster can convince the court that the Tasini case sets a precedent for a compulsory license for music as well, that could make it significantly easier for them to start offering whatever music they please. And, with the major labels fighting to maintain control over distribution and their oligopoly in general, possibly the only way to break open the industry and allow new distribution models would be to create a compulsory license.
In general, I believe that the government should be hands off and the free market will take care of things. It is quite possible that the free market will take care of things in the Napster case as well, if viable independent music sources come into existence. So far, though, we’re still waiting for a fast, easy way to download whatever music we want… and we’re not waiting because of technology.