Transcript

IN THE SUPREME COURT OF THE UNITED STATES

NEW YORK TIMES COMPANY, INC., ET AL., Petitioners v. JONATHAN TASINI ET AL.

No. 00-201

March 28, 2001

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 10:04 a.m.

APPEARANCES: LAURENCE H. TRIBE, ESQ., Cambridge, Massachusetts; on behalf of the Petitioners.

LAURENCE GOLD, ESQ., Washington, D.C.; on behalf of the Respondents.

PROCEEDINGS

(10:04 a.m.)

CHIEF JUSTICE REHNQUIST: We'll hear argument now on number 00-201, the New York Times Company versus Jonathan Tasini.

Mr. Tribe.

ORAL ARGUMENT OF LAURENCE H. TRIBE

ON BEHALF OF THE PETITIONERS

MR. TRIBE: Mr. Chief Justice and may it please the Court:

The parties on both courts below agree on at least two things, first, that section 201(c) represents a compromise that assures freelance authors that they may control and exploit their individual contributions to collective works like newspapers and magazines in new anthologies and serializations and screenplays and other derivative works unless they've expressly transferred that right.

The parties are also agreed as are both courts below that 201(c) assures the publication of collective works that the publisher of such collective works has the aggregate right to publish any article in the collective work both in publishing the collective work itself of course, but also in publishing that article, quote, as part of any revision of that collective work, again unless there has been an express transfer of the right.

Now the principal impetus for this measure was a rather strong wish to undo several quite notorious rulings like that of the Southern District of New York in the Geisel case in 1968 which of course involved the legendary Dr. Seuss and denied him the right to stop the unauthorized distribution of toy dolls that were derived from cartoons that he had published decades earlier.

There is no hint at all in the history of this measure and I think no hint in the way it's written that microfilm, for example, which had been in use for some 40 years at the time this measure was passed and which people used to make copies of individual articles more often than to make copies of entire cumbersome periodicals was seen by anyone as a problem to be addressed or solved by 201(c).

QUESTION: When you say people used to make copies you mean the ultimate user?

MR. TRIBE: The ultimate end user.

QUESTION: Yes, but the person who produced the microfilm or the microfiche produced the entire work. It produced the article as part of the entire work, not to be shown. When a person went to the machine he would only look to the article that he was interested in.

MR. TRIBE: As do we, Justice Scalia, in Nexis and in the CD-ROMs, the entire text with the exception of certain graphics that cannot be handled by ASCII is put in.

QUESTION: When you would look at a newspaper on microfilm you would get the whole page. You would probably want to single out a particular article but it was the whole page that appeared to you.

MR. TRIBE: That's right and in this case you basically conduct a search under the algorithms that are used by Nexis, conduct a search of the entire periodical whether you call for a particular topic --

QUESTION: But it's not all in one piece, is it.

MR. TRIBE: Well it's in virtual -- it's in -- it's certainly not -- it's not a newspaper that we're used to. You can't drink your coffee to it or wrap your fish, in it but that really is a red herring, if I may say so.

QUESTION: Well, but I suppose that it has removed the photographs and the ads. It's been disaggregated and what you see are the individual articles from a particular --

MR. TRIBE: At any one time, but with a very simple prompt of about 15 characters you can get the entire periodical.

QUESTION: But at least in let's talk about the Nexis for a minute. You don't see ads and the photographs and all that. But you can pull out an entire article that had appeared in the Times.

MR. TRIBE: You certainly can. That's why we're --

QUESTION: Now, I assume that the publisher can enter a contract with an independent author to cover the subsequent use in database material and --

MR. TRIBE: Yes, and for decades --

QUESTION: Probably the publisher does that today --

MR. TRIBE: Sometimes. What's happened, Justice O'Connor, it appears that for at least 20 years people have assumed because no one complained of this practice that the standard contract was not limited to the print medium. Now as of 1995, for example, the New York times made clear they would not make contracts with people for print only.

QUESTION: I notice, though, that the head of the copyright division has at least written a letter that looks like she thinks the court below was absolutely right.

MR. TRIBE: That's right. On the basis of a display argument that is disclaimed by the Tasini respondents that wasn't made below and that doesn't make sense under the statute, because quite clearly if we are involved in reproduction and distribution display is covered in the intersection of those.

It's not, I think, a serious argument. You notice the solicitor general did not decide to come into this case. But you're right about the register of copyright. However that --

QUESTION: Mr. Tribe, does that view of the register of copyright relate at all to one effort that was made in the 76 act and to give the independent artisan, the artist, the author more muscle vis-a-vis the publisher or the patron than before?

MR. TRIBE: It's an interesting theory, Justice Ginsberg, but I've tried to imagine how by carving this pie into two pieces one could give the older, the other, more muscle.

QUESTION: One could pay that's --

MR. TRIBE: Well, in 1995, I was saying a minute ago, the New York Times said we're not going to run articles print only. It would be kind of pointless now when almost everything has to go onto the Internet or be preserved in some other way other than print and they said that our contract will automatically cover print and electronic rights. And what's interesting is that the royalties didn't change a cent after that.

I think it's a kind of belief in magic that leads some people to think that if there's an inequity of bargaining power it will be solved by creating two estates rather than one. In fact, in the mid 1980s it's interesting that the respondents went to Congress, the National Writers Union went to Congress and tried to get a measure much more modest than this one, a measure that would say that when there is a demonstrable inequity in bargaining power, an unconscionable arrangement, and when that's shown by individualized proof there could be a transfer of rights.

Here they want a wholesale, global transfer which I don't think is necessarily going to change anything for the future but could have very serious impact on existing writings whose authors and heirs and assigns are going to be extremely difficult to locate.

QUESTION: So far as the future is concerned, Mr. Tribe, we're just talking about money, aren't we. I mean the people can negotiate one way or the other, however --

MR. TRIBE: That's right and all I'm saying is there is not any particular reason to think the deals will come out very differently.

QUESTION: But at least people evidently think it will. They're expending a fair amount of money.

MR. TRIBE: Well, I think, Justice Scalia, that they think quite rightly that they can get a lot of money to settle a case in which, if we were to lose, we and many other publishers around the country would have no choice but to engage in defensive deletions of a lot of material that could otherwise expose us to massive statutory damages under the copyright laws. That's why a number of Pulitzer Prize winning historians have said they're afraid of what it will do to their research. That's why the American Library Association which is an amicus on their side has conceded that it's awfully difficult to find these people and there may be an adverse impact. Even the register of copyright in the letter to which you referred, Justice O'Connor said there may be an impact on scholarship and research. And I think that's an understatement.

QUESTION: Well, for one thing, this is a three year statute of limitations which will --

MR. TRIBE: I don't know that that will help a lot, Justice Ginsburg and the reason is that keeping something on Nexis or in CD-ROMs that you have in circulation after it has been determined to be infringing and letting people potentially have access to it, which the download might be an infringement, would be a new act. So I don't think the statute of limitations will solve the problem.

QUESTION: It's hard for me to see that that's going to be the effect in the real world because after all these authors have an interest in exposure, it's just like a lot of people now no longer have to be artists for hire are that anyway, because they will give the copyright to the patron, they want people to get to know who they are.

MR. TRIBE: I think that's the irony, Justice Ginsberg. I think the erasures of a lot of these things will not be in the interest of the people whose work may be erased but someone who wrote an article in 1980 and maybe was 60 years old at the time and maybe isn't around at the moment, there are a lot of people like that. We don't know how many. We don't know how many articles, but the U.S. News and World Report has already decided in anticipation because there's no -- they think no analytic difference between microfilm and some of these products, certainly the GPO CD-ROM which is a photographic copy is not different, they've stopped putting their work on microfilm.

The line drawing problem here, if I may say, is one of several reasons why recalibrating the balance that Congress struck is a particularly inappropriate job for the Court.

QUESTION: Mr. Tribe, can I pursue this damages question. I mean, as far as ripping out everything that's on the systems already, that certainly need not be done by court decree.

MR. TRIBE: No, certainly.

QUESTION: A court can say, you know, taking equity into account we're not going to issue such an injunction so the question would be your clients would be compelled to erase all of this stuff because of the damages they would have to pay. What would the damages be if, as you say, it was worthless.

MR. TRIBE: Well under --

QUESTION: If it was worthless, the damages would be negligeable.

MR. TRIBE: You would think that, but under 504 damages are not measured by the harm to the person who sues. There is a provision that says that they can take the -- get the benefit of the presumption that all of our gross income was attributable to their contribution and the theory of that would I suppose be that they don't need a theory because the statute says it, but the theory would be that all of the work we put in electronic form would not have been worth anything if it looked like Swiss cheese with stuff missing.

QUESTION: Rebuttable or irrebuttable?

MR. TRIBE: It's rebuttable. But they can also elect statutory damages which can go up to $30,000 a violation and some courts accept the Nimmer theory of multiple violations per infringement. It would be more even, if not, it could be --

QUESTION: The statutory violation applies only to willful violations.

MR. TRIBE: No, it's more if it's willful. But there is a statutory provision in any event and it would become willful.

QUESTION: What's the nonwillful amount?

MR. TRIBE: I think it's a sliding scale, Justice Scalia, and I think there is discretion to set it. And it can be very low, I think as low as $250 and as high as over 10,000, but I have to say I don't remember for sure.

But the point is there are something like 100,000 freelance articles just on Nexis. There are 18,000 journals on Nexis. You don't have to multiply 100,000 or 50,000 or 20,000 by a very large number to know that a good business judgment for a lot of these companies is going to be who wants the litigation, and you couldn't put together class actions to solve the problem easily, given Amchem and Ortiz because of the incredible variability of the contracts of the -- some of them, for example, will have registered the copyright in the article within three years of its publication and then be eligible for statutory damages, others won't. They'll be plaintiff-specific defenses, statutes of limitations and laches. You mentioned the statute of limitations, Justice Ginsberg.

It seems to me that of course that is not a reason to read the statute incorrectly but I think --

QUESTION: I think if we go back to that for just one second, because I'd like to go about to where Justice O'Connor, I think, started. The part that I'm having difficulty understanding and I don't actually understand this is what precisely, precisely say in the case of Nexis was the event that you think the other side is saying changed the work from a revised work to a new work. In particular I'm thinking, say, at ten in the morning on May 11th, 2001, the Washington Post has a piece of paper, it's called the Washington Post. And then in a analogous form that piece of paper is in its computer. And then something happens. That is, there's a transfer of that information over to Nexis and what, I'd like you to focus right on that, because what you -- I want to know what event in that series of events on that morning we're talking about as being the copying, the unlawful copying.

MR. TRIBE: That moves beyond revision.

QUESTION: Yes, in their view in your opinion.

MR. TRIBE: I assure you, Justice Breyer, I'd love to know at least as much as you would and I hope Mr. Gold will enlighten us, because --

QUESTION: All right. Well, then, let me give you a little bit further -- imagine what it might be. It might be this. It might be that there is a person in the Washington Post who pushes a button called send, and at that point what is sent is not the electronic and analog of the Washington Post several pages, but rather a few articles from the Post and then a little later in the day a few more are sent. And then a little later a few more are sent, and when they arrive in Nexis, they are nowhere stored in a form that is in any sense analogous to that page or several pages in the Washington Post, but rather is in a large computer where they are mixed with hunting fishing journal and everything else.

MR. TRIBE: Justice Breyer, the record is completely unambiguous that nothing like that happens. What happens is that the computer text itself, the very same computer text that goes to the printing office so that the New York Times then arrives at your front desk.

QUESTION: -- example is the Post.

MR. TRIBE: Well the Post, that's fine. I'll take the Washington Post, Washington Post, Washington Star, we can pick our paper. The Washington Post, they all follow the same protocol. There is a computer text and that text is ASCII readable. That means it can be put in computer form and one version -- one copy, it's not even a version, the identical thing goes to the printing facility and --

QUESTION: With an identification code for this day's edition of the Washington Post. Is that the identification code?

MR. TRIBE: Yes absolute -- the identification code --

QUESTION: So that when you pull it up what you get is the whole Washington Post.

MR. TRIBE: If you ask for the Washington Post.

QUESTION: Ah, you have to go out of your way to ask for -- have it recompiled.

MR. TRIBE: I wanted to first describe what happens when it gets there and then I'll try to say what happens at the other end when someone --

QUESTION: I want to know what's sent.

MR. TRIBE: What is sent is computer data, whole Washington Post and it's put before it goes there they add advertisements and some other graphics. And then it goes to the assembly room and then it's delivered and put on newsstands. That edition of the ads and the graphics which are not ASCII --

QUESTION: Forget about the ads and the graphics.

MR. TRIBE: That edition is not made in the version that goes to Nexis. Nexis processes that unitary computer data. It goes instantaneously, not in driblets, and it doesn't go article by article.

QUESTION: So I could look to the opinion of the district court to find that because it might very technically turn on whether the transmission to Nexis is the transmission at one instant of time of the electronic analog, and I chose the Post purposely because it's not involved in some other aspects of the case, the -- it might turn on whether that whole electronic analog of the entire paper is transmitted instantly at one instance over to Nexis where later on they use electronic scissors and cut it up or whether article by article at different times it's transmitted so that there is no cutting up.

MR. TRIBE: There's not a shred of evidence, not a whisper that suggest that they're first disassembling the paper into articles and then whisking it over. It is true that the computer text registers each article and identifies it just as it identifies pages and there is a file for each article. But a file is really a conceptual thing here. It's not that they have a little file and they have the article stuffed in it. And the result of all this is that the technology shouldn't obscure what's happening. What's happening is that something that is as close to the Washington Post for that day as it could be given this medium appears in the Nexis computer.

QUESTION: Well, Mr. Tribe, despite how it is transmitted, if the whole thing goes immediately, then at Nexis is it disaggregated and stored in a way that one finds as individual articles.

MR. TRIBE: No, Justice O'Connor. What happens is --

QUESTION: That's odd, because when I've used something like that I've gone to an author's name or a subject matter and tried to retrieve an individual article, not the whole newspaper.

MR. TRIBE: No, of course not. Although some people want the whole newspaper and you can get it by saying date, paren, 3/28/2001. But let me answer your question --

QUESTION: Well, I think it's fair to say that Nexis at least strips out the ads, strips out the graphics and the photos.

MR. TRIBE: Nexis doesn't strip out the ads.

QUESTION: Well, somebody is doing it because what you get --

MR. TRIBE: The ads are just not added.

QUESTION: What you get is the article.

MR. TRIBE: First of all, you get the whole thing in the GPO CD-ROM. Secondly, Nexis doesn't subtract the ads, they're just not added by the Washington Post, although I'm not sure that that matters. Third --

QUESTION: They're not added but they are in the original version.

MR. TRIBE: That's right. That's why this is a revision. We're not claiming it's the same thing but it is awfully close and if this isn't a revision, it's hard to know what would be. The point I want to make is that with -- once the computer has all of the digital information, it indexes it according to key words and among those words are the date and an author and the data is sort of scattered to the magnetic --

QUESTION: Isn't that the point, Mr. Tribe, at which there is no longer any functional difference between the way Nexis stores and the Nexis subscriber calls up on the one hand and simply a freestanding reprint of the article which anybody can walk into a store and buy on the other hand.

MR. TRIBE: There are several important differences, Justice Souter. One, the search inside Nexis is always of whole periodicals, and that's undisputed, two --

QUESTION: I don't understand what you mean. If I want an article by Smith, I understand that I can search for an article by Smith not for the entire New York Times or Washington Post in which Smith's article occurred.

MR. TRIBE: I understand Justice Souter but it is undisputed that the way they do it, it's more efficient, is that they will take the intersection of all of the indices you want and they will search the entire periodical by periodical to find the article. They don't -- it's not after all a thinking machine. It's a dumb operation, but more important, you're not charged for the article the way you would be at a copy service. You're charged for search time and that's the time for searching entire periodicals. Also --

QUESTION: Okay. And if I want to get the article cheap I identify the article very specifically so that the search time will be less rather than more and the functional effect is that I buy the article.

MR. TRIBE: When you get it, you get it as part of the revision and that's --

QUESTION: Well, no, but I don't. If I get -- maybe you're telling me something in fact that I shouldn't dispute, but if I want Smith's article, what comes out of the machine is Smith's article not the entire edition of the Post.

MR. TRIBE: I understand Justice Souter, but if you'll permit me, let me say why I nonetheless think you're getting it as part of the revised periodical, and the reason is this, it's very important, so please let me stress it. If it were the case that the only way you could comply with 201(c) was that when you asked for an article you get, whether you want it or not, the whole periodical in which the article appears, that would satisfy the concern you're expressing.

But if that was the only way you could do it, the statute would be incoherent because it says that you may reproduce and distribute the contribution as part of a revision or you may distribute the revision itself or a later element in the series, and if it were the case that you have to get the whole thing, then we would have erased from the statute the key compromised words --

QUESTION: I will accept that but it may then simply be that the price of coherence, as you put it, is a limitation on the right of the periodical or of the collection and a corresponding recognition of the right of the author. That may be what coherence demands.

MR. TRIBE: Well, but wouldn't that be for Congress, Justice Souter? That is, Congress said --

QUESTION: If that is a necessary -- if that is the only way to avoid for practical purposes reading the author's copyright protection right out of the statute then I would suppose that's what Congress necessarily has provided.

MR. TRIBE: But Justice Souter, to say that it reads that protection out of the statute is hard to square with the fact that these authors in undisputed testimony themselves said that when they tried to syndicate their work or serialize it or sell it in some way there was never any evidence that its appearance in this archival context on Nexis or the CD-ROMs ever made the slightest difference. They can fully exploit their individual work, the argument is that we should be able since Congress said so to reproduce and distribute not just a revision of the composite work, but the article as part of that revision, and that cannot mean --

QUESTION: Well, because you played -- the idea is you played their song beyond their permission. Tell me, Mr. Tribe, why if it is wrong to think of what's going on here if you put it in very simple terms as taking the article that the Post has received, to put it in the Post, and just putting it in a much, much larger journal? When you give it to Nexis, isn't that what happens?

MR. TRIBE: No. No, Justice Ginsberg, it's when you bind the book and put it on a library shelf you could say it's part of a huge book. The fact is that this is a huge database and the Second Circuit's suggestion that we are treating that whole database as the revision is completely wrong. We've said all along that the revision is simply the digitized version of the periodical. That digitized version is one that contains --

QUESTION: That doesn't exist -- that does not exist separately, it does not exist by itself, it's part of this big mass of data.

MR. TRIBE: That's the nature of the medium. Nothing exist separately.

QUESTION: You're inventing a revision that has no real world existence. You're saying there's just this part of the data which is scattered all through I don't know how they scatter on the disk or wherever --

MR. TRIBE: But Justice Scalia, Congress was well aware -- they talked about disks, they talked about any medium, they talked about machines having to read the stuff, they knew about the computer, 1978 wasn't that long ago. This law was written to make sense in the computer context.

QUESTION: It would have been thoroughly feasible, would it not, to send over the Washington Post with identification that would only refer to this edition of the Washington Post.

MR. TRIBE: But the statute allows --

QUESTION: In which case you would have no problem in the world, you have sent over the Washington Post.

MR. TRIBE: No. The problem in the world we'd have, Justice Scalia, is the world doesn't want only -- and Congress --

QUESTION: That may well be so pay for it then. That just proves that it's better to do it the way you're doing it, commercially better, but that doesn't prove you should have to pay for it.

MR. TRIBE: I think we're paying for the existing royalty and secondly, Congress said that we could publish as part of that compromise that we could publish the individual article as part of the revision. I'm saying that carries this implication and it doesn't destroy their copyright.

QUESTION: Suppose you had an old fogy editor who didn't want to use any of new-fangled stuff so what he does is he cuts out each article in a magazine, each separate article and he sends it over to some separate library, he sends over the whole thing but it's sent over article by article and it is and knowingly to be -- to be indexed in that library that he's sending it to by the article, rather than by the Washington Post of the day, would you say that somehow this is just a revision?

MR. TRIBE: Probably not. Probably not, because I think --

QUESTION: I don't see why this is any difference in substance.

MR. TRIBE: It differs in a lot of ways. We are sending over the entire periodical and people can find --

QUESTION: My case, too. The whole thing's sent over, but it's sent over article by article and it is indexed by the article, in a whole mass of articles from every magazine in the country, now would that be okay if it was done in print? I don't see why --

MR. TRIBE: Would they be charged for the articles or charged for the time it takes to search the whole library.

QUESTION: Oh, you think that's the difference?

MR. TRIBE: I think it makes an important difference. These things are also -- if you look at the promotional materials they're promoted as complete periodicals, hundreds of volumes of the most widely-read periodicals. I think I should reserve the balance of --

QUESTION: Very well, Mr. Tribe.

Mr. Gold, we'll hear from you.

ORAL ARGUMENT OF LAURENCE GOLD

ON BEHALF OF RESPONDENTS

MR. GOLD: Mr. Chief Justice and may it please the Court:

I'd like to begin by addressing the part of the discussion that just concluded, Section 201(c) and its cognate Sections 103 and the definition sections as has been discussed distinguished between the author's copyright in his individual contributed work, which he retains when he contributes it to a collective work, and the collective work copyright owners, this language couldn't be more cumbersome, mainly the publishers' copyright in the collective work as a whole. The statute couldn't be clearer, we believe, in the proposition that the collective works copyright owner has no copyright in the individual article in these free-lance situations where there is the separate author copyright.

It seems to us that the clearest lesson from that is that if the publisher were in print terms to publish reprints of individual articles and treat them separately that would be an infringing action, the publisher would be exploiting the article as an article and without any authorization.

QUESTION: Suppose that the Times published bound volumes of its paper but it had an index in the front of it, maybe it does, with all of the authors names and all of the subjects names and the other thing it did was it had tabs so that you could easily find the index. I take it that would be a permitted revision just because it's in paper.

MR. GOLD: Well, if in paper terms, the Times were to publish a version of what they electronically provide to Nexis, article by article, by the way in file -- each article in a file. But if they were to publish that as a coherent whole, the reader's condensed May 1st New York Times, I think there's a very strong argument that that's a revised version of the paper.

QUESTION: Well, at some point it changes so much that it's not --

QUESTION: What you're saying --

QUESTION: Electronically that's all this is, is it not?

MR. GOLD: I'm saying that is a fair argument but we're miles away from that fair argument.

QUESTION: No, but take Justice Kennedy's precise example, it's not just the indexed New York times of this date but the Times publishes a massive volumes, all of the New York Times from 1950 to 1990 with an index in it, would you consider that just a revision of the one edition of the New York Times for which the Times had the copyright.

MR. GOLD: I do not think that's --

QUESTION: I wouldn't think that either.

MR. GOLD: -- a revision.

QUESTION: It also could be a later collective work in the same series.

MR. GOLD: The question here, though, at least there is an argument that that's a revision and not an exploitation of the copyrighted author's article as an article, but my point, my beginning point is that as I understand Mr. Tribe's argument, if the Times were to publish an article as an article, saying this was part of the New York Times and offer it on the market, make copies and offer it to anyone who wants to buy it, that that would be part of the publisher's 201(c) right.

At that point there's nothing, on that theory, there is nothing left of the fact that the author is the copyright holder in the article. We thought that was the starting point, that the one thing that is plain is that the collective work copyright holder cannot exploit the article as an article, as a separate freestanding work. And in the end what the Nexis system does is exploit articles on an article by article basis. They're drawn from hundreds of collective works.

QUESTION: Mr. Gold, it would help me if you would identify for me precisely when the infringement occurs. Let me just take the very first step. Supposing the New York Times sends an E-mail to Nexis and attaches an exhibit and on that exhibit is an entire copy of all the stories in the paper that day. Is that an infringement?

MR. GOLD: I don't think that if you take a particular view of what the revised work is at that stage whether there is an infringement seems to me questionable, but --

QUESTION: And the reason it would not be an infringement is because translating it from the paper media to the electronic media would be a revision? Is that correct? Just as though you put it in Braille, that would be a revision.

MR. GOLD: As long as a collective work, but what is done here --

QUESTION: So that step isn't an infringement. Now when does the infringement occur and by whom?

MR. GOLD: The -- it seems to us there are a series of infringements, the first is --

QUESTION: Let's take the first one and by whom.

MR. GOLD: The first is that the articles are coded, the article files are coded and then inserted into an overall database of millions and from the latest numbers, billions --

QUESTION: And then you're going to have to tell me, why is that different from putting a photostat or a microfiche of a New York Times in a particular place in a big library?

MR. GOLD: Because you're not putting a microfiche of the New York Times as a New York Times what you're --

QUESTION: No, but you're putting a revision in.

MR. GOLD: No.

QUESTION: What you just said was a revision.

MR. GOLD: No, you're putting articles that were part of the revision into an undifferentiated mess and in that sense you're creating a quite different work. Those articles --

QUESTION: I thought your complaint alleges contributory infringement by the New York Times the minute it sends it to me, data central. I thought that was the allegation in your complaint, that that's a contributory infringement because the New York Times knows what they're going to do with it, they're going to disaggregate it and have it available. Is that the allegation or not?

MR. GOLD: That's the allegation.

QUESTION: That's how I read it.

MR. GOLD: But my point was that it by putting -- they're not sending an integrated New York Times to Nexis, they're sending disaggregated articles which will be further disaggregated.

QUESTION: But that -- even if they --

QUESTION: The other side disputes that. Mr. Tribe says that's not it. We send exactly what we had, but be that as it may. Is it not your allegation in the complaint that whatever the New York Times sends is a contributor infringement?

MR. GOLD: Yes.

QUESTION: Okay, now if that is so, why should it make a difference whether the Times sends it in an arguably aggregated form or an arguably disaggregated form, isn't the real point from your -- from the standpoint of your case that the newspaper is participating in a process the end point of which is disaggregation and access to disaggregated materials.

MR. GOLD: Yes.

QUESTION: And if that's the case then why isn't it on your theory an infringement, no matter what the format in which the Times or any newspaper sends the material to Nexis?

MR. GOLD: My only point in making -- in stating that the form of the transmission, namely in article files, is that is part and parcel of what you've just stated, namely an overall process, to create a set of disaggregated article files.

QUESTION: Then I should think your answer to Justice Stevens' question would be the infringement on the part of the newspaper takes place at the moment of transmission.

MR. GOLD: I think that in those terms that's true and I thought I did answer it that way in the -- in the sense that it is the nature of the -- the nature of the disaggregation and assigning each article to an article file which is part and parcel of this overall --

QUESTION: I'm still not clear of your answer of Justice Stevens' question, when does the first infringement take place? It sounds as if you're saying the infringement takes place when the Times pushes the button to remove all the ads and the graphics or when the Times pushes the button to enable a searcher to pull up the article by author and that seems very strange to me. When is the first act of infringement? Forget about contribution to the tort, when is the first infringing act?

MR. GOLD: When you say forget about contributing to, I'm just not clear on what you're asking. The --

QUESTION: There's a tortfeasor and persons who contribute to the tort. When is the tort first committed? The tort of infringement.

MR. GOLD: This is, I guess, as I see it an act that is the first step in a continuing process of infringement. The Times --

QUESTION: When can I say, ah-ha, there's an infringement.

MR. GOLD: It seems to me that in practical terms the first act of infringement of any substance is the putting of the article files as separate article files on the Nexis database and making it available in this system to be accessed, printed out, downloaded and so --

QUESTION: I understand that, but why, since the newspaper knows that that is what is supposed to happen, that in fact is what it called for in its contract with Nexis, why doesn't the newspaper infringe at the moment when it takes the first step in that process, which I suppose would be the moment at which it presses the send button to send the material to Nexis?

MR. GOLD: I don't think I've ever before been faced with an embarrassment of riches where I'm being asked to say how many multiple --

QUESTION: I'm not going to ask that, I'm asking the opposite. That is, what is the process, and the reason I find it important is it seems to me possible from what your opponents have said that what happens at say the Post or the Times is there is the analog electronically of the front page. It doesn't have the pictures, it doesn't have the graphs. I don't care about that for the moment. Assume you lose on that one. I have the electronic analog which is close enough. And then what happens is somebody pushes the send button and at one instance of time that electronically is transmitted to Nexis where it's on a chip. Now all that happens after that, where we have the electronic analog on a chip, is some electronic signals are added by Nexis to parts of the chip so that any user of Nexis who wants to can call it up like any other thing, article by article. Now I want to know is, is that what happens?

MR. GOLD: My understanding of what happens is that the Post creates a set of article files, each of which are an electronic --

QUESTION: Creating an article file maybe that on a chip there's the electronic analog or on a disk and you add a few other signals.

MR. GOLD: Well --

QUESTION: Now the reason I'm asking this and the reason I think it's important is because it seems to me it might make an enormous difference if the only infringing act is when a user comes in and calls up a file, because at that point principles of fair use come into play, and I think principles of fair use might make an enormous difference to the end result and the reason to get my whole question out because I might not have another opportunity is I am disturbed very much by what I call, by way of parody, their Chinese Cultural Revolution argument. That is, we wipe out the history of the 20th Century and that's an overstatement but it's not such an overstatement when you think that most school children today will be looking for information on machines and if it isn't in the database library D.H. Lawrence, John P. Marguand or lesser figures will simply disappear because it's two expensive for them to locate each heir and to get the copyright permission to put the article on the machine. All right, I've got it all out now I'd like your response.

MR. GOLD: Do I get one sentence or two?

QUESTION: I'd like you to take as long as you'd like and I won't interrupt further.

MR. GOLD: First of all the -- it is enormously different, I would suggest, to breakdown and disaggregate a collective and into component parts when the component parts are the copyright property of someone else and to take the first and necessary step for those component parts to be exploited as individual freestanding works and with the purpose of -- providing that they will be exploited as freestanding works.

The -- every step from the first step taken by the newspapers and breaking this down into article files coding it, providing those article files to Nexis where they are further coded and inputted, not necessarily in sequence, is to create a system in which the article files can be exploited as individual files, as individual articles. This process is the print equivalent process of printing each article as an individual article which can be combined with any other of a billion articles in a knew compilation which has nothing to do with the original collective work or any revised collective work or published by itself, printed and published.

QUESTION: Mr. Gold, if you've had a chance to finish your answer, why is that different from sending a newspaper to a library with very detailed indexes, knowing that the library will allow people to come in and make individual copies of individual stories, individual contributions to it.

MR. GOLD: Well if the library --

QUESTION: Has a very elaborate index system and it's part of a huge library.

MR. GOLD: Yeah. Justice Stevens, all I can say is if the library is part and parcel of copying individual articles, that's a copyright infringement.

QUESTION: All it does is provide the information that enables the person to pick and choose what he wants.

MR. GOLD: Well, there are two different questions that it seems to me you're raising. If the library simply gives someone an index and a copy of the paper and says --

QUESTION: And has a xerox machine where the guy can go in and get the particular one he wants.

MR. GOLD: The question is whether the library is implicated in providing the duplicating system. The law could not be clearer on that. There are elaborate provisions in the Copyright Act with regard to library permitted or created copying for a price and don't forget this is all commercialized. Nexis is not a free service. It is a publishing service creating new copies of these works for --

QUESTION: So just to be sure I understand, the infringement occurs, I still want to know just when it first -- the infringement occurs when the individual makes a selection and then makes a copy of his particular choice.

MR. GOLD: You mean in the library example you are raising?

QUESTION: Is it not the same in the electronic situation? There's no infringement and some individual picks out a particular article that was both part of a revision and part of original copyright by the author and makes a copy of that without making a copy of the whole revision.

MR. GOLD: Two things if I can, the copying of the work onto the disk is one kind -- if we're correct, is one kind of copyright infringement.

QUESTION: I thought you said earlier that if the whole E-mail was copied in electronic form that would be a revision, not an infringement. Are you changing your view on the --

MR. GOLD: No, I'm sorry, I don't understand what you're asking. If the -- we're discussing your newspaper --

QUESTION: Correct.

MR. GOLD: -- library example. The only infringement is if the library is actively engaged in facilitating, allowing further --

QUESTION: Selling individual articles, yeah, right.

MR. GOLD: Duplications for a price. In this case, there are multiple infringements before that because --

QUESTION: What's the first one before that.

MR. GOLD: The first one is the preparation of the article files as separate article files for the purpose of creating an overall compilation of separate article files which are to be exploited as separate article files.

QUESTION: Is that analytically different from creating elaborate indices in a print library.

MR. GOLD: Yes, because it is part and parcel of a process for printing, if you will, for reproducing and distributing separate article files, separate articles as such. If the news -- to go back to --

QUESTION: Well, its equivalent in the print media, I guess, would be sending over a package of separate articles which in combination were the Washington Post of that day, but they're sent over as separate articles and each one indexed in such a way as to facilitate the obtaining of those articles without obtaining the rest of the Washington Post.

MR. GOLD: Right, for a price, for sale. That is precisely what I --

QUESTION: That's what my understanding of the record is, they sell it -- send it over as a bundle. They don't send it over in separate pieces.

QUESTION: That's what I wanted to know.

MR. GOLD: They send over a bundle of separate pieces.

QUESTION: Well, all right, but suppose it's the exact electronic analog of the morning paper. I mean, if it's the exact electronic analog of the morning paper that they send over, I know it's technical but this is a pretty technical case and then it seems to me that it is not just sending separate articles. If they send one at ten in the morning and another at four in the afternoon it might be quite different.

MR. GOLD: Justice Breyer, if to use Justice Scalia's example, you send to the print shop every separate article that appeared in the newspaper and said print each one up as a separate article to be purveyed to the public, given the structure of this act, that is different from saying here is a collective whole, because --

QUESTION: You have to establish that they are sent over as separate articles. What constitutes the sending over of them as separate articles? I thought it was the fact that when they're sent over they are coded and identified --

MR. GOLD: Right.

QUESTION: -- separately, not as simply one unidentifiable part of the Washington Post of May 2nd.

MR. GOLD: Correct.

QUESTION: Each one has a code on it which enables it to be treated as a separate article.

MR. GOLD: Right, and the only togetherness, if you will, is that it's our understanding, and it is my understanding of the record that after the paper is broken down and these article files are created and coded, they are transmitted or streamed as a set of distinguishable article files but they are not a unit, an electronic unit of the May 1st paper, they are a separate --

QUESTION: That would be quite useless for the purposes for which they want it. They don't want the Washington Post of May 2nd. They want the ability to get individual articles.

MR. GOLD: Correct. This is a purpose of commercial activity.

QUESTION: Mr. Gold, before you finish I would like you to respond to Mr. Tribe's point that on your theory the microfiche, it would be the same thing, equally infringing.

MR. GOLD: We don't believe that the microfiche is equally infringing?

QUESTION: Why not.

MR. GOLD: Because it is a reproduction of the whole paper in integral form. Now, if to the extent that the paper is shown rather than read, you have the whole paper, you can read what you want, but it's a one to one relationship between the number of copies that are made and the number that are --

QUESTION: Isn't that a problem that with computers we can -- you can simultaneously be a bundle and a whole bunch of separate things, depends on which button we decide to push whether you want the whole thing or just one.

MR. GOLD: Well, that's why the fact that it is -- that the system is one of articles which can be exploited as articles or in any combination of articles makes all the difference. It is not a set in any real terms of the work.

QUESTION: Thank you Mr. Gold.

Mr. Tribe you have two minutes remaining.

REBUTTAL ARGUMENT OF LAURENCE H. TRIBE

ON BEHALF OF THE PETITIONERS

MR. TRIBE: Thank you, Mr. Chief Justice. Let me first say very clearly it is not the case that these newspapers disaggregate something and break it down to facilitate copyright violation. It is disaggregated from the word go, that is, when they put together the computer text file that's going to go to the printer they do it article by article because as it happens, that's what goes into a newspaper. That exact text, and you'll see it unmistakably in the record, is exactly what is sent.

QUESTION: No additional code on it?

MR. TRIBE: Well, sometimes indexing codes, but not only for articles. You've got to be able to find this stuff. You can't just wander around inside a computer. And it is the readers guide to periodicals. That's what we've got here. Whether it is in written form or in index form, it's the same thing.

So point one, they don't deliberately disaggregate. Point two, if you look at 349 A of the joint appendix, that's one of many places, I just happened to find this one, where they say they're not claiming any contributory or vicarious liability with respect to infringements by end users.

Their whole theory was putting this stuff in the way that the 20th and 21st centuries has to do it is an infringement. It's really a quite Luddite theory. Their distinction with microfilm is that microfilm is a piece of something, you can see it. Well, what about the CD-ROM, then? You can't see it except with a machine. It just looks like it might be Joan Baez singing, but it turns out it's got volume upon volume of material.

There's nothing fancy that's done here to facilitate violation. What they're doing is making entire bunch of material available and I didn't hear an answer to Justice Breyer's question. If we read the law the way they propose to read it and I still don't know the exact moment they think is an infringement and how analytically it differs from Justice Stevens' library example, we're going to have a serious problem with our kids doing homework and with professors of history finding out what happened in the middle of the 20th century. It seems to me that before this Court takes a step like that it should pause.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Tribe.

The case is submitted.

(Whereupon, at 11:04 a.m., the case in the above-entitled matter was submitted.)