Tuesday, April 10, 2007

Harper's Archive Online: A Little Historical Nugget

The new issue of ASJA's Contracts Watch (http://www.asja.org/cw/cwfiles/cw070410.php) has useful commentary on last week's MediaBistro item about Harper's magazine's putting its entire 157-year-old archive of articles online (http://www.mediabistro.com/fishbowlny/magazines/eat_it_new_yorker_harpers_puts_157year_archive_online_56168.asp).

But I don't want to rehash all that right now. I just want to point out another piece of Harper's history in the fight to get freelancers a fair share of the new market in delivering old stories on which they hold the copyright. It's a story I shared previously in a declaration to the U.S. District Court before it approved the copyright class action settlement -- an approval that a group of objectors, including myself, is challenging in the Second Circuit Court of Appeals. I also told it on this blog on June 20, 2005, under the headline "The Crimes of Thomson/Gale/Information Access Company (Part 2)." Below is the relevant excerpt.

On August 17, 1995, on the advice of the publisher of The Washington Monthly, I faxed Sally Roberts Han of IAC’s copyright and licensing department. According to the magazine, Han had informed it, “very specifically, that at this time IAC does not have the ability to track the sale of individual articles.” I told Han, however, that the NWU had acquired copies of an IAC royalty statement contradicting this assertion.

The royalty statement was for Harper’s magazine and it was dated 8/29/1994. IAC royalties to the magazine for the period January – June 1994 totaled $3,864 and were broken down into three categories: $154.16 for “online,” $3,205.60 for “microform,” and $504.77 for “electronic means.” The “electronic means” category was further broken down into 103 “hits” of individual Harper’s articles, at $4.90 per “hit,” via IAC’s library-based InfoTrac retrieval system.

Again via fax, I shared this document with Morris Goldstein, who had succeeded Robert Howells as IAC’s chief executive. Nothing came of the exchange.

As popular newsstand magazines go, Harper’s is an intellectual one with a modest audience. Yet for a single semiannual period in 1994, when the Internet was in its infancy as a platform for widespread access by home computer users, there was incontrovertible evidence of $504.77 in transaction-based royalties from IAC to Harper’s. IAC lied about and obfuscated these facts.

Can you imagine what the universe of revenues has been since 1994 on just these kinds of transactions, for just IAC and Gale Group and Thomson, for all of the many thousands of publications whose full texts they jointly redistribute, with or without the rights to do so, and including many, many magazines and newspapers that are far better known, more widely read, and more frequently accessed than Harper’s?

Then can you imagine multiplying that figure by all of the defendants in the consolidated class action settlement? Then can you imagine adding in not just restitution for these past infringements but also the waiving of all future electronic rights for articles first published in all of these publications, in perpetuity?

Then can you begin to understand why the $10-to-$18-million preliminary settlement is maybe just a little bit ... off the mark? And why -- no matter how the National Writers Union, the Authors Guild, and the American Society of Journalists and Authors, and their assorted minions attempt to justify it -- a meaningful future rights regime for independent creators depends on objecting to this settlement before it's too late?


Anonymous Anonymous said...

Well, if it isn't the self-proclaimed arbiter of the freelance writer settlement flapping his gums again. Don't you ever get tired of hearing yourself? For somebody whose book is 21,936 on the Amazon best sellers list (and heading south fast--pick up a copy at the 99 cents only store near you soon), you sure have one gigantic ego. Certainly a big enough ego to believe that the crap you wrote is worth a king's ransom to look up on the internet. Certainly a big enough ego to practically take credit for the Tassini case. Certainly a big enough ego to submit court papers as if you were a lawyer. Oh am I going to celebrate the day you lose this case and come away empty handed, you know-it-all jerk.

7:54 PM  

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