Northern Lights controversy

[Elisabeth Roche]

I thought this might be of interest to the list.

Elisabeth Roche Roche Internet Resources and Research Tucson, AZ
(520)320-5933 eroche at sisnaaz.com
serendipity RULES!

---fwd original message---

Reprinted with permission 01/28/98

IS YOUR NAME UP IN LIGHTS?
 
A Brief Report on the Northern Light database
from the Contracts Committee of the
American Society of Journalists and Authors (ASJA)
 
      "I've just searched my name in Northern Light and
      found 12 of my articles. I never authorized anyone
      to resell my work that way. What's going on?"
 
In recent weeks, Internet newsgroups and e-mail lists for journalists
have been burning with alerts about the new kid on the database block:
the World Wide Web-based search engine and article collection called
Northern Light (http://www.nlsearch.com). At ASJA, Northern Light has
been the subject of a flash flood of questions and complaints, from
society members and from other freelance writers.
 
We spoke with top officers of the company, to learn and to express
writers' concerns.
 
WHAT NORTHERN LIGHT DOES
 
Northern Light combines a Web search engine, which locates information
(mostly free) on other sites, with its own mix of articles from popular
and specialized publications. The company's "Special Collection" boasts
2 million articles from 3,000 periodicals and books, almost all from
1995 onward.
 
The service has some direct deals with publishers, but most of its
articles come through a small number of "aggregators," wholesalers (such
as Information Access Co., UMI and SoftLine Information) that compile
databases and sublicense them to retailers like Northern Light, which
bring them to the public.
 
Thus, writers who find their articles for sale in Northern Light can
expect that the same articles are being offered by other services too.
In fact, since Northern Light includes only recent material, many
writers will find even more of their articles in other, older
databases--on the Web, on subscription-only online services such as
CompuServe and Lexis-Nexis, and on CD-ROM in libraries.
 
Some publishers and their lawyers say all this is "just distributing a
publication in another medium." But that's hardly what goes on. An
electronic database is a huge anthology. Northern Light, a collection
of databases, is a high-tech reprint service--a business that uses an
electronic delivery system to sell not copies of a publication, but
copies of articles.
 
FOLLOW THE MONEY TRAIL
 
Who makes money from these services?
 
Retailers like Northern Light collect download charges and subscription
fees from customers. They pay royalties to aggregators like IAC and
UMI, which in turn pay royalties to publishers. Under their contracts
with contributors, some publishers pass along part of the take through
the Authors Registry. Others, according to contract, instead pay fees
for the right to deliver freelance articles to databases. Still others
insist on acquiring the right without paying extra. And some do none of
those things; they don't have the right at all, but they tell the
database companies they do.
 
YOU HAVE A PROBLEM WITH THAT?
 
To freelancers who have written for a publisher they say falls into
that last category, Northern Light makes its position clear: Don't come
to us; if you have a beef, go to the publisher. We're indemnified.
 
But that isn't the whole story. If a publisher is exceeding the terms
of its license from you, you do have a case against the publisher--for
breach of contract. But that wouldn't keep you from charging Northern
Light and an aggregator with copyright infringement. Indemnification
from the publisher doesn't let the others off the hook.
 
Northern Light CEO David Seuss tells ASJA: "We rely on the word of the
reputable publishers and aggregators we deal with. We won't negotiate
with a third party, like a writer, with whom we have no contractual
relationship. And we won't judge a dispute. That's not our role in
society--it's the role of the courts. If a court issues an injunction
against us, we'll comply."
 
This message, too, is clear: If you don't like it, kid, sue us.
 
WHAT TO DO? READY, AIM...
 
Before you leap to complain--or sue--read the screen carefully. Make
sure you're seeing an offer of the full text of your article--not an
abstract--from Northern Light's Special Collection. Then find your
contract with the publisher. Read it. Understand it. (If you can't
decode it, get some help.)
 
Did you sell all rights? Sorry; you have no beef. Grant a license to
publish "in all media" in perpetuity? Sorry again. Is your contract for
one-time use in a print edition of the publication? That's a different
story. You should notify the publisher of the breach of contract and,
at the same time, put Northern Light and any aggregator involved on
  notice that they are conducting business based on misrepresentation.
 
  Northern Light, like some others, appears to be giddily taking cover in
  a recent New York federal district court decision in which a judge
  bought the argument of publishers and ruled that such databases were
  acceptable "revisions" of publications. But that's just one ruling--and
  a bizarre one at that--of a single lower court. And it's on appeal.
  There is, for now, no binding precedent for the U.S.
 
  We think a lot remains to be said on the matter.
 
  TO CONTACT NORTHERN LIGHT:
 
        Northern Light Technology
           David Seuss, CEO
        222 Third Street, suite 1320
        Cambridge, MA 02142
        tel 800/419-4222
        fax 617/621-3459
 
  If you're an affected writer, ASJA would like to know the particulars.
  If you take action, please send copies of the correspondence.
 
  Contracts Committee
  American Society of Journalists and Authors
  1501 Broadway, suite 302
  New York, NY 10036 USA
  fax 212/768-7414
  ASJA at compuserve.com
  http://www.asja.org