Supreme Court Hears Oral Argument in The New York Times v. Tasini

On Wednesday, March 28, 2000, the U.S. Supreme Court heard oral argument in the case of The New York Times v. Tasini, No. 00-201, regarding whether the inclusion of electronic versions of a newspaper in a searchable database allowing recall and printing of individual articles violated the copyrights of freelance authors of such articles or instead simply constituted a "revision" of the collective work of the newspaper.

Argument began with Professor Laurence Tribe for the petitioners drawing an analogy to the past use of microfiche for mass storage of newspapers, and the resulting ability of individuals to copy single articles from such microfiche. But the Chief Justice and Justices Scalia and O'Connor offered skeptical question about the degree to which electronic storage in databases such as Nexis involved the disaggregation of the newspaper into individual articles, unlike microfiche, which copies an exact image of the newspaper -- layout and all -- in substantially the same format as the original collective work. Justice Souter also seemed concerned about the easy retrieval of single articles unconnected to its original surroundings, and the difficulty in distinguishing such access from the direct reproduction and distribution of a single article standing alone, which would violate a freelancer's copyright if done without consent. While Professor Tribe gamely focused on the identity between the daily electronic file sent to the printer for the original paper and the electronic file sent to Nexis, he seemed to make little headway in breaking through the skepticism of the four Justices.

Tribe also sought to emphasize that while the outcome of this case would likely have little or no impact as to future collective works, a decision in favor of the freelancers could force electronic archiving services such as Nexis to delete from their databases numerous past articles for which the author could not be located or where the author's consent could not be obtained. Leaving such works on the database following an adverse decision could risk substantial damages for copyright infringement said Professor Tribe. Justices Scalia and Ginsburg challenged whether the risk of damages would in fact be significant, but there was little substance or heat in those challenges, and the practical consequences of the Court's ruling quickly took a back seat to the legal interpretation of what constituted a permissible revision of a collective work. At the end of the initial argument, there was little to suggest that the skeptical Justices had been swayed.

Arguing for the respondents, Laurence Gold started slowly and never hit a comfortable stride. justice Kennedy quickly asked why the searchability of Nexis was any different than the indexing and cataloguing done in the more familiar library setting, where individuals can locate and then copy single articles catalogued by author. Gold seemed surprised by the question and was unable to draw a distinction between bound and indexed paper copies and collectively stored and searchable electronic copies of newspapers. Rather, he repeatedly retreated to the notion that the ability to search and print a single article was the same as the newspaper reprinting and distributing a single article itself.

Justices Stevens, Kennedy, and Breyer repeatedly asked Mr. Gold to identify the action that constituted the first allegedly infringing behavior by the petitioners or others and was incapable of answering the question during at least five minutes of going in circles. Even after an attempt by Justice Souter to provide assistance, it was still entirely unclear exactly when a supposed infringement was alleged to occur. There was also considerable discussion during this portion of the argument over whether the newspapers or Nexis disaggregated an otherwise whole collective work and whether that was significant to the legal question. The Justices raised various analogies to microfiche and even to paper newspapers with articles cut out and filed, but received little enlightenment for their efforts.

In the end, both sides seemed to ignore what the Justices may have been bothered about -- whether the elimination of the formatting from the original paper version of a newspaper and the ability to retrieve single articles excised from their original context among other articles within that formatting was a sufficiently significant change as to go beyond mere revision and threaten a freelancer's copyright to his or her stand-alone article.

Although it is hazardous to make any predictions, and with the proviso that oral argument is not a particularly reliable predictor, it would seem that the Chief Justice and Justices Scalia and O'Connor may be leaning in favor of the respondents, and Justices Breyer and Stevens may be leaning in favor of petitioners. As for the other four, we'll all just have to wait and see.

Erik S. Jaffe is a sole practitioner in Washington, D.C. He concentrates in appellate litigation, predominately before the U.S. Supreme Court. He is a former law clerk to D.C. Circuit Judge Douglas H. Ginsburg and to U.S. Supreme Court Justice Clarence Thomas. For more information, please visit Mr. Jaffe's web site at: www.esjpc.com

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