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Writers' rights

Dear Friends,

Below is the text of my letter to the editor in response to The Charleston
Advisor's coverage of recent copyright litigation involving writers'
rights (last month's Supreme Court ruling in *Tasini v. New York Times* as
well as the $7.25 million settlement in *Ryan v. CARL*).

The letter also can be viewed at


The original article from The Charleston Advisor is at



Your interesting interview with Michael Traynor, lead counsel for the
defendants in *Ryan v. CARL*, includes one theme about the future of
copyright law and policy with which I agree and one with which I differ.
Since I served as assistant director of the National Writers Union (which
supported the plaintiffs in *Tasini v. Times*, the landmark Supreme Court
case on behalf of authors) and as consultant to the plaintiffs; attorneys
in *Ryan* (a class action that settled for $7.25 million), this is a
hopeful sign for the negotiations that should ensue over industry-wide
standards and royalty systems.

I agree with Mr. Traynor that a regime of prior permissions is unwieldy
and contrary to the spirit of using new technologies to broaden public
access to creative works. Litigating the letter of the current law with
respect to prior permissions was a way to bring infringing database
companies and publishers to the bargaining table when all else failed.
Writers aren't interested in seeing material "blocked" piecemeal by these
companies only as a tactic to make individual complainants go away --
especially when the resulting damage to the integrity of the historical
record is not fully disclosed to information professionals and consumers.
Much better, in the long run, is the "compulsory license" found in the
music industry. Now that seven justices of the United States Supreme
Court, running the gamut from Ruth Bader Ginsburg to Antonin Scalia, have
settled the law with respect to Section 201(c) of the Copyright Act, let's
put this concession on the table and move toward building the NWU's
Publication Rights Clearinghouse (of which I was founding director) on the
model of ASCAP (the American Society of Composers, Authors and
Publishers). The DJ doesn't need to track down the composer and musicians
every time a song is played on the radio, but a system is in place to
track usage and types of usage and to compensate creators accordingly.

Having said that, I disagree with Mr. Traynor's suggestion that there will
be significant unintended (or as he puts it "ironic" consequences from the
authors' success in *Ryan* and *Tasini*. Will it now somewhat
inconvenience publishers to sit down with creators and other interested
parties and work out fair arrangements for all? You bet. Is this a bad
thing for authors, photographers, graphic artists, and the public? The
American Library Association doesn't think so, and neither do I. Writers
may not have great business savvy but we're not stupid. We want an
expansive definition of fair use, as well as subsidies for libraries,
public institutions, and low-income end users. We know -- I daresay better
than publishers -- the benefits of a kinder, gentler ASCAP that will forgo
the folly of charging every kind of user in every kind of scenario for
"every bit and byte."

The real promise of digital distribution isn't a golden goose that
whistle-blowers are supposedly killing by demanding that the information
superhighway be paved with a donkey trail of rights and dignity. Rather,
it's the promise of decentralizing and democratizing the delivery of
information and culture by strengthening the hand of creators against
large corporations that want "intellectual property for me but not for

Irvin Muchnick

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