U.S. copyright law: important court case

[AAllan at AOL.COM]

The National Humanities Alliance, a humanities advocacy group that we
support, has issued this report regarding the important Tasini case. If
you're interested in getting involved, e-mail John Hammer at the indicated
address.
- Allan Metcalf

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The NHA will not be joining the amicus brief for Tasini vs New York
Times.  The attached memorandum to the NHA Board of Directors provides an
explanation for the decision to step back from the case.

From: John Hammer <jhammer at cni.org>

5 February 2001

TO: NHA Board of Directors
FR: Catherine Rudder and John Hammer

RE: Update on Tasini

During December and January 12 NHA board members agreed that we could go
forward on an amicus brief in connection with Tasini v. New York Times
before the Supreme Court.

As you know, the Tasini case concerns free-lance journalists whose
contributions to newspapers and magazines were republished without
authorization in CD-ROMs containing articles from newspapers and
magazines, and electronic databases, such as Nexis.

The case revolves around what constitutes a revision.  At the district
level, the court held that newspapers and magazines can republish without
author's consent because the shift in media (i.e., CD-ROM) was a simple
revision permissible under Section 201c of the Copyright Act.
But the U.S. Appeals Court held that the digitized version did not full
under the "revision" of collective works, reasoning that the only
copyrightable element that the publisher added was its original selection
and arrangement; any "revision" would have to preserve the selection and
arrangement

The Supreme Court agreed to the publishers' request that the case be
heard.  Most NHA members have concerns with the case in at least three
ways:  a) as publishers, b) free-lance and independent scholars within
their membership or discipline, and c) for scholarly access to information
in databases that could removed if Tasini and the writers prevail.

After somewhat inconclusive discussion in the 12/5/00 board meeting, we
wrote and requested board approval to join ARL, ALA and other library
associations in support of Tasini but with a proposed remedy that would
leave the databases in tact.  As noted above, a clear majority of the
board approved going forward.

In continuing to review the case with lawyers and others, a potentially
troubling problem for NHA emerged.  Earlier consideration of the likely
affects of a Tasini victory included a belief that J-STOR would not be
affected because it its digitized humanities journals are unchanged copies
of the original, the whole J-STOR operation is archival, and, as far as we
know, authors were not paid.  However, J-STOR can be used to produce
selections of papers, bibliographies, and other redistributions of the
material that would very much fail to preserve the selection and
arrangement.

Regarding the question of whether the New York Times and others would
actually remove infringing materials from their databases, if Tasini is
upheld, failure to remove infringing material from a database could result
in statutory fines of up to $100,000 per infringement.

We believe that the libraries group is putting together an attractive
brief that, if used by the Supreme Court as a method of resolving the
issue, would be beneficial to both publishers and writers.  On the other
hand, we do not know the direction the Supreme Court may move in the
case.  Given the enormous stake that many NHA members have in J-STOR, we
have concluded that the prudent course of action for NHA is to stand aside
and take no public position on Tasini v. New York Times.

We will have an opportunity to discuss actions on Tasini since the last
board meeting when we meet again on March 6.