Remote and Controlled
At the same time, Schwartz admits that rights adhere to content and not necessarily format. "And while there are gray areas, I believe it is always ethically safe to go back to the analog practice for which the electronic form is a metaphor. There are numerous analogue metaphors—the clipping service is a good one, as are microfilm editions—which enable the user to separate out for their purposes a single article from its context, after coming upon it when it is stored in context," he explains. "The mechanics of setting up a clearing house as suggested by the authors are quite feasible now that we have the technologies of content management. Presumably, freelancers will be able to negotiate realistic outcomes on the strength of clearing house availability. The other realm in which this has significance—which I haven't personally thought through yet—but which I think is the most significant in the realm the public interest has to do with researchers, libraries and education."
Dan Brill, editor of the Canadian-based Graphics Exchange, disagrees. He frankly says, "I think it's ludicrous." Echoing what he describes as a Canadian perspective on content's inherent non-value, Brill explains that the concerns of freelancers should fall under collective copyright law. He predicts the Tasini verdict "will undoubtedly shut down a machine that has usefulness. It's similar to what happened in the fifth century when the Huns pillaged the great library in Constantinople—the freelancers are doing the same thing by demanding to be paid for something that is already governed by collective copyright law."
And while Brill acknowledges that the ruling will not affect his own publishing operations in Canada, he suspects that the decision will set a precedent he hopes that, if pressed, the Canadian courts will eventually overrule.
"The difference is that content is free," Brill explains. "Print still has value, but what [archives] are selling is the ability to do a search, not the content." Brill believes that freelance writers have no real stock in digital archives because while they may have contributed content, the content belongs to the publications under collective copyright that he says should be extended to digital assets. "That the judge says microfilm is different from a digital file is crazy," admits Brill. And even though he also says, "digital assets are infinitive; print is not," as a publisher, he defines content on a value scale. "Value equals content over relevancy, where Shakespeare's a one and anything to do with Timothy McVeigh is a zillion." Brill says, "It conveys to me that applying a value standard establishes both the same. I don't understand how an obituary written 10 years ago possibly has the same value as a news article."