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I'm Barking for Judge Barkett

By Senior Copyright Counsel, Google Inc.

Yesterday, the 11th Circuit handed down its eagerly awaited en banc opinion in Greenberg v. National Geographic Society. By a 7-5 vote, the court of appeals did the right thing: affirm the earlier opinion in "Greenberg II," 488 F.3d 1331 (11th Cir. 2007), which had vacated "Greenberg I," 244 F.3d 1267 (11th Cir. 2001). I earlier did a post on the issues raised in the en banc appeal, so I shan't repeat them here. The majority opinion was by Judge Barkett. There was a dissent by Judge Birch, for himself and Judge Wilson, in which Chief Judge Edmonson and Judge Anderson joined only Part A. Judge Anderson also had a dissent in which Chief Judge Edmonson and Judges Tjoflat, Birch, and Wilson joined. (Figuring out the various votes would be a blog in itself). Judge Barkett's opinion is 24 pages. Judge Birch's dissent is almost twice as long, 47 pages (half of which is devoted to issues not before the court, which is why Chief Judge Anderson and Judge Wilson only joined in Part A of that opinion. Judge Tjoflat joined in Judge Anderson's dissent, but not Judge Birch's). Judge Anderson's dissent is a slim 8 pages.

Despite the fact that the court of appeals was very divided, I seriously doubt the Supreme Court will grant certiorari if petitioned: there is no split in the circuits, and the issues are very close to those decided in the Tasini case. Both Tasini and Greenberg deal with 17 USC 201(c), the scope of the presumptive privilege granted to publishers of collective works to re-use freelancers' works in republishing "that collective work" and in a revision thereof. The majority held that the NGS's CD-ROM, "The Complete National Geographic" (CNG) was a permissible revision. I would have said it was not a revision at all, but still "that collective work." The emphasis on whether a revision occurred is, for me, a holdover from Tasini's uber-complicated approach. In finding a permissible revision -- as compared to there being a "new" collective work outside the privilege, Judge Barkett rightly focused on NGS's contextual nature: the
CNG used the identical selection, coordination, and arrangement of the freelancer's contributions as found in the hard copy magazines, and was an image-based reproduction just like microfilm, even down to reproducing the magazine fold in the middle of the page and the exact same page numbers as placed originally.

What is most thrilling about the opinion is its giving meaning to Tasini's media neutral interpretation of Section 201(c), by authorizing the use of an underling computer program to search and index articles, as well as zoom and print functions, all of which had analogs in microfiche. Particularly noteworthy (see footnote 10) is the majority's rejection of ways users might hack into the NGS' contextual presentation to extract individual article.

Bravo!

Full post as published by The Patry Copyright Blog on July 01, 2008 (boomark / email).