April 1998

What Planet Are You On?: The Working Lives of Writers and the UCC2B Committee.

By Jonathan Tasini, President, National Writers Union (UAW Local 1981)

Prepared for the conference on the Impact of Article 2B sponsored by the Berkeley Center for Law & Technology, UC Berkeley, April 23-25 1998.¹

A silent, fierce war is underway against thousands of authors in every corner of the country. Every day, independent creators-writers, artists and photographers-are being forced by large media companies to sign away their rights forever. It is a crisis that threatens the economic viability of creators, the future of our culture and free expression.

Rather than act to preserve the rights of creators, the drafting committee of the Uniform Commercial Code Section 2B seems not only oblivious or unconcerned about this cultural catastrophe, but bent on aiding and abetting the obliteration of independent creators from the economic landscape of this country. Hence, the title of this deliberately short piece reflects my astonishment at the disconnection between what is happening in the real world to writers, on the one hand, versus the language promulgated by the Drafting Committee, on the other hand.

I am attaching the full National Writers Union sober analysis of UCC2B² as the article stood prior to the March 1998 meeting in San Diego. Irrespective of changes made in San Diego in the draft or any subsequent changes in 2B, there are some broader themes that bear emphasis in this debate. My ultimate goal is to inform the Committee about the real world facing writers, who disappear as real people behind phrases such as "content providers." Some of this may seem blunt but bluntness is often the antidote to the legal language used in the discussion about intellectual property that often obscures the truth.

Two hundred years ago, the Constitution's framers realized that culture could not thrive unless those of us who created art for a living could pay our bills. In the Federalist Papers, James Madison wrote that, "the public good fully coincides with the claims of the individual" who is a copyright holder.

In many ways, political freedom was at the heart of Madison's vision. He believed that, by allowing individual authors to hold the copyright to their works (essentially, the power to license uses, whether for a fee or for free), the government would find it harder to control information and individual expression. As a result, 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."

But, the end of individual authors' control over their work is near. While the 1976 Copyright Act, in theory, protects individual authors, it is being obliterated by the free market weapon of choice: the sacrosanct written contract. Using the technology revolution as a convenient cover, media companies are relentlessly becoming the owners of all creative works, forcing authors to sign away rights in perpetuity-even for works for technologies not even invented for which no one can define a value. Instead of a fair give-and-take (where a writer might license a work for a specific use in return for some compensation), the word has come down on how to deal with individual authors: "here's the contract, we want it all, take-it-or-leave-it." Where such rights are not signed away under duress, writers are watching their work being used without permission-and without payment-by large media companies.

Masking the broad attack on authors is a massive dose of hypocrisy. The media industry's lobby-in the personage of people like Jack Valenti, the hired gun for the motion picture industry-fights fiercely to protect copyright laws, trotting out authors as examples of the victims of international information piracy and the lawless behavior of information users. They use us because it's obviously hard to feel sympathetic towards the wealthy executives Valenti represents. But, the realty is that the industry seeks laws to fatten its profits while, at the same time, pursuing a campaign to deny us our fair share. Valenti and his ilk remind me of the classic domestic batterers who profess undying love to a spouse in public, while beating her to a pulp behind closed doors.

Microsoft, Time Warner, Rupert Murdoch's News Corp. and other mammoth media companies trot out all sorts of arguments for using all-rights contracts to undermine the Copyright Act and the spirit of the Constitution: we're not making money in the electronic age or it's too complicated to obtain the rights for works in a fast-moving digital world.

These excuses are rubbish. In the good-old print age, authors were paid whether the company made money or not. If you wanted to sell my work, the law and fair business practice dictated payment. Moreover, the new information technologies make obtaining rights easy. In fact, the National Writers Union has set up the first-ever transaction-based licensing system, the Publication Rights Clearinghouse, precisely for the purpose of making rights available quickly. No, the real motive behind all-rights contracts is far simpler: greed. The industry is using its growing power to pocket all revenues, leaving authors out of the equation.

And the UCC2B Committee is positioning itself to be the instrument of that greed. On the issue of all-rights contracts, as we have outlined in our memo to the Committee, "Article 2B does not take steps to protect the writer against a requirement to transfer all rights to possible future revenue from a work's exploitation in un-discovered and undeveloped emerging technologies. In fact, the present draft encourages the opposite-a hastening of the trend toward contracts of adhesion requiring the assignment to publishers of all such rights."³

Since the full text of our analysis is attached, I am not going to repeat each point. I only want to turn briefly to two assumptions apparently imbedded in the Committee's philosophy.

The Freedom to Contract

The Committee's February 1998 draft says,"The idea of contract flexibility is embedded in general contract law theory. The idea that parties are free to choose terms can be justified in a number of ways. It leads to a preference for laws that provide background rules, playing a default or gap-filling function in a contract relationship. A default rule applies if the parties do not agree to the contrary. A default rule should mesh with expected or conventional practice in a manner that projects a favorable impact (as judged by relevant policy) on contracting and that can be varied by the contracting parties."⁴ [underlined emphasis added].

Similarly, in laying the foundation for the UCC2B work, Raymond Nimmer wrote in December 1995 that, in referring to the general approach to the UCC and Article 2A specifically, "This article was greatly influenced by the fundamental tenet of the common law as it has developed with respect to leases of goods: freedom of the parties to contract…These principles include the ability of the parties to vary the effect of the provisions of Article 2A, subject to certain limitations including those that relate to the obligations of good faith, diligence, reasonableness, and care."⁵

If freedom is truly an underlying principle of the UCC2B Committee, then that principle is directly contradicted by the draft proposed by the Committee. Freedom is, among other definitions, "the condition of being free of restraints," and, more specific to the issue at hand, "the exemption from unpleasant or onerous conditions…"⁶

No such conditions exist for writers. I lost a $6,000 assignment simply because I raised concerns about an all-rights contracts offered me. It was a take-it-or-leave it proposition. My days have been filled in the past three years with story after story of similar treatment endured by scores of writers. If this is the notion of a "favorable impact," it is a perversion of the phrase "favorable."

We are not truly free to contract, nor certainly to vary an all-rights contract. We are free in the same sense slaves are free. Slaves can refuse to work-and be beaten or imprisoned or flee to an uncertain life with no work. We can refuse all-rights contracts-and have no work. That is not freedom by any common sense standard in a civilized and moral society.

The Protections of the Copyright Act

The February 1998 UCC2B draft states that, "copyright law precludes a transfer of ownership in the absence of a writing conveying ownership." I agree with this written-contract requirement, as the Court did in Tasini et al. v. The New York Times et al by refusing to accept the publishers' argument that mere check legends and "first publication rights" contracts were sufficient to cede all rights in the authors' freelance articles to periodical publishers. However, in the summary judgment decision in Tasini, the Court ignored its own rulings about the written-contract requirement and, instead, applied a previously uninterpreted section of the Copyright Act-Section 201(c)-in a way that undermines the written-contract requirement and its protections for authors.⁷

Finding that Section 201(c) permitted periodical, encyclopedia and textbook publishers to make "revisions" of their collective works as a whole, the Court held that the periodical publishers in that case were entitled to "revise" their collective works in any medium, including re-licensing the freelance articles to be electronically commingled into large databases, so long as citations to the original periodicals were included in the electronic versions.

Despite the fact that none of the publishers in Tasini obtained written conveyances of rights in the freelance authors' articles, the Court's ruling said the publishers were entitled under the "revision" privilege to permit others to reproduce the articles electronically in media that, in my view, bear no resemblance to the original collective works (periodicals). In fact, the new uses result in entirely new anthologies or collective works in which hundreds of thousands of articles are separately filed, indexed, segmented, located, downloaded and read without written authorization from the articles' authors.

Despite the intent of 1976 Act to restore and protect authors' rights in their writings and to limit publishers' abilities to usurp authors' rights, the written-contract requirement has been severely undermined, at least, in the Southern District of New York. The Committee should also know that similar lawsuits by photographers are pending against National Geographic, although the case has been stayed pending a ruling by the Second Circuit in the Tasini appeal.

In sum, although the attached memorandum advocates for application of the Copyright Act to Article 2B, the Committee should be aware that the protections for authors under the Copyright Act are in jeopardy. In 1976, Congress stood up for authors and recaptured the Constitutional intent of Madison when it radically changed the rules of copyright that had stood for many decades. As Barbara Ringer, the former Register of Copyrights, noted in 1976, "Properly designated, the New Act is not a 'general revision,' but is as radical a departure as was our first copyright statute, in 1790" and included changes that were "so profound that they may mark a shift in direction for the very philosophy of copyright itself." The changes were designed to "break with a two-hundred-year-old tradition that has identified copyright more closely with the publisher than with the author."⁸ The radical shift Ringer spoke of gave to authors the right to control discrete uses of their works and limited what publishers could do.

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Given the stakes to creators and the public, it is truly shocking that the UCC2B process has been so tightly controlled and hidden from view. Indeed, the drafting committee has been working in a fashion that is barely publicized, has no independent oversight and is extremely anti-democratic. Two letters the union submitted were never responded to. It is not even clear the letters were circulated. In theory, anyone can attend a meeting. But, let's be real: there has been no desire on the part of the committee to truly draw in constituencies who do not represent powerful industries.

Apparently, the Reporter met with a variety of bar associations and groups such as the Business Software Alliance, Information Industry Association, Information Technology Association of America and many other industry representatives. However, apparently the same outreach was not undertaken to groups such as the American Association for Retires Peoples (AARP), which represents millions of people whose lives will be touched by UCC2B, at the very least by the shrink-wrap license provisions.

Though I have not attended a meeting, I have received quite troubling reports back from our representative and advocates for consumer groups who have attended many meetings. When non-industry advocates raise objections, they are patronized and ultimately ignored. It is their perception that the environment has worsened over time. The result: the current draft of Article 2B, effectively shaped by a handful of corporate lawyers, endorses all-rights contracts and sets a lower standard of commercial behavior for media companies.

Beyond caring about authors, though, there is a far more powerful public interest. If we allow large media companies to own all rights to information, we will have less access to information and have to pay for whatever information we want to get. Over time, as the media industry vacuums up every possible right to authors works, less information will be available in the public domain because there will be only one standard used when deciding if certain information should be available: can it make a buck? We may not notice the trend in our lifetime but our children and their children will acutely feel the deprivation. Indeed, the media industry wants every shred of information to carry a price tag (for example, government information we historically could get for free). Coupled with the impoverishing of authors, a secondary, important tactic in this strategy is to push for legislation, here and abroad, to create new database protections whose sole purpose is the imposition of the pay-per-view information world.

We intend on opposing UCC2B in its current form. We are already studying ways to mount an active lobbying campaign to kill UCC2B if and when the draft makes its way to state legislatures. Moreover, if significant changes are not made in the draft, the ultimate legacy of the current drafting Committees may be that it will have sparked a movement to change the way future UCC drafting committees do business.

In closing, I freely admit that authors should not ultimately count on any legal framework-with one exception-to protect them, whether it be the Copyright Act or the Uniform Commercial, because media companies will always possess more resources to find some way to circumvent or undermine basic principles of fairness. The one exception is the legal framework of collective bargaining, which establishes the best arena in modern society for fair and equitable treatment of writers and all creators.

However, the basic question facing the UCC Drafting Committee is: does it want its legacy to be that the committee's actions shriveled our culture by providing the means to conduct economic warfare against countless numbers of creators whose simple desire was to receive fair compensation? As individuals who have parents, siblings, spouses, children or just friends, is that the kind of society the Committee members want to live in?

FOOTNOTES

1. This is a slightly modified version of the article submitted for the conference. I want to acknowledge two incredible resources: Carol Kunze's website at: www.softwareindustry.org/issues/guide and Cem Kaner's page at: www.kaner.com. Both sites provided this non-lawyer with critical information.

2. Memorandum from National Writers Union to Ray Nimmer, Connie Ring and Geoffrey Hazzard, "Article 2B Impact on Writers," March 25, 1998. The analysis was drafted by Mike Bradley, Michael McCready, Jonathan Tasini and Harry Youtt.

3. Ibid. pages 4-5.

4. Discussion Memorandum, February 1998 Draft, Article 2B: Licenses. Raymond T. Nimmer, Reporter.

5. "Article 2B Preface-Meeting The Information Age," Raymond T. Nimmer, December 1, 1995, page 10 (as downloaded from website at: www.lawlib.uh.edu/ucc2b/pref1201.html).

6. The American Heritage Dictionary of the English Language (1973, Houghton Mifflin).

7. Tasini v. New York Times Co., 972 F. Supp. 804, 819 (S.D.N.Y. 1997).

8. Ringer, Barbara, "First Thoughts on Copyright Act of 1976," 22 N.Y.L. Sch. L. Rev. 477, 490 (1977).