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Besides hyperbole and name calling, the May 3 commentary by Bruce Keller and Michael Potenza ( “From the Publishers’ Corner: Another Look at ‘Tasini’ “), written in rebuttal to my April 24 commentary ( “Copyright Protection in a Digital Age”), suffers from defects too numerous to detail here. I’ll just mention three. First, the electronic databases at issue in the Supreme Court case of New York Times Co. v. Tasini– most prominently, Nexis — are not “archives” and do not serve the function of archives. The plaintiffs — six free-lance writers who believe that their articles have been uploaded to these databases in violation of their copyrights — submitted an expert’s affidavit on the “archive” question, and it stands unrebutted. Second, Keller and Potenza (who represent the defendant publishers) incorrectly suggest that use of the electronic medium necessarily entails making individual articles retrievable. Again, an unrebutted expert affidavit establishes that, had they wanted to, the defendants could easily have used the electronic medium without engaging in “disaggregation” of their collective works. The publishers could have utilized electronic scanning techniques to create intact images of their periodicals — in either their original or revised forms. They could then have made each issue retrievable, much as PDF files are retrievable. With the PDF format, you retrieve an entire document as a single unit, even though you may then choose to read only certain pages. As long as the image is open, you page backward and forward within one document. In other words, if you are on Page 4 and move back one page, you necessarily come to Page 3 of the same document. You do not — as you might with Nexis or another Tasinidatabase — find yourself smack in the middle of an article or page from another publication. The defendants obviously decided for commercial reasons not to create and market a database incorporating such images. They had the absolute right to make that decision. But, having decided to publish individual articles (and not, as they argue, “revisions of collective works”), they were required by both Sections 103(b) and 201(c) of the Copyright Act to obtain the relevant rights in the articles that they were publishing. Hardly a startling proposition. LOST IN THE 2ND Third, and more startling, is the publishers’ reply-brief revelation that their principal argument is identical to the argument that West Publishing made unsuccessfully in Matthew Bender & Co. v. West Publishing Co.(2d Cir. 1998). Because the defendants made this disclosure in their reply brief to the Supreme Court, they effectively deprived the plaintiffs of the opportunity to point out three facts: 1) Matthew Bender, which is owned by Tasinidefendant Lexis-Nexis, took the same position in the Matthew Bendercase that the free-lancers are taking in Tasini; 2) David Nimmer, whose name graces both the treatise and a new Mealey publication, signed the brief setting forth Matthew Bender’s position before the 2nd U.S. Circuit Court of Appeals; and 3) The U.S. government filed amicus briefs with both the district court and the 2nd Circuit, fully supporting Matthew Bender’s position. So what is the moral of the story? That there is powerful support for what might be called the Matthew Bender-Nimmer-U.S. government-Copyright Office-free-lancer position on this issue? That is one possible moral, of course. Perhaps the more important moral is that the position espoused by The New York Timesin this case is not necessarily either a pro-publisher or pro-press position, or even pro-industry. It is simply an unsound and short-sighted position. Private industry has been on the Matthew Bender side of the digital copyright issue before and will be again. It will therefore come to understand that, like society in general, it is better served by an approach to the digital world rooted in plain facts and plain meaning, rather than in blue smoke and mirrors. Emily M. Bass is a partner in New York’s Gaynor & Bass. She represents two of theNew York Times Co. v. Tasini plaintiffs before the U.S. Supreme Court.

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