Lawyer Robert S. Becker Responds to SPJ posts

I had a comment come in on my latest post about SPJ president Christine Tatum's latest blog entry about the organization backing down from its support of the amicus brief in the Faulkner case. The comment was from a lawyer who said he was the one that Ms. Tatum quoted. Because I would like to comment on his response, I think it would be clearest for me to post it here and address it section by section.

Because I'm the lawyer Christine quoted let me try and set things a little straighter than Erik. First, here's what sec. 201(c) of the Copyright Act says:

(c) Contributions to collective works. 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 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.

That certainly reads the same was as the copy of the copyright statutes I keep on hand in my office.

In Tasini the Supreme Court clearly drew a distinction between databases accumulating individual articles and collections of individual issues of a publication into bound volumes. It said, "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.... 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 ses the Article within the context of page 26, but clear of the content of page 25 or 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 collective work to which the author contributed or as part of any "revision" thereof. 533 U.S. 483, 516 - 17.

Let's take a look at the first two sentences that open the paragraph Mr. Becker quoted: "The Publishers press an analogy between the Databases, on the one hand, and microfilm and microfiche, on the other. We find the analogy wanting." To me, that says the publishers were trying to expand the bounds of existing rights to cover new forms of publishing. Now consider Mr. Becker's next remarks with some context:

My understanding, at least, is that National Geographic created a CD containing the entire issue of the magazine.

Then, Mr. Becker, you apparently didn't read the decision and haven't seen the product. Some photos were taken out of context and put only a splash screen. Yes, the pages were reproduced - which is why I and some others said that there is hardly a slam dunk argument either way - but there were some other differences from the magazines as well. This version allowed searching, which brings it closer to a database. The user can apparently jump right to an article without having to actually see much of the greater context. There were also additional differences:

In October 1997, defendant Eastman Kodak Company (“Kodak”) entered into a co-sponsorship agreement with NGI, Mindscape and Dataware pursuant to which Kodak would pay a fee to NGI for placement of a Kodak promotional message at the beginning of CNG CD-ROMs and advertising on the product package. Beginning with the 110 year product, each version has contained a very short summary of each article that appears on the list of “hits” generated by the search engine in response to user queries. Capabilities have been added to the software. All, however, contain a Replica section.

So, there is a search capabilities that brings up summaries of the articles before you go to the page with the article. That may or may not be within the intent of the copyright statutes, but certainly this is different from even microfiche reproduction. And, in one of the footnotes, we see this:

Additions to CNG 110 and its later iterations include: (a) an introductory tutorial, (b) new interactive software tools, such as a tool to darken text for easier reading and another tool to rotate images, (c) bookmarking capabilities, and (d) a search and save feature. See e.g., Pl. Opp. 56.1 St. (Ward DI 66) ¶ 14; Wells Decl. (Psihoyos DI 14) ¶ 21; Pl. Joint Reply 56.1 St. (Faulkner DI 87) ¶ 10. Other software capabilities not available in the Magazine include the ability to print digital pages and links to the NGS website.

To my eyes, at least, this sounds significantly different from a straight scanning and reproduction of the pages on a CD. If the issue was clarity, then, as I have written multiple times, a decision either way would have added clarity. In fact, given that the judge decided that the changes did not rise to the level of making the CD version different from a reproduction of the magazines, I'd argue that the decision in favor of NG actually increased uncertainty, because it opens a door part way for publishers to continue pushing. Now let's look at more of the decision:

The defendants here suggest that Tasini made clear what the Greenberg panel, in their view, misunderstood: as long as an individual work appears in its original context, the resulting product qualifies as a permissible reproduction or revision of a collective work under Section 201(c). They press the microform analogy, arguing that the CNG is precisely the kind of product evidently envisioned by the Court as being consistent with the rights possessed by the holder of a copyright in a collective work under Section 201(c).

I think the question for copyright owners is whether mechanisms like dimming content and being able to rotate images is really maintaining the original context.

Although the judge found that, in this case, the changes noted did not, in his opinion, rise to the level of of a material fact because the vast majority of the reproductions were exact and because the changes owed to regional , he is admitting that the magazine did make some changes and even update advertisements. So where will the cut-off for changes be? I thought SPJ supported this decision because it will make things clearer, but this is inviting future litigation if publishers push to see how many changes they can make. That is hardly clearer. Now back to more from Mr. Becker:

Erik claims the CD is not the functional equivalent of a bound volume because it is electronically searchable. I don't see anything in Tasini that draws such a distinction. The Court drew a distinction based on presentation, reproduction of the article in the context in which it was originally published versus collection in a database divorced from the original publication.

Mr. Becker, I find this argument disingenuous. When addressing functional equivalence, I was responding directly to Ms. Tatum quoting you, I believe:

"After the 2d circuit decision I expect the publishers to do the same. The only difference here is that the contracts will explicitly set out what has been industry custom until now: you don't get paid more merely because the publisher creates the functional equivalent of bound volumes."

If functional equivalence of bound volumes wasn't pertinent, why, then, did you bring it up? Since you did bring it up, I replied. But, please, don't start objecting to my responding to a point you made and that Ms. Tatum quoted.

If Erik and others have issues with SPJ's initial decision to join the amicus brief and/or Baker & Hostetler's role in that decision and/or Baker & Hostetler's representation of media corporations that is an entirely different matter.

A number of us disagreed that support of the decision would be in the best of freelancers. I and some others also wondered whether there was at least an apparent conflict of interest because the law firm had National Geographic as a client. And, technically, these are, indeed, different matters from whether the CD version of the magazines is a revision or a new product.

Christine and SPJ took a position and had the courage to step back from it in response to criticism. I would hope that others, including Erik, at least have the courage to admit that the 2d Circuit opinion is consistent with prevailing precedent and move on to discussion of how to protect freelancers' legitimate concerns about being compensated fairly for their work.

I've yet to see either you, Ms. Tatum, or anyone else show that the reasoning in the opinion is beyond reproach. and that is almost immaterial compared to the larger point of whether it will help or injure freelancers. The real issue was whether SPJ was helpful or injurious to freelancers in its stand. Given the tone with which Ms. Tatum backed off, I don't see the retraction as courageous so much as trying to get out of the line of fire.

As for the discussion of how to protect freelance concerns, why, Mr. Becker, I and others, whom you and/or Ms. Tatum have criticized as ill-informed and not addressing the most important issues, have been involved in this discussion for, oh, a good seven or eight years at least in time-consuming and active ways. Please don't act as though this is an idea that you and Ms. Tatum have clearly seen just now and that the rest of us have missed. If anything, you are coming many years late to the discussion.