AOL-Time Warner Merger

[Ann Okerson <aokerson@pantheon.yale.edu>]

While this release doesn't relate directly to library licensing, we
thought it would be of interest to many readers.  The Moderators

---------- Forwarded message ----------
Date: Tue, 11 Jan 2000 12:35:44 -0800
From: NWU National Office West <nwu@nwu.org>
Subject: FOR IMMEDIATE RELEASE

The Time Warner-AOL Merger: Undisclosed Liabilities?

Statement by Jonathan Tasini, president, UAW Local 1981, National Writers
Union.

We certainly share the concerns raised by many observers and public
interest advocates about the merger of Time Warner and America Online.
However, we today raise a very specific issue that we ask government
regulators and the press to probe: Time Warner�s potential massive legal
exposure to lawsuits by freelance writers.

The United States Court of Appeals Second Circuit recently issued a
landmark ruling that potentially puts Time Warner at great financial and
legal risk.  In the lawsuit, Tasini, et al v. The New York Times, et al .,
Nos. 97-9181, 97-9650 (2nd Cir. Sep. 24, 1999), the Court fundamentally
changed the legal landscape for electronic publishing in ruling that it is
copyright infringement for a publisher to put a freelancer's work on-line
or otherwise reuse or resell it without explicit written permission.

Time Warner�s division, Time Inc., was one of the defendants in the case.  
It is safe to assume that virtually all media companies (print publishers,
electronic databases and other information aggregators) are potentially
using copyrighted works illegally.  As such, in the words of the
defendants themselves, the Tasini decision �suddenly exposes all
publishers of newspapers, magazines, anthologies and other collective
works to enormous potential liability for having preserved the contents of
their publications on microfilm, CD-ROM and in electronic libraries such
as NEXIS [emphasis added].� Liabilities for individual companies will vary
depending on the amount of freelance material used.

In our dialogue with large pension funds, we are finding a health degree
of concern about the potential liabilities. We urge Time Warner to declare
publicly what its potential legal exposure is in the wake of the court�s
ruling.

We ask:

Did Time Warner disclose the potential liabilities to America On-Line?

Will Time Warner disclose the potential liabilities to investors, pension
fund managers and shareholders?

Will Time Warner disclose the potential liabilities to government
regulators?

We raise this issue for two reasons: The National Writers Union (NWU),
which was instrumental in bringing the Tasini lawsuit, has an interest in
continuing our vigilant pursuit of justice for freelance writers.  
However, it is not our desire to engage in costly and time-consuming
litigation. Tying everyone up in court and creating an all-out war over
rights are unacceptable.  Such draconian actions will serve only to create
conflict and instability in the industry.  We would rather encourage
efficiency in the media industry.  We want to see our work continue to be
disseminated via the likes of NEXIS, America Online, the World Wide Web,
and other new mediaso media companies can make a profit and writers can
make a fair living.

As such, we have proposed that media companies enter into contracts with
freelance writers through the Publication Rights Clearinghouse (PRC).  
Through PRC, freelancers can license the necessary electronic rights to
publishers and get appropriate compensationboth for new articles and for
material previously put on-line.  Rather than negotiate with each writer
individually, PRC allows companies to efficiently obtain content, knowing
that they may then legally use the content. All media companies need to do
is reach an agreement with the PRC in which the freelancer licenses for
use the particular electronic rights required.

We look forward to a day when we can assist Time Warner, via the PRC, in
solving its potential legal liabilities. In the meantime, however, those
potential liabilities cannot be ignored.

Second, the potential legal exposure Time Warner faces must be seen in the
broader context of Time Warner�s treatment of its freelance creators,
treatment that exposes a far darker aspect of the growing power of Time
Warner and other media conglomerates. Increasingly, Time Warner is forcing
all its freelance creators to sign away all their rights in perpetuity via
onerous, coercive contracts.

Before blessing this merger, we urge legislators and government regulators
to consider whether such so-called all-rights contracts violate the
spirit, if not the letter, of the U.S. Constitution.  Article I, Section 8
of the Constitution empowers Congress to �promote the Progress of Science
and useful Arts, by securing for limited Times to Authors and Inventors
exclusive Rights to their respective Writings and Discoveries.� The point
of copyright is to provide an equitable framework in which many different
interests can exist. The Framers included this protection to give
individual creators and inventors (not large corporate interests) a chance
to reap some reward for their work so they could survive and make new
works.  In fact, the Framers were clearly motivated by a distaste for
concentrated powerby allowing individuals to hold copyright, powerful
institutions would find it harder to control information and individual
expression.


Contact: Jonathan Tasini 212-254-0279
Website: www.nwu.org


~~~~~~~~~~~~~~~~~~~~~

National Writers Union
UAW Local 1981/AFL-CIO

Email <nwu@nwu.org>
Website <http://www.nwu.org>

National Office West
337 - 17th Street, Suite 101
Oakland, CA 94612-3351
Phone (510) 839-0110
Fax (510) 839-6097

National Office East
113 University Place, 6th Floor
New York, NY 10003-4527
Phone (212) 254-0279