1 

00-201 

IN THE 

SUPREME COURT OF THE UNITED STATES 

THE NEW YORK TIMES COMPANY, INC., 
NEWSDAY, INC. THE TIME INCOPORATED 
MAGAZINE COMPANY; LEXIS/NEXIS and 
UNIVCERSITY MICROFILMS INTERNATIONAL 

Petitioner 

v. 

JONATHAN TASINI; MARY KAY BLAKELY; 
BARBARA GARSON; MARGOT MIFFLIN; 
SONIA JAFFE ROBBINS and DAVID S. WHITFORD 

Defendants 

BRIEF FOR AMICI CURIAE THE AUTHORS GUILD, 
INC., JACQUES BARZUN, JAMES GLEICK, JUSTIN 
KAPLAN, TRACY KIDDER, NICHOLAS LEMANN, 
JOHN LUKACS, ROBERT K. MASSIE, JACK MILES, 

AND JEAN STROUSE, IN SUPPORT OF 
RESPONDENTS 

Leon Friedman 

Counsel of Record 
148 East 78 

th Street 
New York N.Y. 10021 
(212) 737-0400 

Kay Murray 
The Authors Guild, Inc. 
31 East 28 

th Street 
New York, N.Y. 10016 
Attorneys for Amici 

2 

TABLE OF CONTENTS 

Page 

Interest of Amici Curiae . . . . . . . . . . . . . . . . . . . . . 
1 

STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
7 

Introduction and Summary of Argument . . . . . . . . 
8 

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
9 

I. THE OPINION BELOW PROPERLY 
WEIGHED THE INTERESTS OF 
AUTHORS, PUBLISHERS, RESEARCHERS 
AND ELECTRONIC DATABASES . . . . . . . . . . 
9 

II. THE DECISION BELOW PROPERLY 
ANALYZED THE STATUTORY LANGUAGE 
OF SECTION 201(C) . . . . . . . . . . . . . . . . . . . . . 
19 

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 22 

3 

BRIEF OF AMICI THE AUTHORS GUILD, INC. , 
JACQUES BARZUN, JAMES GLEICK, JUSTIN 
KAPLAN, TRACY KIDDER, NICHOLAS LEMANN, 
JOHN LUKACS , ROBERT K. MASSIE, 
JACK MILES and JEAN STROUSE 

This brief amici curiae is submitted in support of 
Respondents Jonathan Tasini et al. By letters filed with 
the Clerk of the Court, Petitioners and Respondents have 
consented to the filing of this brief. 1 

INTEREST OF AMICUS CURIAE 

The Author’s Guild, Inc. founded in 1912, is a 
national non-profit association of more than 8,200 
professional, published writers of all genres. The Guild 
counts historians, biographers, academicians, journalists 
and other writers of nonfiction and fiction as members. 
Almost 40% of its membership identifies itself primarily 
as journalists, most of them freelance contributors. Guild 
members have received many accolades and awards in the 
world of publishing, including numerous Pulitzer and 
Nobel Prizes. 

The Authors Guild works to promote the rights 
and professional interests of authors in various areas, 

1 As required by Rule 37.6 of this Court, amici curiae 
submit the following: no party or party's counsel authored 
this brief in whole or in part; no person or entity other 
than amici curiae, its members, or its counsel, have made 
a monetary contribution to the preparation or submission 
of this brief. 

4 

including copyright, freedom of expression and taxation. 
In the area of copyright, the Guild has fought to procure 
satisfactory domestic and international copyright 
protection and to secure fair payment of royalties, license 
fees and non-monetary compensation for authors' work. 
Guild attorneys annually help hundreds of authors 
negotiate and enforce their publishing contracts. 

Authors Guild members earn their livelihoods 
through their writing. Their work covers important issues 
in history, biography, science, politics, medicine, business 
and other areas; they are frequent contributors to the most 
influential and well-respected publications in every field. 
Fees to Guild members for re-sale and re-use of their 
work provide a substantial portion of their income. 

Jacques Barzun is a world-renowned historian, 
literary commentator, translator and educator. His career 
spans more than sixty years, some thirty books of 
musical, literary, philosophical, political and art history 
and criticism, and countless awards and honors. His 
widely varied historical books include A Stroll with 
William James (biography); The American University: 
How it Runs, Where it is Going; Lincoln the Literary 
Genius; and Darwin, Marx, Wagner: Critique of a 
Heritage. His most recent work, From Dawn to 
Decadence: 500 Years of Western Cultural Life, 1500 to 
Present, has been nominated for this year’s National 
Book Award for nonfiction and for the National Book 
Critics Circle Award for criticism. He has contributed 
many articles to scholarly periodicals as well as to 
Harper’s, Atlantic, The New York Times, New Republic, 
Saturday Review, and others. Mr. Barzun is a member of 
the American Historical Association, the American 
Academy and Institute of Arts and Letters (past 
president), and the Royal Society of Arts. He was dean of 

5 

graduate faculties and provost at Columbia University and 
for many years the University Professor of History. Mr. 
Barzun has been awarded the George Polk Memorial 
Award and the Chevalier de la Legion d’Honneur in 
honor of his contributions to our historical store of 
knowledge. 

James Gleick is an award-winning journalist, 
biographer, teacher and technologist. His books include 

Genius: The Life and Science of Richard Feynman, and 
Chaos: Making a New Science, both of which were 
finalists for the National Book Award and the Pulitzer 
Prize. Mr. Gleick’s most recent book is the best-selling 

Faster: The Acceleration of Just About Everything. He 
was a founding editor of Metropolis, a Minneapolis-based 
weekly newspaper. 

For ten years he worked for the New 

York Times, both as a reporter and an editor. He 
continues to be a regular contributor to the Times and the 
New York Times Magazine. In 1993 he co-founded the 
Pipeline, a New York City based Internet service. Mr. 
Gleick’s subject matter comprises leading edge scientific 
research, the social and economic ramifications of 
technology and the history of groundbreaking 
innovations. 

Justin Kaplan is a historian, literary critic and 
award-winning biographer. Mr. Kaplan is author of 
several biographies including Mr. Clemens and Mark 
Twain, which won both the Pulitzer Prize and the 
National Book Award for biography, and Walt Whitman: 
A Life, winner of the American Book Award for 
biography. He has authored widely acclaimed 
biographies of Charlie Chaplin and Lincoln Steffens. Mr. 
Kaplan is renowned for his skill at confronting the 
obscured conceptions of historical figures and resolving 
their mysterious elements. A former Guggenheim fellow 

6 

and lecturer at Harvard University, Mr. Kaplan is a 
member of the American Academy of Arts and Sciences 
and of the Society of American Historians. 

Tracy Kidder is a highly acclaimed author of 
books and articles. Over the course of a 26-year 
professional career he has written six books and many 
magazine articles. He has been a contributing editor to 
the Atlantic Monthly since 1982. His books are The Soul 
of a New Machine, House, Among School Children, Old 
Friends, and Home Town. In 1982 Mr. Kidder won both 
the Pulitzer and the American Book Award for The Soul 
of a New Machine. He received a Christopher award, a 
National Book Critics Circle Award nomination, the 
Robert F. Kennedy Award and Ambassador Book award 
for Among Schoolchildren. Mr. Kidder was the recipient 
of The New England Book Award in 1994 for Old 
Friends. Mr. Kidder is renowned for his ability to write 
engagingly on subject matters as diverse as elementary 
education, computer engineering, nursing homes and 
home construction. By combining meticulous archival 
research, personal interviews and observation with a keen 
writing ability, Mr. Kidder has made otherwise arcane 
subject matters both accessible and fascinating to the 
general reading public. 

Nicholas Lemann is a contributing editor to The 
New Yorker. He has been a journalist for The Washington 
Monthly, Texas Monthly, The Washington Post and The 
Atlantic Monthly, where he was national correspondent. 
His work appears often in such other publications as The 
New York Review of Books, The New York Times 
Magazine, and The New Republic. He is the author of 
four books, including, most recently, The Big Test: The 
Secret History of American Meritocracy; as well as The 
Promised Land, a history of African-American migration 

7 

to large urban centers in the north and of the War on 
Poverty, for which he was awarded the Los Angeles 
Times Book Award for History. 

John Lukacs is an historian, author and emeritus 
professor of History at Chestnut Hill College in 
Philadelphia. He has served on the faculties of Columbia 
University, Johns Hopkins School of Advanced 
International Studies, University of Pennsylvania and the 
Fletcher School of Law and Diplomacy. Professor 
Lukacs is widely admired for his approach to subjects 
ranging from historical figures of WWII to American 
democracy itself. A prolific writer, Professor Lukacs’s 
critically acclaimed books include 1945: Year Zero; A 
History of the Cold War; Out growing Democracy: A 
History of the United States in the Twentieth Century; The 
Hitler of History; A Thread of Years; and The Edge of the 
Twentieth Century: And the End of the Modern Age, 
which earned Professor Lukacs a nomination for the 
Pulitzer prize. 

Robert K. Massie was a journalist for Collier’s, 
Newsweek magazine, the Saturday Evening Post and 
other news organizations for several years before 
publishing his acclaimed biography Nicholas and 
Alexandra, widely considered the definite historical study 
of the last Czar of Russia. He went on to co-author 

Journey, which won the Christopher Award; 
Dreadnought: Britain, Germany and the Coming of the 
Great War; The Romanovs: The Final Chapter; and 
Loosing the Bonds: The United States and South Africa 
in the Apartheid Years. His Peter the Great: His Life 
and World won the Pulitzer Prize for Biography, an 
American Library Association Notable Book citation and 
was nominated for the American Book Award. Nicholas 
and Alexandra and Peter the Great were adapted for 

8 

motion picture and for television, respectively. A former 
Rhodes scholar, Mr. Massie has been the Ferris Professor 
of Journalism at Princeton University, and the Andrew 
Mellon Professor of Humanities at Tulane. Mr. Massie 
was president of the Authors Guild from 1987 to 1991, 
and is an ex-officio member of the Authors Guild 
Council. 

Jack Miles is the director of the Humanities 
Center at the Claremont Graduate School in California. In 
1991 he received a Guggenheim Fellowship to write God: 
A Biography, for which he received the Pulitzer Prize for 
biography in 1996. Immediately prior to accepting his 
post at the Claremont Graduate School Mr. Miles was a 
book columnist and editorial board member of the Los 
Angels Times. He has been an editor at three major 
academic and trade publishers: the University of 
California Press, Doubleday and Scholar’s Press. Mr. 
Miles was a Jesuit Seminarian at Pontifical Gregorian 
University in Rome in the 1960’s. He taught in the 
theology department of Loyola University. On its 
publication God was praised for its innovative approach 
to the history of monotheism and for the surety with 
which Mr. Miles brought that approach to its goal of 
understanding the way western conceptions of God 
evolved. 

Jean Strouse is an award-winning biographer, 
historian, journalist, and editor. Her books include 

Morgan: An American Financier and Alice James: A 
Biography. Morgan was nominated for the National 
Book Award. Alice James garnered the Bancroft Prize in 
American History. Ms. Strouse has received fellowships 
from the Guggenheim Foundation, The National 
Endowment for the Arts, The National Endowment for 
the Humanities, the Radcliff Institute and the Gilder 

9 

Lehrman Institute for American History. She has lectured 
at the Library of Congress, the Organization of American 
Historians in addition to numerous universities. She has 
been a consultant to the Library of American Lives and a 
juror for the Pulitzer Prize. Ms. Strouse is a trustee for 
the John Simon Guggenheim Memorial Foundation and a 
member of the Guggenheim Foundation’s Educational 
Advisory Board. Her work has appeared in numerous 
magazines and journals, including The New York Review 
of Books and Newsweek. She has been lauded for her 
intensive research and the clarity of her prose. Ms. 
Strouse is the incoming president of the Society of 
American Historians. 

The Amici believe that it is extremely important 
for authors to control the use and disposition of their 
works and for them to share in the economic benefits 
derived from use of their works. They, too, use electronic 
databases to research issues relevant to their work and 
wish to have maximum access to this information 
resource. But rather than allowing Petitioners the 
unfettered ability to reuse and resell their work without 
prior permission or additional compensation, they believe 
that the solution to the problem presented by this case is 
to permit authors to share in the economic rewards of 
their creative work product. As noted below, there are 
efficient ways of insuring that a fair division of proceeds 
is made between authors, publishers and databases to 
achieve this goal. For these reasons, they submit this brief 

Amici curiae. 

STATEMENT 

10 

Amici adopt the statement of the case contained in 
the brief of Respondents. 

INTRODUCTION AND SUMMARY OF 
ARGUMENT 

Today most publishers procure express licenses 
from their contributors for electronic use. 2 The amici 
curiae (hereinafter, the “Authors”) agree with 
Respondents that the plain language and the legislative 
history of Subsection 201(c) of the Act prove Petitioners 
wrong in their arguments to this Court. Indeed, the 
purpose of Section 201 (c) was to “clarify and improve 
the present confused and frequently unfair legal situation 
with respect to rights in contributions” by freelance 
authors, namely by limiting the rights granted to a 
publisher to “reproducing” (not displaying) their works 
within a very narrow range, as we show in Point II. 

The Authors believe that payment of a fair portion 
of secondary use fees to writers need not obstruct free 
access to their contributions to the historical archive, any 
more than or any differently than does the payment to the 
publishers and databases. The database Petitioners and 
most other electronic databases already charge fees to 
researchers for electronic or physical access to archived 
materials they control. Sharing these fees with the authors 
of the material could be accomplished in various ways, as 
described below, without proscribing access to the 
material. 

2 Indeed, Petitioner The New York Times began issuing 
written contracts to its freelancers in 1996. Tasini et al. v. 
New York Times, et al., 206 F.3d 161, 164, n.1 (1999). 

11 

On the other hand, permitting unauthorized, 
uncompensated electronic re-uses will have an adverse 
effect on freelancers’ economic interests, which should be 
of paramount concern to those who wish to protect the 
integrity of historical archives. Depriving authors of a 
share of the income from electronic re-uses by NEXIS 
and UMI would directly and substantially upset the 
Copyright Act's careful balance between encouraging the 
dissemination of knowledge and granting the market 
incentives needed to maintain a healthy store of 
knowledge. 

Secondary use rights, which Congress clearly 
intended to allow authors to retain separately from first 
publication rights, are of crucial value to authors. We 
urge the Court to reject Petitioners’ attempt to distort the 
statute in order to deprive authors of such valuable rights. 

ARGUMENT 

POINT I 

THE OPINION BELOW PROPERLY WEIGHED 
THE INTERESTS OF AUTHORS, PUBLISHERS, 
RESEARCHERS AND ELECTRONIC DATABASES 

One of the Amicus briefs supporting Petitioners 
here advances the argument that the decision of the 
Second Circuit will “decreas[e] access to convenient, 
cost-efficient . . . information resources,” and a decision 
in Respondents’ favor will undermine important benefits 
to “historians and scholars.” (See Brief Amici of Ken 
Burns et al. at 5-6). 

12 

Thousands of Authors’ Guild members and the 
individual amici here are themselves historians, 
biographers and researchers, who have a strong interest in 
having efficient access to “cost-efficient . . . information 
services.” They certainly use libraries, electronic 
databases and other internet sites in the course of their 
research. They do not believe that easy access to 
information resources is incompatible with insuring that 
authors obtain a fair return for their labors. 

The solution to this problem is to require that 
publishers obtain prior express permission to make 
electronic uses of their authors’ work and to arrange for 
authors to share in any income from inclusion of their 
materials in these databases. It is certainly not true that 
the articles and other writings will not find their way into 
NEXIS or other electronic libraries if the original 
publishers of the collective work obtain all the economic 
rewards from transmission to those libraries. 

As the Court below noted, the newspapers or 
periodicals that publish the articles could easily amend 
their contracts with contributors to obtain the necessary 
rights and to pay authors their fair share as the New York 
Times has done. See 206 F.3d 161, 164, fn. 1 (2d Cir. 
1999). 

It is well-established that the purpose of the 
Copyright Clause is to encourage creative efforts by 
authors, for the benefit of society, by awarding them a fair 
economic return for their efforts. In Sony Corporation v. 
Universal City Studios, 464 U.S. 417, 429 (1984), this 
Court noted: 

The monopoly privileges that Congress may 
authorize are neither unlimited nor primarily 

13 

designed to provide a special private benefit. 
Rather, the limited grant is a means by which an 
important public purpose may be achieved. 

It is 

intended to motivate the creative activity of 
authors and inventors by the provision of a special 
reward, and to allow the public access to the 
products of their genius after the limited period of 
exclusive control has expired. 

The idea that authors write, in part, for the 
economic rewards associated with such effort, is not new. 
This Court quoted from Samuel Johnson’s famous 
aphorism, “’[n]o man but a blockhead ever wrote, except 
for money.’” 3 Boswell's Life of Johnson 19 (G. Hill ed. 
1934). Campbell v. Acuff-Rose, 510 U.S. 569, 584 (1994). 

The only problem in this situation is that for a 
short period of time, the New York Times and other 
newspapers or magazines did not take the necessary steps 
to insure that they did, in fact, control electronic rights to 
the articles they published and heedlessly licensed 
authors’ works to electronic databases. Since the 
Copyright Law has a three-year statute of limitations, the 
“danger” faced by NEXIS or the Times in facing claims 
made by authors is not an insurmountable one. 

The Burns amici further claim that: 

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 collections 
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 

14 

to the editor, and other invaluable contemporary 
commentary on the people and events of a given 
point in time. Brief Amici of Ken Burns et al. at 

12. 

The Burns brief also alleges that it may be 
impossible to locate all the original authors. If they were 
found, they might demand an exorbitant price for use of 
their work. 

[E]ven 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. Id. 

Finally, they assert that even prospectively, 
authors may make unreasonable demands for use of their 
work. “[I] 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.” 

Id. at 13. 

This parade of horribles is demonstrably flawed. 
First, the argument amounts to a claim that having 
usurped the authors’ rights (by conveying electronic 
rights to NEXIS and UMI without owning such rights), 
the publishers cannot undo or pay for what they had 
improperly taken. Such an argument is hardly persuasive. 

15 

In the analogous area of internet use of music, the 
Ninth Circuit recently upheld the grant of a preliminary 
injunction against Napster where a claim was made 
similar to that presented here that no compensation must 
be paid to the creators of music for internet use of their 
works. The New York Times recently published an 
editorial rejecting that argument: 

The decision is a major victory for the 
music record industry, and more broadly, for all 
creators of original material. The Internet is a 
revolutionary medium whose long-term benefits 
we are only beginning to fathom. But that is no 
reason to allow it to become a duty-free zone 
where people can plunder the intellectual property 
of others without paying for it. That would 
ultimately stifle, rather than encourage, creativity. 
Reconciling long-established law to new 
technologies is never easy, but the recognition of 
an author's ownership in an original creative work 
is one of our legal system's core principles. 

New York Times, February 14, 2001, at A30 (emphasis 
added) 

Second, it is certainly not true that the most likely 
remedy to be ordered by the lower court on remand is an 
injunction requiring the deletion from Petitioners’ 
databases of all contributions where express electronic 
rights were not granted. In a letter to Representative 
James McGovern, the Register of Copyrights, Marybeth 
Peters, commented that such a remedy may not be sought 
or required. “[T]he Tasini case should be about how the 
authors should be compensated for the publishers’ 
unauthorized use of their works, and not about whether 

16 

the publishers must withdraw those works from their 
databases.” Letter dated February 14, 2001, 147 Cong. 
Rec. E182-183 (February 14, 2001). 

Third, as noted above, the idea that authors should 
decide, based on their own view of their economic 
interests, whether to grant certain rights or not is one 
which the Copyright Law endorses and protects. See 17 
U.S.C. § 106. The notion that this principle should be 
applied to every area but electronic database rights is 
unacceptable. 3 

Publishers can license any part of an authors' 
copyrights in myriad ways, and they do; increasingly 
some publishers are paying authors separately for 
electronic rights. See Deidre Carmody, “Harpers Shares 
Electronic Profits with Authors,” The New York Times, 
Feb. 2, 1996 at B14 (describing establishment of Author’s 
Registry to solve problem of “publishers’ resistance to the 
amount of bookkeeping involved in determining and 
sending out payments” for electronic re-use of freelance 
pieces); Ross Kerber, “Atlantic Monthly Agrees to Settle 
Action Over Electronic Publishing,” The Wall Street 
Journal, March 29, 1996 (citing agreement to pay 
individual authors for electronic re-use). Individual 
negotiations with freelancers occur for every freelance 
article assigned and published. Anna Couey, “Authors 
Rights: On getting Paid in the Age of Digital 
Reprodution,” Microtimes, Sept. 16, 1996. 

3 It is true that certain sections of the Copyright Law 
provide for compulsory licenses, see e.g. 17 U.S.C. § 114 
(compulsory mechanical license for music). But even 
there, the copyright owner does obtain appropriate 
compensation. 

17 

Fourth, with respect to past uses, there are a 
variety of methods which would allow electronic 
databases to continue to retain and use earlier material 
while affording a reasonable economic return to authors. 

For example, in May 1995 the Authors Guild and 
other writers groups formed the Authors Registry, Inc., 
(the “Registry”) to assist authors of all genres in 
collecting royalties for the distribution of their work 
through photocopying, electronic transmission and other 
means. Already, more than thirty writers’ organizations 
(virtually every major group, including the Authors Guild, 
American Society of Journalists and Authors, PEN 
American Center, the National Association of Science 
Writers, Washington Independent Writers, and the 
National Book Critics Circle) and 95 literary agencies 
have agreed to register their members and clients with the 
Registry's central database. At present, the Registry’s 
database contains more than 30,000 professional authors. 
Maureen O’Brien, “Authors Organize to Launch 
Electronic Rights Service,” Publishers’ Weekly, June 5, 
1995 at 10. 

Author-founders of the Registry were Robert A. 
Caro, E. L. Doctorow, Betty Friedan, James Gleick, 
George J.W. Goodman (“Adam Smith”), Gael Greene, 
Garrison Keillor, James A. Michener, Letty Cottin 
Pogrebin, Anna Quindlen, and Scott Turow. Publishers 
Weekly, id. Each of these authors has published both 
books and numerous freelance pieces in periodicals, 
including those of Petitioners. 

Since freelance authors’ livelihoods depend 
substantially on the collection of proceeds from 
subsidiary uses of their work after first publication, the 
Registry seeks to prevent unauthorized secondary usage, 

18 

including electronic transmission, which both deprives 
authors of a crucial source of secondary income and 
damages the entire market for the authors’ work.4 
Informed authors overwhelmingly believe that sharing 
secondary use license fees with their print publishers is 
the only fair and efficient way to determine an article's 
secondary market value. The Authors Registry was 
designed to allow publishers, particularly newspaper and 
magazine publishers, to share their income for secondary 
use licenses equitably with their contributors. 5 

4 The Register of Copyrights, Marybeth Peters, confirms 
the importance of this secondary market. “[T]he 
interpretation of §201(c) advanced by publishers in Tasini 
would give them the right to exploit an article on a global 
scale immediately following its initial publication, and to 
continue to exploit it indefinitely. Such a result is beyond 
the scope of the statutory language and was never 
intended because, in a digital networked environment, it 
interferes with authors’ ability to exploit secondary 
markets. Acceptance of this interpretation would lead to a 
significant risk that authors will not be fairly compensated 
as envisioned by the compromises reached in the 1976 
Act. The result would be an unintended windfall for 
publishers of collective works.” 147 Cong. Rec. E182-183 
(February 14, 2001) 

5 In the closely related context of negotiating fair 
use guidelines with libraries for electronic media uses at 
the Conference on Fair Use sponsored by the White 
House, the publishers’ representative acknowledged the 
absolute necessity and eminent practicality of negotiating 
for electronic access to copyrighted works: “I’m not 
saying ‘Don't use it.’ But negotiate for that use.” 
McNees, “Fair Use Come the Revolution,” Authors Guild 
Bulletin, Winter 1995 (quoting Jon Baumgarten, 

19 

To date, the Registry has distributed over 
$1,400,000 to authors for such secondary uses of their 
work. See Registry News at www.authorsregistry.org. 
These license fees have come from four American 
magazines (Harper’s, Travel & Leisure, Food & Wine, 
and Cooking Light,) for CD-Rom and electronic and print 
re-uses, and from the Authors' Licensing & Collecting 
Society (“ALCS”) of the United Kingdom to distribute 
payments to U.S. authors for secondary re-uses. Id. 

Like the performing rights societies, American 
Society of Composers, Artists and Performers (ASCAP) 
and BMI, and the Copyright Clearance Center, see 

American Geophysical Union v. Texaco, Inc., 60 F.3d 
913, 929, (2d Cir. 1994) and other collectives, the 
Registry will act as a non-exclusive licensor of author- 
controlled rights. 

There are still other legal methods for recovering 
for past misuses of material. A class action lawsuit, Ryan 

v. Carl Corporation, 97-3873-DLJ (N.D. Calif.), 
illustrates one of several ways in which Petitioners can 
respect their freelancers’ copyright while at the same time 
completely avoiding the wholesale evisceration of the 
databases. Ryan was brought by several authors charging 
copyright infringement against Carl Corporation’s 
“UnCover,” a large, Web-based document delivery 

Association of American Publishers representative). In 
the same way these same publishers calculate their 
proceeds from the licenses they purported to grant the 
database Petitioners, whether based on a royalty formula 
or a flat fee, they could remit compensation to their 
contributors. 

20 

service. Ryan v. Carl Corp., 23 F.Supp.2d 1146, 1155 
(N.D. Calif. 1998). A class of authors, whose works were 
exploited by Carl and who had retained their secondary 
use rights to their works, was certified, and the parties 
ultimately reached a settlement. See Ryan, Settlement 
Agreement and Release, available at 
www.UnCoversettlement.com. A website was created 
which allowed authors to search for their names and 
determine whether any of their works were among the 
infringed works covered by the settlement. Pursuant to the 
Settlement Agreement and Release, the class of authors of 
infringed works was able to file their claims via the 
website. 

The Ryan plaintiffs used the Authors Registry to 
match its database of authors' names against the 
settlement database. Registry News, at 
www.authorsregistry.org The Registry contacted the 
authors appearing in both databases to alert them to the 
settlement and claim procedures. A total of 9,190 notices 
were sent to potential class members using this method. 
The Court’s Order of Dismissal entered November 13, 
2000, released the Carl defendants from all claims related 
to the class’s complaints of infringement. See 
www.UnCoversettlement.com. Yet the company is still 
able to continue to operate its document delivery service. 

Indeed, class action lawsuits perform the salutary 
function of obtaining relief beneficial to the injured class 
members while at the same time providing a class-wide 
release from those claims to the defendants. See, e.g., 
Authors Guild, et al. v. Dialog, et al, 00 Civ. 6049 
(S.D.N.Y.). In fact, plaintiffs in the Authors Guild case 
are in the process of negotiating a global settlement on 
behalf of the class with one of the defendants. 

21 

POINT II 

THE DECISION BELOW PROPERLY ANALYZED 
THE STATUTORY LANGUAGE OF 
SECTION 201(C) 

Amici strongly believe the Second Circuit 
correctly analyzed the provisions of Section 201(c). That 
section reads in part: 

In the absence of an express transfer of the 
copyright or of any rights under it, the owner of 
copyright in the collective work is presumed to 
have acquired only the privilege of reproducing 
and distributing the contribution as part of that 
particular collective work, any revision of that 
collective work, and any later collective work in 
the same series. 

The Court below made reference to the statutory history 
of that provision, contained in the House Report on the 
Copyright Act of 1976, the definitive explanation of the 
law. H.R. Rep. No 94-1576, at 122-123, reprinted in 
U.S.C.A.A.N. 5659, 5738. That report noted that the 
above provision was meant to “clarify and improve the 
present confused and frequently unfair legal situation 
with respect to rights in contributions.” Id. at 122 
(emphasis added). 

The “unfair[ness]” referred to covered situations 
where an author may have contributed an article (or piece 
of artwork) to a magazine without any contract specifying 
the scope of rights conveyed. In Geisel v. Poynter 
Products, Inc., 295 F.Supp. 331 (S.D.N.Y. 1968), the 

22 

district court held that, based upon industry practice of the 
time, without an explicit reservation of rights by the 
author or creator, the magazine publisher “acquired from 
the author all beneficial as well as legal rights in every 
medium,” 3 Nimmer on Copyright § 10.01[C][2] at 10-15. 

Thus the new provisions of Section 201(c) can be 
read as greatly restricting the scope of rights acquired 
from an author making a contribution to a magazine, 
newspaper or other collective work, in the absence of a 
specific written agreement. That is, the law “clarif[ies]” 
and “improv[es]” the “unfair legal situation” confronting 
authors. It limits the scope of rights acquired by the 
publisher to three specific categories if a contract defining 
the specific rights granted is not signed by the author: (1) 
the right to use the article or other contribution in that 
particular edition; (2) the right to use the article in any 
“revision of that collective work”; and (3) a “later 
collective work in the same series.” 

The House Report makes reference to the 
permissible uses that fall within the statutory language. 

Under the language of this clause, a publishing 
company could reprint a contribution from one 
issue in a later issue of its magazine [“later 
collective work in the same series”], and could 
reprint an article from the 1980 edition of the 
encyclopedia in a 1990 revision of it [“any 
revision of that collective work”]; the publisher 
could not revise the contribution itself or include it 
in a new anthology or an entirely different 
magazine or other collective work. H.R. Rep. No 
94-1576, at 122-123, reprinted in U.S.C.A.A.N. 
5659, 5738. 

23 

Thus the New York Times might be able to reprint 
an earlier op-ed article in a later edition of the newspaper, 
if no contract had been entered into with its contributor. 
But the newspaper could not include the article in a book 
anthology of “The Best Op-ed Articles from The New 
York Times” since such a collection would be a “new 
anthology” or an “other collective work.” 

The question in this case is whether the NEXIS 
database to which all of the New York Times articles are 
conveyed by the newspaper as well as millions of other 
articles can be considered a “later revision of that 
collective work” or does it more logically fall into the 
prohibited categories described in the House Report: 
namely “a new anthology or an entirely different 
magazine or other collective work.” 

It certainly seems clear that the NEXIS database 
should be considered “a new anthology” or a “new . . . 
collective work” for the reasons stated by the Court 
below. “NEXIS is a database comprising thousands or 
millions of individually retrievable articles taken from 
hundreds or thousands of periodicals. 

It can hardly be 

deemed a ‘revision’ of each edition of every periodical 
that it contains.” 206 F.3d at 168. 

There is a vast difference between a single edition 
of a newspaper or magazine and the NEXIS database, 
which incorporates material from so many different 
sources. Under Petitioner’s theory, whenever an author’s 
material can be found in a larger corpus of material, it 
constitutes a “revision” of the original article. Such a 
conclusion would totally undermine the limited scope of 
rights granted under Section 201(c) which Congress was 
so careful to draw. 

24 

CONCLUSION 

For the reasons stated above, amici curiae request 
that the decision below be affirmed. 

Dated: New York, N.Y. 

February 15, 2001 

Leon Friedman 

Counsel of Record 
148 East 78 

th Street 
New York N.Y. 10021 
(212) 737-0400 

Kay A. Murray 
The Authors Guild, Inc. 
31 East 28 

th Street 
New York, N.Y. 10016 
(212) 563-5904 

Attorneys for Amici