OCTOBER TERM, 2000
Syllabus
NEW YORK TIMES CO., INC., ET AL.
v. TASINI ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT
No.00-201. Argued March 28, 200l-Decided June 25, 2001
Respondent freelance authors (Authors) wrote articles (Articles)
for newspapers and a magazine published by petitioners New York
Times Company (Times), Newsday, Inc. (Newsday), and Time, Inc.
(Time). The Times, Newsday, and Time (Print Publishers) engaged the
Authors as independent contractors under contracts that in no
instance secured an Author's consent to placement of an Article in
an electronic database. The Print Publishers each licensed rights
to copy and sell articles to petitioner LEXIS/NEXIS, owner and
operator of NEXIS. NEXIS is a computerized database containing
articles in text-only format from hundreds of periodicals spanning
many years. Subscribers access NEXIS through a computer, may search
for articles using criteria such as author and subject, and may
view, print, or download each article yielded by the search. An
article's display identifies its original print publication, date,
section, initial page number, title, and author, but each article
appears in isolation-without visible link to other stories
originally published in the same periodical edition. NEXIS does not
reproduce the print publication's formatting features such as
headline size and page placement. The Times also has licensing
agreements with petitioner University Microfilms International
(UMI), authorizing reproduction of Times materials on two CD-ROM
products. One, the New York Times OnDisc (NYTO), is a text-only
database containing Times articles presented in essentially the
same way they appear in LEXIS/NEXIS. The other, General Periodicals
OnDisc (GPO), is an image-based system that reproduces the Times'
Sunday Book Review and Magazine exactly as they appeared on the
printed pages, complete with photographs, captions, advertisements,
and other surrounding materials. The two CD-ROM products are
searchable in much the same way as LEXIS/NEXIS; in both, articles
retrieved by users provide no links to other articles appearing in
the original print publications.
The Authors filed this suit, alleging that their copyrights were
infringed when, as permitted and facilitated by the Print
Publishers, LEXIS/NEXIS and UMI (Electronic Publishers) placed the
Articles in NEXIS, NYTO, and GPO (Databases). The Authors sought
declaratory and injunctive relief, and damages. In response to the
Authors' complaint, the Print and Electronic Publishers raised the
privilege ac-
484
Syllabus
corded collective work copyright owners by § 201(c) of the
Copyright Act. That provision, pivotal in this case, reads:
"Copyright in each separate contribution to a collective work is
distinct from copyright in the collective work as a whole, and
vests initially in the author of the contribution. 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 District Court granted the Publishers summary
judgment, holding,
inter alia, that the Databases reproduced
and distributed the Authors' works, in § 201 (c)'s words, "as part
of ... [a] revision of that collective work" to which the Authors
had first contributed. The Second Circuit reversed, granting the
Authors summary judgment on the ground that the Databases were not
among the collective works covered by § 201(c), and specifically,
were not "revisions" of the periodicals in which the Articles first
appeared.
Held: Section 201(c) does not authorize the copying at
issue here. The Publishers are not sheltered by § 201(c) because
the Databases reproduce and distribute articles standing alone and
not in context, not "as part of that particular collective work" to
which the author contributed, "as part of ... any revision"
thereof, or "as part of ... any later collective work in the same
series." Pp.493-506.
(a) Where, as here, a freelance author has contributed an
article to a collective work, copyright in the contribution vests
initially in its author. § 201(c). Copyright in the collective work
vests in the collective author (here, the Print Publisher) and
extends only to the creative material contributed by that author,
not to "the preexisting material employed in the work," § 103(b).
Congress enacted the provisions of the 1976 revision of the
Copyright Act at issue to address the unfair situation under prior
law, whereby authors risked losing their rights when they placed an
article in a collective work. The 1976 Act recast the copyright as
a bundle of discrete "exclusive rights," § 106, each of which "may
be transferred ... and owned separately," § 201(d)(2). The Act also
provided, in § 404(a), that "a single notice applicable to the
collective work as a whole is sufficient" to protect the rights of
freelance contributors. Together, § 404(a) and § 201(c) preserve
the author's copyright in a contribution to a collective work.
Under § 201(c)'s terms, a publisher could reprint a contribution
from one issue in a later issue of its magazine, and could reprint
an article from one edition of an encyclopedia in a later revision
of it, but could not revise the contribution itself or include it
in a new anthology or an entirely different collective work.
Es-
485
sentially, § 201(c) adjusts a publisher's copyright in its
collective work to accommodate a freelancer's copyright in her
contribution. If there is demand for a freelance article standing
alone or in a new collection, the Copyright Act allows the
freelancer to benefit from that demand; after authorizing initial
publication, the freelancer may also sell the article to others.
Cf.
Stewart v.
Abend, 495 U. S. 207, 229, 230.
It would scarcely preserve the author's copyright in a contribution
as contemplated by Congress if a print publisher, without the
author's permission, could reproduce or distribute discrete copies
of the contribution in isolation or within new collective works.
pp. 493-497.
(b) The Publishers' view that inclusion of the Articles in the
Databases lies within the "privilege of reproducing and
distributing the [Articles] as part of ... [a] revision of that
collective work," § 201(c), is unacceptable. In determining whether
the Articles have been reproduced and distributed "as part of" a
"revision," the Court focuses on the Articles as presented to, and
perceptible by, a Database user. See §§ 102, 101. Here, the three
Databases present articles to users clear of the context provided
either by the original periodical editions or by any revision of
those editions. The Databases first prompt users to search the
universe of their contents: thousands or millions of files
containing individual articles from thousands of collective works
(i.
e., editions), either in one series (the Times, in NYTO)
or in scores of series (the sundry titles in NEXIS and GPO). When
the user conducts a search, each article appears as a separate item
within the search result. In NEXIS and NYTO, an article appears to
a user without the graphics, formatting, or other articles with
which it was initially published. In GPO, the article appears with
the other materials published on the same page or pages, but
without any material published on other pages of the original
periodical. In either circumstance, the Database does not reproduce
and distribute the article "as part of" either the original edition
or a "revision" of that edition. The articles may be viewed as
parts of a new compendium-namely, the entirety of works in the
Database. Each edition of each periodical, however, represents only
a miniscule fraction of the ever-expanding Database. The massive
whole of the Database is not recognizable as a new version of its
every small part. Furthermore, the Articles in the Databases may be
viewed "as part of" no larger work at all, but simply as individual
articles presented individually. That each article bears marks of
its origin in a particular periodical suggests the article was
previously part of that periodical, not that the article is
currently reproduced or distributed as part of the
periodical. The Databases' reproduction and distribution of
individual Articles-simply
as individual Articles-would
invade the core of the Authors' exclusive rights. The Publishers'
analogy between the Data-
486
Syllabus
bases and microfilm and microfiche is wanting: In the Databases,
unlike microfilm, articles appear disconnected from their original
context. Unlike the conversion of newsprint to microfilm, the
transfer of articles to the Databases does not represent a mere
conversion of intact periodicals (or revisions of periodicals) from
one medium to another. The Databases offer users individual
articles, not intact periodicals. The concept of "media-neutrality"
invoked by the Publishers should therefore protect the Authors'
rights, not the Publishers'. The result is not changed because
users can manipulate the Databases to generate search results
consisting entirely of articles from a particular periodical
edition. Under § 201(c), the question is not whether a user can
assemble a revision of a collective work from a database, but
whether the database itself perceptibly presents the author's
contribution as part of a revision of the collective work. That
result is not accomplished by these Databases. Pp. 498-504.
(c) The Publishers' warning that a ruling for the Authors will
have "devastating" consequences, punching gaping holes in the
electronic record of history, is unavailing. It hardly follows from
this decision that an injunction against the inclusion of these
Articles in the Databases (much less all freelance articles in any
databases) must issue. The Authors and Publishers may enter into an
agreement allowing continued electronic reproduction of the
Authors' works; they, and if necessary the courts and Congress, may
draw on numerous models for distributing copyrighted works and
remunerating authors for their distribution. In any event,
speculation about future harms is no basis for this Court to shrink
authorial rights created by Congress. The Court leaves remedial
issues open for initial airing and decision in the District Court.
Pp. 504-506.
206 F.3d
161, affirmed.
GINSBURG, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and O'CONNOR, SCALIA, KENNEDY, SOUTER, and
THOMAS, JJ., joined. STEVENS, J., filed a dissenting opinion, in
which BREYER, J., joined,
post, p.506.
Laurence H. Tribe argued the cause for petitioners. With him on
the briefs were Jonathan S. Massey, Bruce P. Keller, Jeffrey P.
Cunard, Michael R. Potenza, Peter C. Johnson, and Thomas C.
Goldstein.
Laurence Gold argued the cause for respondents Tasini et al.
With him on the brief were Patricia A. Felch, Daniel W Sherrick,
Michael H. Gottesman, and Leon Dayan.
487
Emily
Maruja Bass filed a brief for respondents Garson et
al.*
JUSTICE GINSBURG delivered the opinion of the Court. This
copyright case concerns the rights of freelance authors and a
presumptive privilege of their publishers. The litigation was
initiated by six freelance authors and relates to articles they
contributed to three print periodicals (two newspapers and one
magazine). Under agreements with the periodicals' publishers, but
without the freelancers' consent, two computer database companies
placed copies of the freelancers' articles-along with all other
articles from the periodicals in which the freelancers' work
appeared-into three databases. Whether written by a freelancer or
staff member, each article is presented to, and retrievable by, the
user in isolation, clear of the context the original print
publication presented.
The freelance authors' complaint alleged that their copyrights
had been infringed by the inclusion of their articles in the
databases. The publishers, in response, relied on the
*Briefs of amici curiae urging reversal were filed for Advance
Publications, Inc., et al. by Charles S. Sims, Jerry S. Birenz,
Harold W Fuson, Jr., Andrew A. Merdek, Barbara W Wall, Katherine
Hatton, Barbara Cohen, and Clifford M. Sloan; for the National
Geographic Society by Kenneth W Starr, Christopher Landau, Terrence
B. Adamson, and Robert G. Sugarman; for the Software &
Information Industry Association et al. by Henry B. Gutman, Arthur
R. Miller, and James F. Rittinger; and for Ken Burns et al. by
Michael F. Clayton and Brett I. Miller.
Briefs of
amici curiae urging affirmance were filed for
the American Library Association et al. by
Arnold P.
Lutzker; for the Authors Guild, Inc., et al. by
Leon
Friedman; for the International Federation of Journalists by
Thomas M. Peterson and
Brett M. Schuman; and for
Ellen Schrecker et al. by
Theodore M. Lieverman.
Briefs of
amici curiae were filed for the American
Intellectual Property Law Association by
Paul E. Lacy and
Daniel W McDonald; and for the American Society of Media
Photographers, Inc., et al. by
L. Donald Prutzman and
Victor S.
Perlman.
488
privilege of reproduction and distribution accorded them by §
201(c) of the Copyright Act, which provides:
"Copyright in each separate contribution to a collective work is
distinct from copyright in the collective work as a whole, and
vests initially in the author of the contribution. 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." 17 U. S. C. § 201(c).
Specifically, the publishers maintained that, as copyright
owners of collective works, i.
e., the original print
publications, they had merely exercised "the privilege" § 201(c)
accords them to "reproduc[e] and distribut[e]" the author's
discretely copyrighted contribution.
In agreement with the Second Circuit, we hold that § 201(c) does
not authorize the copying at issue here. The publishers are not
sheltered by § 201(c), we conclude, because the databases reproduce
and distribute articles standing alone and not in context, not "as
part of that particular collective work" to which the author
contributed, "as part of ... any revision" thereof, or "as part of
... any later collective work in the same series." Both the print
publishers and the electronic publishers, we rule, have infringed
the copyrights of the freelance authors.
I A
Respondents Jonathan Tasini, Mary Kay Blakely, Barbara Garson,
Margot Mifflin, Sonia Jaffe Robbins, and David S. Whitford are
authors (Authors). Between 1990 and 1993, they wrote the 21
articles (Articles) on which this dispute centers. Tasini, Mifflin,
and Blakely contributed 12 Articles to The New York Times, the
daily newspaper published by
489
petitioner The New York Times Company (Times). Tasini, Garson,
Robbins, and Whitford wrote eight Articles for Newsday, another New
York daily paper, published by petitioner Newsday, Inc. (Newsday).
Whitford also contributed one Article to Sports Illustrated, a
weekly magazine published by petitioner Time, Inc. (Time). The
Authors registered copyrights in each of the Articles. The Times,
Newsday, and Time (Print Publishers) registered collective work
copyrights in each periodical edition in which an Article
originally appeared. The Print Publishers engaged the Authors as
independent contractors (freelancers) under contracts that in no
instance secured consent from an Author to placement of an Article
in an electronic database.1
At the time the Articles were published, all three Print
Publishers had agreements with petitioner LEXIS/NEXIS (formerly
Mead Data Central Corp.), owner and operator of NEXIS, a
computerized database that stores information in a text-only
format. NEXIS contains articles from hundreds of journals
(newspapers and periodicals) spanning many years. The Print
Publishers have licensed to LEXISI NEXIS the text of articles
appearing in the three periodicals. The licenses authorize
LEXIS/NEXIS to copy and sell any portion of those texts.
Pursuant to the licensing agreements, the Print Publishers
regularly provide LEXIS/NEXIS with a batch of all the articles
published in each periodical edition. The Print Publisher codes
each article to facilitate computerized retrieval, then transmits
it in a separate file. After further coding, LEXIS/NEXIS places the
article in the central discs of its database.
1 In the District Court, Newsday and Time contended that the
freelancers who wrote for their publications had entered into
agreements authorizing reproduction of the Articles in the
databases. The Court of Appeals ruled that Newsday's defense was
waived, and rejected Time's argument on the merits. Neither
petitioner presses the contention here.
490
Subscribers to NEXIS, accessing the system through a computer,
may search for articles by author, subject, date, publication,
headline, key term, words in text, or other criteria. Responding to
a search command, NEXIS scans the database and informs the user of
the number of articles meeting the user's search criteria. The user
then may view, print, or download each of the articles yielded by
the search. The display of each article includes the print
publication (e. g., The New York Times), date (September 23, 1990),
section (Magazine), initial page number (26), headline or title
("Remembering Jane"), and author (Mary Kay Blakely). Each article
appears as a separate, isolated "story"-without any visible link to
the other stories originally published in the same newspaper or
magazine edition. NEXIS does not contain pictures or
advertisements, and it does not reproduce the original print
publication's formatting features such as headline size, page
placement (e. g., above or below the fold for newspapers), or
location of continuation pages.
The Times (but not Newsday or Time) also has licensing
agreements with petitioner University Microfilms International
(UMI). The agreements authorize reproduction of Times materials on
two CD-ROM products, the New York Times OnDisc (NYTO) and General
Periodicals OnDisc (GPO).
Like NEXIS, NYTO is a text-only system. Unlike NEXIS, NYTO, as
its name suggests, contains only the Times. Pursuant to a three-way
agreement, LEXIS/ NEXIS provides UMI with computer files containing
each article as transmitted by the Times to LEXIS/NEXIS. Like
LEXIS/NEXIS, UMI marks each article with special codes. UMI also
provides an index of all the articles in NYTO. Articles appear in
NYTO in essentially the same way they appear in NEXIS, i.
e., with identifying information (author, title, etc.), but
without original formatting or accompanying images.
491
GPO contains articles from approximately 200 publications or
sections of publications. Unlike NEXIS and NYTO, GPO is an
image-based, rather than a text-based, system. The Times has
licensed GPO to provide a facsimile of the Times' Sunday Book
Review and Magazine. UMI "burns" images of each page of these
sections onto CD-ROMs. The CDROMs show each article exactly as it
appeared on printed pages, complete with photographs, captions,
advertisements, and other surrounding materials. UMI provides an
index and abstracts of all the articles in GPO.
Articles are accessed through NYTO and GPO much as they are
accessed through NEXIS. The user enters a search query using
similar criteria (e. g., author, headline, date). The computer
program searches available indexes and abstracts, and retrieves a
list of results matching the query. The user then may view each
article within the search result, and may print the article or
download it to a disc. The display of each article provides no
links to articles appearing on other pages of the original print
publications.2
B
On December 16, 1993, the Authors filed this civil action in the
United States District Court for the Southern District of New York.
The Authors alleged that their copyrights were infringed when, as
permitted and facilitated by the Print Publishers, LEXIS/NEXIS and
UMI (Electronic Publishers) placed the Articles in the NEXIS, NYTO,
and GPO databases (Databases). The Authors sought declaratory
2 For example, the GPO user who retrieves Blakely's "Remembering
Jane" article will see the entirety of Magazine page 26, where the
article begins, and Magazine page 78, where the article continues
and ends. The NYTO user who retrieves Blakely's article will see
only the text of the article and its identifying information
(author, headline, publication, page number, etc.). Neither the GPO
retrieval nor the NYTO retrieval produces any text on page 27, page
79, or any other page. The user who wishes to see other pages may
not simply "flip" to them. She must conduct a new search.
492
and injunctive relief, and damages. In response to the Authors'
complaint, the Print and Electronic Publishers raised the
reproduction and distribution privilege accorded collective work
copyright owners by 17 U. S. C. § 201(c). After discovery, both
sides moved for summary judgment.
The District Court granted summary judgment for the Publishers,
holding that § 201(c) shielded the Database reproductions. 972 F.
Supp. 804, 806 (1997). The privilege conferred by § 201(c) is
transferable, the court first concluded, and therefore could be
conveyed from the original Print Publishers to the Electronic
Publishers.
Id., at 816. Next, the court determined, the
Databases reproduced and distributed the Authors' works, in §
201(c)'s words, "as part of ... [a] revision of that collective
work" to which the Authors had first contributed. To qualify as
"revisions," according to the court, works need only "preserve some
significant original aspect of [collective works]-whether an
original selection or an original arrangement."
Id., at 821.
This criterion was met, in the District Court's view, because the
Databases preserved the Print Publishers' "selection of articles"
by copying all of the articles originally assembled in the
periodicals' daily or weekly issues.
Id., at 823. The
Databases "highlight[ed]" the connection between the articles and
the print periodicals, the court observed, by showing for each
article not only the author and periodical, but also the print
publication's particular issue and page numbers.
Id., at 824
("[T]he electronic technologies not only copy the publisher
defendants' complete original 'selection' of articles, they tag
those articles in such a way that the publisher defendants'
original selection remains evident online.").
The Authors appealed, and the Second Circuit reversed.
206 F.3d
161 (1999). The Court of Appeals granted summary judgment for
the Authors on the ground that the Databases were not among the
collective works covered by § 201(c), and specifically, were not
"revisions" of the periodicals in which the Articles first
appeared.
Id., at 167-170. Just as § 201(c) does not "permit
a Publisher to sell a hard
493
copy of an Author's article directly to the public even if the
Publisher also offered for individual sale all of the other
articles from the particular edition," the court reasoned, so §
201(c) does not allow a Publisher to "achieve the same goal
indirectly" through computer databases.
Id., at 168. In the
Second Circuit's view, the Databases effectively achieved this
result by providing multitudes of "individually retrievable"
articles.
Ibid. As stated by the Court of Appeals, the
Databases might fairly be described as containing "new
antholog[ies] of innumerable" editions or publications, but they do
not qualify as "revisions" of particular editions of periodicals in
the Databases.
Id., at 169. Having concluded that § 201(c)
"does not permit the Publishers," acting without the author's
consent, "to license individually copyrighted works for inclusion
in the electronic databases," the court did not reach the question
whether the § 201(c) privilege is transferable.
Id., at 165,
and n. 2.
We granted certiorari to determine whether the copying of the
Authors' Articles in the Databases is privileged by 17 U. S. C. §
201(c). 531 U. S. 978 (2000). Like the Court of Appeals, we
conclude that the § 201(c) privilege does not override the Authors'
copyrights, for the Databases do not reproduce and distribute the
Articles as part of a collective work privileged by § 201(c).
Accordingly, and again like the Court of Appeals, we find it
unnecessary to determine whether the privilege is transferable.
II
Under the Copyright Act, as amended in 1976, "[c]opyright
protection subsists ... in original works of authorship fixed in
any tangible medium of expression ... from which they can be
perceived, reproduced, or otherwise communicated." 17 U. S. C. §
102(a). When, as in this case, a freelance author has contributed
an article to a "collective work" such as a newspaper or magazine,
see § 101 (defining "collective work"), the statute recognizes two
distinct copyrighted works: "Copyright in
each separate
contribution to a collec-
494
tive work is distinct from copyright in
the collective
work as a whole .... " § 201(c) (emphasis added). Copyright in
the separate contribution "vests initially in the author of the
contribution" (here, the freelancer).
Ibid. Copyright in the
collective work vests in the collective author (here, the newspaper
or magazine publisher) and extends only to the creative material
contributed by that author, not to "the preexisting material
employed in the work," § 103(b). See also
Feist Publications,
Inc. v.
Rural Telephone Service Co., 499 U. S. 340, 358 (1991)
(copyright in "compilation"-a term that includes "collective
works," 17 U. S. C. § 101-is limited to the compiler's original
"selection, coordination, and arrangement").
Prior to the 1976 revision, as the courts below recognized, see
206 F. 3d, at 168; 972 F. Supp., at 815, authors risked losing
their rights when they placed an article in a collective work.
Pre-1976 copyright law recognized a freelance author's copyright in
a published article only when the article was printed with a
copyright notice in the author's name. See Copyright Act of 1909, §
18, 35 Stat. 1079. When publishers, exercising their superior
bargaining power over authors, declined to print notices in each
contributor's name, the author's copyright was put in jeopardy. See
Kaminstein, Divisibility of Copyrights, Study No. 11, in Copyright
Law Revision Studies Nos. 11-13, prepared for the Senate Committee
on the Judiciary, 86th Cong., 2d Sess., 18 (1960). The author did
not have the option to assign only the right of publication in the
periodical; such a partial assignment was blocked by the doctrine
of copyright "indivisibility." See id., at 11. Thus, when a
copyright notice appeared only in the publisher's name, the
author's work would fall into the public domain, unless the
author's copyright, in its entirety, had passed to the publisher.
See id., at 18. Such complete transfer might be accomplished by a
contract, perhaps one with a provision, not easily enforced, for
later retransfer of rights back to the author. See id., at 20-22.
Or, absent a specific contract, a court might find that an author
had tacitly
495
transferred the entire copyright to a publisher, in turn deemed
to hold the copyright in "trust" for the author's benefit. See id.,
at 18-19; see generally 3 M. Nimmer & D. Nimmer, Copyright §
10.01[C][2], pp. 10-12 to 10-14 (2000).
In the 1976 revision, Congress acted to "clarify and improve
[this] confused and frequently unfair legal situation with respect
to rights in contributions." H. R. Rep. No. 941476, p. 122 (1976)
(hereinafter H. R. Rep.).3 The 1976 Act rejected the doctrine of
indivisibility, recasting the copyright as a bundle of discrete
"exclusive rights," 17 U. S. C. § 106 (1994 ed. and Supp. V),4 each
of which "may be trans-
3 Two Registers of Copyrights have observed that the 1976
revision of the Copyright Act represented "a break with a
two-hundred-year-old tradition that has identified copyright more
closely with the publisher than with the author." Letter from M.
Peters to Rep. McGovern, reprinted in 147 Congo Rec. E182 (Feb. 14,
2001) (hereinafter Peters Letter) (quoting Ringer, First Thoughts
on the Copyright Act of 1976, 22 N. Y. L. S. L. Rev. 477, 490
(1977)). The intent to enhance the author's position vis-a-vis the
patron is also evident in the 1976 Act's work-for-hire provisions.
See
Community for Creative Non-Violence V.
Reid,
490 U. S. 730,
742-750 (1989); see also 17 U. S. C. § 203(a)(5) (inalienable
authorial right to revoke a copyright transfer). Congress'
adjustment of the author/publisher balance is a permissible
expression of the "economic philosophy behind the [Copyright
Clause]," i.
e., "the conviction that encouragement of
individual effort [motivated] by personal gain is the best way to
advance public welfare."
Harper &
Row, Publishers,
Inc. V.
Nation Enterprises, 471 U. S. 539, 558 (1985)
(quoting
Mazer V.
Stein, 347 U. S. 201, 219
(1954)).
4 As amended, § 106 now provides: "Subject to sections 107
through 121, the owner of copyright under this title has the
exclusive rights to do and to authorize any of the following:
"(1) to reproduce the copyrighted work in copies or
phonorecords; "(2) to prepare derivative works based upon the
copyrighted work;
"(3) to distribute copies or phonorecords of the copyrighted
work to the public by sale or other transfer of ownership, or by
rental, lease, or lending;
"(4) in the case of literary, musical, dramatic, and
choreographic works, pantomimes, and motion pictures and other
audiovisual works, to perform the copyrighted work publicly;
"(5) in the case of literary, musical, dramatic, and
choreographic works, pantomimes, and pictorial, graphic, or
sculptural works, including the indi-
496
ferred ... and owned separately," § 201(d)(2).5 Congress also
provided, in § 404(a), that "a single notice applicable to the
collective work as a whole is sufficient" to protect the rights of
freelance contributors. And in § 201(c), Congress codified the
discrete domains of "[c]opyright in each separate contribution to a
collective work" and "copyright in the collective work as a whole."
Together, § 404(a) and § 201(c) "preserve the author's copyright in
a contribution even if the contribution does not bear a separate
notice in the author's name, and without requiring any unqualified
transfer of rights to the owner of the collective work." H. R. Rep.
122.
Section 201(c) both describes and circumscribes the "privilege"
a publisher acquires regarding an author's contribution to a
collective work:
"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." (Emphasis
added.)
A newspaper or magazine publisher is thus privileged to
reproduce or distribute an article contributed by a freelance
author, absent a contract otherwise providing, only "as part of"
any (or all) of three categories of collective works: (a) "that
collective work" to which the author contributed her work, (b) "any
revision of that collective work," or (c) "any later collective
work in the same series." In accord with Congress' prescription, a
"publishing company could reprint
vidual images of a motion picture or other audiovisual work, to
display the copyrighted work publicly; and
"(6) in the case of sound recordings, to perform the copyrighted
work publicly by means of a digital audio transmission."
5 It bears repetition here, see
supra, at 493, that we
neither decide nor express any view on whether the § 201(c)
"privilege" may be transferred.
497
a contribution from one issue in a later issue of its magazine,
and could reprint an article from a 1980 edition of an encyclopedia
in a 1990 revision of it; 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.
122-123.
Essentially, § 201(c) adjusts a publisher's copyright in its
collective work to accommodate a freelancer's copyright in her
contribution. If there is demand for a freelance article standing
alone or in a new collection, the Copyright Act allows the
freelancer to benefit from that demand; after authorizing initial
publication, the freelancer may also sell the article to others.
Cf.
Stewart v.
Abend, 495 U. S. 207, 229 (1990)
("[w]hen an author produces a work which later commands a higher
price in the market than the original bargain provided, the
copyright statute [i.
e., the separate renewal term of
former 17 U. S. C. § 24] is designed to provide the author the
power to negotiate for the realized value of the work"); id., at
230 (noting author's "inalienable termination right" under current
17 U. S. C. §§ 203, 302 (1994 ed. and Supp. V)). It would scarcely
"preserve the author's copyright in a contribution" as contemplated
by Congress, H. R. Rep. 122, if a newspaper or magazine publisher
were permitted to reproduce or distribute copies of the author's
contribution in isolation or within new collective works. See
Gordon, Fine-Tuning
Tasini: Privileges of Electronic
Distribution and Reproduction, 66 Brooklyn L. Rev. 473, 484
(2000).6
6 The dissenting opinion suggests that a ruling for the
Publishers today would maintain, even enhance, authors' "valuable
copyright protection."
Post, at 521 (opinion of STEVENS,
J.). We are not so certain. When the reader of an article in a
periodical wishes to obtain other works by the article's author,
the Databases enable that reader simply to print out the author's
articles, without buying a "new anthology ... or other collective
work," H. R. Rep. 122-123. In years past, books compiling stories
by journalists such as Janet Flanner and Ernie Pyle might have sold
less well had the individual articles been freely and permanently
available on
498
III
In the instant case, the Authors wrote several Articles and gave
the Print Publishers permission to publish the Articles in certain
newspapers and magazines. It is undisputed that the Authors hold
copyrights and, therefore, exclusive rights in the Articles.7 It is
clear, moreover, that the Print and Electronic Publishers have
exercised at least some rights that § 106 initially assigns
exclusively to the Authors:
LEXIS/NEXIS' central discs and UMI's CD-ROMs "reproduce ...
copies" of the Articles, § 106(1); UMI, by selling those CD-ROMs,
and LEXIS/NEXIS, by selling copies of the Articles through the
NEXIS Database, "distribute copies" of the Articles "to the public
by sale," § 106(3); and the Print Publishers, through contracts
licensing the production of copies in the Databases, "authorize"
reproduction and distribution of the Articles, § 106.8
line. In the present, print collections of reviews,
commentaries, and reportage may prove less popular because of the
Databases. The Register of Copyrights reports that "freelance
authors have experienced significant economic loss" due to a
"digital revolution that has given publishers [new] opportunities
to exploit authors' works." Peters Letter E182.
More to the point, even if the dissent is correct that some
authors, in the long run, are helped, not hurt, by Database
reproductions, the fact remains that the Authors who brought the
case now before us have asserted their rights under § 201(c). We
may not invoke our conception of their interests to diminish those
rights.
7 The Publishers do not claim that the Articles are "work[s]
made for hire." 17 U. S. C. § 201(b). As to such works, the
employer or person for whom a work was prepared is treated as the
author.
Ibid. The Print Publishers, however, neither engaged
the Authors to write the Articles as "employee[s]" nor
"commissioned" the Articles through "a written instrument signed by
[both parties]" indicating that the Articles shall be considered
"work[s] made for hire." § 101 (1994 ed., Supp. V) (defining "work
made for hire").
8 Satisfied that the Publishers exercised rights § 106 initially
assigns exclusively to the Author, we need resolve no more on that
score. Thus, we do not reach an issue the Register of Copyrights
has argued vigorously. The Register maintains that the Databases
publicly "display" the Articles,
499
Against the Authors' charge of infringement, the Publishers do
not here contend the Authors entered into an agreement authorizing
reproduction of the Articles in the Databases. See
supra, at
489, n. 1. Nor do they assert that the copies in the Databases
represent "fair use" of the Authors' Articles. See 17 U. S. C. §
107 ("fair use of a copyrighted work ... is not an infringement";
four factors identified among those relevant to fair use
determination). Instead, the Publishers rest entirely on the
privilege described in § 201(c). Each discrete edition of the
periodicals in which the Articles appeared is a "collective work,"
the Publishers agree. They contend, however, that reproduction and
distribution of each Article by the Databases lie within the
"privilege of reproducing and distributing the [Articles] as part
of ... [a] revision of that collective work," § 201(c). The
Publishers' encompassing construction of the § 201(c) privilege is
unacceptable, we conclude, for it would diminish the Authors'
exclusive rights in the Articles.
In determining whether the Articles have been reproduced and
distributed "as part of" a "revision" of the collective works in
issue, we focus on the Articles as presented to, and perceptible
by, the user of the Databases. See § 102 (copyright protection
subsists in original works fixed in any medium "from which they can
be perceived, reproduced, or otherwise communicated"); see also §
101 (1994 ed., Supp. V) (definitions of "copies" and "fixed");
Haemmerli, Commentary:
Tasini v. New York Times Co., 22
Colum.-VLA. J. L. & Arts 129, 142-143 (1998). In this case, the
three Databases present articles to users clear of the context
provided either by the original periodical editions or by any
revision of those editions. The Databases first prompt users to
search the universe of their contents: thousands or millions of
files con-
§ 106(5); because § 201(c) does not privilege "display," the
Register urges, the § 201(c) privilege does not shield the
Databases. See Peters Letter E182-E183.
500
taining individual articles from thousands of collective works
(i.
e., editions), either in one series (the Times, in NYTO)
or in scores of series (the sundry titles in NEXIS and GPO). When
the user conducts a search, each article appears as a separate item
within the search result. In NEXIS and NYTO, an article appears to
a user without the graphics, formatting, or other articles with
which the article was initially published. In GPO, the article
appears with the other materials published on the same page or
pages, but without any material published on other pages of the
original periodical. In either circumstance, we cannot see how the
Database perceptibly reproduces and distributes the article "as
part of" either the original edition or a "revision" of that
edition.
One might view the articles as parts of a new compendium-namely,
the entirety of works in the Database. In that compendium, each
edition of each periodical represents only a miniscule fraction of
the ever-expanding Database. The Database no more constitutes a
"revision" of each constituent edition than a 400-page novel
quoting a sonnet in passing would represent a "revision" of that
poem. "Revision" denotes a new "version," and a version is, in this
setting, a "distinct form of something regarded by its creator or
others as one work." Webster's Third New International Dictionary
1944, 2545 (1976). The massive whole of the Database is not
recognizable as a new version of its every small part.
Alternatively, one could view the Articles in the Databases "as
part of" no larger work at all, but simply as individual articles
presented individually. That each article bears marks of its origin
in a particular periodical (less vivid marks in NEXIS and NYTO,
more vivid marks in GPO) suggests the article was
previously
part of that periodical. But the markings do not mean the article
is
currently reproduced or distributed as part of the
periodical. The Databases' reproduction and distribution of
individual Articles-simply
as
501
individual Articles-would invade the core of the Authors'
exclusive rights under § 106.9
The Publishers press an analogy between the Databases, on the
one hand, and microfilm and microfiche, on the other. We find the
analogy wanting. Microforms typically contain continuous
photographic reproductions of a periodical in the medium of
miniaturized film. Accordingly, articles appear on the microforms,
writ very small, in precisely the position in which the articles
appeared in the newspaper. The Times, for example, printed the
beginning of Blakely's "Remembering Jane" Article on page 26 of the
Magazine in the September 23, 1990, edition; the microfilm version
of the Times reproduces that same Article on film in the very same
position, within a film reproduction of the entire Magazine, in
turn within a reproduction of the entire September 23, 1990,
edition. True, the microfilm roll contains multiple editions, and
the microfilm user can adjust the machine lens to focus only on the
Article, to the exclusion of surrounding material. Nonetheless, the
user first encounters the Article in context. In the Databases, by
contrast, the Articles appear disconnected from their original
context. In NEXIS and NYTO, the user sees the "Jane" Article apart
even from the remainder of page 26. In GPO, the user sees the
Article within the context of page 26, but clear of the context of
page 25 or page 27, the rest of the Magazine, or the remainder of
the day's newspaper. In short, unlike microforms, the Databases do
not perceptibly reproduce articles as part of the
9 The dissenting opinion takes as its starting point "what is
sent from the New York Times to the Electronic Databases." See
post, at 512-516. This case, however, is not ultimately
about what is sent between Publishers in an intermediate step of
Database production; it is about what is presented to the general
public in the Databases. See
supra, at 499-500. Those
Databases simply cannot bear characterization as a "revision" of
anyone periodical edition. We would reach the same conclusion if
the Times sent intact newspapers to the Electronic Publishers.
502
collective work to which the author contributed or as part of
any "revision" thereof.10
Invoking the concept of "media neutrality," the Publishers urge
that the "transfer of a work between media" does not "alte[r] the
character of" that work for copyright purposes. Brief for
Petitioners 23. That is indeed true. See 17 U. S. C. § 102(a)
(copyright protection subsists in original works "fixed in any
tangible medium of expression"). But unlike the conversion of
newsprint to microfilm, the transfer of articles to the Databases
does not represent a mere conversion of intact periodicals (or
revisions of periodicals) from one medium to another. The Databases
offer users individual articles, not intact periodicals. In this
case, media neutrality should protect the Authors' rights in the
individual Articles to the extent those Articles are now presented
individually, outside the collective work context, within the
Databases' new media.ll
For the purpose at hand-determining whether the Authors'
copyrights have been infringed-an analogy to an
10 The Court of Appeals concluded NEXIS was infringing partly
because that Database did "almost nothing to preserve the
copyrightable aspects of the [Print] Publishers' collective works,"
i.
e., their original "selection, coordination, and
arrangement."
206 F.3d
161, 168 (CA2 1999). We do not pass on this issue. It suffices
to hold that the Databases do not contain "revisions" of the Print
Publishers' works "as part of" which the Articles are reproduced
and distributed.
11 The dissenting opinion apparently concludes that, under the
banner of "media neutrality," a copy of a collective work, even
when considerably changed, must constitute a "revision" of that
collective work so long as the changes were "necessitated by the
... medium."
Post, at 514. We lack the dissent's confidence
that the current form of the Databases is entirely attributable to
the nature of the electronic media, rather than the nature of the
economic market served by the Databases. In any case, we see no
grounding in § 201(c) for a "medium-driven" necessity defense,
post, at 514, n. 11, to the Authors' infringement claims.
Furthermore, it bears reminder here and throughout that these
Publishers and all others can protect their interests by private
contractual arrangement.
503
imaginary library may be instructiveP Rather than maintaining
intact editions of periodicals, the library would contain separate
copies of each article. Perhaps these copies would exactly
reproduce the periodical pages from which the articles derive (if
the model is GPO); perhaps the copies would contain only typescript
characters, but still indicate the original periodical's name and
date, as well as the article's headline and page number (if the
model is NEXIS or NYTO). The library would store the folders
containing the articles in a file room, indexed based on diverse
criteria, and containing articles from vast numbers of editions. In
response to patron requests, an inhumanly speedy librarian would
search the room and provide copies of the articles matching
patron-specified criteria.
Viewing this strange library, one could not, consistent with
ordinary English usage, characterize the articles "as part of" a
"revision" of the editions in which the articles first appeared. In
substance, however, the Databases differ from the file room only to
the extent they aggregate articles in electronic packages (the
LEXIS/NEXIS central discs or UMI CD-ROMs), while the file room
stores articles in spatially separate files. The crucial fact is
that the Databases, like the hypothetical library, store and
retrieve articles separately within a vast domain of diverse texts.
Such a storage and retrieval system effectively overrides the
Authors' ex-
12 The Publishers have frequently referred to their products as
"electronic libraries." We need not decide whether the Databases
come within the legal coverage of the term "libraries" as used in
the Copyright Act. For even if the Databases are "libraries," the
Copyright Act's special authorizations for libraries do not cover
the Databases' reproductions. See,
e. g., 17 U. S. C. §
108(a)(1) (reproduction authorized "without any purpose of direct
or indirect commercial advantage"); § 108(b) (1994 ed., Supp. V)
(reproduction authorized "solely for purposes of preservation and
security or for deposit for research use"); § lO8(c) (1994 ed.,
Supp. V) (reproduction "solely for the purpose of replacement of a
copy or phonorecord that is damaged, deteriorating, lost, or
stolen, or if the existing format in which the work is stored has
become obsolete").
504
clusive right to control the individual reproduction and
distribution of each Article, 17 U. s. C. §§ 106(1), (3). Cf.
Ryan v.
Carl Corp., 23 F. Supp. 2d 1146 (ND Cal.
1998) (holding copy shop in violation of § 201(c)).
The Publishers claim the protection of § 201(c) because users
can manipulate the Databases to generate search results consisting
entirely of articles from a particular periodical edition. By this
logic, § 201(c) would cover the hypotheticallibrary if, in response
to a request, that library's expert staff assembled all of the
articles from a particular periodical edition. However, the fact
that a third party can manipulate a database to produce a
noninfringing document does not mean the database is not
infringing. Under § 201(c), the question is not whether a user can
generate a revision of a collective work from a database, but
whether the database itself perceptibly presents the author's
contribution as part of a revision of the collective work. That
result is not accomplished by these Databases.
The Publishers finally invoke
Sony Corp. of America
v.
Universal City Studios, Inc., 464 U. S. 417 (1984).
That decision, however, does not genuinely aid their argument.
Sony held that the "sale of copying equipment" does not
constitute contributory infringement if the equipment is "capable
of substantial noninfringing uses."
Id., at 442. The
Publishers suggest that their Databases could be liable only under
a theory of contributory infringement, based on enduser conduct,
which the Authors did not plead. The Electronic Publishers,
however, are not merely selling "equipment"; they are selling
copies of the Articles. And, as we have explained, it is the copies
themselves, without any manipulation by users, that fall outside
the scope of the § 201(c) privilege.
IV
The Publishers warn that a ruling for the Authors will have
"devastating" consequences. Brief for Petitioners 49. The
Databases, the Publishers note, provide easy access to
505
complete newspaper texts going back decades. A ruling for the
Authors, the Publishers suggest, will punch gaping holes in the
electronic record of history. The Publishers' concerns are echoed
by several historians, see Brief for Ken Burns et al. as
Amici
Curiae, but discounted by several other historians, see Brief
for Ellen Schrecker et al. as
Amici Curiae; Brief for
Authors' Guild, Inc., Jacques Barzun et al. as
Amici
Curiae.
Notwithstanding the dire predictions from some quarters, see
also
post, at 520 (STEVENS, J., dissenting), it hardly
follows from today's decision that an injunction against the
inclusion of these Articles in the Databases (much less all
freelance articles in any databases) must issue. See 17 U. S. C. §
502(a) (court "may" enjoin infringement);
Campbell v.
Acuff-Rose Music, Inc., 510 U. S. 569, 578, n. 10
(1994) (goals of copyright law are "not always best served by
automatically granting injunctive relief"). The parties (Authors
and Publishers) may enter into an agreement allowing continued
electronic reproduction of the Authors' works; they, and if
necessary the courts and Congress, may draw on numerous models for
distributing copyrighted works and remunerating authors for their
distribution. See,
e. g., 17 U. S. C. § 118(b);
Broadcast
Music, Inc. v.
Columbia Broadcasting System, Inc.,
441 U. S. 1, 4-6,
10-12 (1979) (recounting history of blanket music licensing regimes
and consent decrees governing their operation).13 In any event,
speculation about
13 Courts in other nations, applying their domestic copyright
laws, have also concluded that Internet or CD-ROM reproduction and
distribution of freelancers' works violate the copyrights of
freelancers. See,
e. g., Union Syndicale des Journalistes
Frangais v.
SDV Plurimedia (T. G. I., Strasbourg, Fr.,
Feb. 3, 1998), in Lodging of International Federation of
Journalists (IFJ) as
Amicus Curiae; S. C.
R. L. Central
Station v.
Association Generale des Journalistes
Professionnels de Belgique (CA, Brussels, Belg., ge ch., Oct.
28, 1997), transl. and ed. in 22 Colum.-VLA J. L. & Arts 195
(1998);
Heg v.
De Volskrant B. V. (Dist. Ct.,
Amsterdam, Neth., Sept. 24, 1997), transl. and ed. in 22 Colum.-
VLA J. L. & Arts, at 181. After the French
Plurimedia
decision, the journalists' union and the
506
future harms is no basis for this Court to shrink authorial
rights Congress established in § 201(c). Agreeing with the Court of
Appeals that the Publishers are liable for infringement, we leave
remedial issues open for initial airing and decision in the
District Court.
***
We conclude that the Electronic Publishers infringed the
Authors' copyrights by reproducing and distributing the Articles in
a manner not authorized by the Authors and not privileged by §
201(c). We further conclude that the Print Publishers infringed the
Authors' copyrights by authorizing the Electronic Publishers to
place the Articles in the Databases and by aiding the Electronic
Publishers in that endeavor. We therefore affirm the judgment of
the Court of Appeals.
It is so ordered.
JUSTICE STEVENS, with whom JUSTICE BREYER joins, dissenting.
This case raises an issue of first impression concerning the
meaning of the word "revision" as used in § 201(c) of the 1976
revision of the Copyright Act of 1909 (1976 Act). Ironically, the
Court today seems unwilling to acknowledge that changes in a
collective work far less extensive than those made to prior
copyright law by the 1976 "revision" do not merit the same
characterization.
To explain my disagreement with the Court's holding, I shall
first identify Congress' principal goals in passing the 1976 Act's
changes in the prior law with respect to collective works. I will
then discuss two analytically separate ques-
newspaper-defendant entered into an agreement compensating
authors for the continued electronic reproduction of their works.
See
FR3 v.
Syndicats de Journalistes (CA, Colmar,
Sept. 15, 1998), in Lodging of IFJ as
Amicus Curiae. In
Norway, it has been reported, a similar agreement was reached. See
Brief for IFJ as
Amicus Curiae 18.
507
tions that are blended together in the Court's discussion of
revisions. The first is whether the electronic versions of the
collective works created by the owners of the copyright in those
works (Print Publishers or publishers) are "revision[s]" of those
works within the meaning of 17 U. S. C. § 201(c). In my judgment
they definitely are. The second is whether the aggregation by
LEXIS/NEXIS and UMI (Electronic Databases) of the revisions with
other editions of the same periodical or with other periodicals
within a single database changes the equation. I think it does not.
Finally, I will consider the implications of broader copyright
policy for the issues presented in this case.
I
As the majority correctly observes, prior to 1976, an author's
decision to publish her individual article as part of a collective
work was a perilous one. Although pre-1976 copyright law recognized
the author's copyright in an individual article that was included
within a collective work, those rights could be lost if the
publisher refused to print the article with a copyright notice in
the author's name. 3 M. Nimmer & D. Nimmer, Nimmer on Copyright
§ 10.01[C][2],
This harsh rule was, from the author's point of view,
exacerbated by the pre-1976 doctrine of copyright "indivisibility,"
which prevented an author from assigning only limited publication
rights to the publisher of a collective work while holding back all
other rights to herself.!
Ibid. The indivisibility of
copyright, in combination with the danger of losing copyright
protection, put significant pressure on an author seeking to
preserve her copyright in the contribution to
1 Contractual attempts to assign such limited rights were deemed
by courts to create mere licenses, such that the failure to
accompany the article with an individual copyright in the author's
name allowed the article to pass into the public domain. See 3 M.
Nimmer & D. Nimmer, Copyright § lO.Ol[A], p. 10-5; §
10.01[C][2], p. 10-12 (2000).
508
transfer the entire copyright over to the publisher in trust.
See Kaminstein, Divisibility of Copyrights, Study No. 11, in
Copyright Law Revision Studies Nos. 11-13, prepared for the Senate
Committee on the Judiciary, 86th Cong., 2d Sess., 18-22 (1960)
(hereinafter Kaminstein).2 Such authors were often at the mercy of
publishers when they tried to reclaim their copyright.
Id.,
at 21.3
The 1976 Act's extensive revisions of the copyright law had two
principal goals with respect to the rights of freelance authors
whose writings appeared as part of larger collective works. First,
as the legislative history of § 201(c) unambiguously reveals, one
of its most significant aims was to "preserve the author's
copyright in a contribution even if the contribution does not bear
a separate notice in the author's name, and without requiring any
unqualified transfer of rights to the owner of the collective
work." H. R. Rep. No. 94-1476, p. 122 (1976) (hereinafter H. R.
Rep.) (discussing the purpose of § 201(c)). Indeed, § 404(a) states
that "a single notice applicable to the collective work as a whole
is sufficient" to protect the author's rights.
The second significant change effected by the 1976 Act clarified
the scope of the privilege granted to the publisher of a collective
work. While pre-1976 law had the effect of encouraging an author to
transfer her
entire copyright to the
2 Cf.
Goodis v.
United Artists Television, Inc.,
425 F.2d
397 (CA2 1970) (creating a legal fiction in which the
publisher to whom an author gave first publication rights was
considered the legal owner of the author's copyright, which the
publisher was deemed to hold in trust for the "beneficial owner,"
the author).
3 "U sually, publishers are perfectly willing to return
copyright to the author, at least with respect to everything except
enumerated serial or reprint rights. There have been allegations
that smaller publishers sometimes believe that they are entitled to
share in the subsidiary rights and refuse to reassign, or insist
upon sharing part of the profits of [the] sales to motion picture,
television or dramatic users. In these cases, the author must
undertake the burden of proving his contract with the publisher and
demonstrating his capacity to sue." Kaminstein 21.
509
publisher of a collective work, § 201(c) creates the opposite
incentive, stating that, absent some agreement to the contrary, the
publisher acquires from the author 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."4 Congress
intended this limitation on what the author is presumed to give
away primarily to keep publishers from "reviseing] the contribution
itself or includ[ing] it in a new anthology or an
entirely
different magazine or other collective work." H. R. Rep.
122-123.5
4 Respondents Garson and Robbins argue that the § 201 (c)
privilege is completely nontransferable. See Brief for Respondents
Garson et al. 2629. The District Court properly rejected this
argument, see 972 F. Supp. 804, 815-816 (SDNY 1997), which, in my
view, is supported by neither the text nor the legislative history
of § 201(c). Publishers obviously cannot assign their publication
privilege to another publisher such that the author's work appears
in a wholly different collective work, but nothing in § 201(c)
clearly prohibits a publisher from merely farming out the mundane
task of printing or distributing its collective work or its
revision of that collective work. Because neither the majority nor
the Court of Appeals has reached this issue, however, see
ante, at 493;
206 F.3d
161, 165, and
5 As the District Court observed, representatives of authors had
objected to an earlier draft of the 1976 Act that might have been
read to give publishers the right to change the text of the
contributions. That version gave publishers the privilege to print
the individual article" 'as part of that particular collective work
and any revisions of it.''' 972 F. Supp., at 819. Harriet Pilpel,
"a prominent author representative," expressed the following
concern:
"'I have but one question with reference to the wording, and
that is with respect to the wording at the end of subsection (c) '
... and any revisions of it.' If that means 'any revision of the
collective work' in terms of changing the contributions, or their
order, or including different contributions, obviously the magazine
writers and photographers would not object. But there is an
implication, or at least an ambiguity, that somehow the owner of
the collective work has a right to make revisions in the
contributions to the collective work. This is not and should not be
the law, and consequently I suggest that the wording at the end of
subsection (c) be changed to make that absolutely clear.''' 1964
Revision Bill with Discus-
510
The majority is surely correct that the 1976 Act's new approach
to collective works was an attempt to "'clarify and improve the ...
confused and frequently unfair legal situation'" that existed under
the prior regime.
Id., at 122. It is also undoubtedly true
that the drafters of the 1976 Act hoped to "enhance the author's
position vis-a-vis the patron."
Ante, at 495, n. 3. It does
not follow, however, that Congress' efforts to "preserve the
author's copyright in a contribution," H. R. Rep. 122, can
only be honored by a finding in favor of the respondent
authors.
Indeed, the conclusion that the petitioners' actions were lawful
is fully consistent with both of Congress' principal goals for
collective works in the 1976 Act. First, neither the publication of
the collective works by the Print Publishers nor their transfer to
the Electronic Databases had any impact on the legal status of the
copyrights of the respondents' individual contributions.6 By virtue
of the 1976 Act, respondents remain the owners of the copyright in
their individual works. Moreover, petitioners neither modified
respondents' individual contributions nor, as I will show in Part
II, published them in a "new anthology or an
entirely different
magazine or other collective work." Id., at 122123 (emphasis
added). Because I do not think it is at all obvious that the
decision the majority reaches today is a result clearly intended by
the 1976 Congress, I disagree with the Court's conclusion that a
ruling in petitioners' favor
sions and Comments, 89th Cong., 1st Sess., pt. 5, p. 9 (R. Comm.
Print 1965), quoted in 972 F. Supp., at 819.
6 Nor is the majority correct that, even if respondents retained
copyright in their individual articles, the conclusion that
petitioners could republish their collective works on the
Electronic Databases would drain that copyright of value. See
infra, at 521-522. Even on my view of this case, respondents
retain substantial rights over their articles. Only the
respondents, for example, could authorize the publication of their
articles in different periodicals or in new topical anthologies
wholly apart from the context of the original collective works in
which their articles appeared.
511
would "shrink authorial rights" that
"Congress [has]
established."
Ante, at 506 (emphasis added).
II
Not only is petitioners' position consistent with Congress'
general goals in the 1976 Act, it is also consistent with the text
of § 201(c). That provision allows the publisher of a collective
work to "reproduc[e] and distributee] 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
central question in this case, then, is whether petitioners are
correct when they argue that publication of the respondents'
articles in the various Electronic Databases at issue in this case
is nothing more than "reproduc[tion] and distribut[ion] [of] the
contribution as part of ... revision[s] of [the original]
collective work[s]" in which respondents' articles appeared. I
agree with petitioners that neither the conversion of the Print
Publishers' collective works from printed to electronic form, nor
the transmission of those electronic versions of the collective
works to the Electronic Databases, nor even the actions of the
Electronic Databases once they receive those electronic versions
does anything to deprive those electronic versions of their status
as mere "revision[s]" of the original collective works.
A proper analysis of this case benefits from an incremental
approach. Accordingly, I begin by discussing an issue the majority
largely ignores: whether a collection of articles from a single
edition of the New York Times (i.
e., the batch of files the
Print Publishers periodically send to the Electronic Databases)
constitutes a "revision" of an individual edition of the paper. In
other words, does a single article within such a collection exist
as "part of" a "revision"? Like the majority, I believe that the
crucial inquiry is whether the article appears within the "context"
of the original collective work.
Ante, at 502. But this
question simply raises the further issue of precisely how much
"context" is enough.
512
The record indicates that what is sent from the New York Times
to the Electronic Databases (with the exception of General
Periodicals OnDisc (GPO)) is simply a collection of ASCII text
files representing the editorial content of the New York Times for
a particular day.7 App.73a. Each individual ASCII file contains the
text of a single article as well as additional coding intended to
help readers identify the context in which the article originally
appeared and to facilitate database searches. Thus, for example, to
the original text of an article, the New York Times adds
information on the article's "headline, byline and title," "the
section of the paper in which the article had originally appeared,"
and "the page in the paper or periodical on which the article had
first appeared."
Id., at 75a-76a.8
I see no compelling reason why a collection of files
corresponding to a single edition of the New York Times, standing
alone, cannot constitute a "revision" of that day's New York Times.
It might be argued, as respondents appear to do, that the
presentation of each article within its own electronic file makes
it impossible to claim that the collection of files as a whole
amounts to a "revision." Brief for Respondents Tasini et al. 34.
But the conversion of the text of the overall collective work into
separate electronic files should not, by itself, decide the
question. After all, one of the hallmarks of copyright policy, as
the majority recognizes,
ante, at 502, is the principle of
media neutrality. See H. R. Rep. 53.
No one doubts that the New York Times has the right to reprint
its issues in Braille, in a foreign language, or in
7 ASCII (American Standard Code for Information Interchange) is
a standard means for storing textual data. It assigns a unique
binary code for each letter of the alphabet, as well as for
numbers, punctuation, and other characters. It cannot be used to
convey graphical information. See C. Mackenzie, Coded Character
Sets: History and Development 211-213 (1980).
8 Substantially the same process was used by the other Print
Publishers to prepare their files for electronic publication. App.
74a.
513
microform, even though such revisions might look and feel quite
different from the original. Such differences, however, would
largely result from the different medium being employed. Similarly,
the decision to convert the single collective work newspaper into a
collection of individual ASCII files can be explained as little
more than a decision that reflects the different nature of the
electronic medium. Just as the paper version of the New York Times
is divided into "sections" and "pages" in order to facilitate the
reader's navigation and manipulation of large batches of newsprint,
so too the decision to subdivide the electronic version of that
collective work into individual article files facilitates the
reader's use of the electronic information. The barebones nature of
ASCII text would make trying to wade through a single ASCII file
containing the entire content of a single edition of the New York
Times an exercise in frustration.9
Although the Court does not separately discuss the question
whether the groups of files that the New York Times sends to the
Electronic Databases constitute "revision[s]," its reasoning
strongly suggests that it would not accept such a characterization.
The majority, for example, places significant emphasis on the
differences between the various Electronic Databases and microform,
a medium that admittedly qualifies as a revision under § 201(c).10
As with the conversion of individual editions into collections of
separate article files, however, many of the differences between
the
9 An ASCII version of the October 31, 2000, New York Times,
which contains 287 articles, would fill over 500 printed pages.
Conversely, in the case of graphical products like GPO, the demands
that memory-intensive graphics files can place on underpowered
computers make it appropriate for electronic publishers to divide
the larger collective work into manageably sized subfiles. The
individual article is the logical unit. The GPO version of the
April 7, 1996, New York Times Magazine, for example, would demand
in the neighborhood of 200 megabytes of memory if stored as a
single file, whereas individual article files range from 4 to 22
megabytes, depending on the length of the article.
10 See Brief for Respondents Garson et al. 4-5, n. 3.
514
electronic versions and microform are necessitated by the
electronic medium. The Court therefore appears to back away from
principles of media neutrality when it implicitly criticizes
ASCII-text files for their inability to reproduce "Remembering
Jane" "in the very same position, within a film reproduction of the
entire Magazine, in turn within a reproduction of the entire
September 23, 1990, edition."
Ante, at 501.11
In contrast, I think that a proper respect for media neutrality
suggests that the New York Times, reproduced as a collection of
individual ASCII files, should be treated as a "revision" of the
original edition, as long as each article explicitly refers to the
original collective work and as long as substantially the rest of
the collective work is, at the same time, readily accessible to the
reader of the individual file. In this case, no one disputes that
the first pieces of information a user sees when looking at an
individual ASCII article file are the name of the publication in
which the article appeared, the edition of that publication, and
the location of the article within that edition. I agree with the
majority that such labeling alone is insufficient to establish that
the individual file exists as "part of" a revision of the original
collective work. See
ante, at 500-501. But such labeling is
not all there is in the group of files sent to the Electronic
Databases.
In addition to the labels, the batch of electronic files
contains the entire editorial content of the original edition of
the New York Times for that day. That is, while I might agree that
a single article, standing alone, even when coded with identifying
information (e. g., publication, edition date,
11 The majority's reliance on the fact that the GPO user cannot
"flip" the page to see material published on other pages,
ante, at 491, n. 2, and that the text database articles
"appear disconnected from their original context,"
ante, at
501, appears to be nothing more than a criticism of Electronic
Databases' medium-driven decision to break down the periodicals it
contains into smaller, less unwieldy article units. See n. 9,
supra.
515
headline, etc.), should not be characterized as a "part of" a
larger collective work, I would not say the same about an
individual article existing as "part of" a collection of articles
containing all the editorial content of that day's New York
Times. This is all the more true because, as the District Court
correctly noted, it is the Print Publishers'
selection
process, the editorial process by which the staff of the New York
Times, for example, decides which articles will be included in "All
the News That's Fit to Print," that is the most important creative
element they contribute to the collective works they publish. 972
F. Supp. 804, 823 (SDNY 1997).12 While such superficial features as
page placement and column width are lost in ASCII format, the Print
Publishers' all-important editorial selection is wholly preserved
in the collection of individual article files sent to the
Electronic Databases.
To see why an electronic version of the New York Times made up
of a group of individual ASCII article files, standing alone, may
be considered a § 201(c) revision, suppose that, instead of
transmitting to NEXIS the articles making up a particular day's
edition, the New York Times saves all of the individual files on a
single floppy disk, labels that disk "New York Times, October 31,
2000," and sells copies of the disk to users as the electronic
version of that day's New York Times. The disk reproduces the
creative, editorial selection of that edition of the New York
Times. The reader, after all, has at his fingertips substantially
all of the relevant content of the October 31 edition of the
collective work. Moreover, each individual article makes explicit
reference to that selection by including tags that remind the
reader that it is a part of the New York Times for October 31,
2000. Such a disk might well constitute "that particular collective
work"; it would surely qualify as a "revision" of the original
collec-
12 "The New York Times perhaps even represents the
paradigm, the epitome of a publication in which selection alone
reflects sufficient originality to merit copyright protection." 972
F. Supp., at 823.
516
tive work. Yet all the features identified as essential by the
majority and by the respondents would still be lacking. An
individual looking at one of the articles contained on the disk
would still see none of the original formatting context and would
still be unable to flip the page.
Once one accepts the premise that a disk containing all the
files from the October 31, 2000, New York Times can constitute a
"revision," there is no reason to treat any differently the same
set of files, stored in a folder on the hard disk of a computer at
the New York Times. Thus, at least before it is republished by the
Electronic Databases, the collection of files that the New York
Times transmits to them constitutes a revision, in electronic form,
of a particular edition of the New York Times.
III
The next question, then, is whether anything that the Electronic
Databases do to the transmitted "revision" strips it of that
status. The heart of the Court's reasoning in this respect, as I
understand it, is that, once received and processed by Electronic
Databases, the data transmitted by the New York Times cannot be
viewed as "revisions" within the meaning of § 201(c) because of the
way that data is stored and made available to the public by those
Databases. First, the Court points to the fact that "the three
Databases present articles to users clear of the context provided
either by the original periodical editions or by any revision of
those editions."
Ante, at 499. I have already addressed
these formatting concerns. Second, and not wholly unrelated to the
first point, however, the Court appears to think that the
commingling of my hypothetical collection of ASCII article files
from the October 31, 2000, New York Times with similar collections
of files from other editions of the New York Times (or from other
periodicals) within one database would deprive that collection of
revision status. See
ante, at 501, n. 9. Even if my
imaginary floppy disk could, in isolation, be considered a
revision, the majority might
517
say, that status would be lost if the floppy disk were to
contain, not only the files from the October 31, 2000, New York
Times, but also from the New York Times for every other day in 2000
(and other years) and from hundreds of other periodicals. I
disagree.
If my hypothetical October 31, 2000, floppy disk can be a
revision, I do not see why the inclusion of other editions and
other periodicals is any more significant than the placement of a
single edition of the New York Times in a large public library or
in a bookstore. Each individual file still reminds the reader that
he is viewing "part of" a particular collective work. And the
entire editorial content of that work still exists at the
reader's fingertips.13
It is true that, once the revision of the October 31, 2000, New
York Times is surrounded by the additional content, it can be
conceptualized as existing as part of an even larger collective
work (e. g., the entire NEXIS database). See
ante, at 500.
The question then becomes whether this ability to conceive of a
revision of a collective work as existing within a larger
"collective work" changes the status of the original revision.
Section 201(c)'s requirement that the article be published only as
"part of ... any revision of
that collective work" does not
compel any particular answer to that question. A microfilm of the
New York Times for October 31, 2000, does not cease to be a
revision of that individual collective work simply because it is
stored on the same roll of film as other editions of the Times or
on a library shelf containing hundreds of other microfilm
periodicals. Nor does § 201(c) compel the counterintuitive
conclusion that the microfilm version of the Times would cease to
be a revision simply because its publishers might choose to sell it
on rolls of film that contained a year's editions of both the New
York Times
and the Herald-Tribune. Similarly, the placement
of
13 In NEXIS, for example, the reader can gather all the content
of the October 31, 2000, New York Times by conducting the following
simple search in the correct "library": "date (is 10/31/2000)."
518
our hypothetical electronic revision of the October 31, 2000,
New York Times within a larger electronic database does nothing to
alter either the nature of our original electronic revision or the
relationship between that revision and the individual articles that
exist as "part of" it.
Finally, the mere fact that an individual user may either view
or print copies of individual articles stored on the Electronic
Databases does not change the nature of the revisions contained
within those databases. The same media-specific necessities that
allow the publishers to store and make available the original
collective work as a collection of individual digital files make it
reasonable for the Electronic Databases to enable the user to
download or print only those files in which the user has a
particular interest. But this is no different from microfilm. Just
as nothing intrinsic in the nature of microfilm dictates to a user
how much or how little of a microform edition of the New York Times
she must copy, nothing intrinsic in the Electronic Databases
dictates to a user how much (or how little) of a particular edition
of the New York Times to view or print. It is up to the user in
each instance to decide whether to employ the publisher's product
in a manner that infringes either the publisher's or the author's
copyright. And to the extent that the user's decision to make a
copy of a particular article violates the author's copyright in
that article, such infringing third-party behavior should not be
attributed to the database.14 See
Sony Corp. of America v.
Universal City Studios, Inc., 464 U. S. 417, 434 (1984).
IV
My reading of "revision," as encompassing products like the
Electronic Databases, is not the only possible answer to
14 The majority finds that NEXIS infringes by "cop[ying]" and
"distribut[ing]" copies of respondents' articles to the public.
Perhaps it would be more accurate to say that NEXIS makes it
possible for
users to make and distribute copies. In any
event, the Court has wisely declined to reach the question whether
the Electronic Databases publicly "display" the articles within the
meaning of § 106.
Ante, at 498, and n. 8.
519
the complex questions presented by this case. It is,
nevertheless, one that is consistent with the statutory text and
entirely faithful to the statute's purposes. Respect for the
policies motivating its enactment, to which I now turn, makes it
wrong for the Court to reject this reading of § 201(c).
It is likely that the Congress that enacted the 1976 revision of
the law of copyright did not anticipate the developments that
occurred in the 1980's which gave rise to the practices challenged
in this litigation. See Miller, Copyright Protection for Computer
Programs, Databases, and Computer-Generated Works: Is Anything New
Since CONTU?, 106 Harv. L. Rev. 977, 979 (1993) (in 1976, "Congress
... decided to avoid grappling with technological issues that
obviously required more study than the legislative process was then
willing to give them").15 Thus, in resolving ambiguities in the
relevant text of the statute, we should be mindful of the policies
underlying copyright law.
Macaulay wrote that copyright is "a tax on readers for the
purpose of giving a bounty to writers." T. Macaulay, Speeches on
Copyright 11 (A. Thorndike ed. 1915). That tax restricts the
dissemination of writings, but only insofar as necessary to
encourage their production, the bounty's basic objective. See U. S.
Const., Art. I, § 8, cl. 8. In other words, "[t]he primary purpose
of copyright is not to reward the author, but is rather to secure
'the general benefits derived by the public from the labors of
authors.'" 1 M. Nimmer & D. Nimmer, Copyright § 1. 03 [A]
(2000) (quoting
Fox Film Corp. v.
Doyal, 286 U. S. 123, 127
(1932)); see also Breyer, The Uneasy Case for Copyright: A Study
of
15 See also H. R. Rep. 116. In the quarter century since the
1976 Act became law, "the databases [in existence] have grown by a
factor of 39 .... In 1975, the 301 databases in existence contained
about 52 million records. The 11,681 databases in 1999 contained
nearly 12.86 billion records for a growth by a factor of 242."
Williams, Highlights of the Online Database Industry and the
Internet: 2000, in Proceedings of the 21st Annual National Online
Meeting 1 (M. Williams ed. 2000).
520
Copyright in Books, Photocopies, and Computer Programs, 84 Harv.
L. Rev. 281, 282 (1970) (discussing the twin goals of copyright
law-protecting the reader's desire for access to ideas and
providing incentives for authors to produce them). The majority's
decision today unnecessarily subverts this fundamental goal of
copyright law in favor of a narrow focus on "authorial rights."
Ante, at 506. Although the desire to protect such rights is
certainly a laudable sentiment,16 copyright law demands that
"private motivation must ultimately serve the cause of promoting
broad public availability of literature, music, and the
other arts."
Twentieth Century Music Corp. v.
Aiken,
422 U. S. 151,
156 (1975) (emphasis added).
The majority discounts the effect its decision will have on the
availability of comprehensive digital databases,
ante, at
504-505, but I am not as confident. As petitioners'
amici
have persuasively argued, the difficulties of locating individual
freelance authors and the potential of exposure to statutory
damages may well have the effect of forcing electronic archives to
purge freelance pieces from their databases.17 "The omission of
these materials from electronic collections, for any reason on a
large scale or even an occasional basis, undermines the principal
benefits that electronic archives offer historians-efficiency,
accuracy and comprehensiveness." 18 Brief for Ken Burns et al. as
Amici Curiae 13.
16 But see Breyer, The Uneasy Case for Copyright: A Study of
Copyright in Books, Photocopies, and Computer Programs, 84 Harv. L.
Rev. 281, 286-290 (1970) (criticizing the use of copyright as a
means of protecting authorial rights).
17 Indeed, today's decision in favor of authors may have the
perverse consequence of encouraging publishers to demand from
freelancers a complete transfer of copyright. If that turns out to
be the case, we will have come full circle back to the pre-1976
situation.
18 If the problem is as important as
amici contend,
congressional action may ultimately be necessary to preserve
present databases in their entirety. At the least, Congress can
determine the nature and scope of the
521
Moreover, it is far from clear that my position even deprives
authors of much of anything (with the exception of perhaps the
retrospective statutory damages that may well result from their
victory today).19 Imagine, for example, that one of the
contributions at issue in this case were a copyrighted version of
John Keats' Ode on a Grecian Urn, published on page 29 of our
hypothetical October 31, 2000, New York Times. Even under my
reading of § 201(c), Keats retains valuable copyright protection.
No matter how well received his ode might be, it is
unlikely-although admittedly possible-that it could be marketed as
a stand-alone work of art. The ode, however, would be an obvious
candidate for inclusion in an anthology of works by romantic poets,
in a collection of poems by the same author, or even in "a 400-page
novel quoting a [poem] in passing,"
ante, at 500. The
author's copyright would protect his right to compensation for any
such use. Cf.
Stewart v.
Abend, 495 U. S. 207,228 (1990)
(discussing the value to authors of derivative works). Moreover,
the value of the ode surely would be enhanced, not decreased, by
the accessibility and readership of the October 31, 2000, edition
of the New York Times. The ready availability of that edition, both
at the time of its first publication and subsequently in libraries
and electronic databases, would be a benefit, not an injury, to
most authors. Keats would benefit from the poem's continued
availability to database users, by his identification as the author
of the piece, and by the database's indication of the fact that the
poem first appeared in a prestigious periodical on a certain date.
He would not care one whit whether the database in-
problem and fashion an appropriate licensing remedy far more
easily than can courts. Cf. 17 U. S. C. § 108(d)(1).
19 It is important to remember that the prospect of payment by
the Print Publishers was sufficient to stimulate each petitioner to
create his or her part of the collective works, presumably with
full awareness of its intended inclusion in the Electronic
Databases.
522
dicated the formatting context of the page on which the poem
appeared. What is overwhelmingly clear is that maximizing the
readership of the ode would
enhance the value of his
remaining copyright uses.
Nor is it clear that Keats will gain any prospective benefits
from a victory in this case. As counsel for petitioners represented
at oral argument, since 1995, the New York Times has required
freelance authors to grant the Times "electronic rights" to
articles. Tr. of Oral Arg. 7. And the inclusion of such a term has
had
no effect on the compensation authors receive. See ibid.
This is understandable because, even if one accepts the majority's
characterization of the Electronic Databases as collections of
freestanding articles, demand for databases like NEXIS probably
does not reflect a "demand for a freelance article standing alone,"
ante, at 497, to which the publishers are greedily helping
themselves. Cf.
Ryan v.
Carl Corp., 23 F. Supp. 2d
1146, 1150-1151 (ND Cal. 1998) ("[T]he value added by the publisher
to a reproduced article is significant").
Instead, it seems far more likely that demand for the Electronic
Databases reflects demand for a product that will provide a user
with the means to quickly search through scores of complete
periodicals. The comments of historian Douglas Brinkley are
instructive in this respect:
"'As an historian, when I want to write a biography, if I'm
going to write a biography of Bill Clinton, the first thing I would
do would be to index The New York Times. I would work
through [the] microfiche and get any time Bill Clinton's name ever
appeared in The New York Times. I'd get a copy of that. So,
you'd have boxes of files. So for each month, here's Clinton this
month .... You then would fill that in with ... other obvious books
or articles from Foreign Affairs or Foreign Policy or
The New Yorker, or the like and you'd start getting your
first biography of Bill Clinton.'" Panel Discussion: The Observer's
View (D. Brinkley, M.
523
Frankel, H. Sidey), White House Historical Association (Nov. 16,
2000) (C-SPAN Archives No. 160577) (quoted in Brief for Ken Burns
et al. as Amici Curiae 17).
Users like Douglas Brinkley do not go to NEXIS because it
contains a score of individual articles by Jonathan Tasinpo Rather,
they go to NEXIS because it contains a comprehensive and easily
searchable collection of (intact) periodicals.
20 Even assuming, as the majority does, see
ante, at
497-498, n. 6, that the existence of databases like NEXIS may have
some adverse effect on the market for stand-alone compilations of
authors' contributions to collective works, I fail to see how, on
that basis, electronic databases are any different from microform.
With respect to effects on the market for stand-alone works, the
only difference between the two products is the speed with which
digital technology allows NEXIS users to retrieve the desired data.
But the 1976 Act was not intended to bar the use of every
conceivable innovation in technology that might" 'giv[e] publishers
[new] opportunities to exploit authors' works.'''
Ante, at
498, n. 6. Copyright law is not an insurance policy for authors,
but a carefully struck balance between the need to create
incentives for authorship and the interests of society in the broad
accessibility of ideas. See U. S. Const., Art. I, § 8, cl. 8 (in
order to promote production, Congress should allow authors and
inventors to enjoy "exclusive Right[s]," but only "for
limited Times" (emphasis added)); see also
supra, at
519-520. The majority's focus on authorial incentive comes at the
expense of the equally important (at least from the perspective of
copyright policy) public interest.
Moreover, the majority's single-minded focus on "authorial
rights" appears to lead it to believe that, because
some
authors may benefit from its decision, that decision must be the
one intended by Congress. It cites the '''economic philosophy
behind the [Copyright Clause]''' as consistent with its view that
Congress adjusted "the author/publisher balance" precisely to avoid
the types of uses embodied in the Electronic Databases. See
ante, at 495, n. 3. But, as I have already argued, see
supra, at 519, there is no indication that Congress ever
considered the issue presented in this case. It thus simply begs
the question for the majority to argue that the right not to have a
work included within the Electronic Databases is an "authorial
right" that
"Congress [has] established,"
ante, at
506 (emphasis added), or that-given Congress' failure clearly to
address itself to the question-a decision allowing such inclusion
would amount to
"diminish[ingl" authorial "rights" on the
basis of "our conception of their interests,"
ante, at 498,
n. 6 (emphasis added).
524
See id., at 8 ("The efficiency, accuracy, reliability,
comprehensiveness and immediacy of access offered by searchable
fulltext digital archives are but a few of the benefits historians
and other researchers have reaped from the advancement in the
technology of information").
Because it is likely that Congress did not consider the question
raised by this case when drafting § 201(c), because I think the
District Court's reading of that provision is reasonable and
consistent with the statute's purposes, and because the principal
goals of copyright policy are better served by that reading, I
would reverse the judgment of the Court of Appeals. The majority is
correct that we cannot know in advance the effects of to day's
decision on the comprehensiveness of electronic databases. We can
be fairly certain, however, that it will provide little, if any,
benefit to either authors or readers.
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