No. 00-201 

IN THE 

Supreme Court of the United States 

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

Petitioners, 

v. 

JONATHAN TASINI, MAY 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 OF AMICUS CURIAE 
THE NATIONAL GEOGRAPHIC SOCIETY 
IN SUPPORT OF PETITIONERS 

TERRENCE B. ADAMSON 
ANGELO M. GRIMA 
KAREN K. SCHWARTZ 
NATIONAL GEOGRAPHIC SOCIETY 
1145 Seventeenth Street, N.W. 
Washington, D.C. 20036 

ROBERT G. SUGARMAN 
NAOMI JANE GRAY 
WEIL, GOTSHAL & MANGES LLP 
767 Fifth Avenue 
New York, NY 10153 
KENNETH W. STARR 

Counsel of Record 
CHRISTOPHER LANDAU 
MATTHEW WILD 
KIRKLAND & ELLIS 
655 Fifteenth Street, N.W. 
Washington, D.C. 20005 
(202) 879-5000 

January 5, 2001 

2 

QUESTION PRESENTED 

Whether a publisher’s reproduction and distribution of its 
entire periodical not only in print, but also electronically, is 
privileged under the Copyright Act or instead infringes upon 
the copyrights held by contributing freelance authors. 

TABLE OF CONTENTS 

Page 

QUESTION PRESENTED .................................................... i 

TABLE OF AUTHORITIES................................................ iii 

INTEREST OF THE AMICUS.............................................. 1 

INTRODUCTION AND SUMMARY OF ARGUMENT.... 3 

ARGUMENT ........................................................................ 4 

THE SECOND CIRCUIT ERRED IN INTERPRETING 

AND APPLYING SECTION 201(C). .............................. 4 

A. “That Particular Collective Work” ............................ 7 

B. “Any Revision of That Collective Work” ............... 11 

C. “Any Later Collective Work in the Same Series” ... 13 

CONCLUSION ................................................................... 15 

3 

TABLE OF AUTHORITIES 

Page 

Cases 

Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240 (3d Cir. 1983) 
7 

Bailey v. United States, ...........................516 U.S. 137 (1995) 
6 

Board of Governors of the Fed. Reserve Sys. v. Dimension Fin. Corp., 
474 U.S. 361 (1986 

Citizens’ Bank of La. v. Parker, ...............192 U.S. 73 (1904) 
11 

Faulkner (Douglas) v. National Geographic Soc’y, No. 97 Civ. 9361 (S.D.N.Y.) 
2 

Faulkner (Sally) v. National Geographic Soc’y, No. 99 Civ. 12488 (S.D.N.Y.) 
2 

FDA v. Brown & Williamson Tobacco Corp., 120 S. Ct. 1291 (2000) 
15 

Greenberg v. National Geographic Soc’y, No. 97-3924-CIV, U.S. Dist. LEXIS 18060 
(S.D 

Jones v. United States, ............................526 U.S. 227 (1999) 
15 

M. Kramer Mfg. Co. v. Andrews, 783 F.2d 421 (4th Cir. 1986) 
7 

Matthew Bender & Co. v. West Publ’g Co., 158 F.3d 693 (2d Cir. 1998) 
7, 8 

Rodriguez v. United States, ....................480 U.S. 522 (1987) 
6 

Ward v. National Geographic Soc’y, No. 99 Civ. 12385 (S.D.N.Y.)2 

Constitutions, Statutes, and Rules 

17 U.S.C. § 101 ..................................................................... 5 

17 U.S.C. § 102(a)................................................................. 7 

17 U.S.C. § 102(b)................................................................. 5 

17 U.S.C. § 201(c)........................................................ passim 

18 U.S.C. § 2 ......................................................................... 5 

29 U.S.C. § 1144(d)............................................................... 5 

S. Ct. R. 37.3 ......................................................................... 1 

S. Ct. R. 37.6 ......................................................................... 1 

4 

U.S. Const. art. II, § 8, cl. 8 ................................................. 15 

Other Authorities 

H.R. Rep. No. 1476, ................... 94th Cong., 2d Sess. (1976) 
6, 7, 10, 13, 14 

Webster’s Third New Int’l Dictionary (1976) ............... 11, 13 

INTEREST OF THE AMICUS1 

The National Geographic Society is the world’s largest 
nonprofit scientific and educational organization, with 
approximately ten million members worldwide. Since its 
founding in 1888, the Society’s mission has been “to increase 
and diffuse geographic knowledge” in the broadest sense. The 
Society pursues that mission in a variety of ways, including 
creating a $100 million foundation to promote geographic 
education; issuing grants for scientific research and 
exploration; maintaining an acclaimed Explorers-in-Residence 
program; conducting national and international geography bees 
with millions of student participants annually; launching 
initiatives to increase public awareness and knowledge of 
geography; and producing and distributing a wide variety of 
mission-related products, including periodicals, television 
programs, books, maps and atlases, and classroom products. In 
recent years, pursuant to a letter ruling sought and obtained 
from the Internal Revenue Service, the Society has placed 

1 Pursuant to this Court’s Rule 37.6, amicus states that no counsel for any 
party authored this brief in whole or in part, and that no person or entity 
other than amicus, its counsel, or its insurer made a monetary contribution 
to the preparation or submission of this brief. The parties have consented 
to the filing of this brief, and letters evidencing such consent have been filed 
with the Clerk of this Court, pursuant to S. Ct. R. 37.3. 

5 

several divisions into wholly-owned taxable subsidiaries. All 
parts of the organization, including these divisions, promote the 
Society’s historic educational and scientific mission, and any 
and all revenues are used to further that mission. 

The Society has a strong interest in this case in its capacity 
as the publisher of a monthly official journal, National 
Geographic magazine. For many years, the Society has 
reproduced back issues of the magazine in bound volumes, 
microfiche, and microfilm. With the advent of CD-ROM 
technology in recent years, the Society in 1997 produced “The 
Complete National Geographic,” a thirty-disc CD-ROM set 
containing each monthly issue of the magazine for the 108 
years from 1888 through 1996. The issues appear 
chronologically, from the earliest at the beginning of the first 
disc to the latest at the end of the thirtieth disc. There are no 
changes to the content, format, or appearance of any issue 
reproduced in the CD-ROM set. Every page of every issue 
remains as it was in the original print version, including all 
page arrangements, articles, photographs, graphics, advertising, 
and attributions. A search engine allows the user to search the 
index electronically, just as users have long been able to search 
the magazine’s traditional paperbound index. 

Recently, the Society has become the target of several 
lawsuits by freelance authors and photographers who contend 
that the Society infringed their copyrights by reproducing their 
contributions to the magazine in the CD-ROM set, even though 
the plaintiffs authorized the use of their contributions in the 
magazine and the set reproduces each issue of the magazine 
exactly as it originally appeared in print. See Greenberg v. 
National Geographic Soc’y, No. 97-3924-CIV, 1998 U.S. Dist. 
LEXIS 18060 (S.D. Fla. May 14, 1998), appeal pending, No. 
00-10510-C (11th Cir.) (argued Oct. 3, 2000); Faulkner (Sally) 

v. National Geographic Soc’y, No. 99 Civ. 12488 (S.D.N.Y.); 
Ward v. National Geographic Soc’y, No. 99 Civ. 12385 
(S.D.N.Y.); Faulkner (Douglas) v. National Geographic Soc’y, 

6 

No. 97 Civ. 9361 (S.D.N.Y.). The Society has defended these 
lawsuits on the ground, among others, that 17 U.S.C. § 201(c), 
the statutory provision at issue here, confers a privilege upon 
the publishers of collective works to reproduce and distribute 
an individual freelance contribution to a collective work “as 
part of that particular collective work, any revision of that 
collective work, and any later collective work in the same 
series.” Because the Second Circuit dramatically and 
erroneously narrowed the scope of that statutory privilege, and 
because most of the pending cases have been filed in that 
Circuit, the Society respectfully urges this Court to reverse the 
judgment. 

7 

INTRODUCTION AND SUMMARY OF ARGUMENT 

The Copyright Act of 1976 strikes a fundamental balance 
between the interests of freelance authors, on the one hand, and 
publishers of collective works, on the other: the author owns 
the copyright in his individual contribution, while the publisher 
owns the copyright in the overall collective work. The decision 
below upsets that balance by drastically curtailing the 
publisher’s statutory privilege to reproduce and distribute its 
collective work in new media, including electronic databases 
and CD-ROM. The decision thereby violates the bedrock 
principle that the Copyright Act is medium neutral: it applies 
regardless of the medium (or combination of media) in which 
a work is expressed. The publisher of a printed newspaper like 
The New York Times, a paperbound journal like National 
Geographic magazine, an online magazine like Slate or Salon, 
or any other collective work is entitled to reproduce and 
distribute that collective work in any medium (or combination 
of media) it chooses: newsprint, electronic databases, 
microfilm, microfiche, CD-ROM, or even other media not yet 
invented. Technological developments may allow collective 
works to be stored, retrieved, and searched in new ways, but 
such developments do not strip publishers of their statutory 
privilege to reproduce and distribute their collective works. 

The error below stems from a flawed approach to statutory 
construction. The Copyright Act authorizes the publisher of a 
collective work to reproduce and distribute an individually 
copyrighted contribution “as part of [1] that particular 
collective work, [2] any revision of that collective work, and 
[3] any later collective work in the same series.” 17 U.S.C. 
§ 201(c). The Second Circuit construed these three categories 
“narrowly” as mutually exclusive, limited in scope by their 
order, and confined to particular factual examples devised by 

8 

the court. Pet. App. 10a-13a. That interpretation has no basis 
in law or logic: there are no canons of construction that 
statutory categories must be read as mutually exclusive, that the 
order of such categories limits their scope, or that such 
categories may be confined to particular factual examples. The 
three categories in the statute simply describe three different 
uses of contributions to collective works, and the Second 
Circuit erred by forcing all three into a wholly artificial 
construct. Applying the plain meaning of the statute, all three 
categories authorize publishers to reproduce and distribute 
collective works in new media, just as petitioners have done 
here. Because the Second Circuit concluded otherwise, the 
judgment should be reversed. 

ARGUMENT 

THE SECOND CIRCUIT ERRED IN INTERPRETING 
AND APPLYING SECTION 201(C). 

The Second Circuit’s decision is based upon the premise that 
each of the three categories set forth in section 201(c)—(1) 
“that particular collective work,” (2) “any revision of that 
collective work,” and (3) “any later collective work in the same 
series”—must be “narrowly” construed as mutually exclusive, 
limited in scope by their order, and confined to particular 
factual examples devised by the court. Pet. App. 10a-13a. That 
premise is mistaken, and led the Second Circuit to transform 
these broad and overlapping categories into narrow pigeonholes 
separated by substantial gaps. 

The court below began with the unremarkable proposition 
that “[t]he meaning of particular phrases must be determined in 
context,” Pet. App. 10a (internal quotation omitted), and thus 
“the second clause must be read in the context of the first and 
third clauses,” id. The court, however, took that proposition to 
mean that each category should have a meaning separate and 
independent from the others. The court thus proceeded to 

9 

describe the first category as a “floor,” the third category as a 
“ceiling,” and the second category as somewhere in between. 
Id. To prevent the categories from overlapping, the court 
limited the first category to “a specific edition or issue of a 
periodical,” the second category to “later editions of a particular 
issue of a periodical, such as the final edition of a newspaper,” 
and the third category to “a new edition of a dictionary or 
encyclopedia.” Id. at 10a, 11a. 

The plain language of the statute provides no basis for thus 
narrowing the categories. The principle that statutory terms 
should be construed “in context” does not mean that their scope 
should be construed as mutually exclusive. To the contrary, 
Congress often sets forth lists of overlapping terms or 
categories precisely to avoid any gaps in coverage. The aiding- 
and-abetting statute is a good example: it punishes a person 
who “aids, abets, counsels, commands, induces, or procures” a 
federal crime. 18 U.S.C. § 2. No one would seriously argue 
that it was necessary (or even possible) to devise a meaning for 
“aids” that does not overlap with “abets.” Such a “belt-and- 
suspenders” approach is common throughout the U.S. Code. 
See, e.g., 29 U.S.C. § 1144(d) (ERISA’s preemption provision 
shall not be construed to “alter, amend, modify, invalidate, 
impair, or supersede” any other federal law). Indeed the 
Copyright Act itself is replete with overlapping terms. See, 

e.g., 17 U.S.C. § 101 (“‘Literary works’ are works, other than 
audiovisual works, expressed in words, numbers, or other 
verbal or numerical symbols or indicia, regardless of the nature 
of the material objects, such as books, periodicals, manuscripts, 
phonorecords, film, tapes, disks, or cards, in which they are 
embodied”); 17 U.S.C. § 102(b) (“In no case does copyright 
protection for an original work of authorship extend to any 
idea, procedure, process, system, method of operation, concept, 
principle, or discovery”). The Second Circuit’s assumption that 
Congress intends a series of statutory words or phrases to be 
mutually exclusive is especially incongruous in this case, where 

10 

Congress linked the three categories in section 201(c) with the 
conjunctive “and,” rather than the disjunctive “or,” indicating 
that a given publication could fall within more than one 
category of the collective-works privilege. 

This approach does not challenge the canon of construction 
(invoked by the Second Circuit, see Pet. App. 12a) that courts 
should give some effect to every word in a statute if possible. 
See, e.g., Bailey v. United States, 516 U.S. 137, 145-46 (1995). 
That canon simply provides that courts should try to avoid 
complete overlap between statutory terms or phrases, on the 
theory that Congress does not enact superfluous words into law. 
See id. But there is no basis in law or logic to stretch that 
canon, as the Second Circuit did here, to mean that courts 
should try to avoid any overlap between statutory words or 
phrases. To the contrary, as noted above, Congress often seeks 
to avoid statutory gaps by using overlapping terms, so it would 
be perverse for courts to create such gaps by artificially 
narrowing those terms. 

Nor is there any merit to the Second Circuit’s assertion that 
the three categories of the collective-works privilege must be 
construed “narrowly” because they form an “exception to the 
general rule that copyright vests initially in the author of the 
individual contribution.” Pet. App. 12a. Section 201(c) 
represents a compromise between the rights of freelance 
authors and the rights of publishers of collective works, and the 
statutory privilege conferred upon the publishers is no less 
integral a part of the statutory scheme than the ownership rights 
conferred upon the authors. See, e.g., H.R. Rep. No. 1476, 94th 
Cong., 2d Sess. 122 (1976) (noting that section 201(c) 
“represents a fair balancing of equities” between freelance 
authors and publishers, and that the publishers’ privilege is the 
“essential counterpart” of the authors’ rights). To construe the 
publishers’ privilege “narrowly” would be to upset the balance 
established by Congress. See, e.g., Rodriguez v. United States, 
480 U.S. 522, 525-26 (1987) (noting that a statute’s purpose is 

11 

reflected as much in the scope of its limitations as in the scope 
of its coverage); Board of Governors of the Fed. Reserve Sys. 

v. Dimension Fin. Corp., 474 U.S. 361, 373-74 (1986) (same). 

The Second Circuit thus erred by interpreting the collective- 
works privilege of section 201(c) solely by reference to the 
“context,” rather than the plain meaning, of the statutory text. 
There is no reason to conclude that Congress intended the three 
categories of section 201(c) to mean anything other than what 
they say, and in particular to be construed “narrowly” as 
mutually exclusive, limited in scope by their order, and 
confined to the particular examples devised by the court. To 
the contrary, as explained below, the plain meaning of those 
categories reveals them to be broad and overlapping. 

A. “That Particular Collective Work” 

The Second Circuit characterized the first category (“that 
particular collective work”) as the statutory “floor,” limited to 
“a specific edition or issue of a periodical.” Pet. App. 10a. That 
characterization reflects an unduly narrow interpretation of this 
category. 

There is nothing in the statute that limits a publisher’s 
privilege to reproduce and distribute a “particular collective 
work” exclusively to the “specific edition or issue of a 
periodical” in which that work originally appeared. Id. Under 
the statute, a publisher is entitled to reproduce and distribute an 
individual freelance contribution as a part of a “particular 
collective work” regardless of the medium (or combination of 
media) in which that collective work originally appeared. The 
privilege, after all, is not limited to “that particular collective 
work in the particular medium originally published”; to the 
contrary, the scope of copyright protection of a collective work 
(or any other original work of authorship) is neutral as to the 
medium of expression. See 17 U.S.C. § 102(a) (“Copyright 
protection subsists . . . in original works of authorship fixed in 
any tangible medium of expression, now known or later 

12 

developed, from which they can be perceived, reproduced, or 
otherwise communicated, either directly or with the aid of a 
machine or device.”) (emphasis added); Matthew Bender & Co. 

v. West Publ’g Co., 158 F.3d 693, 702-703 (2d Cir. 1998) 
(noting that copyright protection does not “‘depend upon the 
form or medium in which the work is fixed’”) (quoting H.R. 
Rep. No. 94-1476, at 52 (1976)); M. Kramer Mfg. Co. v. 
Andrews, 783 F.2d 421, 432-433 (4th Cir. 1986) (“[C]opyright 
protection is granted ‘in original works of authorship fixed in 
any tangible medium.’”) (quoting 17 U.S.C. § 102(a)); Apple 
Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240, 
1248 (3d Cir. 1983) (“Under the statute, copyright extends to 
works in any tangible means of expression”). Accordingly, the 
publisher can reproduce and distribute an individual freelance 
contribution in any medium (or combination of media) as long 
as that contribution remains part of the “particular collective 
work” in which it originally appeared. 

“The Complete National Geographic” published by 
amicus provides a good example of a “particular collective 
work” reproduced in a new medium. That product consists of 
all issues of National Geographic magazine from 1888 to 1996 
in a thirty-disc CD-ROM set. This new medium offers several 
advantages over the original paperbound journals, including the 
ability to store large amounts of information in a small amount 
of space and electronic searching capability. See, e.g., Matthew 
Bender & Co., 158 F.3d at 697 n.4. Because the CD-ROM 
reproduction is image-based, every page of every issue remains 
precisely as it was in the original paperbound version, including 
all page arrangements, articles, photographs, graphics, 
advertising, and attributions. Under these circumstances, the 
Society has not exploited any individual contribution separate 
and apart from the “particular collective work” in which it 
originally appeared; the entire “particular collective work” has 
simply been reproduced in the medium of CD-ROM, just as it 
has long been reproduced (without challenge) in the media of 

13 

microfilm and microfiche. Because copyright law, as noted 
above, is medium-neutral, the Society does not lose its statutory 
privilege to reproduce and distribute the original paperbound 
issues of National Geographic magazine in any of these other 
media. 

That conclusion is the same regardless of whether each issue 
of National Geographic magazine is reproduced on its own 
CD-ROM disc, or whether multiple issues are grouped together 
on a single disc. As noted above, one of the key advantages of 
CD-ROM technology is the ability to reproduce vast amounts 
of information in a very limited space: a collection of 
paperbound magazines that would have taken up a large room 
now fits comfortably onto thirty discs in a small box. Each 
individual contribution remains part of the “particular 
collective work” in which it originally appeared, even though 
that “particular collective work” is reproduced alongside other 
collective works on a single disc. A “particular collective 
work,” in other words, does not cease to exist when grouped 
with other collective works. This is, in essence, no different 
than putting together multiple paperbound issues of National 
Geographic magazine in a bound volume, or reproducing 
multiple issues of the magazine together on a single roll of 
microfilm or a single sheet of microfiche, which the Society has 
been doing for years. Nothing in the Copyright Act prevents 
publishers from taking advantage of the technological benefits 
of other media.2 

2 As long as the individual contribution remains in the “particular collective 
work” in which it originally appeared, in fact, it does not matter what else 
appears alongside that “particular collective work” in a new medium. Given 
the recent advances in DVD technology, for example, the Society could 
reproduce an issue of the magazine on a single disc along with television 
programs and/or lectures on the same topics as the articles in that issue. 
Similarly, the Society could reproduce back issues of the magazine on its 
website, even though the website also includes substantial other materials. 

14 

Nor does it matter whether the CD-ROM set itself, or any 
individual disc within that set, is deemed to be a new collective 
work or compilation. An individual contribution is no less a 
part of a “particular collective work” if that collective work in 
turn becomes part of an even larger collective work. One 
collective work can form part of another collective work, just 
as a Sunday magazine forms part of a Sunday newspaper. The 
creation of a new collective work (whether or not copyrightable 
or copyrighted in its own right) is simply not inconsistent with 
the preservation of the “particular collective work” in which an 
individual freelance contribution originally appeared. 

The Second Circuit, however, reached a different conclusion 
with respect to the General Periodicals OnDisc CD-ROM, 
which includes exact image-based reproductions of The New 
York Times Sunday book review and magazine sections. See 
Pet App. 5a, 16a. The court held that the statutory privilege did 
not apply to that product because “it also contains articles from 
numerous other periodicals,” and thus “is at best a new 
anthology.” Id. at 17a. In this regard, the ostensibly textualist 
court relied on a passage in the legislative history stating that 
section 201(c) was not intended to authorize a publisher to 
“include [an individual contribution] in a new anthology.” 
H.R. Rep. No. 94-1476, at 122-23 (1976). But that passage 
simply makes the point that a publisher cannot remove an 
individual freelance contribution from a “particular collective 
work” and include it in a “new anthology”; contrary to the 
Second Circuit’s apparent belief, the passage does not state that 
a publisher cannot include a “particular collective work” in its 
entirety in a “new anthology.” Thus, even if a given CD-ROM 
disc or set (or a bound volume, roll of microfilm, or sheet of 
microfiche) is characterized as a “new anthology,” there is no 
basis for holding that a “particular collective work” ceases to be 
a “particular collective work” simply because it is grouped with 
other materials. The legislative history’s reference to a “new 
anthology” does not compel a reading of the statute that strips 

15 

publishers of their statutory privilege to reproduce their 
collective works in new media just because those media allow 
the aggregation of multiple collective works. 

The Second Circuit also placed undue reliance on the search 
capability of new media. In particular, the court asserted that 
a user’s ability to “retriev[e articles] according to criteria 
unrelated to the particular edition in which the articles first 
appeared” strips a publisher of the statutory privilege. Pet. 
App. 16a. However, a “particular collective work” does not 
cease to be a “particular collective work” just because it is 
reproduced in a new medium that makes it easier for a user to 
search for individual contributions. Every medium offers its 
own advantages and disadvantages. As long as an individual 
freelance contribution remains in the “particular collective 
work” in which it was originally published, the relative ease of 
searching that “particular collective work” is immaterial. 
Microfilm and microfiche, for example, may be easier to search 
than books, but that does not remove those media from the 
scope of the privilege. The search engine of a CD-ROM is 
essentially the same as the index to a collection of paperbound 
magazines; indeed, the search engine of “The Complete 
National Geographic” CD-ROM searches an electronic version 
of the traditional paperbound index, rather than the full text of 
individual articles. Surely, the Society did not lose its privilege 
to reproduce its collective works the first time it published an 
overall index to its paperbound magazines, and thereby 
rendered them easier to search. The relative ease of searching 
is simply irrelevant to the scope of the statutory collective- 
works privilege. 

16 

B. “Any Revision of That Collective Work” 

The Second Circuit next characterized the second category 
(“any revision of that collective work”) as a no-man’s-land 
between the statutory “floor” and “ceiling,” limited to “later 
editions of a particular issue of a periodical, such as the final 
edition of a newspaper.” Pet. App. 10a. Again, that 
characterization reflects an unduly narrow interpretation of this 
category. 

There is nothing in the statute that limits a publisher’s 
privilege to reproduce and distribute “any revision of that 
collective work” exclusively to “later editions of a particular 
issue of a periodical, such as the final edition of a newspaper.” 
Id. To be sure, a later edition of a newspaper is an example of 
a “revision,” but it does not remotely exhaust the category. A 
“revision” of a publication is “a new, amended, improved, or 
up-to-date version of” that publication. Webster’s Third New 
Int’l Dictionary 1944 (1976). And the statute extends the broad 
word “revision” to its broadest limits by modifying it with the 
word “any.” See, e.g., Citizens’ Bank of La. v. Parker, 192 
U.S. 73, 81 (1904) (“The word any excludes selection or 
distinction. It declares the exemption without limitation.”). As 
the district court below pointed out, there is no basis for 
assuming that “any revision” is limited only to minor changes; 
a “revision” can be either major or minor in scope. Pet. App. 
58a-61a, 72a. The statute thus allows publishers to revise their 
overall collective works without fear of incurring copyright 
liability to the authors of individual freelance contributions. 

Again, “The Complete National Geographic” published by 
amicus provides a good example. Even assuming that the 
Second Circuit were correct that a “particular collective work” 
is limited to the “specific edition or issue of a periodical” in 
which that work originally appeared, the transfer of that issue 
to a new medium (like CD-ROM) would at most amount to a 
“revision” of the issue. Again, that conclusion is not altered by 
the fact that multiple issues can be transferred onto a single 

17 

CD-ROM disc (a key advantage of CD-ROM technology): a 
“revision” is no less a “revision” just because it is placed in a 
new medium in which it is joined with other “revisions.” 
Indeed, the district court in Greenberg, relying on the district 
court’s opinion in this case, concluded that “The Complete 
National Geographic” was a “revision” of the original 
paperbound issues of the magazine, and thus rejected a claim 
of copyright infringement. See Greenberg v. National 
Geographic Soc’y, No. 97-3924-CIV, 1998 U.S. Dist. LEXIS 
18060, at *7-10 (S.D. Fla. May 14, 1998), appeal pending, No. 
00-10510-C (11th Cir.). 

The Second Circuit sought to justify its narrow interpretation 
of “any revision” by asserting that a broader interpretation 
would render “superfluous” the third statutory category 
permitting the reproduction and distribution of an individual 
freelance contribution as part of “a later collective work in the 
same series.” Pet. App. 12a. That assertion is baseless. The 
second category allows publishers to revise their collective 
works without losing the privilege to reproduce and distribute 
individual freelance contributions, while the third category 
allows publishers to remove individual freelance contributions 
from their original collective work altogether and place them in 
new collective works in the same series. For example, as noted 
below, the third clause would allow a publisher to “reprint a 
contribution from one issue in a later issue of its magazine,” 
even though the later issue was not a “revision” of the original. 
H.R. Rep. No. 94-1476, at 122-23 (1976). To give the “any 
revision” language its ordinary meaning (well beyond “later 
editions of a particular issue of a periodical, such as the final 
edition of a newspaper,” Pet. App. 10a), would in no way 
threaten to swallow up the “same series” category. 

18 

C. “Any Later Collective Work in the Same Series” 

Finally, the Second Circuit characterized the third category 
(“any later collective work in the same series”) as the statutory 
“ceiling,” limited to “a new edition of a dictionary or 
encyclopedia.” Pet. App. 10a-11a. Yet again, that 
characterization reflects an unduly narrow interpretation of this 
category. 

There is nothing in the statute that limits a publisher’s 
privilege to reproduce and distribute “any later collective work 
in the same series” exclusively to “a new edition of a dictionary 
or encyclopedia.” Id. To the contrary, the legislative history 
specifically characterizes a new edition of an encyclopedia as 
a “revision”: “[A] publishing company . . . could reprint an 
article from a 1980 edition of an encyclopedia in a 1990 
revision of it.” H.R. Rep. No. 94-1476, at 122-23 (1976) 
(emphasis added). The word “series” is not limited to 
dictionaries or encyclopedias, but rather encompasses “a 
number of successive parts or volumes of a periodical 
publication.” Webster’s Third New Int’l Dictionary 2073 
(1976). 

Again, to the extent that a CD-ROM collection (or a bound 
volume, microfilm, or microfiche version) of a particular 
magazine is deemed to be a “new” collective work, it is entirely 
plausible to characterize it as a “later collective work in the 
same series,” i.e., that particular magazine series. As noted 
above, the legislative history specifically contemplates that 
section 201(c) allows a publisher to “reprint a contribution 
from one issue in a later issue of its magazine.” H.R. Rep. No. 
94-1476, at 122-23 (1976). There is no reason why a single 
“series” must be limited to a single medium: a magazine could 
certainly decide to publish half its circulation in paperbound 
format and the other half in CD-ROM format. As long as the 
series involves the same magazine, the medium of publication 
is irrelevant. 

19 

Indeed, it makes no sense to think that Congress meant to 
allow publishers to reproduce an individual freelance 
contribution in an entirely new edition of an encyclopedia, or 
an entirely different issue of a particular magazine, but did not 
mean to allow publishers to reproduce their collective works in 
precisely identical format in a new medium like CD-ROM. 
Needless to say, the differences between a new edition of an 
encyclopedia, or a different issue of a particular magazine, are 
far more substantial in scope and materiality than any 
difference between a particular issue of a magazine printed on 
paper and reproduced on CD-ROM. The Second Circuit’s 
ostensibly textualist approach thereby not only ignores the 
statute’s plain meaning, but also creates anomalies that should 
not lightly be attributed to Congress. 

*** 

The decision below represents not only an erroneous and 
anomalous interpretation of the Copyright Act, but also a 
radical break with settled understandings. Freelance authors 
have never before complained about the reproduction of 
collective works in bound volumes, microfilm, or microfiche. 
Their current grievance thus appears to be not so much about 
the longstanding practice of reproducing collective works in 
new media, but about the fact that recent technological 
developments like CD-ROM may enhance the commercial 
value of such reproduction. But the potential value of a 
particular reproduction has no bearing on the scope of the 
collective-works privilege, and long-established (and 
unchallenged) media of reproduction such as microfilm and 
microfiche have substantial commercial value.3 

3 Indeed, there is an entire industry devoted to reproducing newspapers and 
periodicals in microfilm and microfiche pursuant to licenses with 
publishers, and such reproductions have substantial commercial value. For 
example, a set of 170 microfilm rolls reproducing all issues of National 
Geographic magazine since 1888 currently sells for approximately $37,000, 
and a set of 717 microfiche cards reproducing all issues of the magazine 

20 

At bottom, there is no unfairness in a system that grants 
freelance authors ownership of the copyright in their individual 
contributions (which they can exploit in any medium they 
please), while granting publishers ownership of the copyright 
in their collective works (which they can reproduce in any 
medium they please). By overturning settled understandings in 
the publishing industry, the decision below threatens to 
eradicate newspaper and periodical archives created pursuant 
to such understandings, and to undermine copyright law’s 
constitutional goal of “promot[ing] the Progress of Science and 
useful Arts.” U.S. Const. art. II, § 8, cl. 8. Needless to say, if 
Congress intended to upset settled expectations in the manner 
effected by the court below, it could and presumably would 
have been far more explicit. See, e.g., FDA v. Brown & 
Williamson Tobacco Corp., 120 S. Ct. 1291, 1315 (2000); 
Jones v. United States, 526 U.S. 227, 228 (1999). 

CONCLUSION 

For the foregoing reasons, the judgment of the Second 
Circuit should be reversed. 

since 1978 currently sells for approximately $3,000. Needless to say, these 
sums dwarf the current retail price of less than $100 for the thirty-disc CD- 
ROM set reproducing all issues of the magazine since 1888—which is one 
reason why CD-ROM technology holds such great promise for expanding 
the availability of historical archives to the general public. 

21 

Respectfully submitted, 

TERRENCE B. ADAMSON 
ANGELO M. GRIMA 
KAREN K. SCHWARTZ 
NATIONAL GEOGRAPHIC SOCIETY 
1145 Seventeenth Street, N.W. 
Washington, D.C. 20036 

ROBERT G. SUGARMAN 
NAOMI JANE GRAY 
WEIL, GOTSHAL &MANGES LLP 
767 Fifth Avenue 
New York, NY 10153 
KENNETH W. STARR 
Counsel of Record 
KIRKLAND & ELLIS 
CHRISTOPHER LANDAU 
MATTHEW WILD 
KIRKLAND & ELLIS 
655 Fifteenth Street, N.W. 
Washington, D.C. 20005 
(202) 879-5000