New York Times Company, Inc. v. Tasini - Oral Argument - March 28, 2001

New York Times Company, Inc. v. Tasini

Media for New York Times Company, Inc. v. Tasini

Audio Transcription for Opinion Announcement - June 25, 2001 in New York Times Company, Inc. v. Tasini

Audio Transcription for Oral Argument - March 28, 2001 in New York Times Company, Inc. v. Tasini

William H. Rehnquist:

We'll hear argument now on number 00-201, the New York Times Company versus Jonathan Tasini.

Mr. Tribe.

Laurence H. Tribe:

Mr. Chief Justice and may it please the Court:

The parties on both courts below agree on at least two things, first, that section 201(c) represents a compromise that assures freelance authors that they may control and exploit their individual contributions to collective works like newspapers and magazines in new anthologies and serializations and screenplays and other derivative works unless they've expressly transferred that right.

The parties are also agreed as are both courts below that 201(c) assures the publication of collective works that the publisher of such collective works has the aggregate right to publish any article in the collective work both in publishing the collective work itself of course, but also in publishing that article, quote, as part of any revision of that collective work, again unless there has been an express transfer of the right.

Now the principal impetus for this measure was a rather strong wish to undo several quite notorious rulings like that of the Southern District of New York in the Geisel case in 1968 which of course involved the legendary Dr. Seuss and denied him the right to stop the unauthorized distribution of toy dolls that were derived from cartoons that he had published decades earlier.

There is no hint at all in the history of this measure and I think no hint in the way it's written that microfilm, for example, which had been in use for some 40 years at the time this measure was passed and which people used to make copies of individual articles more often than to make copies of entire cumbersome periodicals was seen by anyone as a problem to be addressed or solved by 201(c).

Antonin Scalia:

When you say people used to make copies you mean the ultimate user?

Laurence H. Tribe:

The ultimate end user.

Antonin Scalia:

Yes, but the person who produced the microfilm or the microfiche produced the entire work.

It produced the article as part of the entire work, not to be shown.

When a person went to the machine he would only look to the article that he was interested in.

Laurence H. Tribe:

As do we, Justice Scalia, in Nexis and in the CD-ROMs, the entire text with the exception of certain graphics that cannot be handled by ASCII is put in.

William H. Rehnquist:

When you would look at a newspaper on microfilm you would get the whole page.

You would probably want to single out a particular article but it was the whole page that appeared to you.

Laurence H. Tribe:

That's right and in this case you basically conduct a search under the algorithms that are used by Nexis, conduct a search of the entire periodical whether you call for a particular topic--

William H. Rehnquist:

But it's not all in one piece, is it.

Laurence H. Tribe:

--Well it's in virtual... it's in... it's certainly not... it's not a newspaper that we're used to.

You can't drink your coffee to it or wrap your fish in it but that really is a red herring, if I may say so.

Sandra Day O'Connor:

Well, but I suppose that it has removed the photographs and the ads.

It's been disaggregated and what you see are the individual articles from a particular--

Laurence H. Tribe:

At any one time, but with a very simple prompt of about 15 characters you can get the entire periodical.

Sandra Day O'Connor:

--But at least in let's talk about the Nexis for a minute.

You don't see ads and the photographs and all that.

But you can pull out an entire article that had appeared in the Times.

Laurence H. Tribe:

You certainly can.

That's why we're--

Sandra Day O'Connor:

Now, I assume that the publisher can enter a contract with an independent author to cover the subsequent use in database material and--

Laurence H. Tribe:

--Yes, and for decades--

Sandra Day O'Connor:

--Probably the publisher does that today--