INTERESTS OF AMICI CURIAE1 

This brief amici curiae in support of petitioners is 
submitted by Ken Burns, Doris Kearns Goodwin, Richard N. 
Goodwin, David M. Kennedy, David McCullough, Jack N. 
Rakove and Gordon S. Wood (“amici”), pursuant to Rule 37 
of the Rules of this Court. 

Ken Burns is a filmmaker and author, widely known for 
his documentaries for public television. Mr. Burns’ films 
include The Civil War and Baseball, each of which set 
records for public television viewership. Some of his other 
films include Not for Ourselves Alone: The Story of 
Elizabeth Cady Stanton and Susan B. Anthony; Lewis and 
Clark: The Journey of the Corps of Discovery; The Congress; 
Frank Lloyd Wright; The Statue of Liberty; Brooklyn Bridge; 
Huey Long; and Thomas Jefferson. In addition to his work as 
a documentarian and biographer, Mr. Burns has also 
collaborated on several books, including Jazz: An Illustrated 
History; The Civil War: An Illustrated History; and Baseball: 
An Illustrated History. Mr. Burns has been nominated twice 
for an Academy Award and has won numerous Emmy 
Awards, as well as other honors. Mr. Burns is an active 
member of the Society of American Historians. 

Doris Kearns Goodwin is an historian, commentator and 
author, widely known for her historical perspectives on 
American politics and political figures. Ms. Kearns Goodwin 
is the author of numerous highly-acclaimed biographies, 
including the 1995 Pulitzer Prize-winning best seller, No 
Ordinary Time: Franklin and Eleanor Roosevelt—The Home 
Front in World War II. In addition, Ms. Kearns Goodwin has 
contributed numerous articles on historical, political and 

1 Letters from all parties consenting to the filing of this brief have been 
filed with the Clerk of this Court. No counsel for a party authored this 
brief in whole or in part, and no person or entity other than amici curiae, 
or their counsel, made a monetary contribution to the preparation or 
submission of this brief. 

2 

cultural subjects to publications, including The New York 
Times, The Atlantic Monthly, Life and Redbook. She is a 
former professor of government at Harvard, and currently 
serves as a political commentator for NBC and the PBS 
program, The News Hour with Jim Lehrer. 

Richard N. Goodwin is a political advisor and com- 
mentator as well as an historian and author. Mr. Goodwin 
served as a speech writer to President Lyndon Johnson and as 
an advisor to President John F. Kennedy. He has published 
several successful books on political subjects, as well as 
contemporary American life and culture, including 
Remembering America: A Voice From the Sixties; Promises 
to Keep: A Call for a New American Revolution; and The 
Hinge of the World. 

David M. Kennedy is the Donald J. McLachlan Professor 
of History at Stanford University and a prolific author whose 
scholarship spans a wide range of historical subjects. With 
over ten books and numerous articles to his credit, Professor 
Kennedy has been awarded a variety of honors and awards, 
including the 2000 Pulitzer Prize for his comprehensive 
history of the Great Depression, the New Deal and World 
War II, Freedom from Fear: The American People in 
Depression and War, 1929-1945. Professor Kennedy is also 
co-author of The American Pageant, a History of the 
Republic, which is widely used as an undergraduate and high 
school advanced-placement course textbook. 

David McCullough is a well-known biographer, author, 
historian and scholar. He has written six biographies, includ- 
ing the 1993 Pulitzer Prize-winning, best-selling biography, 
Truman. In addition to the Pulitzer Prize, Mr. McCullough 
has received several other awards for his contributions to 
historical scholarship. Mr. McCullough also is active in the 
historical scholarly community. He serves as the president of 
the Society of American Historians and is a founding member 
of Protect Historic America. 

3 

Jack N. Rakove is a Professor of Political Science and the 
William Robertson Coe Professor of History and American 
Studies at Stanford University. Professor Rakove has written 
several books on the early American Republic, its politics and 
political figures, including the biography James Madison and 
the Creation of the American Republic. In 1997, Professor 
Rakove received the Pulitzer Prize in history for his best- 
selling book Original Meanings: Politics and Ideas in the 
Making of the Constitution. In addition to his teaching 
activities at Stanford and as a visiting professor at New York 
University School of Law, Professor Rakove is an active 
member of the American Historical Association, the 
Organization of American Historians, the Society for 
Historians of the Early American Republic and the Institute 
of Early American History. 

Gordon S. Wood is an historian, author and Professor of 
History at Brown University, where he has been a faculty 
member since 1969. Professor Wood also has taught at 
Harvard University, the College of William and Mary, the 
University of Michigan and Cambridge University. He is the 
author of more than 50 publications, including The Creation 
of the American Republic, for which he won the Bancroft 
Prize in history and the John H. Dunning Prize. In 1993, 
Professor Wood received the Pulitzer Prize for his book The 
Radicalism of the American Revolution. Professor Wood is a 
past president of the Society for Historians of the Early 
American Republic, and he serves on the Board of Trustees 
for Colonial Williamsburg, Tufts University and the National 
Council for History Education. 

* * * * 

As historians, political commentators and authors, amici 
have devoted much of their professional energies to 
developing, interpreting and analyzing the historical record of 
this country. As researchers and scholars, amici rely heavily 
on, and the quality of their work is dependent upon, the 
availability, reliability, accessibility and comprehensiveness 

4 

of the nation’s electronic repository of back issues of 
newspapers, magazines, journals and other periodicals. For 
these reasons, amici submit this brief to assist the Court’s 
understanding of the practical effect of the issues at stake in 
this case. 

SUMMARY OF ARGUMENT 

The Second Circuit has held that publishers and their 
licensees cannot lawfully include works of freelance authors 
who have not explicitly granted the right to publish their 
individual contributions in electronic libraries or copies of the 
publishers’ collective works. The potential liabilities 
represented by the lawsuits brought in the wake of the Second 
Circuit’s decision will lead the nation’s publishers and their 
licensees to avoid the risk of copyright infringement liability 
by deleting freelance contributions currently included in the 
nation’s electronic archives. In an era when libraries and 
other collecting institutions are rapidly replacing their print 
and microform archives of newspapers, journals and other 
periodicals with searchable, full-text electronic counterparts, 
this result will have unexpected, unprecedented and 
irreversible consequences for the integrity and accessibility of 
the historical record and the progress of historical 
scholarship. Given the significance of this potential outcome, 
amici urge the Court to weigh heavily the likely 
consequences of the Second Circuit’s decision and reverse the 
judgment below. 

Moreover, as framed by the Second Circuit, the central 
issue in this case is whether electronic journal, newspaper and 
periodical archives qualify as “revisions” of the collective 
works in which the freelance authors’ contributions first 
appeared, and are thus privileged under Section 201 of the 
Copyright Act. In deciding that the electronic versions of 
these publications are not privileged, the Second Circuit’s 
heavy reliance on the individually searchable and retrievable 

5 

character of electronic archives is misplaced in that these 
characteristics are shared by analog storage media, long 
viewed as privileged under Section 201. Amici also urge the 
Court to conclude, as did the district court below, that 
electronic archives are privileged under Section 201 based on 
the retention of their editorial selection—the element of most 
value to historians—regardless of whether exact print 
arrangement is also retained. 

ARGUMENT 

I. THE SECOND CIRCUIT’S DECISION WILL 
HAVE THE UNPRECEDENTED AND UNDE- 
SIRABLE TWO-FOLD EFFECT OF THREAT- 
ENING THE COMPLETENESS AND INTEG- 
RITY OF THE NATION’S ELECTRONIC 
ARCHIVES, AND DECREASING ACCESS TO 
CONVENIENT, COST-EFFICIENT, COMPRE- 
HENSIVE ELECTRONIC INFORMATION 
RESOURCES. 

The impact of digital technology on contemporary society 
and culture is ubiquitous and ever expanding. For historians, 
researchers, scholars and students in countless disciplines, the 
comprehensive, searchable, full-text journal, periodical and 
newspaper database has become an irreplaceable and 
priceless resource. The advantages of digital storage and 
retrieval technology in terms of accessibility, efficiency, 
reliability and comprehensiveness as compared to traditional 
analog media (i.e., hard copy bound volumes, microfilm and 
microfiche) are apparent, and have resulted in the 
proliferation of electronically available full-text archival 
resources. These advantages, coupled with the inefficiencies 
and costs associated with maintaining parallel analog 
collections of the same archival materials, have led collecting 
institutions throughout the nation (both big and small) to 

6 

reduce significantly their investments in, and reliance on, 
traditional analog means of information storage and retrieval. 

The Second Circuit’s decision in this case threatens both 
the integrity of this nation’s historical record and the public’s 
access to it. As a result of the Second Circuit’s decision, and 
contrary to common custom and practice in existence since 
the advent of electronic media, publishers and their licensees, 
including but not limited to petitioners, cannot lawfully 
include past, current or future contributions of freelance 
authors without first explicitly obtaining rights for further 
electronic archival publication of their respective 
contributions. As a direct consequence of the likely expense 
and practical difficulties of locating and negotiating with 
individual freelance authors (or their heirs/assigns), 
publishers will opt to erase the contributions of freelance 
authors currently included in full-text electronic libraries 
rather than risk liability for infringement. 

A. Electronic Journal, Newspaper and Periodical 

Archives Provide Unsurpassed Benefits to 
Historians and Scholars and Thus Have 
Become Indispensible Research Tools. 

The record of our time, as well as that of the past 
generation, has been and will increasingly become digitized.2 
Before the advent of digital research tools, scholars and 
historians were dependent principally on index-based 

2 See Martha E. Williams, Highlights of the Online Database Industry 
and the Internet: 2000, in Proceedings of the 21st Annual National 
Online Meeting 1 (Martha E. Williams ed., 2000) (“Looking at the growth 
in databases, producers of databases, and vendors of database services 
over the time period from 1975 through 1999, the databases have grown 
by a factor of 39 . . . . The number of records contained in the databases 

has grown disproportionately. In 1975 the 301 databases contained about 
52 million records. The 11,681 databases in 1999 contained nearly 12.86 
billion records for a growth by a factor of 242.”) (emphasis added). 

7 

systems, such as the Readers’ Guide to Periodical Literature 
and its counterparts in countless disciplines, to access original 
source materials.3 The researcher invariably began a given 
project by using the traditional, rigid information access 
points—namely, title, author and subject fields. After 
carefully parsing an index and identifying a seemingly 
relevant reference, the researcher was required physically to 
retrieve, if possible, or to request through interlibrary loan, if 
necessary, each and every relevant reference in cumbersome 
hard copy or microform format. Using these traditional 
analog tools, even the most straightforward projects focusing 
on a single publication (i.e., a periodical, journal or 
newspaper) often required a significant investment of time 
and patience, often necessitating repeated reference to printed 
indices, as well as frequent changing of reels or fiche on 
reading machines.4 These efforts were exponentially more 
complicated and burdensome when research, as is typically 
the case, required consideration of numerous titles, across a 
multitude of time periods. 

With the advent of electronic libraries such as NEXIS, 
WESTLAW, Dow Jones Interactive and Dialog, a research 
project that, through the process described above, would have 
taken a researcher hours, days or more, can now potentially 
be completed in a matter of minutes. Searchable, 
comprehensive, full-text databases permit researchers to 

3 See Vibiana Kassabian & Julie M. Still, Selecting Full-Text Under- 
graduate Periodicals Databases, EContent, Dec. 1, 1999 (“A long time 
ago, in a galaxy far, far away, the friendly but serious . . . librarians at a 
good undergraduate library could purchase a set of the Wilson indices— 
Readers’ Guide, Social Sciences Index, Humanities Index, Business 
Periodicals Index, Biological and Agricultural Index, and Applied Science 
and Technology Index—and feel they were providing their students with 
solid, well-rounded access to the major periodical literature of various 
fields.”). 

4 See David Beasley, How to Use a Research Library 133 (Oxford 
University Press 1988). 

8 

review quickly and efficiently hundreds, if not thousands, of 
print publications for the most detailed and minute references 
with a few keystrokes. Moreover, these technologies free the 
researcher from the inherently limited index systems, the 
integrity of which are entirely dependent on the judgment and 
perception of the individuals charged with characterizing and 
describing the underlying content. Full-text archives of a 
relevant publication for a specified time period provide 
scholars and researchers with direct access to the universe of 
potentially applicable source material, and the ability to parse 
it with a level of detail and at speeds that are simply not 
possible using traditional, index-based research tools and 
manual review. In contrast to analog research methods, the 
utility of the electronic copies and libraries is limited only by 
the researcher’s ability to formulate an effective search. 
Indeed, with the advent and growth of the Internet and its 
billions of pages of information, electronic search and 
retrieval systems are likely to continue to improve 
dramatically. 

The efficiency, accuracy, reliability, comprehensiveness 
and immediacy of access offered by searchable full-text 
digital archives are but a few of the benefits historians and 
other researchers have reaped from the advancement in the 
technology of information. Perhaps of equal significance is 
the fact that digital periodical, newspaper and journal 
archives, regardless of where they are physically housed, can 
be accessed from any location where the appropriate 
technology is available.5 Moreover, these materials can be 
accessed by countless people simultaneously at any time.6 

5 See Commission on Physical Sciences, Mathematics, and Applica- 
tions, National Research Council, LC21: A Digital Strategy for the 
Library of Congress (2000) 3-3 [hereinafter Library of Congress Report]. 

6 Id. at 3-4. 

9 

B. Digital Technology is Increasingly Replacing, 

Rather Than Supplementing, Traditional 
Methods of Recording and Accessing the 
Nation’s Historical Record. 

Few will deny that the primary locus, or at least the starting 
point, of almost any historical research project today (and for 
many years now) has migrated from the physical collections 
of libraries and archives to the desktop computer. Indeed, 
through digitization, the concept of “library” has been trans- 
formed from a “place” to a process of information man- 
agement and collection.7 As discussed further in Section II 
below, the fundamental process of historical research remains 
the same, however, whether the historian is relying on 
traditional analog or digital research tools. In either case, the 
quality of the research is ultimately dependent on the skill of 
the researcher and the comprehensiveness and accessibility of 
the underlying source material. 

Although traditional archives and libraries comprised of 
analog materials always will remain indispensable research 
tools, they no longer are the primary research tools. During 
the last century, those charged with overseeing the 
warehouses of our nation’s collective memory, namely, the 
nation’s research libraries and archives, have struggled to 
preserve the materials that comprise their collections.8 To 
this end, libraries and other collecting institutions have for 

7 See Richard C. Rockwell, Gateway Library: A View from the 
Periphery, in Gateways to Knowledge 109 (Lawrence Dowler ed., 1997). 

8 See Gay Walker, Jane Greenfield, John Fox and Jeffrey S. Simonoff, 
The Yale Survey: A Large-Scale Study of Book Deterioration in the Yale 
University Library, College and Research Libraries, Mar. 1985, at 111-12 
(estimating that, as of 1985, more than six million volumes of the 
collections of the Library of Congress had deteriorated to such an extent 
that they could not be given to users without risk of irreparable damage, 
and suggesting that, at the New York Public Library, as much as half of 
the collection had reached a similarly advanced state of disintegration) 
[hereinafter Yale Report]. 

10 

decades relied upon microform media based on antiquated 
technology developed largely in the 1930’s.9 However, like 
the print collections they were developed to supplement and 
preserve, microform media are also plagued by equally 
vexing and decay-hastening challenges exacerbated by factors 
including poor storage conditions, overuse, and flaws in 
chemical composition or manufacture. 

10 For certain rare or 
fragile subject matter, digital media may offer the only viable 
means of salvaging materials for future generations. 

11 

In recognition of the limitations of analog storage 
technology, the efficiencies inherent in managing information 
digitally, as well as the associated physical space and 
potential cost savings, libraries and archives have been at the 
forefront of employing digital technology to collect, store and 
preserve the historical record in its myriad forms. As a 
consequence, the acquisition policies and infrastructure of our 
nation’s libraries and archives have undergone a significant 
transformation. Libraries and archives maintain parallel 
information systems in traditional print media and electronic 
forms less and less frequently. 

12 Faced with the choice, the 

9 See Paul Wilson, Historical Perspectives on the Use of Microfilm in 
Libraries and Archives, in Preservation Microfilming – Does it Have a 
Future?/Proceedings of the First National Conference of the National 
Preservation Office 46 (National Library of Australia, 1995). 

10 See Yale Report, supra note 8, at 111; see also Kevin Fagan, 
Battling to Preserve Remnants of History: Newspaper Archives 
Expensive and Complex, S.F. Chronicle, Nov. 2, 2000, at A17 
(“Historians estimate that as much as 30 percent of many microfilm 
collections are degraded so badly by insects, worn chemicals and overuse 
that they are near ruin.”). 

11 Library of Congress Report, supra note 5, at 4-9, 6-2. 

12 See Eli M. Noam, Will Books Become the Dumb Medium?, Keynote 
Address to the Annual Convention of Educom (Oct. 27, 1997), in Educom 
Review, Mar./Apr. 1997, at 21 (“Comprehensive library collections have 
become unaffordable. But at the same time, electronic alternatives have 
become powerful in storage, broad-ranging in content and efficient in 

11 

digital alternative, rather than the traditional print alternative, 
is more commonly selected. 

13 Indeed, some observers predict 
that print media journal/periodical storage and retrieval 
systems will be the exception rather than the rule in the not- 
too-distant future. 

14 Already, for many researchers, electronic 
archives represent the sole repository of comprehensive 
historical information on their topic of interest. 

15 

C. The Second Circuit’s Decision Will Have the 

Predictable Effect of Irreparably Undermining 
the Integrity of the Nation’s Electronic 
Archives and the Progress of Historical 
Research and Scholarship. 

In an era when print archives of newspapers, journals and 
other periodicals are being rapidly replaced by electronic 
counterparts, the Second Circuit’s decision will have the 
practical effect of dramatically and irreparably undermining 
the integrity of the historical record by limiting access to 
information and increasing the burdens on, and the costs of, 
scholarship. 

retrieval. Therefore, libraries are gradually shifting from investment in 
the physical presence of information to the creation of electronic access. 
Soon the combination of laptop and phone line will serve just as well— 
anywhere, anytime.”). 

13 See Katie Hafner, Books to Bytes: The Electronic Archive, N.Y. 
Times, Apr. 8, 1999, at G1. 

14 See Tracy Primich, Electronic Collections in the Age of the 
Traditional Library, EContent, Apr. 1, 2000, at 65 (quoting the 1994 
California State University Strategic Plan for Libraries which sets as a 
goal the transformation of “expensive journals in high-use areas into their 
electronic equivalents as early as is financially feasible, but certainly 
within the next three to five years,” ultimately predicting that the state 
university library system will “get out of the business of acquiring print- 
based journals altogether”). 

15 See Library of Congress Report, supra note 5, at 1-17. 

12 

If the decision below stands, publishers may not lawfully 
include in electronic copies or libraries the works of freelance 
authors who have not explicitly granted the rights for further 
electronic archival publication of their respective journal, 
magazine or newspaper contributions. The threat of a tidal 
wave of lawsuits brought by freelance authors relying on such 
a holding will force publishers to minimize the risk of 
liability by prophylactically eviscerating electronic collec- 
tions of significant materials. From the perspective of amici, 
the potential damage wrought by this rule is inestimable 
because such “freelance” materials include, among other 
things, Op-Ed pieces, letters to the editor, and other 
invaluable contemporary commentary on the people and 
events of a given point in time. 

The certainty of this devastating outcome becomes clear 
when the practical limitations involved in seeking and 
clearing freelance authors’ rights are considered. First, in 
light of decades of common publishing industry practice, and 
given the long-standing understanding of publishers that 
authorization for inclusion of works in archival resources was 
not required, the publishing industry simply has not 
maintained the complete and accurate records necessary to 
seek and secure the permissions mandated by the Second 
Circuit’s decision. Accordingly, many of the authors whose 
rights may be implicated, or their heirs and assigns, may be 
difficult, if not impossible, to locate. Second, even assuming 
the respective rights holder(s) can be located, in addition to 
the practical and administrative burdens associated with 
attempting to clear rights retroactively, the aggregate costs of 
paying individual rights holders for the necessary permissions 
to republish their respective contributions in electronic form 
either will be passed on to individual and institutional 
end users, or may simply be prohibitive, particularly for the 
publishers of small and/or specialized academic journals. 
Third, in terms of prospective effect, the Second Circuit’s 
decision is no less damaging. Although it may be possible for 

13 

publishers to secure in advance the necessary rights from 
freelance authors to publish back issues of newspapers and 
other periodicals in their entireties in electronic form, it is 
equally possible that freelance authors may deny granting 
such permissions, preferring instead that their individual 
works not be included in electronic archives regardless of the 
fees offered by the publisher. 

The omission of these materials from electronic 
collections, for any reason on a large scale or even an 
occasional basis, undermines the principal benefits that 
electronic archives offer historians—efficiency, accuracy and 
comprehensiveness. For the scholar, the uncertainty 
engendered by an incomplete archive presents a grave threat 
to the quality and completeness of historical scholarship, 
particularly where the gaps in coverage are not apparent or 
even detectable. 

Faced with the prospect of unidentifiable gaps in coverage 
in the nation’s electronic archives, and in order to guarantee 
thorough and accurate research, historians and researchers 
will, by necessity, be driven back to physical collections of 
libraries and archives to utilize, to the extent they now exist, 
the obsolete and inherently limited print-based indices and 
other analog information-locating tools of prior generations. 
In light of the trends in library acquisition in favor of 
electronic media, however, researchers will return to a 
materially depleted analog universe, with a substantial portion 
of the historical record simply unavailable or, if available, 
difficult, costly and inconvenient to access. Against such a 
backdrop, and in view of increasing financial constraints on 
research libraries and archives, it is highly unlikely that all 
but a select few collecting institutions will be able 
consistently to purchase electronic and analog versions of 
critical resources, with those that do likely being forced to 
pass on the costs to downstream users. Moreover, because of 
the fundamental shift in favor of electronic media among the 
nation’s libraries, archives and research institutions, it may 

14 

simply be too late to return to analog approaches as the 
principal means of information storage and retrieval. The 
vast majority of libraries and archives will, therefore, be left 
with an unenviable choice between facilitating access and 
providing complete access to critical resource materials. 

Amici respectfully submit, therefore, that the Second 
Circuit’s decision will have the unprecedented and 
undesirable two-fold effect of threatening the completeness 
and integrity of the nation’s electronic archives, and decreas- 
ing access to convenient, cost-efficient, comprehensive 
electronic information resources available to historians, 
scholars and researchers, as well as the public at large. In 
reaching its decision, the Court should weigh heavily the 
likely consequences of the Second Circuit’s decision to the 
integrity of our nation’s collective historical record and the 
progress of scholarship. 

II. THE SECOND CIRCUIT’S FOCUS ON END 
USERS IN DETERMINING WHETHER 
ELECTRONIC ARCHIVES QUALIFY AS 
“REVISIONS” UNDER SECTION 201 IS 
INCONSISTENT WITH THE PRACTICAL 
REALITIES INHERENT IN THE PROCESS OF 
RESEARCH, AS WELL AS LONG-STANDING 
PUBLISHING INDUSTRY ASSUMPTIONS 
REGARDING THE PERMISSIBILITY OF TRA- 
DITIONAL, ANALOG MEANS OF PERIOD- 
ICAL, NEWSPAPER OR JOURNAL STORAGE 
AND RETRIEVAL. 

As framed by the Second Circuit, the central issue in this 
case is whether electronic journal, newspaper and periodical 
archives are “revisions” of the specific collective works in 
which the freelance authors’ contributions first appeared. In 
short, if the electronic archives qualify as revisions of a given 
edition or issue of a periodical or newspaper, the reproduction 
and subsequent distribution of respondents’ individual articles 

15 

in electronic archival form, or otherwise, is privileged under 
Section 201 of the Copyright Act. 

Amici urge the Court to reject the Second Circuit’s heavy 
reliance on the individual searchability and retrievability of 
the electronic archives and find, instead, that these 
characteristics, which are shared by analog storage media, 
long viewed as privileged under Section 201, are of no 
moment in determining whether electronic archives are 
similarly privileged under the Copyright Act. From the 
perspective of amici, the distinction between electronic 
libraries and their analog counterparts is simply one of 
medium, not one of function. Moreover, one of the principle 
characteristics of the original collective work in which such 
freelance contributions were published—i.e., the publisher’s 
selection of that article for inclusion in a given periodical, 
newspaper or journal—is no less evident in the electronic 
archives at issue in this case than in traditional forms of 
storage and retrieval. 

The Second Circuit’s approach to deciding the central issue 
in this case appears to rest, in large measure, on the ability of 
end users to access particular articles according to 
individualized search criteria “unrelated to the particular 
edition in which the articles first appeared.” 

16 Implicit in the 
Second Circuit’s holding, however, is the suggestion that the 
ease of access to individual articles offered by electronic 
media, at least as contrasted with traditional analog forms 
(i.e., microfilm/fiche or hardcopy bound volumes), renders 
electronic archives somehow less deserving of the privilege 
afforded by the Copyright Act. 

Amici readily acknowledge that electronic research tools 
represent a quantitative advance in historians’ and other 
scholars’ ability to access invaluable source materials. Amici 

16 Opinion of the United States Court of Appeals for the Second Circuit 
Dated and Decided Sept. 24, 1999 and Amended Feb. 25, 2000, 206 F.3d 
161, 169. 

16 

respectfully submit, however, that irrespective of the medium 
in which these materials are stored, the process of research, 
indeed the primary goal of research, is to identify and 
retrieve individual articles and source materials addressing a 
particular topic of interest. In this respect, the Second 
Circuit’s acknowledgment of the value of individual articles, 
from the end user’s perspective, would appear to be equally 
applicable to traditional microform archives, as well as 
archives of bound volumes of periodicals and journals. 
Moreover, if taken to its logical extreme, this reasoning 
would undermine a fundamentally acknowledged view, as 
well as decades of publishing industry practice, based on the 
understanding that microform replicas are privileged under 
Section 201. 

17 

Indeed, from the historian’s perspective, and to the extent 
the end user’s perspective is relevant to the legal issue 
presented in this case, the focal point of research has always 
been, and will always be, the retrieval of individual articles, 
regardless of the medium in which these materials are 
maintained. This point could not be more succinctly and 
clearly illustrated than in the following comments of historian 
Douglas Brinkley, 

18 describing the process of biographical 
research and the value of contemporary newspaper, journal 
and magazine archives to the work of historians: 

17 See U.S. News and World Report Pulls Some Content From 
Microform Over Copyright Concerns, Library Journal Academic 
Newswire, Aug. 29, 2000 (reporting that microform distributor Bell & 
Howell recently notified library subscribers that U.S. News and World 
Report would omit materials in which the publisher does not hold the 
copyright from future microform editions of its publication until the 
“copyright issues have been resolved”). 

18 Professor Brinkley is the Director of the Eisenhower Center for 
American Studies at the University of New Orleans and the author of 
award-winning biographies of Jimmy Carter and Franklin D. Roosevelt. 

17 

As an historian, when I want to write a biography, if I’m 
going to write a biography of Bill Clinton, the first thing 
I would do would be to index The New York Times. I 
would work through microfiche and get any time Bill 
Clinton’s name ever appeared in The New York Times. 
I’d get a copy of that. So, you’d have boxes of files. So 
for each month, here’s Clinton this month. There you 
have the kind of whole first draft. You then would fill 
that in with oral history interviews and . . . documentary 
evidence . . . and with some other obvious books or 
articles from Foreign Affairs or Foreign Policy or The 
New Yorker, or the like and you’d start getting your first 
biography of Bill Clinton. Somebody will do that. My 
colleague, Steve Ambrose, did that with Richard Nixon 
and produced three volumes, indexing The New York 
Times and having that as his time line. 

19 

As Professor Brinkley’s observations aptly illustrate, 
whether source materials are accessed through electronic 
archives or microfilm, microfiche or bound volumes, the 
fundamental process of historical research remains constant. 
When relying upon analog media, historians access source 
materials using subject indices to retrieve particular articles 
responsive to their individualized search criteria. Full text, 
searchable digital archives are used by historians in precisely 
the same manner for the same purposes. Electronic archives 
differ from their analog counterparts only in the ease and 
efficiency with which they enable historians to compile and 
organize, in the words of Professor Brinkley, the “first draft 
of history.” 

20 

Professor Brinkley’s observations also demonstrate 
another equally important threshold consideration relevant to 
the research process, which appears to be absent from the 

19 Panel Discussion: The Observer’s View (D. Brinkley, M. Frankel, 
H. Sidey), White House Historical Association (Nov. 16, 2000) (C-SPAN 
Archives No. 160577). 

20 Id. 

18 

Second Circuit’s analysis. As the district court recognized 
below, from a researcher’s perspective, the value of any 
article ultimately retrieved is derived, in large part, not only 
from the content of that article, but also from the fact that a 
publisher of particular note, reputation, political persuasion 
or other relevant characteristic selected that article for 
inclusion in a specific issue of its publication. The 
publisher’s selection of that freelance contribution is retained 
and continues to be as relevant in the electronic archives as in 
the original publication. This point was obscured below by 
the court of appeals’ focus on the fact that, from the end 
user’s perspective, electronic archives may, in some 
instances, display individual articles separately from other 
materials included in the original collective work. 

The Second Circuit’s misplaced emphasis on the 
individually searchable and retrievable character of electronic 
archival materials as determinative of the “revision” issue 
rests upon an implicit distinction between analog and 
electronic research tools that is simply not supported by the 
practical realities and common practice of amici, or end users 
generally. Amici, therefore, urge the Court to conclude, as 
did the district court below, that electronic archives constitute 
permissible revisions under Section 201 even where, from the 
end user perspective, an electronic version may not retain the 
exact arrangement of the original print version of a given 
issue of a newspaper, periodical or journal, but does reflect 
the publisher’s selection of that article. 

19 

CONCLUSION 

For the foregoing reasons, the judgment of the court of 
appeals should be reversed. 

Respectfully submitted, 

MICHAEL F. CLAYTON 

Counsel of Record 
BRETT I. MILLER 
ANITA G. BLUMENTHAL 
MORGAN, LEWIS & BOCKIUS LLP 
1800 M Street, N.W. 
Washington, D.C. 20036 
January 5, 2001 (202) 467-7000