Judge Kaplan of 2600 Fame Back On Slashdot

There’s an article on Slashdot today, Court Rules Against Photographers in Copyright Suit, based upon an article in Photo District News Online, NGS Beats Infringement Rap in New York. Essentially, a set of photographers sued the National Geographic Society over their distribution of a CD of issues of National Geographic without compensation.

The photographers were relying upon an 11th Circuit decision, Greenberg v. National Geographic, but Judge Kaplan, noting that NYTimes v. Tasini had been decided subsequent to the 11th Circuit decision and using a different theory of infringement, elected to review in light of that decision, and concluding that a CD of page scans, even with an index, is not a new work, so the earlier agreements to publish still held.

Here is a link to the case — Faulkner et al. v. National Geographic. The route taken to deciding the review the materials rather than rely upon Greenberg is worth a look.

The issue tendered by defendants — whether the [Complete National Geographic] CNG is a “revision” within the contemplation of Section 201( c) — requires construction of the 1976 Act in a new technological context. The question is whether a print publisher of a collective work is privileged to use the individual contributions in a digital version where (a) the individual contributions are presented in the same contexts in which they appeared in print, and (b) the digital version contains also software or other materials that did not appear in the print version. This issue is one of substantial importance to the development of copyright law and to its impact on the dissemination of knowledge. The Second Circuit, to which any appeal here would be taken, of course is a jurisdiction coordinate to that of the Eleventh Circuit. In the event of a circuit conflict, the matter likely would go to the Supreme Court. A decision on the merits here thus would promote the development of the law on this important point. [slip op. page 21]

[…] Greenberg resolved the revision issue by looking to the question whether the CNG contained independently copyrightable elements in addition to the previously published collective works, i.e., the Magazine. Tasini took a different approach. It focused instead on whether the individual contributions appeared in the putative revisions – the electronic databases – in the same contexts in which they appeared in the original collective works. Moreover, its reference to the microform analogy has significant implications for the CNG. Accordingly, while it perhaps is possible, as a matter of formal logic, to reconcile the holdings of Tasini and Greenberg, the difference in the Supreme Court’s approach to the revision issue nonetheless is striking. [slip op. page 23]

[…] This Court is convinced, both as a matter of law and in the exercise of discretion, that application of collateral estoppel to foreclose defendants from asserting that the CNG is a privileged revision of the Magazine would disserve the public interest in having the important issue presented here resolved definitively and would be inequitable. It therefore holds that defendants are not foreclosed on the revision issue by Greenberg.

The case upon which the photographers were depending is Greenberg v. National Geographic (some background information from some Wired News articles when the case was up for cert: Mr. Tasini, Meet Mr. Greenberg and Magazine Appeals for CD Archive)