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CMU ISR 08732 - ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

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Cite as: 533 U. S. ____ (2001) 1Opinion of the CourtNOTICE: This opinion is subject to formal revision before publication in thepreliminary print of the United States Reports. Readers are requested tonotify the Reporter of Decisions, Supreme Court of the United States, Wash-ington, D. C. 20543, of any typographical or other formal errors, in orderthat corrections may be made before the preliminary print goes to press.SUPREME COURT OF THE UNITED STATES_________________No. 00–201_________________NEW YORK TIMES COMPANY, INC., ET AL.,PETITIONERS v. JONATHAN TASINI ET AL.ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OFAPPEALS FOR THE SECOND CIRCUIT[June 25, 2001]JUSTICE GINSBURG delivered the opinion of the Court.This copyright case concerns the rights of freelanceauthors and a presumptive privilege of their publishers.The litigation was initiated by six freelance authors andrelates to articles they contributed to three print periodi-cals (two newspapers and one magazine). Under agree-ments with the periodicals’ publishers, but without thefreelancers’ consent, two computer database companiesplaced copies of the freelancers’ articles—along with allother articles from the periodicals in which the freelanc-ers’ work appeared—into three databases. Whether writ-ten by a freelancer or staff member, each article is pre-sented to, and retrievable by, the user in isolation, clear ofthe context the original print publication presented.The freelance authors’ complaint alleged that theircopyrights had been infringed by the inclusion of theirarticles in the databases. The publishers, in response,relied on the privilege of reproduction and distributionaccorded them by §201(c) of the Copyright Act, whichprovides:“Copyright in each separate contribution to a collec-2 NEW YORK TIMES CO. v. TASINIOpinion of the Courttive work is distinct from copyright in the collectivework as a whole, and vests initially in the author ofthe contribution. In the absence of an express trans-fer of the copyright or of any rights under it, theowner of copyright in the collective work is presumedto have acquired only the privilege of reproducing anddistributing the contribution as part of that particularcollective work, any revision of that collective work,and any later collective work in the same series.” 17U. S. C. §201(c).Specifically, the publishers maintained that, as copyrightowners of collective works, i.e., the original print publica-tions, they had merely exercised “the privilege” §201(c)accords them to “reproduc[e] and distribut[e]” the author’sdiscretely copyrighted contribution.In agreement with the Second Circuit, we hold that§201(c) does not authorize the copying at issue here. Thepublishers are not sheltered by §201(c), we conclude,because the databases reproduce and distribute articlesstanding alone and not in context, not “as part of thatparticular collective work” to which the author contrib-uted, “as part of . . . any revision” thereof, or “as part of . . .any later collective work in the same series.” Both theprint publishers and the electronic publishers, we rule,have infringed the copyrights of the freelance authors.IARespondents Jonathan Tasini, Mary Kay Blakely, Bar-bara Garson, Margot Mifflin, Sonia Jaffe Robbins, andDavid S. Whitford are authors (Authors). Between 1990and 1993, they wrote the 21 articles (Articles) on whichthis dispute centers. Tasini, Mifflin, and Blakely contrib-uted 12 Articles to The New York Times, the daily news-paper published by petitioner The New York Times Com-Cite as: 533 U. S. ____ (2001) 3Opinion of the Courtpany (Times). Tasini, Garson, Robbins, and Whitfordwrote eight Articles for Newsday, another New York dailypaper, 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 theArticles. The Times, Newsday, and Time (Print Publish-ers) registered collective work copyrights in each periodi-cal edition in which an Article originally appeared. ThePrint Publishers engaged the Authors as independentcontractors (freelancers) under contracts that in no in-stance secured consent from an Author to placement of anArticle in an electronic database.1At the time the Articles were published, all three PrintPublishers had agreements with petitioner LEXIS/NEXIS(formerly Mead Data Central Corp.), owner and operatorof NEXIS, a computerized database that stores informa-tion in a text-only format. NEXIS contains articles fromhundreds of journals (newspapers and periodicals) span-ning many years. The Print Publishers have licensed toLEXIS/NEXIS the text of articles appearing in the threeperiodicals. The licenses authorize LEXIS/NEXIS to copyand sell any portion of those texts.Pursuant to the licensing agreements, the Print Pub-lishers regularly provide LEXIS/NEXIS with a batch of allthe articles published in each periodical edition. The PrintPublisher codes each article to facilitate computerizedretrieval, then transmits it in a separate file. After fur-ther coding, LEXIS/NEXIS places the article in the central——————1 In the District Court, Newsday and Time contended that the free-lancers who wrote for their publications had entered into agreementsauthorizing reproduction of the Articles in the databases. The Court ofAppeals ruled that Newsday’s defense was waived, and rejected Time’sargument on the merits. Neither petitioner presses the contentionhere.4 NEW YORK TIMES CO. v. TASINIOpinion of the Courtdiscs of its database.Subscribers to NEXIS, accessing the system through acomputer, may search for articles by author, subject, date,publication, headline, key term, words in text, or othercriteria. Responding to a search command, NEXIS scansthe database and informs the user of the number of arti-cles meeting the user’s search criteria. The user then mayview, print, or download each of the articles yielded by thesearch. The display of each article includes the printpublication (e.g., The New York Times), date (September23, 1990), section (Magazine), initial page number (26),headline or title (“Remembering Jane”), and author (MaryKay Blakely). Each article appears as a separate, isolated“story”—without any visible link to the other stories origi-nally published in the same newspaper or magazine edi-tion. NEXIS does not contain


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CMU ISR 08732 - ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

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