David Scores a Minor Hit on Goliath

Last week, a landmark case was settled between freelance writers and some of the nation’s largest publishers. It was a long-running, complex case, but it basically came down to this: Freelance writers believed that electronic archives of their work—from articles on the web, to paid-access databases like Lexis-Nexis—amounted to republishing their work, without any additional compensation to them.

This probably would not be a big deal if there wasn’t a lot of money at stake. In other words, if the magazines and newspapers archived freelance articles and offered free access to them. That approach might be considered a brand of largesse something like the public library keeping back issues on hand, or in microfiche. But as soon as the Times, or AOL-Time Warner, or Lexis-Nexis tried to make money a second time (after buying first serial rights—the right to publish a piece first and once, exclusively), they crossed a line. Now, of course, they explicitly require writers to sign away these rights— and writers are free to negotiate in the event, or take their work elsewhere.

The problem, from a writer’s point of view, is the incredible imbalance in such a negotiation. You have to have some pretty big cajones to say no to the New York Times, when you are trying to make a living as a freelancer. It’s rather like telling your health insurer to go to hell when it informs you that your premium will be going up, please remember to pay promptly in the enclosed envelope, post office will not deliver without postage. We know from experience that any antagonism at all gives editors at prestigious publications the slimmest excuse they need to unofficially black-list a writer just as surely as if she blew a deadline or turned in a page of phone numbers.

Know why? Here’s a shocking figure that came out incidentally in the case: For the period in dispute, the New York Times used more than twenty-seven thousand freelancers to write more than one hundred thousand articles. (Doing some rough math, that averages fewer than four articles per freelancer, probably in the range of a couple hundred dollars per article. That is a number that will be crossing our lips for years to come whenever anyone asks us about the prestigious, romantic, lucrative world of freelance. Despite the fact that some winning freealncers in this lawsuit may receive a six-figure payoff, and despite the fact that this is a huge moral victory for writers everywhere, it is highly depressing to realize why so many editors are merely frustrated freelance writers.

Now, perhaps the next frontier will be the poor, indentured crossword writers at the Times–who are asked to sell all their rights forever for the price of a good dinner, while the Times republishes their puzzles at will and with impunity.