No. 00-201 

In The Supreme Court of the United States 
October Term, 2000 

THE NEW YORK TIMES COMPANY, INC.; 
NEWSDAY, INC.; THE TIME INCORPORATED 
MAGAZINE COMPANY; LEXIS/NEXIS AND 

UNIVERSITY MICROFILMS INTERNATIONAL, 

Petitioners, 

v. 

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

Respondents. 

_______ 

On Writ of Certiorari to the United States Court of Appeals 
for the Second Circuit 

_______ 

BRIEF FOR ADVANCE PUBLICATIONS, INC., A.H. BELO 
CORPORATION, BUENA VISTA MAGAZINES, INC., THE COPLEY 
PRESS, INC., COX NEWSPAPERS, INC., DONREY MEDIA GROUP, 
DOW JONES & COMPANY, INC., THE E.W. SCRIPPS COMPANY, 
FREEDOM COMMUNICATIONS, INC., GANNETT CO., INC., 
HACHETTE FILIPACCHI MAGAZINES, INC., THE HEARST 
CORPORATION, JOURNAL COMMUNICATIONS INC., KNIGHT 
RIDDER, MACROMEDIA INC., MAGAZINE PUBLISHERS OF 

AMERICA, INC., MCCLATCHY NEWSPAPERS, INC., NEWS 
AMERICA INC., NEWSPAPER ASSOCIATION OF AMERICA, 
PHILADELPHIA NEWSPAPERS, INC., PRIMEDIA INC., VILLAGE 
VOICE MEDIA, INC., THE WASHINGTON POST COMPANY, AND 
ZIFF DAVIS MEDIA INC., AMICI CURIAE, 
IN SUPPORT OF THE PETITIONERS 

_______ 

Charles S. Sims 

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Counsel of Record 
Proskauer Rose LLP 
1585 Broadway 
New York, NY 10036 
(212) 969-3950 

QUESTION PRESENTED 

Do newspapers and magazines have the presumptive 
right, under 17 U.S.C. § 201(c), to publish their collective 
works in digital and other non-print formats, such as Nexis, 
the Internet, and CD-ROMs, which serve overwhelmingly 
important archival functions for researchers, students, 
historians, and the public at large, or does such electronic 
publication infringe the copyrights of contributing freelance 
authors, absent their additional authorization? 

INTEREST OF THE AMICI CURIAE1This brief amici curiae 
in support reversal is submitted on consent by Advance 
Publications, Inc., A.H. Belo Corp., Buena Vista Magazines, 
Inc., The Copley Press, Inc., Cox Newspapers, Inc., Donrey 
Media Group, Dow Jones & Company, Inc., The E.W. 
Scripps Company, Freedom Communications, Inc., Gannett 
Co., Inc., Hachette Filipacchi Magazines, Inc., The Hearst 
Corporation, Journal Communications Inc., Knight Ridder, 
McClatchy Newspapers, Inc., Macromedia Inc., Magazine 
Publishers of America, Inc., News America Inc., Newspaper 
Association of America, Philadelphia Newspapers, Inc., 
PRIMEDIA Inc., Village Voice Media, Inc., The 
Washington Post Company, and Ziff Davis Media Inc. (the 

1 No counsel for a party in this Court authored this amici 
curiae brief in whole or in part, and no person or entity, 
other than the amici curiae, made a monetary contribution to 
the preparation or submission of the brief. The individual 
amici are identified in the addendum attached hereto. 

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“amici”). For the reasons discussed below, amici urge that 
the Court reverse the judgment below. 

Amici are newspaper and magazine publishers who, 
collectively, publish hundreds of newspapers and magazines, 
including some of the most influential and useful periodicals 
in the nation. Almost all of those newspapers and magazines 
are collective works, containing contributions from freelance 
contributors in addition to staff-employee writers. Almost 
all have for some years (and in many cases some decades) 
published in both paper and also non-paper, usually digital, 
formats, including the NEXIS service or other such services, 
their own web sites, CD-ROMs, microfilm or electronic 
media, where today’s issue and back issues are electronically 
searchable with back issues of that same publication, and 
sometimes with back issues of other publications. Since few 
if any newspaper or magazine publishers have throughout 
this lengthy period of electronic publication routinely 
obtained from each of their freelance contributors “an 
express transfer of the copyright or of any rights under it,” 
such as express rights of electronic (or non-paper) 
publication or archival republication, the continued 
preservation and integrity of electronic archives online or 
through such media as CD-ROM depends in large measure 
on the construction of 17 U.S.C. § 201(c) reached by this 
Court. 

Acting, as the framers of the First Amendment expected 
they would, as representatives of the public interest and 
stewards of the public’s interest in access to the record of the 
nation’s history that the press writes day by day, amici have 
a direct and compelling interest in the privilege Congress 
afforded them under § 201(c) to publish in digital formats 
available online and through the Internet, and in such other 
media as microfilm and CD-ROM, for the benefit of 

researchers, scholars and the public at large. 

SUMMARY OF ARGUMENT 

Amici submit this brief to focus the Court's attention on 
the enormous extent to which the result reached by the 

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Second Circuit would restrict public access to the national 
historical record compiled by the nation's newspapers and 
magazines. Unless reversed, the Second Circuit’s decision 
will gratuitously harm the public interest underlying 
copyright law — without any discernible benefit to the 
public interest underlying copyright law, or even to freelance 
writers in general. 

Over the past two and a half decades — with the 
publication of back issues first on microfilm and microfiche, 
and then in digital form with the advent of services like 
NEXIS and media like CD-ROMs — back issues of 
newspapers and magazines have become easier to access, 
easier to use, and free from physical deterioration. In 
reliance on these new archival media, public and university 
libraries have substantially reduced their holdings in physical 

copies of newspapers and periodicals. 

The Second Circuit’s decision threatens to degrade this 
valuable public resource immediately and severely. The 
boundless breadth of the decision appears, astonishingly, to 
mean that storage of any given issue from any given 
periodical with issues of other periodicals, or even with other 
issues of that same periodical — in a database like NEXIS, 
or on a CD-ROM — precludes a publisher from relying on 
17 U.S.C. § 201(c) with respect to every individual article in 
which the publisher does not own the copyright. The 
decision even threatens the microfilm and microfiche 
archives on which the public had come to depend (and about 
which freelancers had not complained) before the advent of 

electronic media. 

As a practical matter, the Second Circuit's decision will, 
at a minimum, lead most publishers to delete freelance 
contributions from the electronic versions of their old 
newspapers and magazines on a wholesale basis due to the 
difficulty and expense of locating freelance contributors and 
obtaining their authorization for republication in those forms. 
Indeed, some publishers have begun making such deletions. 
The modest phrase “freelance contributions,” moreover, 

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covers a large territory: for newspapers, for example, it 
extends past such traditional "freelance" works as travel 
pieces and book reviews to news stories sent in by stringers, 
letters to the editor, Op-ed pieces, and other articles sent in 
"over the transom" by political officials and public spirited 
citizens, among others. 

Whether the electronic publication occurred on NEXIS, 
on some other service, or in some other medium (such as 
optical disk or microfilm), the Second Circuit’s judgment has 
the same consequence: it will be virtually impossible as a 
practical matter, and grossly inefficient, for publishers to 
find each and every freelance writer whose work is included 
in an archived edition (usually without the benefit of any 
delineation of who was an “employee” and whose work 
would therefore be work-for-hire) and to negotiate over 
whether and on what terms to license the retention of that 
contribution as an integral part of the collective work that 
has been archivally republished in its original or revised 
form. 

Most publishers' continued ability to make their 
collective works accessible electronically with any kind of 
completeness and integrity depends, therefore, on the result 
of this case in this Court. If the Second Circuit's decision 
stands, existing comprehensive archives will fall, and 
historians, researchers, scholars, journalists, and society at 
large will no longer have meaningful access to the rough 
draft of the nation’s history which back issues of the nation's 
newspapers and magazines represent. A generation of 
journalists, students and researchers will have to re-learn the 
old method of traveling to a brick-and-mortar library or a 
newspaper morgue, if they are lucky enough to live near one 
that still exists and retains paper archives of the magazines 

and newspapers they want to review. 

The Second Circuit’s decision is particularly 
unfortunate because it does a tremendous disservice to 
publishers, writers, and the public, without any 
compensating benefit to freelance authors, and indeed is 

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likely to harm many of them as well. Going forward, 
publishers are simply requiring freelance writers to transfer 
electronic publication rights to them as a precondition to 
publication, and their economic power enables them to 
obtain such right. Thus, future freelance writers are unlikely 
to benefit from the default rule the Second Circuit has 
adopted, though they will suffer from the increased 
transaction costs this rule imposes and the diminished 
availability of those of their works which publishers are 
obliged to withdraw or withhold from databases. 

ARGUMENT 

THE SECOND CIRCUIT’S DECISION THAT AN ELECTRONIC OR ARCHIVAL 
VERSION OF A NEWSPAPER OR MAGAZINE IS NOT THE WORK ITSELF OR 
A REVISION OF IT WILL GRIEVOUSLY AND GRATUITOUSLY HARM THE 
PUBLIC INTEREST 

A. The Second Circuit’s Decision Necessarily Will Force 

Newspaper and Magazine Publishers to Remove 
Articles by Freelancers from Electronic Archives and 
Degrade an Important Public Resource. 

1. Newspapers and magazines are written for today, but valuable for 
tomorrow. The economic cost of producing The Washington Post is 
borne by its subscribers and advertisers on any given day; but it has a 
continuing importance to the historians and researchers and students who 
examine it ten, thirty, or seventy years from its publication date. That is 
generally true of the works of amici and other periodical publishers; they 
write for today, but their daily, weekly or monthly editions are used in 
different ways by the public for years after first publication. The 
maintenance, completeness, integrity, and accessibility of the archive of 
the nation’s publications is a valuable public asset. 

For many years, access to the archived publications of the 
American press, broadly defined, depended on the work of libraries, the 
willingness of publications to maintain “morgues” and the ability of users 
to physically travel to and use those libraries and morgues. With the 
advent of new technologies — online access to databases such as the 
NEXIS service, whether through the Internet or using a direct telephone 
or cable connection to the database, or access to the data on microfilm, 
microfiche, or CD-ROMs — the physical library has been replaced by 
the electronic archive, and old issues are as a result far easier to access 
and to use. The historian, student, or journalist who wants to see The 
New York Times of December 7, 1941, or the researcher wanting to use 
Time Magazine to assess how the nation responded to the Iranian crisis 

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of 1979, or the social scientist wanting to review newspapers in Iowa to 
examine how communities in the upper Midwest reacted to the outflow 
of the young to the coasts in the ‘80s and ‘90s, no longer need travel to 
New York or Des Moines. They can access the NEXIS service or its 
competitors, or obtain a set of CD-ROMs, and work quickly, 
conveniently, and efficiently. The search engines that allow users to 
locate individual articles within these electronic copies are simply 
automated and more efficient versions of the Readers’ Guide to 
Periodicals. 

2. The Second Circuit’s acceptance of respondents’ 
overly restrictive reading of section 201(c) of the Copyright 
Act of 1976 undermines this important function and consigns 
the public to paper copies of publications as the only 
definitive archive. That result — in an age when collection 
and maintenance of paper archives is increasingly 
uncommon, when electronic storage and archiving have 
become standard, and in the face of the Congressional 
decision in 1976 to make the copyright law media-neutral — 
is to the practical advantage of no one, and would greatly 
harm the public interest. Copyright law has always protected 
publishers who traditionally preserved paper-printed versions 
of their newspapers and magazines from claims of copyright 
infringement by freelance writers. The Second Circuit, 
however, would deprive most publishers of that same 
protection to the extent that they choose to rely on electronic 
copies. 

According to the Second Circuit, publishers of news- 
papers and magazines risk infringement liability if they 
publish or republish their works (containing freelance 
contributions) through NEXIS or comparable means, unless 
they first withdraw freelance articles before delivering their 
copy to NEXIS or comparable services or expressly acquired 
republication rights — even though amici and, the record 
shows, defendants, had for many years published in those 
additional media without complaint. Under the decision 
below, for example, electronic publication of law reviews, 
which typically include student notes (for which written 
licenses expressly covering electronic rights were unlikely to 
have been obtained), is not privileged under § 201(c), and 

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publishers who want to avoid liability, and the NEXIS 
service, must either purge from the published editions on 
NEXIS all contributions of non-employees (i.e., usually the 
complete text of law reviews), or find and obtain consents 
from all past authors of student notes or of any other articles 
and comments for which they did not obtain appropriate 
express transfers. And just as pieces written by authors who 
cannot be located will likely be withdrawn from electronic 
archives, so too CD-ROMs containing back issues will likely 
be destroyed. 

Among the freelance contributions that will have to be 
purged from the electronic newspaper and magazine archives 
on which historians, researchers, and students depend will be 
some of the most important markers of public opinion and 
sentiment, namely op-ed pieces (other than those written by 
regular columnists) and letters to the editor. Historians 
looking back to examine the range of opinion on important 
public issues — at least prior to the late 1990's, when the 
filing of the Tasini suit led some publishers to begin to take 
pains to acquire express rights that they had always 
understood they already possessed — would have to travel to 
those cities to find it in archived paper copies; the electronic 
archives which they have for many years used will no longer 
dependably be able to retain those parts of their publications 
on the archives available on NEXIS and its competitors, or 
on their websites. 

Publishing practices generally make it impractical, if 
not impossible, to go back and obtain authorization from 
freelance writers of their individually copyrighted 
contributions to newspapers and magazines now stored in 
electronic archives. Compensation for such pieces was paid 
when the pieces were published, and most newspapers and 
magazines had no need to retain records of the whereabouts 
of their freelance contributors. Even if records were 
available (which they generally are not), the chance that 
writers of prior decades remain at the same address is small. 
The impracticality of locating all freelance contributors 

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potentially affected by the Second Circuit’s opinion, much 
less negotiating an appropriate license, is further complicated 
by the possibility that fractional interests in the copyrights at 
issue have vested in the authors’ heirs and assigns. 

Nor is there any practicable way to negotiate the 
“appropriate” share of the publishers’ revenues for the Jane 
Doe who wrote a piece for the travel section of The Los 
Angeles Times or the Bergen Record in 1981. Her article is 
now available on NEXIS, but because NEXIS has not 
collected or maintained data on whether particular articles 
have been downloaded or printed since their electronic 
publication, no one knows if it has ever been accessed, or 
how many times, and no one knows, or can know whether it 
has been accessed because someone was looking for her 
work or because someone wanted to see what those 
newspapers had published. If Jane Doe could be found, and 
if she insisted on payment, it would be impossible 
reasonably to assess the value to her of the right to retain her 
work in the copy of that issue in the archive. 

Because the Second Circuit predicated direct 
infringement liability on merely the delivery of the text of a 
newspaper or magazine to NEXIS (or the republication of a 
back issue on an optical disk or other storage medium), and 
on the continuing availability of the text of back issues 
regardless of whether the freelance writer’s work was subse- 
quently requested, accessed, or read by anyone at all, the 
liabilities faced by the publishers and the electronic services 
are enormous, and far outweigh the economic value to the 
publication of retaining freelance articles in the archive. 
Under the decision below, a publication infringes freelance 
contributions merely by duplicatively publishing a given 
issue on the Internet (or in some other non-print format) 
joined with copies of other issues or publications, even if no 
person has ever downloaded or printed the work of those 
contributors. The result is likely to be decisions by 
publishers to purge all articles not written by readily 
identifiable staff writers, rather than increased compensation 

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to freelance writers for the right to retain previously written 
works — and an over-broad purging at that, with doubts 
resolved against retaining articles of uncertain parentage 
(was Doe an employee or freelancer in 1981?). The record 
made in the district court showed that most of the revenue 
publications obtained from NEXIS result from search fees, 
associated with a user’s search of a file containing a 
publication’s back issues. When withdrawal of freelance 
articles from the file would not likely affect those revenues, 
while retaining them threatens substantial liability, it is not 
hard to predict that deletions will follow as night follows 
day. 

Given these circumstances, the impact of the Second 

Circuit’s decision is lose-lose-lose: 

Publishers lose by having to allocate scarce 
resources to identifying and stripping freelance 
materials from existing databases, and lose 
through the diminution of the public benefit they 

have been making generally available. 

Freelancers lose, since those who would have 
chosen to have their works remain online without 
further compensation will nonetheless have their 
works eliminated from electronic databases, 
depriving them of intangible benefits of continued 
access and the "free publicity" it offers. That 
most freelancers might prefer continued inclusion 
in electronic databases, or on CD-ROM, etc., is of 
no moment: their works will still be purged, 
because transaction costs will prohibit most if not 
all publishers from pursuing the impractical task 
of finding and striking bargains with freelancers 
over contributions dating back decades, for which 
there is no measurable economic value. 

Most importantly, the public will lose its 
convenient access to and attendant ability to 
search through comprehensive and genuine 
archived newspapers and magazines. 

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Moreover, the decision below would likely make 
matters worse than they were before the advent of electronic 
media. During the past few decades, as a result of the 
availability of services like NEXIS, and new storage media 
like CD-ROMs, many libraries have cleared their shelves of 
their paper-printed archives of periodicals and reduced their 
ongoing archival efforts. Storage costs and the fragility of 
newsprint have spurred increasing reliance on electronic 
archives, whose accessibility and permanence have been 
enormously beneficial. The Second Circuit opinion 
therefore threatens not only the integrity of the historical 
record, but as a matter of practical fact, the accessibility to 
the historical record too. 

The increasing accessibility of back issues in new 
media has undeniably advanced copyright’s goal of 
increasing the store and availability of writing. See, e.g., 
Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 
(1975) (aim of copyright law is “promoting broad public 
availability of literature, music, and the other arts”). 
Historians, researchers of various types, students, and 
curious citizens are able as never before to access back 
issues, not just of their own home town papers, but of a wide 
range of newspapers and magazines throughout the nation. 
The Second Circuit’s decision would destroy that 
achievement, and turn a comprehensive, accurate, national 
archive into a collection of local ones, riddled with holes. 
Publishers who strive for completeness and a faithful 
electronic record could be exposed to any holdout’s whims, 
giving individual freelancers bargaining power out of all 
proportion to any real value in any individual work that may 
have no real public demand at all. The resulting “hole in 
history” would have a devastating impact on research and 
study. 

If, as the Second Circuit has held, delivery of copies of 
newspapers and magazines containing freelance 
contributions to NEXIS (or to other services or archival 
media) infringes the rights of freelance contributors, then 

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existing archives will likely be perforated, because the 
contributors cannot as a practical or economic matter be 
located, and because the risk from not deleting conceivably 
“infringing” articles far exceeds any economic benefits to 
publishers of retention. The value of existing complete 
electronic archives will be sacrificed to the Second Circuit’s 
misreading of § 201(c). 

B. The Second Circuit’s Decision Has Already Begun To 

Force Publishers To Remove and Exclude Articles 
From Electronic Databases. 

The harm that the Second Circuit’s cramped reading of 
§ 201(c) will cause to existing and future databases is 
evident not only from logic and common sense prediction, 
although those bases would suffice.2 The Second Circuit’s 
decision has already caused substantial harm. 

First, newspaper and magazine publishers have already 
responded by removing freelance articles from their online 
databases. For example, The Washington Post has already 
deleted over 60,000 readily identifiable freelance articles 
from NEXIS and their electronic archive, considering the 
risk of liability posed by the Second Circuit’s decision 
simply too substantial to ignore, even though there was a 
chance (when the Post acted) that the this Court might agree 
to review the decision. The Oregonian has deleted even 
more. As a result, persons looking in the Post’s file on 

2 This Court routinely decides cases involving speech 
or other weighty constitutional interests on the basis of a 
reasoned analysis of harm that would likely flow from a 
challenged event or policy, regardless of whether it has 
already taken place. See, e.g., Simon & Schuster v. Members 
of the New York State Crime Victims Board, U.S. 

(198 ) 

(prediction that law would deter the writing and publication 
of certain works); Campbell v. Acuff-Rose, Inc., 
U.S. 

(199 ) (prediction that content owners would refuse to 
license parodic uses). 

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NEXIS, or on the Post’s own electronic archive, for articles 
from particular dates, or on particular subjects, no longer 
have the opportunity to conduct searches whose results are 
dependable or accurate: the results of every search are 
questionable, as the results may — or may not — provide a 
true picture of what the Post covered. Like photographs 
from the Soviet Union, the results of searches from a purged 
database are no longer entirely trustworthy or informative: 
the absence of an article (like the absence of a face from the 
annual Politburo photograph) may, or may not, reflect what 
was present and what was not. 

Still other leading papers and magazines, less risk- 
averse, have begun the complex measures necessary to 
enable the prompt deletion of such articles if and when this 

Court affirms.3 

Others have deleted on a more partial basis. After the 
electronic service (database) defendants in the post-Tasini 

3 For most publications, there is no easy way to 
separate freelance contributions from those of staff writers, 
as the contributions do not have any word or phrase (such as 
“freelance”) that can be easily searched. Accordingly, 
identification and deletion of freelance contributions would 
be a time-consuming and expensive matter, requiring, for 
example, creation of lists of employees and dates of 
employment from personnel records, and cross-checking all 
bylines against those lists. As plaintiffs’ counsel in Tasini 
and the class action cases have asserted a “continuing 
infringement” theory by which the mere availability of an 
article on a website or electronic service would be infringing, 
the back issues facing purges of freelance articles are not 
only all those published since three years before the 
commencement of Tasini in 1993, but all those published 
under the Copyright Act of 1976 (effective January 1, 1978). 
The plaintiffs in the post-Tasini class actions expressly seek 
to represent all freelance authors creating articles for 
newspapers and magazines since that date. 

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class actions gave notice of the suits to the content providers 
who provided the articles in suit, for example, many content 
providers insisted that the electronic services delete all 
articles written by the plaintiffs, not only those identified in 
the Complaints, so as to avoid any later charges of wilful 
infringement.4 A somewhat less risk-averse approach, but 
one also likely to result in degraded and incomplete 
electronic archives, has been taken by the Newslibrary 
electronic service, which has offered to delete articles on 
request: 

We believe that we have the necessary 
rights to digitize those editions of the 

4 Three actions were brought in August and September 
2000 on behalf of purported classes of freelance writers 
alleging copyright infringement by electronic publication of 
newspapers and magazines: Laney v. Dow Jones & 
Company, Inc., 00 769 (RRM) (D. Del.); The Authors Guild, 
Inc. v. The Dialog Corp., 00 Civ. 6049 (SS) (S.D.N.Y.); and 
Posner v. Gale Group, Inc., 00 Civ. 7376 (RO) (S.D.N.Y.). 
On December 6, 2000, the actions were transferred and 
consolidated for pretrial proceedings by the Joint Panel on 
Multidistrict Litigation. Each complaint alleges that the 
inclusion of plaintiffs’ works on defendants’ electronic 
services, through the inclusion of newspaper and magazine 
issues, constitutes willful infringement remediable by awards 
of statutory or actual damages regardless of whether any user 
has accessed any specific article by any of the countless 
purported class members, and regardless of the fact that the 
databases have obtained rights to those back issues only 
through contractual arrangements with reputable publishers 
who have represented and warranted that they have the rights 
to their contents and that use by the electronic services 
would not violate the rights of any third parties. These 
actions show that publishers and the electronic services 
through whom they electronically publish face potentially 
bottomless liability because of the Second Circuit’s decision. 

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newspapers that we have made 
available online. If you were a 
freelance writer, rather than a staff 
reporter or creator of a work made “for 
hire,” and believe that you did not 
license or otherwise grant all rights to 
the applicable newspaper in which 
your article was published, and would 
like us to remove your work so that 
third parties cannot read, print, or 
download it, please notify us . . . . 5 

Second, the immediate harm caused by the Second 
Circuit’s decision is not limited to the deletion of existing 
data; it has chilled, as well, projects aimed at making such 
data more extensively and accurately available digitization of 
archival materials, a project which various publishers have 
been exploring or actually beginning. For instance, some 
newspapers, such as the Washington Post, would like to 
make available digitally back issues currently available only 
in microfilm. The transition from microfilm to digital 
formats would be a boon to researchers, who would be able 
to search entire archives in minutes using Boolean searches, 
rather than having to troll through indices and skim articles 
to find relevant information. The articles located in such 
searches would be accessible in visual formats that, like the 
photographic copies presently used in microfilm, replicate 
the column format, typeface, and other visual incidents of the 
original publication. Reproduction on this model would 
preserve many of the features of the original editorial 
selection and arrangement that first made the newspapers 
eligible for copyright as collective works. 

The Second Circuit’s rule is so sweeping, however, that 
the mere availability of multiple back issues in a single 
online file or on a single CD-ROM, searchable in a single 

5 

<www.newslibrary.com/region_pgs/freelance_notice.htm>. 

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convenient search, may well expose the publisher to liability 
for copyright infringement, regardless of how faithfully the 
online publication replicates the selection, arrangement, and 
even the superficial aspects of the presentation of the original 
issues. Accordingly, publishers who have considered 
digitizing their archives, such as the Washington Post, have 
taken a second look at such projects and paused them for the 
time being, as they would be economic with current 
technology only if the Second Circuit’s decision is reversed. 
The cost and difficulty of identifying past freelance 
contributors and purging their contributions, and the 
potential cost of suits brought by such authors, would almost 
certainly make digitization impracticable. 

C. The Harm to the Public Interest Would Be 

Gratuitous, as Authors Generally Will Not Benefit 
from the Decision. 

The harm to the public interest that the Second Circuit’s 
decision would occasion is particularly unjustifiable in view 
of the fact that construing the law that way will not yield any 
compensating benefit to freelance authors on a going 
forward basis. Even if the “default setting” of § 201(c) were 
held not to afford publishers “the privilege of reproducing 
and distributing the contribution” in an electronic edition of 
the work, publishers would nonetheless simply obtain that 
same right as a condition to its acquisition of the freelance 

contribution in the first place. 

Publishers already have and are exercising the economic 
power to insist on that subset of “electronic rights” 
regardless of the where § 201(c) places the default setting.6 

6 Among the newspapers that now routinely insist on 
obtaining such rights, and refuse to make additional 
payments for them, are The Boston Globe, The Washington 
Post, [PLEASE VOLUNTEER FOR INCLUSION 
HERE. WITHOUT ENOUGH VOLUNTEERS, THE 
FOOTNOTE WILL BE DROPPED.] 

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Amici have been publishing electronically for many years — 
both before the Second Circuit’s reversal, when the district 
court’s decision appeared to render express acquisition of 
what the National Writers Union has termed “electronic 
rights” a matter of belt-and-suspenders caution, and after, 
when publishers began expressly obtaining such rights to 
avoid future infringement liability for the electronic 
publication that was an integral and growing part of their 
operations. Indeed, the National Writers Union’s own web 

site, on a web page entitled “Fight Retroactive Rights 
Contracts,” advises its members that “a number of 
publications are now issuing contracts demanding that 
writers sign away past rights for articles already published.”7 
The Boston Globe’s well-known policy in that regard has 
been repeatedly attacked by the National Writers Union, and 
is the subject of a so-far-unsuccessful state court lawsuit 
filed by the NWU.8 

The reasons why publishers have been able to insist on 
obtaining such rights as a condition of acquiring freelance 
contributions in the first place are not hard to find. First, as a 
practical matter, it is simply elementary that publishers need 
the rights necessary for publishing their newspapers and 
magazines, to the extent of planned publication; and, today, 
publication of newspapers and magazines extends to 
publication not only on paper byt also electronically. Just as 
no sane newspaper or magazine publisher would agree to 
take a freelance contribution to be published only in certain 
neighborhoods, or only in houses whose addresses end in 
odd digits, so too no newspaper today would acquire articles 
for use in only a portion of the market to which the 
publication is distributed. 

7 

See <http://www.nwu.org/>, visited December 12, 
2000 (letter from NWU President Jonathan Tasini). 

8 Cite. 

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Second, publishers have the economic power to obtain 
those rights. Freelance writers who are unwilling to convey 
the rights publishers’ multiplatform publishing plans will 
generally require find themselves replaced by writers more 
willing to recognize economic realities when they see them. 
In a world of publishers and authors aware of their power 
right to strike whatever bargain they choose, it is the 
economic reality of the publishers’ economic power, not 
default allocations of “electronic rights,” that will determine 
such outcomes. Publishers need gardening articles and book 
reviews that can be used in every edition of that day’s 
newspaper. Articles whose rights are so circumscribed that 
using them would entail added internal and out-of-pocket 
costs of special arrangements with electronic services or the 
Internet edition staff, and the added risks of infringement 
liability that such fractured rights acquisitions would pose, 
are simply not worth obtaining. 

D. Online Publication Is Part of First Publication, and a 

Decision Treating Only Paper Publication as First 
Publication Is Unfaithful to the Copyright Act of 
1976. 

An additional error infecting the Second Circuit’s 
approach is its archaic premise — contrary to the 
fundamental rule that copyright protects expression, 
regardless of the “medium of expression,” and to Congress’s 
strenuous effort to make copyright law enacted in 1976 
medium-neutral — that the “collective work” to which 
§ 201(c) refers is solely the paper version of a newspaper or 
magazine, with electronic publication protected, if at all, 
only as a “revision” or “subsequent” work under § 201(c). 
That error is of particular concern to amici, as it misstates the 
realities of even current publication practice (and surely 
practices in the coming years), and its correction would 
almost ineluctably result in reversal of the judgment below. 
It is vital to realization of Congress’s vision that the decision 
reached in this Court recognize that the newspapers and 
magazines published by amici and their competitors are 

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already being published simultaneously in multiple media, 
paper and electronic — and thereby published well within 
the protection Congress afforded to the publisher of a 
collective work for publication of “that particular collective 
work” itself. 

The courts below may have been led astray by evidence 
that, as of some time in the mid-1990's, Time was released to 
NEXIS “some 45 days later” than the print publication. 972 
F. Supp. at 812. Whatever the record may have shown about 
Time’s publications at that date, however, the reality for 
many newspapers and magazines today is that electronic 
publication — on the periodical’s web site and/or on NEXIS 
— often occurs on the same day as print publication. This is 
the case, for example, with The New York Times and 
hundreds of other newspapers, which are available online, on 
the day of first paper publication, both on their own websites 

and on NEXIS and/or other electronic services. 

Most website electronic editions are not identical to the 
paper editions (lacking, for example, advertisements and 
some formatting information), and are searchable with back 
issues of those same publications, see Tasini, 206 F.3d at . 
Accordingly, under the decision below, electronic editions, 
even if initially published on the same day as the paper 
editions, would be treated as neither “that particular 
collective work” nor a “revision of that collective work,” and 
any inclusion, in the NEXIS or Internet electronic edition, of 
a freelance contribution from the paper edition of the 
collective work would be infringing. On the panel’s 
reasoning, that deeply flawed conclusion follows directly 
from the fact that the electronic editions simultaneously 
published on NEXIS (or other electronic services) share each 
of the same disabling characteristics that the Second Circuit 
has held independently disentitle publishers from relying 
§ 201(c): the electronic editions are not identical to the paper 
edition, and they are searchable together with other 
periodicals and back issues of the same periodical. 

Given 

Congress’s focused effort to render the copyright law 

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medium-neutral,9 and the fact that protection is afforded for 
expression, regardless of the medium in which it is 
embodied, it is hard to understand the panel’s reasoning. 
Why should a newspaper’s acquisition from a freelance 
author of the right to publish an article on gardening in a 
forthcoming issue its May 1 edition not extend to both the 
paper and the Internet editions, absent some express 
agreement otherwise? Today’s New York Times is today’s 
New York Times regardless of whether it is the early edition, 
the late edition, or an electronic edition. 

10 A reader who 
asked her colleagues at lunch in mid-December “Hey, did 
you read that editorial in The Miami Herald about the 
election today,” is communicating quite effectively about a 
particular article in a particular publication, and it matters 
not a whit to her accuracy, to her colleagues, or to copyright 
law whether she was reading on newsprint or a computer 
screen. 

The Second Circuit’s decision superimposes what is by 
now an outmoded legal fiction — the artificial sequence of 
“first publication” and “electronic republication” — on this 
reality. Nothing in the legislative history of copyright 
revision and the carefully constructed compromises which 

9 See, e.g., 972 F. Supp. at (citing legislative 
authorities). [SUPPLEMENT] 

10 A search on December 12, 2000, conducted at 12:25 

p.m., for all articles published on that date in the New York 
Times file, pulled up 279 articles — the editorial content of 
The Times on that date. The same search for the 
Washington Post pulled up the 172 articles comprising that 
day’s edition. As the Times’ former Washington bureau 
chief, now-assistant managing editor for electronic news, 
recently explained, the Times “is agnostic about whether we 
reach our audience through paper or the Internet . . . .” “Off 

the Record,” The New York Observer, December 11, 2000, 
at 1. 

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underlie it, including in particular the compromise that 
underlies § 201(c), suggests that Congress intended the 
Copyright Act to admit of a construction so divorced from 
practices in the copyright industries. And nothing in the text 
of the Copyright Act, including its definition of “collective 
works” and tie of copyright protection to “expression” rather 
than to material objects, supports restricting the § 201(c) 
privilege to paper publication or rendering it inapplicable to 
the same collective works, even if abridged, published 
electronically. 

CONCLUSION 

Because the Second Circuit’s decision threatens vital 
public interest in access to the complete national historical 
record as reported by the nation’s newspapers and magazines 
and made available through such services as NEXIS or such 
electronic media as CD-ROMs and microfilm, and wholly 
misreads § 201(c) and the congressional judgment that 
underlies it, the judgment below should be reversed. 

Respectfully submitted. 

Charles S. Sims 
Proskauer Rose LLP 
1585 Broadway 
New York, NY 10036 
(212) 969-3950 
Counsel of Record 

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1 

ADDENDUM 

ADDENDUM 

Advance Publications, Inc., directly or through its subsidiaries, 
publishes daily newspapers in 22 cities and business journals in 37 cities 
throughout the United States, as well as 18 magazines with nationwide 
distribution and numerous World Wide Web sites. 

A H Belo Corporation is a media company with a diversified group of 
television broadcasting, newspaper publishing, cable news and electronic 
media assets. The Company’s Television Group operates 17 broadcast 
television stations and four regional and local cable news channels. 
Belo’s Publishing Division publishes The Dallas Morning News, The 

Providence Journal, and five other daily newspapers. 

Buena Vista Magazines, Inc., a subsidiary of The Walt Disney 
Company, publishes the FamilyFun, Disney Adventures, and Discover 
magazines. 

The Copley Press, Inc. publishes the San Diego Union-Tribune and 
other newspapers in California, Illinois, and Ohio, ranging from a small 
desert semi-weekly, to a large metropolitan daily, all of which have relied 
throughout their history on freelance contributors. 

Cox Newspapers, Inc. (CNI) is a subsidiary of Cox Enterprises Inc. 
(CEI), a diversified media company. CEI publishes the Atlanta Journal 
and Constitution, much of the content of which is compiled, reproduced 
and distributed in various forms including microfilm, CD-ROM and on 
CIM’s AccessAtlanta Web site. CEI and CNI subsidiaries publish 16 
daily and 11 weekly newspapers in Colorado, Florida, North Carolina, 
Ohio and Texas, much of the content of which is compiled, reproduced 
and distributed in various forms, including microfilm, CD-ROM and on 
CIM local Web sites. 

Donrey Media Group publishes 12 daily newspapers from North 
Carolina to Hawaii, including the Las Vegas, Nevada, Review-Journal. 
It also owns KOLO-TV, Reno, Nevada, and nine outdoor advertising 
companies. 

Dow Jones & Company, Inc. publishes, inter alia, The Wall Street 
Journal, Barrons magazine, and other periodicals, and, through its 

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2 

Ottaway Newspapers, Inc. subsidiary, a number of daily and weekly 
community newspapers. 

The E.W. Scripps Company operates, inter alia, 20 daily newspapers 
and United Media, a worldwide syndicator and licensor of news features 
and comics. 

Freedom Communications, Inc. [jim grossberg, levine & koch] 

Gannett Co., Inc. is a news and information company that publishes 74 
daily newspapers, including USA TODAY, and a number of non-daily 
publications, including USA Weekend, a weekly magazine. Gannett also 

owns 21 television stations and a national news service. 

Hachette Filipacchi Magazines, Inc. publishes 28 consumer magazines 
in the United States, including American Photo, Audio, Best Selling 
Home Plans, Boating, Car and Driver, Car Stereo Review, Cycle World, 
Elle, Elle Decor, Flying, George, Home, Metropolitan Home, Mirabella, 
Popular Photography, Premier, Road & Track, Showboats International, 
Stereo Review’s Sound & Vision, Travel Holiday and Woman’s Day, as 
well as a number of quarterlies and special publications. 

The Hearst Corporation is a diversified privately-held communications 
company that, inter alia, publishes newspapers, consumer magazines and 

business publications. 

Journal Communications Inc. publishes the Milwaukee Journal 
Sentinel. 

Knight Ridder publishes 32 daily newspapers in 28 U.S. markets, 
including the Aberdeen American News, Akron Beacon Journal, 
Belleville News-Democrat, The Sun Herald, Bradenton Herald, The 
Charlotte Observer, The State, Columbus Ledger-Enquirer, Contra 
Costa Times, Detroit Free Press, Duluth News-Tribune, The News 
Sentinel, Fort Worth Star-Telegram, Grand Forks Herald, The Kansas 
City Star, Lexington Herald-Leader, The Macon Telegraph, The Miami 
Herald, El Nuevo Herald, The Monterey County Herald, The Sun News, 
the Olathe Daily News, The Philadelphia Inquirer, Philadelphia Daily 
News, Saint Paul Pioneer Press, San Jose Mercury News, San Luis 
Obispo Tribune, Centre Daily Times, Tallahassee Democrat, The Daily 
Sun, The Wichita Eagle and The Times Leader. It also maintains a 

national network of 36 regional hubs at www.realcities.com. 

Macromedia Inc. is a media company based in Hackensack, NJ which, 
inter alia, publishes The Record (known as the Bergen Record), the 
Herald News (daily newspapers in northern NJ), 19 community weekly 
newspapers, and specialty publications. 

Magazine Publishers of America, Inc., founded in 1919, is the national 
trade association of the magazine publishing industry. MPA represents 
more than 250 of the largest magazine publishers in the United States, 

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3 

who collectively publish more than 1,250 of the best known consumer 
interest titles, on a weekly, monthly, and quarterly basis. 

News America Inc.’s principal activities, conducted through its 
subsidiaries and affiliates, include, inter alia, publishing magazines and 
newspapers, including TV Guide, The Weekly Standard and the New York 
Post. News America Incorporated is indirectly wholly-owned by The 
News Corporation Limited. 

The Newspaper Association of America is a non-profit organization 
representing more than 2,000 newspapers in the United States and 
Canada. NAA members account for 87 percent of the daily circulation in 
the United States and a wide range of non-daily U.S. newspapers. Many 
of NAA’s members publish newspapers that are available in print, as 
well as electronically. 

Philadelphia Newspapers, Inc. (PNI), a wholly owned subsidiary of 
Knight-Ridder, Inc., is the publisher of The Philadelphia Inquirer and the 
Philadelphia Daily News. The content of both newspapers also is 
distributed on PNI’s philly.com Web site. 

PRIMEDIA Inc. owns over 200 print and video businesses including 
consumer magazines such as New York, Chicago, Seventeen and Modern 
Bride, trade publications such as Telephony and Cable World and 
consumer enthusiast titles, including Sail, Horticulture and Fly 
Fisherman. PRIMEDIA also currently operates more than 200 Internet 

sites tied to its publications and other information businesses. 

Village Voice Media, Inc. and its affiliates publish eight alternative 
news weeklies nationwide, each of which is distributed in print and 
electronically. These include The Village Voice, LA Weekly, Seattle 

Weekly, and Minneapolis City Pages. 

The Washington Post Company’s principal operations include 
newspaper and magazine publishing. The Washington Post, a division of 
The Washington Post Company, is a daily newspaper of general 
circulation primarily in Virginia, Maryland and Washington, D.C. 

Ziff Davis Media Inc. is a leading media and marketing company 
focused on computer and Internet-related technologies, with principal 
platforms in print publishing, trade shows and conferences, online 
content, television and education. The print publications of Ziff Davis 
include PC Magazine, PC Week, Computer Shopper, PC Computing, 
Computer Gaming World, Yahoo!, Internet Life, Inter@ctive Week, 
Family PC, Electronic Gaming Monthly, Expert Gamer, Official U.S. 

PlayStation Magazine and Sm@rt Reseller. 

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i 

TABLE OF CONTENTS 

Page 

QUESTION PRESENTEDi 

INTEREST OF THE Amici Curiae 

1 

SUMMARY OF ARGUMENT 
2 

ARGUMENT: 

THE SECOND CIRCUIT’S DECISION THAT AN ELECTRONIC OR 
ARCHIVAL VERSION OF A NEWSPAPER OR MAGAZINE IS NOT A 
REVISION OF OR THE WORK ITSELF WILL GRIEVOUSLY AND 
GRATUITOUSLY HARM THE PUBLIC INTEREST 

A. The Second Circuit’s Decision Necessarily Will 

Force Newspaper and Magazine Publishers to 
Remove Articles by Freelancers from Electronic 
Archives and Degrade an Important Public 
Resource 

B. The Second Circuit’s Decision Has Already 

Begun To Force Publishers To Remove and 
Exclude Articles from Electronic Archives 

C. The Harm to the Public Interest Would Be Gratuitous, as 

Authors Generally Will Not Benefit from the Decision 

D. Online Publication Is Part of First Publication, and a 

Decision Treating Only Paper Publication as First 
Publication Is Unfaithful to the Copyright Act of 1976. 

CONCLUSION 

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ii 

Table of Authorities 

Cases 

Page 

Berlin v. E.C. Publications, Inc., 329 F.2d 541 
(2d Cir. 1964) 
9 

Harper & Row Publishers, Inc., v. Nation Enters., 
471 U.S. 539 (1985) 
9 

Twentieth Century Music Corp. v. Aiken, 422 U.S. 151 (1975) 9 

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3 

Of counsel: 

JERRY S. BIRENZ, ESQ. 
SABIN, BERMANT & GOULD, 

LLP 
350 Madison Avenue 
15th Floor 
New York, NY 10017-3704 
(212) 381-7057 

Attorneys for amici 

ADVANCE PUBLICATIONS, INC. 

HAROLD W. FUSON, JR., 
ESQ. 

Vice President and Chief 
Legal Officer 

THE COPLEY PRESS, INC. 
7776 Ivanhoe Avenue 
La Jolla, CA 92037 
(858) 729-7633 

ANDREW A. MERDEK, ESQ. 
Vice President/Legal Affairs 
and Corporate Secretary 

COX NEWSPAPERS, INC. 
1400 Lake Hearn Drive, NE 
Atlanta, GA 30319-1464 
(404) 843-5564 

MARK A. HINUEBER, ESQ. 
DONREY MEDIA GROUP 
1111 W. Bonanza Road 
Post Office Box 70 
Las Vegas, NE 89125 
(702) 477-3830 

M. DENISE KUPRIONIS, ESQ. 
Corporate Secretary 
THE E.W. SCRIPPS COMPANY 
312 Walnut Street 
Cincinnati, OH 45202-4024 

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4 

(513) 977-3000 

BARBARA WARTELLE WALL, 

ESQ. 

Vice President and Senior 
Legal Counsel 

GANNETT CO., INC. 
1100 Wilson Blvd. 
Arlington, VA 22234 
(703) 284-6951 

CATHERINE R. FLICKINGER, 

ESQ. 
Senior Vice President and 

General Counsel 
HACHETTE FILIPACCHI MAGAZINES 
1633 Broadway 
New York, NY 10019 
(212) 767-6918 

ROBERT J. HAWLEY, ESQ. 
Counsel 
THE HEARST CORPORATION 
959 Eighth Avenue 
New York, NY 10019-3795 
(212) 649-2075 

KAREN STEVENSON, ESQ. 
Vice President and General 
Counsel 

KNIGHT RIDDER 
50 West San Fernando Street 
San Jose, CA 95113 
(408) 938-7765 

KATHERINE HATTON, ESQ. 
Vice President and General 
Counsel 

PHILADELPHIA 

NEWSPAPERS, INC. 
400 North Broad Street 
P.O. Box 8263 
Philadelphia, PA 19101 
(215) 854-4710 

BARBARA COHEN, ESQ. 

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5 

VILLAGE VOICE MEDIA, INC. 
36 Cooper Square 
New York, NY 10003 
(212) 475-3300 

MARY ANN WERNER, ESQ. 
Vice President and Counsel, 
Newspaper Division 
THE WASHINGTON POST CO. 
1150 15 

th Street, NW 
Washington, DC 20071- 
0001 

(202) 334-6575 

CAROLYN SCHURR LEVIN, 

ESQ. 

Vice President and General 
Counsel 

ZIFF DAVIS MEDIA INC. 
One Park Avenue 
New York, NY 10016 
(212) 503-3575 

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