Amicus Curiae Brief — New York Times Co. v. Tasini

4 Supreme Court, U.S.

Jan ¢ 200] (Wy FILED

3 No. 00-201 JAN 5 2001

IN THE rol

Supreme Court of the United States

THE NEW YORK TIMES COMPANY, INC.; NEWSDAY, INC.;

THE TIME INCORPORATED MAGAZINE COMPANY;

LEXIS/NEXIS and UNIVERSITY MICROFILMS INTERNATIONAL,

Petitioners,

Vv.

JONATHAN TASINI; MARY KAY BLAKELY;

BARBARA GARSON; MARGOT MIFFLIN;

SONIA JAFFE ROBBINS and DAVID S. WHITFORD,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

BRIEF AMICI CURIAE OF KEN BURNS, DORIS

KEARNS GOODWIN, RICHARD N. GOODWIN,

DAVID-M. KENNEDY, DAVID MCCULLOUGH,

JACK N. RAKOVE AND GORDON

S. WOOD IN SUPPORT OF PETITIONERS

MICHAEL F, CLAYTON

Counsel of Record

BRETT I. MILLER

ANITA G. BLUMENTHAL

MORGAN, LEwis & BOCKIUS LLP

1800 M Street, N.W.

Washington, D.C. 20036

(202) 467-7000

WILSON-EPES PRINTING Co., INC. — (202) 789-0096 - WASHINGTON, D. C. 20001

QUESTION PRESENTED

Whether a publisher’s reproduction and distribution of its

entire periodical not only in print, but also electronically, is

privileged under the Copyright Act or instead infringes upon

the copyright held by contributing freelance authors.

TABLE OF CONTENTS

Page

I. THE SECOND CIRCUIT’S DECISION

WILL HAVE THE UNPRECEDENTED

AND UNDESIRABLE TWO-FOLD EF-

FECT OF THREATENING THE COM-

PLETENESS AND INTEGRITY OF THE

NATION’S ELECTRONIC ARCHIVES,

AND DECREASING ACCESS’~ TO

CONVENIENT, COST-EFFICIENT, COM-

PREHENSIVE ELECTRONIC INFORMA-

ME aiitiesiiecciininssidsinsioraininsnsnanilinen 5

A. Electronic Journal, Newspaper and

Periodical Archives Provide Unsurpassed

Benefits to Historians and Scholars and

Thus Have Become Indispensible Research

MINT AAU atin ls aisle sioctlethasisedinsiabsasthntecvciunsiotsonaash 6

B. Digital Technology is Increasingly Replac-

ing, Rather Than Supplementing, Tradi-

tional Methods of Recording and

Accessing the Nation’s Historical

iV

TABLE OF CONTENTS—Continued

Page

C. The Second Circuit’s Decision Will Have

the Predictable Effect of Irreparably

Undermining the Integrity of the Nation’s

Electronic Archives and the Progress of

Historical Research and Scholarship............ 11

II. THE SECOND CIRCUIT’S FOCUS ON END

USERS IN DETERMINING WHETHER

ELECTRONIC ARCHIVES QUALIFY AS

“REVISIONS” UNDER SECTION 201 IS

INCONSISTENT WITH THE PRACTICAL

REALITIES INHERENT IN THE PROCESS

OF RESEARCH, AS WELL AS LONG-

STANDING PUBLISHING INDUSTRY

ASSUMPTIONS REGARDING THE

PERMISSIBILITY OF TRADITIONAL,

ANALOG MEANS OF PERIODICAL,

NEWSPAPER OR JOURNAL STORAGE

APE REE TR innkesintitnitiideantmbiinteniaiinds 14

CAIN Y sisctcasieesisscshsoewsbticiada cidesnesllansieabeoeenciahanaiiinin 19

Vv

TABLE OF AUTHORITIES

Commission on Physical Sciences, Mathematics,

and Applications, National Research Council,

LC21: A Digital Strategy for the Library of

Page

CII GID ieisitititeiie ee ae 8, 10, 11

David Beasley, How to Use a Research Library

(Oxford University Press 1988) .0...........ccscecceee

Kevin Fagan, Battling to Preserve Remnants of

History: Newspaper Archives Expensive and

Complex, S.F. Chronicle, Nov. 2, 2000.............

Katie Hafner, Books to Bytes: The Electronic

Archive, N.Y. Times, Apr. 8, 1999 ooo...

Vibiana Kassabian & Julie M. Still, Selecting

Full-Text Undergraduate Periodicals Data-

bases, EContent, Dec. 1, 1999 cccccacceversessvascoreces

Eli M. Noam, Will Books Become the Dumb

Medium?, Keynote Address to the Annual

Convention of Educom (Oct. 27, 1997), in

Educom Review, Mar./Apr. 1997 ............:esce0e0-

Panel Discussion: The Observer’s View (D.

Brinkley, M. Frankel, H. Sidey), White House

Historical Association (Nov. 16, 2000) (C-

SPAN Archives No. 160577)........cccccsscccssesseseeee

Tracy Primich, Electronic Collections in the Age

of the Traditional Library, EContent, Apr. 1,

STE ssn sintasicsiesiciinbie eign ictihg iial ea a

Richard C. Rockwell, Gateway Library: A View

from the Periphery, in Gateways to Knowl-

edge 109 (Lawrence Dowler ed., 1997).............

U.S. News and World Report Pulls Some Content

From Microform Over Copyright Concerns,

Library Journal Academic Newswire, Aug. 29,

10

17

11

vi

TABLE OF AUTHORITIES—Continued

Gay Walker, Jane Greenfield, John Fox and

Jeffrey S. Simonoff, The Yale Survey: A

Large-Scale Study of Book Deterioration in

the Yale University Library, College and

Research Libraries, Mar. 1985 ............ssscssseeees

Martha E. Williams, Highlights of the Online

Database Industry and the Internet: 2000, in

Proceedings of the 21st Annual National

Online Meeting 1 (Martha E. Williams ed.,

DISD tinnsinssavitenaiaaniectinnaiaapeiiniciasvaicombeaia

Paul Wilson, Historical Perspectives on the Use

of Microfilm in Libraries and Archives, in

Preservation Microfilming—Does it Have a

Future?/Proceedings of the First National

Conference of the National Preservation

Office 46 (National Library of Australia,

POD vsinivscinshananscinthhnbinemisiaidieiieelatannaitahebiiniainaciaes

Page

10

INTERESTS OF AMICI CURIAE'

This brief amici curiae in support of petitioners is

submitted by Ken Burns, Doris Kearns Goodwin, Richard N.

Goodwin, David M. Kennedy, David McCullough, Jack N.

Rakove and Gordon S. Wood (“amici”), pursuant to Rule 37

of the Rules of this Court.

Ken Burns is a filmmaker and author, widely known for

his documentaries for public television. Mr. Burns’ films

include The Civil War and Baseball, each of which set

records for public television viewership. Some of his other

films include Not for Ourselves Alone: The Story of

Elizabeth Cady Stanton and Susan B. Anthony; Lewis and

Clark: The Journey of the Corps of Discovery; The C ongress;

Frank Lloyd Wright; The Statue of Liberty; Brooklyn Bridge;

Huey Long; and Thomas Jefferson. In addition to his work as

a documentarian and biographer, Mr. Burns has also

collaborated on several books, including Jazz: An Illustrated

History, The Civil War: An Illustrated History; and Baseball:

An Illustrated History. Mr. Burns has been nominated twice

for an Academy Award and has won numerous Emmy

Awards, as well as other honors. Mr. Burns is an active

member of the Society of American Historians.

Doris Kearns Goodwin is an historian, commentator and

author, widely known for her historical perspectives on

American politics and political figures. Ms. Kearns Goodwin

is the author of numerous highly-acclaimed biographies,

including the 1995 Pulitzer Prize-winning best seller, No

Ordinary Time: Franklin and Eleanor Roosevelt—The Home

Front in World War II. In addition, Ms. Kearns Goodwin has

contributed numerous articles on historical, political and

' Letters from all parties consenting to the filing of this brief have been

filed with the Clerk of this Court. No counsel for a party authored this

brief in whole or in part, and no person or entity other than amici curiae,

or their counsel, made a monetary contribution to the preparation or

submission of this brief.

2

cultural subjects to publications, including The New York

Times, The Atlantic Monthly, Life and Redbook. She is a

former professor of government at Harvard, and currently

serves as a political commentator for NBC and the PBS

program, The News Hour with Jim Lehrer.

Richard N. Goodwin is a political advisor and com-

mentator as well as an historian and author. Mr. Goodwin

served as a speech writer to President Lyndon Johnson and as

an advisor to President John F. Kennedy. He has published

several successful books on political subjects, as well as

contemporary American life and culture, including

Remembering America: A Voice From the Sixties, Promises

to Keep: A Call for a New American Revolution; and The

Hinge of the World.

David M. Kennedy is the Donald J. McLachlan Professor

of History at Stanford University-and a prolific author whose

scholarship spans a wide range of historical subjects. With

over ten books and numerous articles to his credit, Professor

Kennedy has been awarded a variety of honors and awards,

including the 2000 Pulitzer Prize for his comprehensive

history of the Great Depression, the New Deal and World

War II, Freedom from Fear: The American People in

Depression and War, 1929-1945. Professor Kennedy is also

co-author of The American Pageant, a History of the

Republic, which is widely used as an undergraduate and high

school advanced-placement course textbook.

David McCullough is a well-known biographer, author,

historian and scholar. He has written six biographies, includ-

ing the 1993 Pulitzer Prize-winning, best-selling biography,

Truman. In addition to the Pulitzer Prize, Mr. McCullough

has received several other awards for his contributions to

historical scholarship. Mr. McCullough also is active in the

historical scholarly community. He serves as the president of

the Society of American Historians and is a founding member

of Protect Historic America.

3

Jack N. Rakove is a Professor of Political Science and the

William Robertson Coe Professor of History and American

Studies at Stanford University. Professor Rakove has written

several books on the early American Republic, its politics and

political figures, including the biography James Madison and

the Creation of the American Republic. in 1997, Professor

Rakove received the Pulitzer Prize in history for his best-

selling book Original Meanings: Politics and Ideas in the

Making of the Constitution. In addition to his teaching

activities at Stanford and as a visiting professor at New York

University School of Law, Professor Rakove is an active

member of the American Historical Association, the

Organization of American Historians, the Society for

Historians of the Early American Republic and the inetitute

of Early American History.

Gordon S. Wood is an historian, author and Professor of

History at Brown University, where he has been « faculty

member since 1969. Professor Wood also has taught at

Harvard University, the College of William and Mary, the

University of Michigan and Cambridge University. He is the

author of more than 50 publications, including The Creation

of the American Republic, for which he won the Bancroft

Prize in history and the John H. Dunning Prize. in 1993,

Professor Wood received the Pulitzer Prize for his book The

Radicalism of the American Revolution. Professor Wood i «

past president of the Society for Historians of the Barly

American Republic, and he serves on the Board of Trastees

for Colonial Williamsburg, Tufts University and the National

Council for History Education.

As historians, political commentators and authors, amici

have devoted much of their professional energies to

developing, interpreting and analyzing the historical record of

this country. As researchers and scholars, amici rely hewwilly

on, and the quality of their work is dependent epon, the

availability, reliability, accessibility and comprehensiwenes:

4

of the nation’s electronic repository of back issues of

newspapers, magazines, journals and other periodicals. For

these reasons, amici submit this brief to assist the Court’s

understanding of the practical effect of the issues at stake in

this case.

SUMMARY OF ARGUMENT

The Second Circuit has held that publishers and their

licensees cannot lawfully include works of freelance authors

who have not explicitly granted the right to publish their

individual contributions in electronic libraries or copies of the

publishers’ collective works. The potential liabilities

represented by the lawsuits brought in the wake of the Second

Circuit’s decision will lead the nation’s publishers and their

licensees to avoid the risk of copyright infringement liability

by deleting freelance contributions currently included in the

nation’s electronic archives. In an era when libraries and

other collecting institutions are rapidly replacing their print

and microform archives of newspapers, journals and other

periodicals with searchable, full-text electronic counterparts,

this result will have unexpected, unprecedented and

irreversible consequences for the integrity and accessibility of

the historical record and the progress of historical

scholarship. Given the significance of this potential outcome,

amici urge the Court to weigh heavily the likely

consequences of the Second Circuit’s decision and reverse the

judgment below.

Moreover, as framed by the Second Circuit, the central

issue in this case is whether electronic journal, newspaper and

periodical archives qualify as “revisions” of the collective

works in which the freelance authors’ contributions first

appeared, and are thus privileged under Section 201 of the

Copyright Act. In deciding that the electronic versions of

these publications are not privileged, the Second Circuit’s

heavy reliance on the individually searchable and retrievable

5

character of electronic archives is misplaced in that these

characteristics are shared by analog storage media, long

viewed as privileged under Section 201. Amici also urge the

Court to conclude, as did the district court below, that

electronic archives are privileged under Section 201 based on

the retention of their editorial selection—the element of most

value to historians—regardless of whether exact print

arrangement is also retained.

ARGUMENT

I. THE SECOND CIRCUIT’S DECISION WILL

HAVE THE UNPRECEDENTED AND UNDE-

SIRABLE TWO-FOLD EFFECT OF THREAT-

ENING THE COMPLETENESS AND INTEG-

RITY OF THE NATION’S ELECTRONIC

ARCHIVES, AND DECREASING ACCESS TO

CONVENIENT, COST-EFFICIENT, COMPRE-

HENSIVE ELECTRONIC INFORMATION

RESOURCES.

The impact of digital technology on contemporary society

and culture is ubiquitous and ever expanding. For historians,

researchers, scholars and students in countless disciplines, the

comprehensive, searchable, full-text journal, periodical and

newspaper database has become an _ irreplaceable and

priceless resource. The advantages of digital storage and

retrieval technology in terms of accessibility, efficiency,

reliability and comprehensiveness as compared to traditional

analog media (i.e., hard copy bound volumes, microfilm and

microfiche) are apparent, and have resulted inthe

proliferation of electronically available full-text archival

resources. These advantages, coupled with the inefficiencies

and costs associated with maintaining parallel analog

collections of the same archival materials, have led collecting

institutions throughout the nation (both big and small) to

6

reduce significantly their investments in, and reliance on,

traditional analog means of information storage and retrieval.

The Second Circuit’s decision in this case threatens both

the integrity of this nation’s historical record and the public’s

access to it. As a result of the Second Circuit’s decision, and

contrary to common custom and practice in existence since

the advent of electronic media, publishers and their licensees,

including but not limited to petitioners, cannot lawfully

include past, current or future contributions of freelance

authors without first explicitly obtaining rights for further

electronic archival publication of their respective

contributions. As a direct consequence of the likely expense

and practical difficulties of locating and negotiating with

individual freelance authors (or their heirs/assigns),

publishers will opt to erase the contributions of freelance

authors currently included in full-text electronic libraries

rather than risk liability for infringement.

A. Electronic Journal, Newspaper and Periodical

Archives Provide Unsurpassed Benefits to

Historians and Scholars and Thus Have

Become Indispensible Research Tools.

The record of our time, as well as that of the past

generation, has been and will increasingly become digitized.”

Before the advent of digital research tools, scholars and

historians were dependent principally on index-based

? See Martha E. Williams, Highlights of the Online Database Industry

and the Internet: 2000, in Proceedings of the 21st Annual National

Online Meeting | (Martha E. Williams ed., 2000) (“Looking at the growth

in databases, producers of databases, and vendors of database services

over the time period from 1975 through 1999, the databases have grown

by a factor of 39 . . . . The number of records contained in the databases

has grown disproportionately. In 1975 the 301 databases 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.”) (emphasis added).

ttt fe —

7

systems, such as the Readers’ Guide to Periodical Literature

and its counterparts in countless disciplines, to access original

source materials.’ The researcher invariably began a given

project by using the traditional, rigid information access

points—namely, title, author and subject fields. After

carefully parsing an index and identifying a seemingly

relevant reference, the researcher was required physically to

retrieve, if possible, or to request through interlibrary loan, if

necessary, each and every relevant reference in cumbersome

hard copy or microform format. Using these traditional

analog tools, even the most straightforward projects focusing

on a single publication (i.e., a periodical, journal or

newspaper) often required a significant investment of time

and patience, often necessitating repeated reference to printed

indices, as well as frequent changing of reels or fiche on

reading machines.* These efforts were exponentially more

complicated and burdensome when research, as is typically

the case, required consideration of numerous titles, across a

multitude of time periods.

With the advent of electronic libraries such as NEXIS,

WESTLAW, Dow Jones Interactive and Dialog, a research

project that, through the process described above, would have

taken a researcher hours, days or more, can now potentially

be completed in a matter of minutes. Searchable,

comprehensive, full-text databases permit researchers to

* See Vibiana Kassabian & Julie M. Still, Selecting Full-Text Under-

graduate Periodicals Databases, EContent, Dec. 1, 1999 (“A long time

ago, in a galaxy far, far away, the friendly but serious . . . librarians at a

good undergraduate library could purchase a set of the Wilson indices—

Readers’ Guide, Social Sciences Index, Humanities Index, Business

Periodicals Index, Biological and Agricultural Index, and Applied Science

and Technology Index—and feel they were providing their students with

solid, well-rounded access to the major periodical literature of various

fields.”).

* See David Beasley, How to Use a Research Library 133 (Oxford

University Press 1988).

8

review quickly and efficiently hundreds, if not thousands, of

print publications for the most detailed and minute references

with a few keystrokes. . Moreover, these technologies free the

researcher from the inherently limited index systems, the

integrity of which are entirely dependent on the judgment and

perception of the individuals charged with characterizing and

describing the underlying content. Full-text archives of a

relevant publication for a specified time period provide

scholars and researchers with direct access to the universe of

potentially applicable source material, and the ability to parse

it with a level of detail and at speeds that are simply not

possible using traditional, index-based research tools and

manual review. In contrast to analog research methods, the

utility of the electronic copies and libraries is limited only by

the researcher’s ability to formulate an effective search.

Indeed, with the advent and growth of the Internet and its

billions of pages of information, electronic search and

retrieval systems are likely to continue to improve

dramatically.

The efficiency, accuracy, reliability, comprehensiveness

and immediacy of access offered by searchable full-text

digital archives are but a few of the benefits historians and

other researchers have reaped from the advancement in the

technology of information. Perhaps of equal significance is

the fact that digital periodical, newspaper and journal

archives, regardless of where they are physically housed, can

be accessed from any location where the appropriate

technology is available.” Moreover, these materials can be

accessed by countless people simultaneously at any time.°

> See Commission on Physical Sciences, Mathematics, and Applica-

tions, National Research Council, LC21: A Digital Strategy for the

Library of Congress (2000) 3-3 [hereinafter Library of Congress Report).

© Id. at 3-4.

———

9

B. Digital Technology is Increasingly Replacing,

Rather Than Supplementing, Traditional

Methods of Recording and Accessing the

Nation’s Historical Record.

Few will deny that the primary locus, or at least the Starting

point, of almost any historical research project today (and for

many years now) has migrated from the physical collections

of libraries and archives to the desktop computer. Indeed,

through digitization, the concept of “library” has been trans-

formed from a “place” to a process of information man-

agement and collection.’ As discussed further in Section II

below, the fundamental process of historical research remains

the same, however, whether the historian is relying on

traditional analog or digital research tools. In either case, the

quality of the research is ultimately dependent on the skill of

the researcher and the comprehensiveness and accessibility of

the underlying source material.

Although traditional archives and libraries comprised of

analog materials always will remain indispensable research

tools, they no longer are the primary research tools. During

the last century, those charged with overseeing the

warehouses of our nation’s collective memory, namely, the

nation’s research libraries and archives, have struggled to

preserve the materials that comprise their collections.® To

this end, libraries and other collecting institutions have for

"See Richard C. Rockwell, Gateway Library: A View from the

Periphery, in Gateways to Knowledge 109 (Lawrence Dowler ed., 1997).

* See Gay Walker, Jane Greenfield, John Fox and Jeffrey S. Simonoff,

The Yale Survey: A Large-Scale Study of Book Deterioration in the Yale

University Library, College and Research Libraries, Mar. 1985, at 111-12

(estimating that, as of 1985, more than six million volumes of the

collections of the Library of Congress had deteriorated to such an extent

that they could not be given to users without risk of irreparable damage,

and suggesting that, at the New York Public Library, as much as half of

the collection had reached a similarly advanced state of disintegration)

[hereinafter Yale Report}.

10

decades relied upon microform media based on antiquated

technology developed largely in the 1930’s.” However, like

the print collections they were developed to supplement and

preserve, microform media are also plagued by equally

vexing and decay-hastening challenges exacerbated by factors

including poor storage conditions, overuse, and flaws in

chemical composition or manufacture.'” For certain rare or

fragile subject matter, digital media may offer the only viable

means of salvaging materials for future generations."

In recognition of the limitations of analog storage —

technology, the efficiencies inherent in managing information

digitally, as well as the associated physical space and

potential cost savings, libraries and archives have been at the

forefront of employing digital technology to collect, store and

preserve the historical record in its myriad forms. As a

consequence, the acquisition policies and infrastructure of our

nation’s libraries and archives have undergone a significant

transformation. Libraries and archives maintain parallel

information systems in traditional print media and electronic

forms less and less frequently.'* Faced with the choice, the

* See Paul Wilson, Historical Perspectives on the Use of Microfilm in

Libraries and Archives, in Preservation Microfilming — Does it Have a

Future?/Proceedings of the First National Conference of the National

Preservation Office 46 (National Library of Australia, 1995).

10 See Yale Report, supra note 8, at 111; see also Kevin Fagan,

Battling to Preserve Remnants of History: Newspaper Archives

Expensive and Complex, S.F. Chronicle, Nov. 2, 2000, at AI17

(“Historians estimate that as much as 30 percent of many microfilm

collections are degraded so badly by insects, worn chemicals and overuse

that they are near ruin.”).

'' Library of Congress Report, supra note 5, at 4-9, 6-2.

'2 See Eli M. Noam, Will Books Become the Dumb Medium?, Keynote

Address to the Annual Convention of Educom (Oct. 27, 1997), in Educom

Review, Mar./Apr. 1997, at 21 (“Comprehensive library collections have

become unaffordable. But at the same time, electronic alternatives have

become powerful in storage, broad-ranging in content and efficient in -

SOE FO came OE pe eis he LIE 7 RR BPH IR may

ee a

11

digital alternative, rather than the traditional print alternative,

is more commonly selected.'’ Indeed, some observers predict

that print media journal/periodical storage and retrieval

systems will be the exception rather than the rule in the not-

too-distant future.'* Already, for many researchers, electronic

archives represent the sole repository of comprehensive

historical information on their topic of interest.'°

C. The Second Circuit’s Decision Will Have the

Predictable Effect of Irreparably Undermining

the Integrity of the Nation’s Electronic

Archives and the Progress of Historical

Research and Scholarship.

In an era when print archives of newspapers, journals and

other periodicals are being rapidly replaced by electronic

counterparts, the Second Circuit’s decision will have the

practical effect of dramatically and irreparably undermining

the integrity of the historical record by limiting access to

information and increasing the burdens on, and the costs of,

scholarship.

retrieval. Therefore, libraries are gradually shifting from investment in

the physical presence of information to the creation of electronic access.

Soon the combination of laptop and phone line will serve just as well—

anywhere, anytime.”).

'? See Katie Hafner, Books to Bytes: The Electronic Archive, N.Y.

Times, Apr. 8, 1999, at G1.

4 See Tracy Primich, Electronic-Collections in the Age of the

Traditional Library, EContent, Apr. 1, 2000, at 65 (quoting the /994

California State University Strategic Plan for Libraries which sets as a

goal the transformation of “expensive journals in high-use areas into their

electronic equivalents as early as is financially feasible, but certainly

within the next three to five years,” ultimately predicting that the state

university library system will “get out of the business of acquiring print-

based journals altogether”).

> See Library of Congress Report, supra note 5, at 1-17.

12

If the decision below stands, publishers may not lawfully

include in electronic copies or libraries the works of freelance

authors who have not explicitly granted the rights for further

electronic archival publication of their respective journal,

magazine or newspaper contributions. The threat of a tidal

wave of iawsuits brought by freelance authors relying on such

a holding will force publishers to minimize the risk of

liability by prophylactically eviscerating electronic collec-

tions of significant materials. From the perspective of amici,

the potential damage wrought by this rule is inestimable

because such “freelance” materials include, among other

things, Op-Ed pieces, letters to the editor, and other

invaluable contemporary commentary on the people and

events of a given point in time.

The certainty of this devastating outcome becomes clear

when the practical limitations involved in seeking and

clearing freelance authors’ rights are considered. First, in

light of decades of common publishing industry practice, and

given the long-standing understanding of publishers that

authorization for inclusion of works in archival resources was

not required, the publishing industry simply has not

maintained the complete and accurate records necessary to

seek and secure the permissions mandated by the Second

Circuit’s decision. Accordingly, many of the authors whose

rights may be implicated, or their heirs and assigns, may be

difficult, if not impossible, to locate. Second, even assuming

the respective rights holder(s) can be located, in addition to

the practical and administrative burdens associated with

attempting to clear rights retroactively, the aggregate costs of

paying individual rights holders for the necessary permissions

to republish their respective contributions in electronic form

either will be passed on to individual and _ institutional

end users, or may simply be prohibitive, particularly for the

publishers of small and/or specialized academic journals.

Third, in terms of prospective effect, the Second Circuit’s

decision is no less damaging. Although it may be possible for

el eee

13

publishers to secure in advance the necessary rights from

freelance authors to publish back issues of newspapers and

other periodicals in their entireties in electronic form, it is

equally possible that freelance authors may deny granting

such permissions, preferring instead that their individual

works not be included in electronic archives regardless of the

fees offered by the publisher.

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. For the scholar, the uncertainty

engendered by an incomplete archive presents a grave threat

to the quality and completeness of historical scholarship,

particularly where the gaps in coverage are not apparent or

even detectable.

Faced with the prospect of unidentifiable gaps in coverage

in the nation’s electronic archives, and in order to guarantee

thorough and accurate research, historians and researchers

will, by necessity, be driven back to physical collections of

libraries and archives to utilize, to the extent they now exist,

the obsolete and inherently limited print-based indices and

other analog information-locating tools of prior generations.

In light of the trends in library acquisition in favor of

electronic media, however, researchers will return to a

materially depleted analog universe, with a substantial portion

of the historical record simply unavailable or, if available,

difficult, costly and inconvenient to access. Against such a

backdrop, and in view of increasing financial constraints on

research libraries and archives, it is highly unlikely that all

but a select few collecting institutions will be able

consistently to purchase electronic and analog versions of

critical resources, with those that do likely being forced to

pass on the costs to downstream users. Moreover, because of

the fundamental shift in favor of electronic media among the

nation’s libraries, archives and research institutions, it may

14

simply be too late to return to analog approaches as the

principal means of information storage and retrieval. The

vast majority of libraries and archives will, therefore, be left

with an unenviable choice between facilitating access and

providing complete access to critical resource materials.

Amici respectfully submit, therefore, that the Second

Circuit’s decision will have the unprecedented and

undesirable two-fold effect of threatening the completeness

and integrity of the nation’s electronic archives, and decreas-

ing access to convenient, cost-efficient, comprehensive

electronic information resources available to historians,

scholars and researchers, as well as the public at large. In

reaching its decision, the Court should weigh heavily the

likely consequences of the Second Circuit’s decision to the

integrity of our nation’s collective historical record and the

progress of scholarship.

Il. THE SECOND CIRCUIT’S FOCUS ON END

USERS IN DETERMINING WHETHER

ELECTRONIC ARCHIVES QUALIFY AS

“REVISIONS” UNDER SECTION 201 IS

INCONSISTENT WITH THE PRACTICAL

REALITIES INHERENT IN THE PROCESS OF

RESEARCH, AS WELL AS LONG-STANDING

PUBLISHING INDUSTRY ASSUMPTIONS

REGARDING THE PERMISSIBILITY OF TRA-

DITIONAL, ANALOG MEANS OF PERIOD-

ICAL, NEWSPAPER OR JOURNAL STORAGE

AND RETRIEVAL.

As framed by the Second Circuit, the central issue in this

case is whether electronic journal, newspaper and periodical

archives are “revisions” of the specific collective works in

which the freelance authors’ contributions first appeared. In

short, if the electronic archives qualify as revisions of a given

edition or issue of a periodical or newspaper, the reproduction

and subsequent distribution of respondents’ individual articles

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15

in electronic archival form, or otherwise, is privileged under

Section 201 of the Copyright Act.

Amici urge the Court to reject the Second Circuit’s heavy

reliance on the individual searchability and retrievability of

the electronic archives and find, instead, that these

characteristics, which are shared by analog storage media,

long viewed as privileged under Section 201, are of no

moment in determining whether electronic archives are

similarly privileged under the Copyright Act. From the

perspective of amici, the distinction between electronic

libraries and their analog counterparts is simply one of

medium, not one of function. Moreover, one of the principle

characteristics of the original collective work in which such

freelance contributions were published—i.e., the publisher’s

selection of that article for inclusion in a given periodical,

newspaper or journal—is no less evident in the electronic

archives at issue in this case than in traditional forms of

storage and retrieval.

The Second Circuit’s approach to deciding the central issue

in this case appears to rest, in large measure, on the ability of

end users to access particular articles according to

individualized search criteria “unrelated to the particular

edition in which the articles first appeared.”!* Implicit in the

Second Circuit’s holding, however, is the suggestion that the

ease of access to individual articles offered by electronic

media, at least as contrasted with traditional analog forms

(i.e., microfilm/fiche or hardcopy bound volumes), renders

electronic archives somehow less deserving of the privilege

afforded by the Copyright Act.

Amici readily acknowledge that electronic research tools

represent a quantitative advance in historians’ and other

scholars’ ability to access invaluable source materials. Amici

'° Opinion of the United States Court of Appeals for the Second Circuit

Dated and Decided Sept. 24, 1999 and Amended Feb. 25, 2000, 206 F.3d

161, 169.

16

respectfully submit, however, that irrespective of the medium

in which these materials are stored, the process of rescarch,

indeed the primary goal of research, is to identify and

retrieve individual articles and source materials addressing a

particular topic of interest. In this respect, the Second

Circuit’s acknowledgment of the value of individual articles,

from the end user’s perspective, would appear to be equally

applicable to traditional microform archives, as well as

archives of bound volumes of periodicals and journals.

Moreover, if taken to its logical extreme, this reasoning

would undermine a fundamentally acknowledged view, as

well as decades of publishing industry practice, based on the

understanding that microform replicas are privileged under

Section 201.'

Indeed, from the historian’s perspective, and to the extent

the end user’s perspective is relevant to the legal issue

presented in this case, the focal point of research has always

been, and will always be, the retrieval of individual articles,

regardless of the-medium in which these materials are

maintained. This point could not be more succinctly and

clearly illustrated than in the following comments of historian

Douglas Brinkley,’* describing the process of biographical

research and the value of contemporary newspaper, journal

and magazine archives to the work of historians:

'7 See U.S. News and World Report Pulls Some Content From

Microform Over Copyright Concerns, Library Journal Academic

Newswire, Aug. 29, 2000 (reporting that microform distributor Bell &

Howell recently notified library subscribers that U.S. News and World

Report would omit materials in which the publisher does not hold the

copyright from future microform editions of its publication until the

“copyright issues have been resolved”).

'* Professor Brinkley is the Director of the Eisenhower Center for

American Studies at the University of New Orleans and the author of

award-winning biographies of Jimmy Carter and Franklin D. Roosevelt.

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Second Circuit’s analysis. As the district court recognized

below, from a researcher’s perspective, the value of any

article ultimately retrieved is derived, in large part, not only

from the content of that article, but also from the fact that a

publisher of particular note, reputation, political persuasion

or other relevant characteristic selected that article for

inclusion in a specific issue of its publication. The

publisher’s selection of that freelance contribution is retained

and continues to be as relevant in the electronic archives as in

the original publication. This point was obscured below by

the court of appeals’ focus on the fact that, from the end

user’s perspective, electronic archives may, in some

instances, display individual articles separately from other

materials included in the original collective work.

The Second Circuit’s misplaced emphasis on _ the

individually searchable and retrievable character of electronic

archival materials as determinative of the “revision” issue

rests upon an implicit distinction between analog and

electronic research tools that is simply not supported by the

practical realities and common practice of amici, or end users

generally. Amici, therefore, urge the Court to conclude, as

did the district court below, that electronic archives constitute

permissible revisions under Section 201 even where, from the

end user perspective, an electronic version may not retain the

exact arrangement of the original print version of a given

issue of a newspaper, periodical or journal, but does reflect

the publisher’s selection of that article.

19

CONCLUSION

For the foregoing reasons, the judgment of the court of

appeals should be reversed.

January 5, 2001

Respectfully submitted,

MICHAEL F, CLAYTON

Counsel of Record

BRETT I. MILLER

ANITA G. BLUMENTHAL

MORGAN, LEwIs & BOCKIUS LLP

1800 M Street, N.W.

Washington, D.C. 20036

(202) 467-7000