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The 2nd U.S. Circuit Court of Appeals has confirmed a lower court ruling dismissing copyright claims against National Geographic by interpreting the copyrights at issue within the context of the U.S. Supreme Court’s 2001 Tasini ruling. The opinion, Faulkner v. National Geographic Enterprises Inc., 04-0263, by Judge Ralph Winter, combined multiple cases in which freelance writers and photographers accused National Geographic of copyright infringement over its sale of a set of CD-roms containing the entire collection of magazines dating back to 1888. The three-member panel, which included Judges Reena Raggi and Robert Katzmann, distinguished the National Geographic product from Tasini. In Tasini, the Supreme Court held that articles appearing on popular search engines that separate the articles from their context are not a protected “revision” under copyright law. As a result, the Court held that publishers had violated the rights of freelance authors in presenting these articles individually, out of the collective group in which they originally appeared. The Court also noted, Judge Winter said, that collections placed on microfilm and microfiche were permissible uses of the copyright granted to publishers because these collections preserved the context in which the articles first appeared, unlike electronic databases, which separate them. National Geographic’s compilation included characteristics resembling microfiche. “The [CD-rom set] presents the underlying works to users in the same context as they were presented to the users in the original versions of the Magazine,” wrote Winter. One of the magazine’s programs allowed users to search for individual articles but instead of seeing the articles in isolation, users saw the article placed within the issue. The entire magazine was scanned into the CD-rom, showing users page numbers, photos and advertisements exactly as they appeared in the original. “In contrast,” continued Winter, “the databases at issue in Tasini precluded readers from viewing the underlying works in their original context.” The panel also rejected the plaintiffs’ request to apply offensive collateral estoppel on their behalf based on a favorable ruling from the 11th Circuit. The 2nd Circuit panel held that the law underlying the other opinion had changed, making collateral estoppel inapplicable. Under this doctrine, “a plaintiff may preclude a defendant from relitigating an issue the defendant has previously litigated and lost to another plaintiff,” wrote Winter. “Use of collateral estoppel,” he said, “must be confined to situations where the matter raised in the second suit is identical in all respects with that decided in the first proceeding and where the controlling facts and applicable legal rules remain unchanged.” The panel held that after Tasini, the legal rules had indeed changed. The plaintiffs were relying on an unrelated case from the 11th Circuit, which had ruled in favor of similarly situated plaintiffs suing National Geographic for copyright infringement over its CD-rom collection. That ruling was made prior to Tasini, Winter pointed out. “In our view,” the panel held, “the Tasini approach so substantially departs from the [11th Circuit opinion] that it represents an intervening change in law rendering application of collateral estoppel inappropriate.” Among the attorneys representing plaintiffs were Andrew Berger of Tannenbaum, Helpern, Syracuse & Hirschtritt and Stephen Weingrad of Weingrad & Weingrad. Robert Sugarman of Weil, Gotshal Manges represented National Geographic.

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