Sotomayor and Tasini

May 28, 2009. As a District Court Judge Sonia Sotomayor wrote the opinions of the U.S. District Court (SDNY) in Tasini v. New York Times, a landmark copyright case.

This case concerned the republication of the articles of freelance writers in electronic databases. These articles were originally published in periodicals, such as the New York Times.

The plaintiffs were freelance authors whose articles were previously published under license in these periodicals. The defendants were periodical publishers and owners of electronic databases that republished their articles. None of the plaintiffs were employed by the periodical publications in which their articles appeared. None of the plaintiffs entered into work for hire contracts. All of the plaintiffs registered a copyright in each of the articles at issue. The authors' ownership of the copyright in their individual works was not in dispute. The plaintiffs never licensed their works for publication in electronic databases.

Nevertheless, the periodical publications licensed much of the content of their periodicals, including the plaintiffs' works, to one or more of the electronic database providers. The defendants asserted authority to do so under Section 201(c) of the Copyright Act.

The relevant statute is codified at 17 U.S.C. 201(c). It provides in full that "Copyright in each separate contribution to a collective work is distinct from copyright in the collective work as a whole, and vests initially in the author of the contribution. In the absence of an express transfer of the copyright or of any rights under it, the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series." (Emphasis added.)

The defendants argued that they own the copyright in the "collective works" that they produce and are afforded the privilege, under 201(c), of "reproducing and distributing" the individual works in "any revision of that collective work".

Sotomayor ruled on cross motions for summary judgment that the electronic databases are a "revision" of the individual periodical issues from which the articles were taken, and hence, granted summary judgment for the defendants.

Sotomayor's August 13, 1997, opinion [MS Word] on summary judgment is published at 972 F. Supp. 804. Her October 29, 1997, opinion [MS Word] on denial of motion for reconsideration is published at 981 F. Supp. 841. The case is Jonathan Tasini, et al. v. New York Times Co., et al., U.S. District Court for the Southern District of New York, D.C. No. 93 Civ. 8678(SS).

Judge Winter, writing for a three judge panel of the Court of Appeals, reversed, holding that the privilege afforded authors of collective works under Section 201(c) does not permit the publishers to license individually copyrighted works for inclusion in the electronic databases.

He was blunt: "The district court is mistaken."

The Court of Appeals' issued its opinion on September 24, 1999. See, amended opinion published at 206 F.3d 161. The case is Jonathan Tasini, et al. v. New York Times Company, Inc., et al., U.S. Court of Appeals for the 2nd Circuit, App. Ct. Nos. 97-9181 and 97-9650. Judge Winter wrote the opinion, in which Judges Miner and Pooler joined.

The defendants filed a petition for writ of certiorari, which the Supreme Court granted. See, story titled "Supreme Court Grants Cert in NYT v. Tasini", Tech Law Journal, November 7, 2000.

The Supreme Court, like the Court of Appeals, held in its June 25, 2001, opinion that the defendants did not have a privilege under Section 201(c) of the Copyright Act to include in electronic databases the freelance articles written for and licensed to print publications. See, story titled "Supreme Court Rules for Authors in NYT v. Tasini" in TLJ Daily E-Mail Alert No. 216, June 26, 2001. That opinion is also published at 533 U.S. 483.

Justice Ginsburg wrote the opinion of the Supreme Court in which Justice Souter and five others joined. It was a 7-2 opinion.

Moreover, the Copyright Office, which is a constant advocate of the interests of publishers, aggregators, and content companies, wrote that Sotomayor misconstrued the Copyright Act.

On February 14, 2001, Register of Copyrights Marybeth Peters wrote a letter to Rep. James McGovern (D-MA). She wrote: "201(c) cannot be read as permitting publishers to make or authorize the making of public displays of contributions to collective works. Section 201(c) cannot be read as authorizing the conduct at the heart of Tasini. The publishers in Tasini assert that because the copyright law is 'media-neutral,' the 201(c) privilege necessarily requires that they be permitted to disseminate the authors' articles in an electronic environment. This focus on the 'media-neutrality' of the Act is misplaced." See, story titled "NYT v. Tasini", in TLJ Daily E-Mail Alert No. 127, February 20, 2001.

This case was not a dispute between (1) advocates of copyright protection and enforcement, and (2) the copy left, or advocates of less copyright protection and enforcement. Rather, it was a dispute between (1) people who create works subject to copyright, and (2) companies that publish the works of others. Sotomayor ruled for the publishers. In doing so she construed a statute in a manner rejected a unanimous Court of Appeals panel, seven out of nine Supreme Court Justices, and the Copyright Office.

President Obama stated on May 1, 2009, that "I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a case book. It is also about how our laws affect the daily realities of people's lives -- whether they can make a living and care for their families".

He continued that "I view that quality of empathy, of understanding and identifying with people's hopes and struggles as an essential ingredient for arriving as just decisions and outcomes. I will seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role. I will seek somebody who shares my respect for constitutional values on which this nation was founded, and who brings a thoughtful understanding of how to apply them in our time." See, transcript.

In the Tasini case, Sotomayor interpreted a statutory section. As a Supreme Court Justice, she would play a larger role in giving meaning to the "constitutional traditions" and "constitutional values" referenced by the President.

Copyright is in the Constitution. George Washington and the others at the founding of the nation accorded it the status of "rights". Moreover, these "rights" are given to "authors and inventors" -- not corporate assignees, publishing conglomerates, or database companies. The plaintiffs in the Tasini case were "authors". Also, the plaintiffs were people whose hopes and struggles, whose economic livelihood, whose ability to care for their families, were dependent upon their rights.

Yet, Sotomayor offered a contorted interpretation of a statute to rule against the Constitutional "rights" holders -- against ordinary people trying to make a living. In the Tasini case, she did not uphold either the statute, or the President's vision of empathy.