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.
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.
more information, please visit Mr. Jaffe's web site at: www.esjpc.com
to Legal Archive 2001