“It wasn’t about money,” James Gleick said. “Well,” he added, “of course it’s about money.”
Mr. Gleick, a freelance writer and former New York Times reporter, was discussing a pending bounty in the write-for-hire community: On March 23, a group of publishers and database companies including The New York Times, Time Inc. and Lexis Nexis agreed to pay as much as $18 million to settle a long-running class-action suit over freelancers’ rights to articles in electronic archives.
For the most prolific writers, individual payouts could top out above $100,000.
The settlement would mark the end of a four-year copyright-infringement case, in which three national writers’ organizations and 21 writers sued the country’s largest newspaper and magazine publishers and 13 major electronic database companies. The class action covers more than 10,000 freelancers.
“We believe this to be the largest settlement on behalf of freelance writers ever,” said Paul Aiken, executive director of the Authors Guild, which filed the suit along with the National Writers Union, the American Society of Journalists and Authors, and 21 named plaintiffs.
The agreement, which will be presented for preliminary approval at a hearing on March 31 before federal District Court judge George Daniels, guarantees a minimum pay package of $10 million and a maximum of $18 million, to be divided among freelancers whose work was included in electronic databases without their permission.
Besides Lexis Nexis, database companies involved include Proquest, Dow Jones and West Group-as well as The Times, whose online archives include more than 100,000 articles written by some 27,000 freelance writers. The Times and The San Diego Union-Tribune are also liable on the print-publishing side, joining publishers including Time Inc., the Washington Post Company and the Hearst Corporation.
“I think [the publishers] were a little too greedy,” said Mr. Gleick, who is one of the named plaintiffs in the suit. “I did feel from the beginning, on the basic fact, on the basic merits of the case, it’s an open-and-shut case.”
The named plaintiffs-a list also featuring Ms. founding editor Letty Cottin Pogrebin, investigative journalist Gerald Posner and novelist E.L. Doctorow-filed as representatives of the class of writers who had formally registered copyrights on their work before it was archived. They each stand to collect $2,000 on top of the piece-by-piece payout for individual works deemed to have been infringed upon.
“The key thing is, this settlement provides money right away into our writers’ pockets,” said Gerard Colby, president of the National Writers Union.
So is Mr. Gleick pricing plasma TV’s? “I haven’t thought about it,” Mr. Gleick said. “The true answer is that the point of this suit is that this was money we were entitled to. It’s how writers make their living.”
Mr. Gleick, who worked for 10 years as an editor and reporter at the paper and currently writes for the Times Magazine on a freelance basis, said the issue of copyright infringement trumped his personal affinity for The Times.
“Well, it’s hard for me to piss on The Times,” Mr. Gleick said. “I still love The Times, and I have relationships with people there, and it was difficult for me to line up against them in this case while I was working with the editors there I respect so much. But I did, because I felt I had to.”
“We are pleased that this issue has been resolved and believe the agreement is fair to all parties involved,” Times spokesperson Catherine Mathis said. ” The Times has long valued its relationship with the freelancer community and we look forward to continued collaboration.”
The case was born out of battles that began more than a decade ago, pitting freelancers against publishers who had begun drawing revenue from online archives of previously published material. Writers maintained that such archives amounted to re-publication, for which they were owed new pay.
In June 2001, the Supreme Court established a precedent on the subject, ruling 7-2 in Tasini vs. New York Times that writers, not publishers, retain the rights to sell freelance works to electronic databases. That case had begun in 1993, when Jonathan Tasini, then president of the National Writers Union, sued the New York Times Company, Newsday and Time Inc.
In August 2004, five named plaintiffs in the Tasini case were awarded $17,000 each in their settlement with the defendants.
In 1995, The Times responded to the Tasini case by circulating a memo to editors saying that freelancers who wrote for The Times would be required to sign away all future rights, including electronic rights, to their work. Those who refused would be barred from writing for The Times.
“The paper’s position on this is unambiguous,” the memo said. “[I]f someone does not sign an agreement, he or she will no longer be published in the newspaper.”
In September 2001, another Times memo advised editors not to work with the 11 named plaintiffs in Tasini-a move that freelancers said amounted to a sanctioned black list.
For freelancers whose livelihood often trades on personal relationships with editors, the suits meant antagonizing potential employers. Ms. Pogrebin, who said she has written dozens of pieces for The Times since the 1970′s-including Op-Ed pieces, travel stories and book reviews-said she thought the suit was worth the risk of alienating Times editors.
“I plan and hope to write for The Times again,” she said. “I decided to participate in the suit because the injustice seemed self-evident. It was worth it to be a sacrificial lamb in this case.”
When the Tasini ruling came down in June 2001, The Times responded by saying it would yank the 100,000 freelancer-written articles out of its archives unless writers ceded their electronic rights.
That caused the Authors Guild and two named plaintiffs-financial columnist Lynn Brenner and legal scholar Derrick Bell-to sue The Times in July 2001. In August 2001, Judge Daniels consolidated four separate class-action claims against publishers and databases in a single suit.
In November 2001, negotiations began in court-ordered mediation under Kenneth Feinberg, administrator of the September 11 Victim Compensation Fund. Attorneys representing both sides reached a preliminary legal framework for the settlement by the early months of 2004.
“It was clear early on that there was copyright infringement on a massive scale,” said Jim Morrison, the ASJA’s president from 2001 to 2003, who was the organization’s representative in the suit.
“The settlement is really great for the three groups involved. For the database industry, the newspaper and magazine publishers and the freelance authors,” said Charles Sims, an attorney with Proskauer Rose who led the defense effort. “This resolution allows us to put the case behind us and serve the public.”
Cash aside, Mr. Gleick hailed the result as a triumph for intellectual property. “I have felt the databases behaved badly and contrary to their best interest,” he said. “If they want to encourage a culture of respect for copyrights, they took the wrong position.”
Don Imus knows how to prod the media into action. On March 24, Mr. Imus used his nationally syndicated WFAN radio program to denounce a front-page story in that morning’s Wall Street Journal, which delved into the finances of the broadcast personality’s charity ranch in New Mexico. Journal reporter Robert Frank, Mr. Imus declared, was a “dishonest punk.”
Articles followed in The New York Times, New York Daily News and New York Post-all principally focusing on Mr. Imus’ hostility toward The Journal, rather than the five-figure-per-child costs of hosting young cancer patients at the ranch. Mr. Imus posted Mr. Frank’s photograph on the MSNBC simulcast of the show and on that network’s Web site, then took it down, saying the reporter had received death threats.
The story, Mr. Imus told all comers, was premature and slanted; Mr. Frank, he said, hadn’t taken the time to go see the ranch in action. “We begged him to come out here,” Mr. Imus said, in a phone conversation from New Mexico.
But if The Journal story struck Mr. Imus as hasty, the radio host had himself to blame. The squall, it turns out, testified to Mr. Imus’ influence in more ways than one: It was another on-air complaint from Mr. Imus, a week before The Journal story came out, that helped precipitate coverage of the charity.
On March 17, Newsweek reporter Charles Gasparino-a former Journal reporter-had e-mailed New York attorney general Eliot Spitzer’s office, asking about a possible investigation into the finances of the ranch. Mr. Spitzer’s spokesperson wrote back, saying the inquiry was a routine matter following a late tax filing, and that many of the 40,000 nonprofits overseen by the office are similarly delinquent.
“Spitzer’s office was giving me guidance that it wasn’t that big of a deal,” Mr. Gasparino said in a phone conversation. “So I called my editor and said, ‘Let’s just wait.’”
But Mr. Gasparino also tried to phone Mr. Imus to ask about the ranch. On March 18, as Mr. Gasparino headed to Kennedy airport to leave for a Las Vegas vacation, he got a call from a Newsweek colleague telling him that Mr. Imus had been discussing Mr. Gasparino’s inquiries on the air.
While waiting in line at the airport, Mr. Gasparino called Mr. Imus. The host fielded the phone call off the air, spoke with the reporter for 10 minutes, and then returned to the microphone to talk about the conversation he had just had.
At the same time, Mr. Spitzer’s switchboard was lighting up, as reporters followed up on the lead Mr. Imus had given them.
According to Mr. Spitzer’s spokesperson, Darren Dopp, one of those calls came from The Journal, where Mr. Frank’s story had been in the works for two months. Mr. Dopp said that Journal reporter Ian McDonald called seeking comment in mid-morning that day. “You heard that Imus was talking about the ranch this morning,” Mr. Dopp recalled Mr. McDonald saying. “Another reporter here was working on this for a long time. I need to get something. Editors want to move this story.”
Mr. Frank and Mr. McDonald declined a request for comment on whether Mr. Imus’ remarks had accelerated their reporting of the Imus Ranch story. In a statement e-mailed through a spokesperson, Journal managing editor Paul Steiger said journalistic competition had no bearing on either the timing or the placement of the piece.
” The Journal’s article on the Imus Ranch was accurate and fair,” Mr. Steiger said. “It was reported and written by one of our most experienced and capable reporters, who worked on the story for more than two months. We ran the Imus Ranch story when it was ready and it was always intended to run on page one of The Journal.”
But the day the story ran, Mr. Spitzer’s office announced it was dropping its inquiry into the ranch. Mr. Gasparino said that even before The Journal piece came out, Mr. Spitzer’s office had told him that the inquiry had been preliminarily concluded.
“The article contains a thorough airing of Mr. Imus’s view of the issues raised in the article,” Mr. Steiger wrote in his e-mail. “Our reporter had many detailed discussions with Mr. Imus’s representatives during the two months that the article was reported, and he spoke with Mr. Imus at length in two sessions the day before the article was published. If Mr. Imus believes there are any errors in the article, we would of course consider his viewpoint and, if appropriate, correct the record.”
Mr. Imus, after characterizing the piece on the phone as “a vicious hatchet job,” conceded that he had possibly played a role in bringing it out. “They wouldn’t have known about it if I hadn’t talked about it on the air,” Mr. Imus said.
Three days later, Mr. Imus made that same point on the air himself, while talking to Mr. Gasparino.
In December, Times Talk, the in-house newsletter of The New York Times, published a graphic showing how many trees were killed to make the Nov. 10 Times, desk by desk. Sports claimed 270 trees, represented by little green individual pine-tree icons; weather 35.5.
No more trees, however, would be felled for Times Talk. In January, publisher Arthur Sulzberger Jr. killed the newsletter, citing budget concerns. This month, The Times unveiled an electronic newsletter-self-described as a “Weblog”-on its internal computer network, under the title Ahead of the Times.
Early entries included an account on life in Iraq by Baghdad bureau chief John Burns and a letter of advice to Patrick D. Healy and Patrick O’Gilfoil Healy from David Johnston and David Cay Johnston, written in he said/he said form.
” AHOT has been our newsletter for more than six decades, with roots dating back to Arthur Gelb’s days as a night copyboy in 1944,” its editor, Grace Wong, wrote in the opening edition on March 14.
Or has it? “It’s slightly more complicated than that,” said Eden Lipson, an editor with the Book Review and the former editor of Times Talk. The publication founded by Mr. Gelb and his copy-desk colleagues in 1944 was originally titled Timesweek. As Mr. Gelb recounts in his memoir City Room, when he won promotion to reporter in 1947 (thanks to direct and indirect lobbying through Timesweek), his publication was turned over to the paper’s marketing department, renamed Times Talk, and given a design makeover.
Ahead of the Times was a different publication altogether, launched in 1993 under executive editor Max Frankel. As Times Talk had broadened to cover doings in all departments, Ahead of the Times focused on the newsroom.
The new online publication, Ms. Lipson said, is “so different from Times Talk.” The old publication, she said, was “elegant.”
Layouts in Times Talk took advantage of the high-end printing capability. Besides the rows of dead trees, recent issues featured illustrated guides to the evolution of the designs for the Travel and Book Review sections, archival photographs, and color photos of whoever had been riding in the elevator.
Times Talk had been exiled to the Web in 2002, Ms. Lipson said. In its online form, she said, “it was interactive, it was smart … [it] whistled Dixie …. And nobody read it.”
In the archive of those back issues, a smoothly scrolling animation in the summer 2002 issue unveils a note pleading “Tell someone we’re worth the slight effort it takes to find us.”
But Times Talk won a reprieve in 2003-after the events Ms. Lipson referred to as “the indelicacy.” In the aftermath of that year’s scandals, the Siegal Committee cited both newsletters as neglected assets. “Ahead of The Times is important to building newsroom community, and Times Talk should return to print form, a small expense for the benefit it can bring,” the committee’s report said.
The report had also recommended that newsletters publish more often. Whether the new arrangement splits the difference between the two recommendations is unclear; Allan Siegal, now the paper’s standards editor, referred a message seeking comment to a Times spokesperson.
“We’re trying to give the staff news in real time,” said Times career-development editor Glenn Kramon, speaking on the phone the week the new newsletter came out. With the old print newsletters, Mr. Kramon said, “[You'd] learn about babies being born when they were in the first grade.”
Two weeks later, Mr. Kramon said that the newsletter was already surpassing its predecessors. “We’re closing in on having more material in two weeks that both Ahead of the Times and Times Talk had in a year,” he said.
Off the Record’s New York Times pundit standings, March 21-27:
1. Maureen Dowd, score 29.5
2. Frank Rich, 25.0
3. Thomas L. Friedman, 19.0
4. Bob Herbert, 9.5
5. David Brooks, 6.0
6. Nicholas D. Kristof, 3.5
Rankings of New York Times opinion columnists on the nytimes.com Most E-Mailed list, for the seven days from March 21 to March 27. Columnists are awarded points for each column in the top 25, divided by the number of columns each has written that week. First place counts for 25 points, 25th place for 1 point. Columns not in the top 25 count for 0 points. Columns from before March 21 count toward the point total, but not toward the number of columns written.
Sara Nelson, the new editor in chief of Publisher’s Weekly, said she was awed by the turnout for her coronation party at the Lotus Club on East 66th Street Monday night. “It was incredibly meaningful to me that all those people came,” Ms. Nelson said. “It was the kind of night you wouldn’t go out if you didn’t really want to.”
But not everyone who came out was able to get out of the rain. At least four publishing heavyweights were stopped from joining the 250 guests inside because they arrived in blue jeans.
Grove /Atlantic president Morgan Entrekin and Alfred A. Knopf editor in chief Sonny Mehta ran afoul of the Lotus dress code, as did Julie Grau, publisher of an imprint for Penguin, and agent Todd Siegel of Franklin and Siegel associates.
Mr. Mehta’s assistant said he had complained to her about it when he got into work the next morning. “More than a few people got turned away,” she said her boss told her. “The Lotus Club has a dress code, that’s sort of common knowledge.”
Not common enough, apparently-and nowhere to be found on the invitation.
Said Mr. Entrekin: “I wasn’t dressed appropriately, so I wasn’t allowed in. It was a little frustrating on a rainy night, but to tell you the truth I had a lot of work to do anyway. I would have loved to celebrate with Sara, but I should’ve obeyed the rules. You know, I kind of like that places like that still exist. And I’ve been to that place many, many times, so I should’ve known.”
Anyway, he said, “I heard it was a good party.”
“Gosh, it was just shocking,” said Ms. Grau. “I didn’t make it past the stony-faced people at the front desk. I left and Sonny was standing under an awning waiting for his car. I said, ‘Where are we?’ And he said, ‘Things like this happen on East 66th Street.’”
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